Faubus v. United States Petition for a Writ of Certiorari to the US Court of Appeals for the Eighth Circuit

    No. _

LJ juA

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IN THE

SUPREME COURT OF THE UNITED STATES
..._ _  TERM, 1958

ORVAL E. FAUBUS, Governor of the State of 
Arkansas, GENERAL SHERMAN T. CLINGER, 
Adjutant General of the State of Arkansas, and 
LT. COL. MARION E. JOHNSON, Unit Commander 
of the Arkansas National Guard ________Petitioners

UNITED STATES OF AMERICA (Amicus Curiae, 
Petitioner), and JOHN AARON, a minor, and 
THELMA AARON, a feme sole, et al (Plaintiffs), 
and WILLIAM G. COOPER, M.D., as President of 
Board of Trustees, Little Rock Independent 
School District, et al ______________ _______  Respondents

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

T homas H arper 
Fort Smith, Arkansas

K ay  L. M atth ew s  
Little Rock, Arkansas

W alter  L. P ope 
Little Rock, Arkansas 

Attorneys for Petitioners

PARAGON PRINTING CO., LITTLE ROCK



I N D E X

PAGE

Opinion Below     1

Jurisdiction -----       2

Questions Presented --------------------------------------- -—-------- —------------ 2

Statutes Involved ------------------------ —------ -------- ----- -------------------- - - 3

Statement  ____________________________ _________ _— -------—-   4

Reasons for Granting the Writ -......-......... . -  12

Conclusion _________________________    29

Appendix A

Opinion Below _________________     23a



INDEX—(Continued)

Cases Cited
PA G E

Aaron, et al v. Cooper, et al, 143 F. Supp. 855 ___  ..._4,6
Aaron, et al v. Cooper, et al, 243 F. 2d 361 ___________________  4
Berger, et al v. United States, 255 U.S. 22, 41 S. Ct. 230,

65 L ed 481 ________ ...____________________________ ___ 18,19,20
Birmingham Loan and Auction Co. v. First National Bank of

Anniston, 100 Ala. 249, 13 So. 945, 946 ____________________ 26
Bishop v. United States, 8 Cir., 16 F. 2d 410, 411 __________12,15,16
Bommarito v. United States, 8 Cir. 61 F. 2d 355 ______________12
Craven v. United States, 1 Cir., 22 F. 2d 605,

cert den 276 U.S. 627; 72 L ed 739 ______________________12,18
Ebel v. Drum, 55 F. Supp. 186 _________________________________24
Fierstein v. Piper Aircraft Corporation, D. C., 79 F. Supp. 217 ___ 24
General Gronze Corporation, et al v. Cupples Products

Corporation, et al, 9 F.R.D. 269 _______________________  ...23
Knapp v. Kinsey, et al, 6 Cir., 232 F. 2d 458, 466,

cert den 352 U.S. 892 ______________________  21
Korer v. Hoffman, 7 Cir., 212 F. 2d 217 _____ __________________ 19
Lewis v. United States, 8 Cir., 14 F. 2d 369 _________________  .19
Magee v. McNany, 10 F.R.D. 5 ___________     24
Morris v. United States, 8 Cir., 26 F. 2d 444 ______________________ 20
Murchison in re, 349 U.S. 133, 99 L ed 942 _____________    18
Nations v. United States, 8 Cir., 14 F. 2d 507, cert den 273

U.S. 735, 71 L ed 866 _____ ___ __ __________ _______ _________19
Scott v. Beams, 10 Cir., 122 F. 2d 777 ________________________ 12,19
Truncale v. Universal Pictures Company, 82 F. Supp. 576 ______24
Tucker v. Kerner, 7 Cir., 186 F. 2d 79, 23 A.L.R. 2d 1027 _________ 19
Universal Oil Products v. Root Refining Co., 328 U.S. 575 ___ __27

Statuies

District Courts, Title 28, U.S.C.A., Section 144 __________________3,12

Rules

Rule 12 A Federal Rules of Civil Procedure __________________ 4,14
Rule 15 (d), Federal Rules of Civil Procedure ______  ...2,3,8,9,23,24
Rule 21, Federal Rules of Civil Procedure _____________________4,8,24

Text Books

American Jurisprudence, Volume 2, page 679 ____________________ 26
C.J.S., Volume 43, Injunctions, Section 35 ______________________ 22



IN THE

SUPREME COURT OF THE UNITED STATES
__________ TERM, 1958

ORVAL E. FAUBUS, Governor of the State of 
Arkansas, GENERAL SHERMAN T. CLINGER, 
Adjutant General of the State of Arkansas, and 
LT. COL. MARION E. JOHNSON, Unit Commander 
of the Arkansas National Guard __________ Petitioners

UNITED STATES OF AMERICA (Amicus Curiae, 
Petitioner), and JOHN AARON, a minor, and 
THELMA AARON, a feme sole, et al (Plaintiffs), 
and WILLIAM G. COOPER, M.D., as President of 
Board of Trustees, Little Rock Independent 
School District, et a l ________ _— ---- ---------Respondents

PETITION FOR A  'WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

Petitioners, Orval E. Faubus, Governor of the State 
of Arkansas, General Sherman T. Clinger, Adjutant Gen­
eral of the State of Arkansas, and Lt. Col Marion E. 
Johnson, Unit Commander of the Arkansas National 
Guard, pray that a Writ of Certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Eighth Circuit entered in the above case on April 
28, 1958.

CITATIONS OF OPINION BELOW

The Opinion of the Court of Appeals for the Eighth 
Circuit in the above case, is reported 254 Fed. (2), page 
797.



2

JURISDICTION

The Judgment of the Circuit Court of Appeals for 
the Eighth Circuit was entered on April 28, 1958. The 
jurisdiction of this Court is invoked under 28 U.S.C.A. 
Section 1254 (1).

QUESTIONS PRESENTED

1. Was the Affidavit of Prejudice filed less than 
ten days after the filing of the Petition for Preliminary 
Injunction, and less than ten days after notice of hearing 
on the petition a “ timely”  affidavit required by Section 
144 of Title 28 U.S.C.?

2. Was the Affidavit of Prejudice sufficient to show 
personal bias or prejudice as required by Section 144, Title 
28, U.S.C.t

3. Did the United States District Court for the 
Eastern District of Arkansas have jurisdiction to order 
the Attorney General and the United States Attorney to 
file a petition for injunction against the petitioners herein?

4. Did the United States District Court have juris­
diction, pursuant to Rule 15 (d) and Rule 21 of the 
Federal Rules of Civil Procedure to make Governor Fau- 
bus and the two Arkansas National Guard officers ad­
ditional parties defendant in the case of John Aaron, et al, 
plaintiffs and William G. Cooper, et al, defendants?

5. Did the petition of the United States filed as 
amicus curiae state a cause of action against Governor 
Faubus and the two Arkansas National Guard officers 
and did the United States, as amicus curiae have au­
thority to seek injunctive relief?

6. Did the United States District Court for the 
Eastern District of Arkansas have jurisdiction to proceed



3

to trial on the Supplemental Complaint of the original 
plaintiffs in the case of John Aaron, et al v. William G. 
Cooper, et al, in which Governor Faubus and the two 
Arkansas National Guard officers were named as addi­
tional defendants on the day on which said Supplemental 
Complaint was filed and without notice to the additional 
defendants?

STATUTES, RULES, ETC.

Title 28, U.S.C.A. Section 144:

“  Whenever a party to any proceeding in a 
district court makes and files a timely and sufficient 
affidavit that the judge before whom the matter 
is pending has a personal bias or prejudice either 
against him or in favor of any adverse party, such 
judge shall proceed no further therein, but another 
judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the rea­
sons for the belief that bias or prejudice exists, and 
shall be filed not less than ten days before the be­
ginning of the term at which the proceeding* is to 
be heard, or good cause shall be shown for failure 
to file it within such time. A party may file only 
one such affidavit in any case. It shall be accom­
panied by a certificate of counsel of record stating 
that it is made in good faith. ’ ’

Rule 15 (d), F.R.C.P.:

“ Supplemental Pleadings. Upon motion of a 
party the court may, upon reasonable notice and 
upon such terms as are just, permit him to serve a 
supplemental pleading setting forth transactions or 
occurrences or events which have happened since 
the date of the pleading sought to be supplemented. 
I f  the court deems it advisable that the adverse 
party plead thereto, it shall so order, specifying 
the time therefor.”



4

Rule 21, F.R.C.P.:

“ Misjoinder and Non-Joinder of Parties. Mis­
joinder of parties is not ground for dismissal of 
an action. Parties may be dropped or added by

order of the court on motion of any party or 
of its own initiative at any stage of tbe action and 
on sucb terms as are just. Any claim against a 
party may be severed and proceeded with separ­
ately.”

Rule 12 (a), F.R.C.P.:

“ Defenses and Objections— When and How 
Presented. When Presented. A defendant shall 
serve his answer within 20 days after the service 
o f the summons and complaint upon him, unless 
the court directs otherwise when service of process 
is made pursuant to Rule 4 (e). . . . ”

STATEMENT

Prior to the opening of the 1956-1957 term of the 
Little Rock Public Schools (February 8, 1956) John Aaron 
and others, Negroes of school age, filed a class suit in 
the United States District Court against the members of 
the school board seeking complete and immediate integra­
tion of the races in the Little Rock Public Schools. The 
school board answered the complaint and submitted its 
plan and program for the integration o f  the races. See 
Aaron, et at v. Cooper, et al, 143 Fed. Sup. 855, affirmed 
243 Fed. 2d, 361. The program of the school board was 
designed to start integration at the Little Rock Central 
High School at the opening of the school on September 
3, 1957. The alleged interference with the enforcement 
of the decree of the District Court in said Aaron v. Cooper 
case was the basis of federal jurisdiction in the United 
States Distict Court.

It was alleged in the petition of the United States 
that on September 2, 1957, Governor Faubus called out



5

the Arkansas State National Guard under an order to 
prevent Negro students from entering any school in the 
city theretofore attended only by white students and to 
prevent white school children from entering any school 
theretofore attended only by Negro school children (R.7). 
Units of the Guard were stationed in front of the Little 
Rock Central High School and nine Negro school children 
were kept away from the entrance to the school. On 
September 3, 1957, the school board issued a public notice 
requesting Negro students not to attend the school and 
the board petitioned the United States District Court for 
a temporary stay of integration (R .l). On the same day 
the District Court ordered the school board to appear 
before it at 7 :30 p.m. and show cause why the Court 
should not order immediate enforcement of the plan of 
integration approved by the Court on August 27, 1956 
(R .l). At the hour and day fixed in the Court’s order 
a hearing was held and thereafter on the same day the 
Court entered an order directing the school board to 
integrate the Little Rock Central High School “ forthwith”  
(R.3). On the following day, September 4, 1957, United 
States District Judge Ronald N. Davies issued a letter- 
order to United States Attorney Osro Cobb requesting 
him “ to begin at once a full, thorough and complete in­
vestigation to determine the responsibility for interfer­
ence with said order”  and “ to report your findings to 
me with the least practicable delay”  (R.3.-4).

The United States Attorney, as ordered, began an 
investigation and made a report to Judge Davies. Upon 
receipt of this report Judge Davies made another order 
in which he stated that it appeared that Negro students 
are not being permitted to attend Little Rock Central 
High School in accordance with the plan of integration of 
the Little Rock school directors as approved by the Court. 
The Court then made an order directing the Attorney



6

General of the United States and the United States At­
torney for the Eastern District of Arkansas to appear in 
the case of Aaron, et al v. Cooper, et al as amici curiae 
and “ to file immediately a petition against Orval E. 
Faubus, Governor of Arkansas, Major General Sherman 
T. Clinger, Adjutant General, Arkansas National Guard, 
and Lt. Colonel Marion E. Johnson, Unit Commander, 
Arkansas National Guard, seeking such injunctive and 
other relief as may be appropriate to prevent the exist­
ing interferences with the obstructions to the carrying 
out of the orders heretofore entered by this court in this 
case” . This order was made September 9, 1957 (R.5-6).

On September 10, 1957, a petition was filed in the 
United States District Court by the United States of 
America designated as amicus curiae against Orval E. 
Faubus, Governor of the State of Arkansas, and the two 
National Guard officers above named. The petition re­
ferred to the court order of August 28, 1956, approving 
the school board’s plan of integration, which provided 
that jurisdiction was retained for the purpose of entering 
such further orders as might be necessary to effect the 
plan of integration.

Said petition alleged that Governor Faubus and the 
State National Guard officers had stationed troops at 
the Central High School under orders “ to place off limits 
to white students those schools for colored students and 
to place o ff limits to colored students those schools here­
tofore operated and recently set up for white students. 
This order will remain in effect until the demobilization of 
the Guard or until further orders” ; that said troops, 
pursuant to orders, had been and still were preventing and 
restraining eligible Negro students named in the petition 
from attending the school.



Said petition of the United States further alleged 
that on September 3, 1957, the Little Rock School Board 
was ordered to integrate forthwith and that on September 
7, 1957, the Court denied an application by the school 
board for a stay of the order made September 3.

Said petition further alleged that the acts of Governor 
Faubus and the Guard officers in preventing the Negro 
students from attending the school obstructed the effectua­
tion of the Court’s orders of August 28, 1956, and Septem­
ber 3, 1957, contrary to due and proper administration of 
justice, and that it was necessary that Governor Faubus 
and the officers “ be made additional parties defendant 
and enjoined from obstructing and interfering with the 
carrying out of said orders of the Court” .

The petitioner prayed that the Governor and said 
officers be made parties defendant and that a preliminary 
injunction and a permanent injunction issue enjoining 
and restraining them, their agents, servants, employees, 
attorneys and all persons in active concert or participa­
tion with them, from obstructing or interfering in any 
way with the carrying out of the said orders of the Court 
(R.6-9).

Said petition of the United States was filed on Sep­
tember 10, 1957. On the same day, without notice to the 
respondents (petitioners here), the Court entered an order 
making them parties defendant and setting a hearing on 
the prayer for a preliminary injunction at 10:30 a.m., 
September 20, 1957. In this order the Court set forth 
that it appeared, “ from the petition of the United States 
as amicus curiae”  filed in conformity with the Court’s 
order of September 9, 1957, that in the interest of the 
proper administration of justice, Governor Faubus, Gen­
eral Clinger and Colonel Johnson should be made addi­
tional parties defendant to prevent the continued obstrue-



8

tion of, and interference with the carrying out and ef­
fectuation of the orders of the Court made on August 
28, 1956, and September 3, 1957. The Court stated that 
the order was made pursuant to Rules 15 (d) and 21 
F.R.C.P. (R.9-10).

In Judge Davies’ letter of September 4, 1957, to 
United States District Attorney Cobb he stated, “ I am 
advised this morning that this Court’s order directing 
the integration of the Little Rock schools . . . has not 
been complied with due to alleged interference with the 
Court’s order”  (R.3-4). He did not give the source 
of this advice. Three days later in denying the petition 
of the school board for a stay of integration alleged to 
be due to existing tension at the Central High School 
Judge Davies stated: “ The Chief Executive of Little
Rock has stated that the Little Rock Police have not 
had a single case of inter-racial violence reported to 
them and there has been no indication from sources avail­
able to him that there would be any violence in regard 
to this situation”  (R.13). The source of this informa­
tion was not revealed. The Mayor of Little Rock had 
not been a witness in any of the proceedings.

On September 19 Governor Faubus filed an Affidavit 
of Prejudice setting forth in detail the reasons why the 
affidavit could not have been sooner filed and the causes 
that disqualified Judge Davis from presiding at the trial 
of the issues of law and fact in the case (R.11-15).

On September 20, the day set in the Court’s order 
of September 10 for a hearing on the petition for pre­
liminary injunction, Governor Faubus and the officers 
of the State National Guard filed a motion to dismiss 
the petition of the United States against them, setting 
forth these six separate grounds for such dismissal:



9

1. The Court was without authority to make the 
order herein dated September 10, 1957.

2. The petition was illegally and improperly filed 
herein because it related to matters of a different nature 
from the subject invloved in the original action.

3. The petition was prematurely filed under Rule 
15 (d) of the Rules of Civil Procedure for the United 
States District Courts.

4. The petitioner, the United States of America, is 
wholly without authority to file and maintain this action 
against the respondents, and the Court is wholly without 
jurisdiction to entertain said petition or to grant any 
relief thereon.

5. The petitioner, seeking a preliminary injunction 
and a permanent injunction, is not the real party in 
interest in this litigation and, for this reason, is without 
authority to maintain the action set forth in the petition.

6. This Court is wholly without jurisdiction of the 
persons of respondents and the subject matter of the 
petition, because

(a) The petition is in truth and in fact an attempted 
action against the Sovereign State of Arkansas. The 
State of Arkansas is actually the real respondent and 
party in interest and this Court has no jurisdiction of 
an action against the State of Arkansas:

(b) This Court is wholly without jurisdiction to ques­
tion the judgment and discretion of the respondent, Orval 
E. Faubus, as Governor of Arkansas, and other respondents 
subordinate to him, in performing their duties made 
mandatory upon them by the Constitution and laws of 
the State of Arkansas (R.17-18).

Respondents also filed a motion to dismiss for failure 
to convene a Three Judge Court (T.19).



10

The United States as amicus curiae then filed a motion 
to strike the Affidavit of Prejudice (R.15-17).

The original plaintiffs, John Aaron, et al, had on the 
11th day of September, 1957, filed a motion for leave 
to file a supplemental complaint and add additional par­
ties. No notice of the filing of this motion was given 
to these petitioners (respondents below) and no response 
was made thereto by them or any one for them (R.10-11).

All of these motions were on September 20 imme­
diately set for hearing, and counsel were directed to pre­
sent the motions. As the motions were presented and 
arguments heard, the Court without delay made rulings 
thereon. The motion of the United States as amicus 
curiae to strike the Affidavit of Prejudice was sustained 
(R.16-17). The motion of the original plaintiffs for leave 
to file a supplemental complaint (R.21-23) was granted 
(R.20-21). The original plaintiffs thereupon filed a sup­
plemental complaint. Of this action petitioners had no 
prior notice and announced that they could not go to trial 
on the supplemental complaint (R.21-23 and 36). The 
motion of Governor Paubus and the officers of the Guard 
to dismiss the petition of the United States was denied 
(R.18-19). The motion of Governor Faubus and the Guard 
officers to dismiss the petition of the United States for 
failure to convene a Three Judge Court was denied (R. 
19-20).

Thereupon counsel for the respondents announced that 
they elected to stand on their motions, and they asked 
and obtained leave of the Court to participate no further 
in the proceeding and to retire from the courtroom (R. 
60-61). Thereupon the Court proceeded to trial on the 
petitions of the United States and of the plaintiffs for 
preliminary injunction (R.60 and 63). The Court granted 
the petitions and thereupon issued a preliminary injunc-



11

tion (R.62-64) and made findings of fact and conclusions 
of law dated September 20, 1957 (R.65-74).

The findings of fact and conclusions of law were 
written under the style, “  John Aaron, et al, Plaintiffs v. 
William G. Cooper, et al Defendants, Civil Action No. 
3113” , and the opening paragraph reads: “ This cause
having been heard upon the separate applications of 
plaintiffs and of the United States as amicus curiae, for 
a preliminary injunction against defendants Orval E. 
Faubus, Governor of the State of Arkansas, Major Gen­
eral Sherman T. Clinger, Adjutant General of the State 
of Arkansas, and Lt. Col. Marion E. Johnson, Unit Com­
mander of the Arkansas National Guard, the Court makes 
the following findings of fact and conclusions of law”  (R. 
65) (emphasis supplied).

The first 19 numbered paragraphs of the Court’s 
findings of fact set forth chronologically the events and 
the actions of the Court heretofore outlined in this state­
ment and included almost verbatim the allegations of the 
petition of the United States. Paragraph 20 recited that 
an “ injunction is necessary in order to protect and pre­
serve the judicial process of the Court, to maintain the 
due and proper administration of justice, and to protect 
the constitutional rights of the minor plaintiffs and other 
eligible Negro students on whose behalf this suit is 
brought”  (R.72).

The preliminary injunction, under the same style as 
the Finding of Facts and Conclusions of Law contains 
this opening statement: “ This cause having been heard
upon separate applications of the United States, as 
amicus curiae, and of the plaintiffs for a preliminary in­
junction, and it appearing that . . . ”  (R.63).

The Honorable Circuit Court of Appeals for the 
Eighth Circuit affirmed the actions of the United States



12

District Court from which this cause was appealed, and, 
in brief, held (1) that the Affidavit of Prejudice was 
not timely filed, further stating that it was “ unnecessary 
to consider whether the Affidavit would have been suf­
ficient to disqualify Judge Davies had it been filed in 
time” ; (2) that the District Court had jurisdiction to 
issue the Preliminary Injunction, without expressly pass­
ing on the specific objections raised by these petitioners 
to the procedure of the Trial Court.

It is our position that the Circuit Court of Appeals so 
far sanctioned a departure "from the accepted and usual 
course of judicial proceedings" as to call for an exercise of 
this Court's power of supervision, and this position we shall 
endeavor to sustain in amplifying the six reasons relied cn 
for the issuance of the Writ.

REASONS RELIED ON 

I

This District Court held that the affidavit was not 
legally sufficient and was not timely filed under Sec. 144, 
Title 28 U.S.C.A. The affidavit was timely filed for Sec­
tion 144 requires that the affidavit be “ . . . timely and 
. . . filed not less than ten days before the beginning of 
the term at which the proceeding is to be heard, or good 
cause shall he shown for failure to file it within such 
time”  (italics supplied).

The affidavit must be filed with reasonable prompt­
ness after knowledge of disqualifying facts are known by 
the affiant. Bommarito v. United States, 8 Cir., 61 F. 2d 
355; Scott v. Beams, 10 Cir., 122 F. 2d 777. The purpose 
of this requirement is to protect the government from 
useless and costly delays and to prevent the disarrange­
ment of the court’s trial calendar. Bishop v. United States, 
8 Cir., 16 F. 2d 410; Craven v. United States, 1 Cir., 22 F. 
2d 605, cert den 276 U.S. 627.



13

The affidavit of prejudice was filed by the appellants 
on September 19, 1957, the day before the matter was 
set for hearing upon the petition of the United States 
for a preliminary injunction. The United States, as peti­
tioner, in argument below, made much of the fact that 
there had been a delay of nine days from the time the 
appellants were served with notice that they had been made 
parties defendant until they filed the affidavit with the 
Court. The pertinent provision of the affidavit is as 
follows (R .ll-1 2 ):

“ Affiant states that he did not file this affi­
davit ten days before the beginning of the present 
term of court for the reason that he had not at 
that time been made respondent in this case, and 
that he was not, in fact, made repondent herein 
until September 10, 1957. On that date the United 
States of America, by Herbert Brownell, Jr., At­
torney General of the United States, pursuant to 
an order herein of Judge Davies directing him so 
to do, filed herein a petition praying that affiant 
and others be made respondents and for an injunc­
tion against them. This affidavit is made and filed 
as soon as possible after affiant and others were 
made respondents to this litigation, and as soon 
as the facts of the bias and prejudice of Judge 
Davies became known to him and it is not made for 
purposes of delay or for any other purposes than 
that stated herein, and further the same is filed 
as soon, according to affiant’s information and 
belief, as the same could be considered by the Judge 
of this Court. The affidavit is accompanied by a 
certificate of counsel of record that said affidavit 
and application are made in good faith.”

Quite obviously, it was impossible for petitioners to 
file the affidavit of prejudice within ten days before the 
beginning of the term of court as provided by the statute. 
They had not been made parties in the case at that time 
and, of course, had no way of knowing that they would



14

be parties defendant. They were made parties defendant 
on September 10, 1957 (and were notified thereof on that 
day). Between this date and the date set for hearing, 
summons had to be served upon them, they had to retain 
attorneys for proper presentation of their case, proceed­
ings and orders of the Court had to be studied by the 
Attorneys, and time was necessary to investigate the facts 
and prepare the affidavit and brief in support thereof.

Under the order making petitioners parties, a sum­
mons were issued directing them to answer the complaint 
within twenty days as provided in Rule 12A of the Rules 
of Civil Procedure. True, the Court had set the hearing 
for prelimniary injunction on September 20 (R.9), but 
they had twenty days, or until October 1, in which to 
prepare and file their answer to the petition.

As pointed out to the Court at the hearing on the 
petition for preliminary injunction, counsel for the re­
spondents were not engaged as such until Monday, Sep­
tember 16, 1957, before the hearing which had previously 
been by the Court set for Friday, September 20, 1957 
(R.33). Counsel did not then ask for a continuance, to 
which surely they would have been entitled since the 
time for answering had not expired, but with all possible 
dispatch prepared the necessary affidavit and brief in 
support thereof, filing the same with the Clerk of the 
Court on Thursday, September 19, 1957. It cannot be 
seriously argued that counsel for appellants were not dili­
gent in preparing and presenting the affidavit on the 
ninth day after the Court’s order was entered and on 
the fourth day after they became associated with the case, 
and eleven days before their time for answering the peti­
tion would expire. Certainly it cannot seriously be argued 
that this affidavit was not “ . . . made and filed as soon 
as possible after affiant and others were made respondents 
to this litigation . . . ”  (R.12).



15

Petitioners also stated in the affidavit that “ . . . and 
further the same is filed as soon, according to affiant’s 
information and belief, as the same could be considered 
by the judge of this Court . . (R.12). It was well
known that at that time the trial judge, the Honorable 
Ronald N. Davies, was not in the City of Little Rock, and 
had not been for several days prior thereto having spent 
several days visiting at his home in Fargo, North Dakota, 
Indeed, in the argument upon the affidavit and the mo­
tion to strike, counsel for appellants pointed out to the 
Court that the matter was being presented to the Court 
at the earliest practicable moment it could be done con­
sonant with the duties and busy routine of the Court 
(R.34). Also, it may be interesting to note that one 
of the attorneys for the original plaintiffs stated at the 
hearing held on Friday, September 20, 1957, that he had 
filed a motion for leave to file a supplemental complaint 
(the record reflects that the said motion was filed Sep­
tember 11, 1957) (R.78). . . Because of the fact that
his Honor has been out of town, we have not been able 
to present this motion before today . . . ”  (R.35). Even if 
the affidavit had been filed on September 11, 1957, the 
Court could not have considered it before the date it was 
considered—that is, September 20, 1957.

In Bishop v. United States, 8 Cir., 16 F. 2d 410, 411, 
the Court stated:

“  It is the intent of the statute that the affidavit 
must be filed in time to protect the government 
from useless costs, and protect the court in the 
dissarrangement of its calendar, and prevent use­
less delay of trials. . . . ”

Since, as shown, the Court could not have considered 
the affidavit prior to the time it was presented on Sep­
tember 20, there is absolutely no ground upon which to 
argue that either the Government or the other appellees



16

herein would have incurred useless costs, disarrangement 
of the Court’s calendar, or useless delay of trial.

It should be noted that neither the Court nor the 
United States contended that they were taken by surprise 
at the filing of the affidavit. At the hearing on the 
day following the filing of the affidavit, the United States 
filed a motion to strike it, outlining in detail the reasons 
why it was alleged that the affidavit should be stricken 
and also filed a brief in support of the motion (R.15-16).

The cases which have upheld the trial courts in strik­
ing affidavits of prejudice on the grounds that they were 
not timely filed have been based on the finding that 
the affidavit was being used merely as an instrument 
of delay. In this case, the appellants filed the affidavit, 
not for the purpose of delay, but because meritorious rea­
sons existed for disqualification. It should be noted that 
the appellants have never moved for continuance. I f  the 
appellants had been seeking a delay, certainly they would 
have been justified in asking for the delay on the grounds 
that they had not had an opportunity to prepare for the 
hearing, since they had only nine days to prepare for the 
preliminary hearing under the Court’s order, and eleven 
additional days in which to file their answer to the 
petition.

As stated in Bishop v. United States, 8 Cir., 16 F. 2d 
410 . . a defendant should not be compelled to try his
case before a judge who has expressed prejudice against 
him . . nor should a technicality be permitted, on 
the facts reflected in this case, to support a ruling that 
the affidavit of bias or prejudice was not timely filed. 
In Bishop v. United States, 8 Cir., 16 F. 2d 410, and other 
cases cited, the record reflected that the disqualifying 
facts were known long prior to the trial date and the in­
tent of afifants was clearly to obtain a continuance of



17

the trial. None of the parties to this litigation have 
argued, nor has the Court found, that any hardship would 
have been inflicted upon any party if the judge had dis­
qualified himself. It can only be assumed that the Court, 
in holding that the affidavit was not timely filed, was 
seeking to find a technicality whereby it could strike the 
affidavit. This is in effect the Court saying—“ even 
though I am prejudiced, I will hear the case because of 
this technicality” .

II

The affidavit of prejudice filed by Governor Faubus, 
in the District Court is copied in full in the record (R .ll) . 
It sets forth in specific detail the times and places, where 
known to appellant, the occurrence of the facts and rea­
sons giving appellant the belief that the trial judge had 
a personal bias against appellant. Briefly, these are that:

1. On at least four occasions made known to the 
appellant, the trial judge conferred privately with mem­
bers of counsel for petitioner, the United States (R.12),

2. On September 7, the United States District At­
torney was reported to be making interim reports daily 
to Judge Davies which reports had not been made public 
and which purportedly contained statements, informa­
tion and opinions concerning the merits of this litigation 
prior to the time the United States became a party to 
the litigation (R.12).

3. On a date unknown to the appellant, the Federal 
Bureau of Investigation presented a report to the Court 
which appellant believed contained purported facts and 
conclusions indicating that appellant had acted without 
just cause and in bad faith and that on the basis of said 
report, the appellant in good faith believed the judge had 
formed a personal bias against him and prejudged the



18

merits of any defense he might have in the litigation (R. 
13).

4. As an indication of the personal bias of the judge 
against appellants, in ruling on matters before the Court, 
he relied on and incorporated in his rulings extra judicial 
statements of the Chief Executive of Little Rock, who had 
not at that time appeared as a witness, was not under 
oath and no opportunity given the defendant to deter­
mine the truth or falsity of the matters stated (R.13).

5. The trial judge ordered the Attorney General on 
behalf of the United States to enter the case and petition 
for injunctive relief against the appellants based upon 
information and facts given him by persons not parties 
to the litigation and therefore departed from the role of 
impartial arbiter of judicial questions presented to him in 
a civil case and assumed the role of advocate favoring 
parties adverse to the appellants (R.14).

One of the fundamental rights of a litigant under 
our judicial system is that he is entitled to a fair trial in 
a fair tribunal, and that fairness requires the total ab­
sence of any actual bias or prejudice in the trial of the 
case. In re Murchison, 349 U.S. 133, 136, 99 L ed 942. 
When a personal, as distinguished from a judicial, bias or 
prejudice exists in the mind of a trial judge, the principle 
of fairness and impartiality is violated and any judgment 
rendered must be reversed. Berger v. United States, 255 
U.S. 22, 65 L ed 481; Craven v. United States, 1 Cir., 22 
F. 2d 605, cert den 276 U.S. 627, 72 L ed 739. In passing 
upon this point in the Berger case it was said (p. 35):

“ We are of opinion, therefore, that an affi­
davit upon information and belief satisfied the sec­
tion, and that, upon its filing, if it show the ob­
jectionable inclination or disposition of the judge, 
which we have said is an essential condition, it is 
his duty to ‘ proceed no further’ in the case, And in



19

this there is no serious detriment to the adminis­
tration of justice, nor inconvenience worthy of men­
tion; for of what concern is it to a judge to pre­
side in a particular case? of what concern to other 
parties to have him so preside? and any serious 
delay of trial is avoided by the requirement that 
the affidavit must be filed not less than ten days 
before the commencement of the term. . . . ”

Thus, the Berger case has settled the question as to 
the duties the judge before whom such an affidavit is 
filed may exercise in determining the sufficiency thereof. 
The truth of the matters stated in the affidavit must at the 
outset be admitted as the judge is denied the discretion 
of determining the truth or falsity of it. The office 
of the judge is to determine merely whether the reasons 
and facts stated in the affidavit are such that, assuming 
them to be true, they comply with the statute.

Upon the filing of the required statutory affidavit 
incorporating facts and reasons sufficient to form the be­
lief that bias or prejudice exists in the mind of the trial 
judge, it is the duty of the judge to immediately dis­
qualify himself from further participation in the case and 
proceed no further. Lewis v. United States, 8 Cir., 14 
F. 2d 369; Nations v. United States, 8 Cir., 14 F. 2d 507, 
cert den 273 U.S. 735, 71 L ed 866. Moreover, it is suf­
ficient that the allegations contained in the affidavit be 
predicated upon information and belief. Berger v. United 
States, 255 U.S. 22, 65 L ed 481; Tucker v. Kerner, 7 Cir., 
186 F. 2d 79, 23 A.L.R. 2d 1027. It is well settled also 
that a judge whom it is sought to disqualify is presented 
solely with a question of law and must treat the matters 
alleged in the affidavit of prejudice as true. Berger v. 
United States, 255 U.S. 22, 65 L ed 481; Korer v. Hoff­
man, 7 Cir., 212 F. 2d 217; Scott v. Beams, 10 Cir., 122 
F. 2d 777; and it was not within the province of the trial 
judge to pass upon the good faith of the affiant, the af-



20

fidavit being sufficient in form and accompanied by the 
required certificate of counsel as to good faith. Morris 
v. United States, 8 Cir., 26 F. 2d 444.

The Court has considered the predecessor of the fore­
going statute which was then substantially its present 
form. In Berger, et al v. United States, 255 U.S. 22, 41 
S. Ct. 230, 65 L ed 481, petitioners had filed with the 
district court an affidavit pursuant to the above statute 
requesting removal of the presiding judge and the assign­
ment of another to conduct the trial. Reasons given in 
their affidavit were that Judge Landis had made certain 
derogatory statements concerning the nativity of the de­
fendant petitioners. The question presented was whether 
the filing of the affidavit automatically compelled re­
tirement of the judge from the case or whether he could 
properly exercise a judgment upon the facts set forth 
in the affidavit requesting his removal.

The holding in the Berger case makes it clear that 
the belief of a party lodging such an affidavit is of primary 
concern in determining the issue. It is pointed out that 
unless he receives information from others he would nor­
mally never know whether a bias or prejudice unfavorable 
to him exists in the mind of a trial judge hearing his case.

The United States, as petitioner, argued in the Court 
below that bias and prejudice of the trial judge was not 
shown merely by his having conferred about the case with 
the United States’ Attorney or other representatives of 
the Department of Justice without the presence of ap­
pellants or their counsel. This argument ignores the 
true purpose and intent for which the statute was en­
acted. Governor Faubus pointed out and alleged in the 
affidavit as clearly as was possible the facts complained 
of, giving specific dates on which they were reported 
publicly. In Berger v. Untied States, at page 35 it is 
stated:



21

“ We may concede that Sec. 21 is not fulfilled 
by the assertion of ‘ rumors or gossip’, but such 
disparagement cannot be applied to the affidavit 
in this case. Its statement has definite time and 
place and character, and the value of averments on 
information and belief in the procedure of the law 
is recognized. To refuse their application to Sec. 
21 would be arbitrary and make its remedy unavail­
able in many, if not in most, cases. . . . ”

In criminal cases, it might logically be argued that 
in proper circumstances the trial judge might be justified 
in conferring with counsel for the Justice Department in 
serving the ends of justice. However, this is a civil case 
and the role of the trial judge as impartial arbiter is 
more restricted. As stated by the Court in Knapp v. Kin­
sey, et al, 6 Cir., 232 F. 2d 458, 466, cert den 352 U.S. 892:

“ The judge should exercise self-restraint and 
preserve an atmosphere of impartiality. When 
the remarks of the judge during the course of a 
trial, or his manner of handling the trial, clearly 
indicate a hostility to one of the parties, or an un­
warranted prejudgment of the merits of the case, 
or an alignment on the part of the Court with one 
of the parties for the purpose of furthering or 
supporting the contentions of such party, the judge 
indicates, whether consciously or not, a personal 
bias and prejudice which renders invalid any re­
sulting judgment in favor of the party so favored.”

In the Berger case it is said:

“ . . . the tribunals of the country shall not 
only be impartial in the controversies submitted to 
them, but shall give assurance that they are im­
partial,;—free, to use the words of the section, from 
any ‘ bias or prejudice’ that might disturb the normal 
course of impartial judgment. . . . ”

The affidavit alleged that the trial judge, at a time 
unknown to the appellants, conferred privately with the



22

favored litigants, the plaintifs and the United States, as 
petitioner, and that on a date unknown to the appellants, 
received a purported report from the Federal Bureau of 
Investigation made available to the United States’ At­
torney, but not to appellants; and that the report con­
tained purported facts and conclusions of a nature to 
create an ill and unfriendly feeling in the mind of the 
judge against petitioners.

This report, as previously pointed out, was presented 
to and received by the trial judge at a time prior to the 
United States becoming a party to the litigation. It was 
made by persons who were not witnesses and who were 
never at anytime available for cross examination by the 
appellants, as to the truth or falsity of any matters or 
conclusions included therein. Certainly it cannot be said 
that this conduct on the part of the trial judge in con­
junction with parties adverse to the appellants is not suf­
ficient to raise a strong belief in the minds of reasonable 
men that a personal bias existed in the mind of the 
trial judge hearing the cause.

Ill

The petition of the United States should have been 
dismissed on the ground that the United States was not 
the real party in interest. The action was one for the 
protection of purely private rights. It is true that these 
rights arise under the Constitution of the United States, 
but the United States had no real interest in the action. 
Volume 43 C.J.S., Injunctions, Section 35:

“ In order to be entitled to an injunction com­
plainant must be the real party in interest.”

The United States cannot justify its intervention in 
this action on the ground that its assistance was needed 
to uphold the authority of the Court. If the appellants



23

had violated any orders of the Court there was a plain 
and adequate remedy by way of contempt. Presumably, 
the United States was of the opinion that the appellants 
had violated orders of the Court. Therefore, it sought 
and obtained a direct order against the respondents. We 
submit that the United States, not being a real party 
at interest, was not entitled to seek the relief prayed in 
the petition, which was for the sole benefit of the parties 
plaintiff in the Aaron v. Cooper case.

IV

In the Court’s order dated September 9, 1957, the 
Court directed that pursuant to Pule 15 (d) and Rule 
21, F.R.C.P., the respondents be made parties defendant 
in this cause. The petition recited in the first paragraph 
that it was being filed pursuant to and in conformity with 
the purpose and intent of the court’s said Order (R.6-9).

Petition was not filed in compliance with or in con­
formity to the provisions of Rule 15 (d).

The provisions of this rule were not complied with. 
No party to this suit appeared before the Court and no 
notice was given as required by the rule.

Subdivision (d) of Rule 15 is headed “ Supplemental 
Pleadings’ ’ . The Courts have frequently had occasion to 
determine what pleadings are qualified to be filed there­
under. District Judge Hulen, in the case of General 
Gronze Corporation, et al v. Guppies Products Corpora­
tion, et al, 9 F.R.D. 269, pointed out that the plaintiffs 
sought permission to file a supplemental complaint under 
Rule 15 (d) by which infringement of a patent, granted 
subsequent to filing the original complaint, was charged, 
and that the defendants resisted the move claiming the 
supplemental complaint would introduce a new and inde­
pendent cause of action. Since it was apparent that the



24

so-called supplemental complaint would introduce a new 
and independent cause of action, he devoted the remainder 
of the opinion to a discussion of the applicability of the 
rule.

It is too plain for argument that Rule 15 (d) is de­
signed only to permit a party to seek permission to file 
a supplemental pleading. District Judge Hulen cited in 
further support of his ruling the case of Fierstein v. Piper 
Aircraft Corporation, D. C., 79 F. Supp. 217. See also 
Ebel x. Drum, D. C. Mass., 1944, 55 F. Supp. 186; and 
Magee v. McNancy, D. C. Pa., 1950, 10 F.R.D. 5.

In the court’s said order of September 9, in com­
pliance with which this petition was filed, it was stated 
that the order was made also pursuant to Rule 21, F.R.C.P.

It is obvious, as was stated in the case of Truncate v. 
Universal Pictures Company, D. C. N. Y., 1949, 82 F. Supp. 
576, that this rule is intended to permit the bringing 
in of a person or persons who, through inadvertence, mis­
take or some other reason, had not been made a party and 
whose presence as a party was necessary or desirable to 
effectuate the relief prayed for in the original action.

The original action in this case was on the part of 
John Aaron and others, plaintiffs, seeking to enter cer­
tain schools in Little Rock, against William G. Cooper and 
others, school directors. It is inconceivable that a con­
tention can be made, or will be made, that the respondents 
in this case were necessary parties to that action. Rule 
21 could not possibly apply to them and does not afford 
any support for the action of the Court in ordering them 
to be made parties. It is true that Rule 21 provides that 
misjoinder of parties is not ground for dismissal of 
an action but here the United States was not such a 
party to the action as would be entitled to affirmative



25

relief and it could not become such a party. It is well 
settled that the United States can become a party litigant 
only where there is a Federal statute expressly authoriz­
ing it to do so, and respondents submit there is not in 
existence any statute authorizing the United States to 
become a party in an action or proceeding such as this 
one. Indeed the Congress has quite recently expressly 
refused to sanction the presence of the United States as 
a party litigant in cases of this particular nature.

V
The original action herein was one for the protec­

tion of private rights. Until September 10, 1957, it con­
tinued to be an action between private litigants involving 
purely private rights, i.e., the rights of the plaintiffs to 
attend a particular school of their choice.

The order of the District Court dated September 9, 
1957 (R.5-6), invited the Attorney General and the United 
States Attorney to appear amici curiae and authorized 
them as such to submit pleadings. The order then di­
rected them to file a petition seeking an injunction against 
the Governor of Arkansas and two officers of the Ark­
ansas National Guard. Petitioners say that the Court 
was wholly without jurisdiction to make its order dated 
September 9, 1957, and, further that the Court was with­
out jurisdiction to entertain the petition of the United 
States or to grant any relief thereon.

If the Attorney General and the United States At­
torney were truly amici curiae, they had no right as 
such to file petitions or otherwise to seek any affirmative 
relief. It is axiomatic that amici curiae are not litigants, 
but are merely advisers to the Court. The fact that the 
Court authorized and directed the filing of the petition 
can add nothing to their status as amici curiae. If they



26

were truly amici curiae, the Court had no jurisdiction by 
order to give them the status of litigants.

In Birmingham Loan & Auction Co. v. First National 
Bank, of Anniston, 100 Ala. 249, 13 So. 945, 946, the 
Court said:

“ An amicus curiae, in practice, is one who, as a 
stander-by, when a judge is doubtful or mistaken 
in a matter of law, may inform the court. Bouv. 
Diet. ‘ He is heard only by the leave and for the 
assistance of the court, upon a case already before 
it. He has no control over the suit, and no right 
to institute proceedings thereon, or to bring the 
case from one court to another by appeal or writ 
of error.’ Martin v. Tapley, 119 Mass. 116; 1 Law- 
son, Rights, Rem & Pr. p. 262, Sec. 156.”

In American Jurisprudence, Volume 2, page 679, the 
following appears:

“ . . . an amicus curiae is heard only by leave 
and for the assistance of the court upon a case 
already before it. He has no control over the suit 
and no right to institute any proceedings therein. 
It seems clear that an amicus curiae cannot as­
sume the function of a party in an action or pro­
ceeding pending before the court, and that, ordi­
narily, he cannot file a pleading in a cause. An 
amicus curiae is restricted to suggestions relative 
to matters apparent on the record or to matters 
of practice. His principal function is to aid the 
court on questions of law.”

On page 682 the following appears:

“ An amicus curiae has no right to except to 
the rulings of the court; and if he takes such ex­
ceptions, they cannot avail on appeal. He has no 
right to complain if the court refuses to accept 
his suggestions, for it is not the function of an 
amicus curiae to take upon himself the management



27

of a cause and assume the functions of an attorney 
at law.”

The petition filed by the United States was filed by 
the United States solely as amicus curiae. It is clear 
that the United States, as amicus cu-riae had no right 
to ask for the joinder of additional parties and the entry of 
an injunction against such parties, for, in so doing, the 
United States became a litigant and not a “ friend of the 
Court” . It is apparent from the order dated Septem­
ber 9, 1957, and from the petition filed by the United 
States that it was the intent of the Court and of the 
United States that the United States become an actual 
litigant in this controversy under the guise of amicus curiae. 
The United States had no right to intervene in this action 
as a litigant, and the Court had no jurisdiction to order 
its intervention. The Court had no jurisdiction to en­
tertain a petition by the United States seeking to aid 
private litigants in the enforcement of private rights.

If the United States had no right to intervene, and 
if the Court had no jurisdiction to consider the inter­
vention, the Court’s order of September 9, did not create 
jurisdiction to consider the petition, whether the United 
States was considered a litigant or whether it was con­
sidered a friend of the Court.

The District Courts of the United States have only 
such jurisdiction as is expressly conferred on them by 
the Congress. The Congress has expressly refused to 
confer jurisdiction on such courts to entertain petitions 
for injunction by the United States in Civil Rights actions.

The case of Universal Oil Products v. Root Refining 
Company, 328 U.S. 575, is cited by the Circuit Court of 
Appeals to support the action brought by the amici curiae. 
In that case attorneys for one or more of the parties 
were requested to serve in the role of amici curiae in an



28

investigation to ascertain whether fraud had been prac­
ticed on the Court. They undertook this service and pro­
cured the appointment of a Master, whose report that 
fraud had been practiced resulted in the vacation of the 
judgment that had been rendered in the case. It is seen 
that there is no similarity in the part taken by amici 
curiae in the Root Refining case and that taken by counsel 
in this one. There amici curiae were acting in an ancillary 
capacity as investigators of questionable features sur­
rounding the conduct of a Judge. Here, amici curiae were 
acting in the capacity of leading counsel in an effort to 
secure substantial rights for the parties themselves. There 
are no other interests involved than the rights of the 
parties to the suit. This Court condemned such action 
by saying, in the Root case, “ Amici selected by the Court 
to vindicate its honor ordinarily ought not to he in the 
service of those having private interests in the out­
come” . While amici in this case were not employed by 
the parties in the case, they were serving the parties who 
had already employed their own counsel and were ably 
represented in this, as well as other phases of the litigation.

V!

This question practically answers itself in the nega­
tive. No notice was given petitioners of the filing of 
the motion to permit the original plaintiffs to file a sup­
plemental complaint. Yet, on September 20, 1957, they 
were permitted to file it, and the District Court imme­
diately proceeded to trial on the supplemental complaint 
and the petition of the United States.

We have endeavored to show that the Court wTas 
without jurisdiction to proceed to trial on the petition 
of the United States against the petitioners. This lack 
of jurisdiction stems from the incapacity of the petitioner 
in its role of amicus curiae and its non-interest in the



29

subject manner of the civil litigation. Nevertheless, the 
Court proceeded to trial on the Supplemental Complaint 
and granted effective relief to the original plaintiffs and 
against, the petitioners in the absence of notice of the 
filing of the Supplemental Complaint or of the motion 
for leave to file it.

CONCLUSION

Regardless of the heights of emotion and public in­
terest or curiosity attained by this suit, and regardless 
of the notoriety given the participants, there can surely 
be no justification for disregarding statutes and rules of 
procedure, the observance of which, we feel, would have 
gone a long way towards ameliorating the great damage to 
racial relations that has resulted from the precipitate 
outcome of the case.

Petitioners respectfully ask this Court to grant the 
Writ of Certiorari as prayed in the petition.

T homas H arper 
Fort Smith, Arkansas

K ay  L. M atthew s  
Little Rock, Arkansas

W alter L. P ope

Little Rock, Arkansas
Attorneys for Petitioners



Appendix A

U n i t e d  S t a t e s  Court o f  Appeals
FOR THE EIGHTH CIRCUIT 

No. 15,904

Orval E. Faubus, Governor of the 
State of Arkansas, General Sher­
man T. Clinger, Adjutant Gen­
eral of the State of Arkansas, 
and Lt. Col. Marion E. Johnson, 
Unit Commander of the Arkan­
sas National Guard, (Respond­
ents) ______  ___ __-  Appellants

v.

United States of America (Amicus 
Curiae, Petitioner), and John 
Aaron, a minor, and Thelma 
Aaron, a minor, by their mother 
and next friend, (Mrs.) Thelma 
Aaron, a feme sole, et al (Plain­
tiffs), and William G. Cooper, 
M.D., as President of Board of 
Trustees, Little Rock Independ­
ent School District, et al (De­
fendants) ___________ Appellees

A p p e a l  from the 
United States Dis­
trict Court for the 
Eastern District of 
Arkansas.

[April 28, 1958]



2a

Kay L. Matthews and Thomas Harper (Walter L. Pope 
was with them on the brief) for Appellants.

Donald B. MacGuineas, Attorney, Department of Justice, 
(George Cochran Doub, Assistant Attorney General, 
Osro Cobb, United States Attorney, and Samuel D. 
Slade, Attorney, Department of Justice, were with 
him on the brief) for Appellee United States of Amer­
ica, Amicus Curiae.

Thurgood Marshall (Wiley A. Branton was with him on 
the brief) for Appellees John Aaron, et al.

Hansel Proffitt filed Brief Amicus Curiae.

Before S anborn , W oodrough and J ohn son , Circuit Judges.

S anborn , Circuit Judge.

This is an appeal from an order of the District Court 
made September 20, 1957 (filed September 21, 1957), in 
the action of John Aaron, et al, Plaintiffs v. William, G. 
Cooper, et al, Defendants (143 F. Supp. 855), to which 
the appellants on September 10, 1957, had been made addi­
tional parties defendant. The order enjoined the appel­
lants, and others under their control or in privity with 
them, from using the Arkansas National Guard to prevent 
eligible Negro children from attending the Little Rock 
Central High School, and otherwise obstructing or inter­
fering with the constitutional right of such children to 
attend the school. The order expressly preserved to 
Governor Faubus the right to use the Arkansas National 
Guard for the preservation of law and order by means 
which did not hinder or interfere with the constitutional 
rights of the eligible Negro students.



3a

The appellants assert that the order appealed from must 
be reversed because the District Judge erred in rejecting 
an affidavit of prejudice and in refusing to disqualify him­
self. They assert also that the Court erred: (1) in over­
ruling the motion of the appellants to dismiss the peti­
tion of the United States asking that the. appellants be 
made additional defendants in the Aaron ease and be 
enjoined from using the Arkansas National Guard to pre­
vent eligible Negro students from attending the Little 
Rock Central High School; (2) in overruling appellants’ 
motion to dismiss the petition for failure to convene a 
three-judge court; and (3) in entering the preliminary 
injunction.

A statement of the events and proceedings which con­
stitute the background of this controversy seems neces­
sary to a full understanding of the questions presented 
and to show how they arose.

The Supreme Court of the United States on May 27, 
1954, decided in Brown v. Board of Education of Topeka, 
347 U.S. 483, that segregation of white and Negro chil­
dren in the public schools of a State solely on the basis 
of race, under state laws permitting or requiring such 
segregation, denied to Negro children the equal protec­
tion of the laws guaranteed by the Fourteenth Amendment 
to the Constitution of the United States, even though the 
physical facilities and other tangible factors of white and 
Negro schools were equal. The case was restored to the 
Supreme Court’s docket to await the formulation of de­
crees and for further argument on questions not then de­
cided.

On May 31, 1955, in 349 U.S. 294, the Supreme Court 
announced its supplemental opinion and final judgments 
in the Brotvn case. We quote some of the pertinent ex­
cerpts from the opinion (pages 288, 299, 300):



4a

“ These cases were decided on May 17, 1954. 
The opinions of that date, declaring the funda­
mental principle that racial discrimination in public 
education is unconstitutional, are incorporated here­
in by reference. All provisions of federal, state, 
or local law requiring or permitting such discrim­
ination must yield to this principle. * # * 

* # # # # * #

“ Full implementation of these constitutional 
principles may require solution of varied local 
school problems. School authorities have the primary 
responsibility for elucidating, assessing, and solving 
these problems; courts will have to consider whether 
the action of school authorities constitutes good faith 
implementation of the governing constitutional prin­
ciples. * * *

“ * * * At stake is the personal interest of the 
plaintiffs in admission to public schools as soon as 
practicable on a nondiscriminatory basis. To effectu­
ate this interest may call for elimination of a variety 
of obstacles in making the transition to school sys­
tems operated in accordance with the constitutional 
principles set forth in our May 17, 1954, decision. 
Courts of equity may properly take into account the 
public interest in the elimination of such obstacles in 
a systematic and effective manner. But it should go 
without saying that the vitality of these constitu­
tional principles cannot be allowed to yield simply 
because of disagreement with them.

“ While giving weight to these public and pri­
vate considerations, the courts will require that the 
defendants make a prompt and reasonable start 
toward full compliance with our May 17, 1954, rul­
ing. Once such a start has been made, the courts 
may find that additional time is necessary to carry 
out the ruling in an effective manner. The burden 
rests upon the defendants to establish that such 
time is necessary in the public interest and is con­
sistent with good faith compliance at the earliest 
practicable date.”



5a

On May 23, 1955, the School Board of the Little Rock 
School District had adopted and published a statement to 
the effect that it was the Board’s “ responsibility to com­
ply with Federal Constitutional Requirements”  and that 
it- “ intended to do so when the Supreme Court of the 
United States outlines the method to be followed,”  and 
that in the meantime the Board would make the needed 
studies “ for the implementation of a sound school pro­
gram on an integrated basis.”  Pages 858-859 of 143 F. 
Supp.

The Superintendent of the Little Rock schools, upon 
instructions from the School Board, prepared a plan for 
the gradual integration over a period of about seven 
years of the public school in Little Rock, commencing at 
the senior high school level in the fall of 1957. The plan 
was adopted by the Board on May 24, 1955, and is fully 
set forth in the opinion of the District Court in Aaron v. 
Cooper, supra, 143 F. Supp., at pages 859-860, and need 
not be restated in this opinion.

On February 8, 1956, John Aaron and other minor 
Negroes of school age brought a class action in the United 
States District Court for the Eastern District of Arkansas 
against the members of the Little Rock School Board, for 
the purpose of bringing about the immediate integration 
of the races in the public schools of Little Rock. The 
School Board answered the complaint and submitted to 
the court its plan for integration which it asserted would 
best serve the interests of both races (page 858 of 143 F. 
Supp.). It alleged that a hasty integi*ation would be un­
wise and would retard the accomplishment of the integra­
tion of the Little Rock schools. United States District 
Judge John E. Miller, who heard the case, filed a compre­
hensive opinion on August 27, 1956 (143 F. Supp. 855), 
in which it was determined that the defendants, the school 
authorities, had acted in the utmost good faith and with



6a

the sole objective “ to faithfully and effectively inaugurate 
a school system in accordance with the law as declared by 
the Supreme Court.”  The District Court ordered that 
the plan of the defendants be approved as adequate; 
denied the plaintiffs any declaratory or injunctive relief; 
and retained jurisdiction of the case for the entry of such 
other and further orders as might be necessary for the 
effectuation of the approved plan. (Page 866 of 14.3 F. 
Supp.)

The plaintiffs appealed. They urged in this Court, as 
they had in the District Court, that there were no valid 
reasons why integration in the public schools of Little 
Rock should not be completely accomplished by September, 
1957. On appeal this Court held, on April 26, 1957, that 
“ in the light of existing circumstances the plan set forth 
by the Little Rock School Board and approved by the 
District Court is in present compliance with the law.”  
Aaron v. Cooper, 8 Cir., 243 F. 2d 361, 364. The judgment 
of the District Court was affirmed, with its retention of 
continued jurisdiction.

On September 2,1957, the appellants, Orval E. Faubus, 
Governor of the State of Arkansas, and Sherman T. 
Clinger, Adjutant General of the State, stationed units of 
the Arkansas National Guard, under the command of Lt. 
Col. Marion E. Johnson, at the Little Rock Central High 
School. The order of Governor Faubus to General 
Clinger was as follows:

“ You are directed to place off limits to white 
students those schools for colored students and to 
place o ff limits to colored students those schools 
heretofore operated and recently set up for white 
students. This order will remain in effect until 
the demobilization of the Guard or until further 
orders.”



As a result of this order, nine Negro school children 
who, under the School Board’s approved plan of integra­
tion, had been found eligible to attend the high school, 
were not, by request of the school authorities,, in attend­
ance on September 3, 1957, the opening day of the fall 
term.

The court, by United States District Judge Ronald N. 
Davies, sitting by assignment, on September 3, 1957, is­
sued an order directing the members of the School Board 
and the Superintendent of the Little Rock Public Schools, 
the defendants in Aaron v. Cooper, to show cause why the 
court, under its reservation of jurisdiction in that case, 
should not order them to put into effect forthwith the plan 
of integration approved by the District Court and by the 
United States Court of Appeals. On the same day, after 
a hearing on the order to show cause, the court found that, 
because of the stationing of military guards at the Central 
High School by state authorities, the defendants (mem­
bers of the School Board) had reversed the position taken 
by them in their plan for integration and had requested 
the eligible Negro students to stay away from the school 
“ until the legal dilemma was solved.”  The court also 
found that the evidence presented disclosed no reason 
why the plan of integration approved by the court could 
not be carried out forthwith. The defendants (members 
of the School Board and the Superintendent of Schools) 
were ordered to carry out the plan.

Judge Davies on September 4, 1957, wrote the follow­
ing letter to the United States Attorney for the Eastern 
District of Arkansas:



“ Mr. Osro Cobb 
United States Attorney 
Little Rock, Arkansas
“ My dear Mr. Cobb:

“ I am advised this morning that this Court’s 
order directing the integration of the Little Rock 
schools under a plan submitted by the Little Rock 
School Board, which plan has been approved by a 
Judge of this court and by the United States Court 
of Appeals for the Eighth Circuit, has not been com­
plied with due to alleged interference with the 
Court’s order.

“ You are requested to begin at once a full, 
thorough and complete investigation to determine 
the responsibility for interference with said order, 
or responsibility for failure of compliance with 
said order of this Court heretofore made and filed, 
and to report your findings to me with the least 
practicable delay.

Very truly yours,
R onald N. D avies
United States District Judge
(Sitting by Assignment)

On September 7, the court denied a “ petition of the 
Little Rock School District directors and of the Super­
intendent of the Little Rock Public Schools for an order 
temporarily suspending enforcement of its plan of integra­
tion heretofore approved by this Court.”

On September 9, the court entered the following 
order:



9a

“ In The United States District Court 
For The Eastern District Of Arkansas 

Western Division

“ John Aaron, et al, Plaintiffs,
v. No. 3113 Civil.

“ William Gr. Cooper, et al, Defendants.

‘ ‘ On the date hereof, the Court having received 
a report from the United States Attorneys for the 
Eastern District of Arkansas, made pursuant to the 
Court’s request, from which it appears that negro 
students are not being permitted to attend Little 
Rock Central High School in accordance with the 
plan of integration of the Little Rock School Di­
rectors approved by this Court and by the Court of 
Appeals for the Eighth Circuit.

“ And the Court being of the opinion that the 
public interest in the administration of justice should 
be represented in these proceedings and that it will 
be of assistance to the Court to have the benefit of 
the views of counsel for the United States as amici 
curiae, and this Court being entitled at any time 
to call upon the law officers of the United States 
to serve in that eapacitly, now, therefore,

“ It is ordered that the Attorney General of the 
United States or his designate, and the United 
States Attorney for the Eastern District of Ark­
ansas or his designate, are hereby requested and 
authorized to appear in these proceedings as amici 
curiae and to accord the Court the benefit of their 
views and recommendations with the right to sub­
mit to the Court pleadings, evidence, arguments and 
briefs, and for the further purpose, under the di­
rection of this Court, to initiate such further pro­
ceedings as may be appropriate.

“ It is further ordered that the Attorney Gen­
eral of the United States and the United States 
Attorney for the Eastern District of Arkansas be



10a

and they are hereby directed to file immediately a 
petition against Orval E. Faubus, Governor of the 
State of Arkansas; Major General Sherman T. 
C 1 i n g e r , Adjutant General, Arkansas National 
Guard; and Lt. Colonel Marion E. Johnson, Unit 
Commander, Arkansas National Guard, seeking such 
injunctive and other relief as may be appropriate 
to prevent the existing interferences with and ob­
structions to the carrying out of the orders hereto­
fore entered by this court in this case.

“ Dated at Little Rock, Arkansas, this 9th day 
of September, 1957.

R onald N. D avies
United States District Judge
(Sitting by Assignment)”

On September 10, the United States, by its Attorney 
General and the United States Attorney for the Eastern 
District of Arkansas, filed a petition pursuant to the 
court’s order, stating that units of the Arkansas National 
Guard were still forcibly preventing and restraining 
Negro students, eligible under the approved plan of school 
integration, from entering school and attending classes; 
that the acts of the appellants, through the use of the 
Arkansas National Guard, were obstructing and interfer­
ing with the effectuation of the court’s orders of August 
28, 1956, and September 3, 1957, “ contrary to the due 
and proper administration of justice.”  The United States 
asked that the appellants be made additional parties de­
fendant in the Aaron case and be enjoined, together with 
those under their control or in privity with them, from 
using the National Guard to prevent the eligible Negro 
students from attending the Little Rock High School, and 
otherwise obstructing or interfering with the effectuation 
of the court’s orders in that regard.

The court on September 10, 1957, added the appellants 
as defendants in the Aaron case, and set the Government’s



11a

petition for a preliminary injunction for hearing on Sep­
tember 20, 1957.

On September 19, 1957, the day before the hearing, 
Governor Faubus filed an affidavit of prejudice against 
Judge Davies, stating that he was informed and believed 
Judge Davies had a personal prejudice against him and a 
personal bias in favor of the plaintiffs John Aaron et al. 
and the United States. The reasons for the Governor’s 
belief were stated at length in this affidavit.

The United States on September 20, 1957, the day of 
the hearing, moved the court to strike the affidavit of prej­
udice as untimely and legally insufficient.

The appellants, at the hearing on September 20, 1957, 
moved for a dismissal of the petition of the United States 
on the grounds that the court was without authority to 
make the order of September 10 bringing the Government, 
the Attorney General, and the United States Attorney into 
the case; that the petition was illegally and prematurely 
filed by the Government; that the Government and its law 
officers were without standing to maintain the action 
against the appellants; that the court was without juris­
diction to entertain the action; that the action was in 
fact against the State of Arkansas; and that the court was 
without power to question the judgment and discretion 
of Orval E. Faubus, as Governor of Arkansas, in his use 
of the Arkansas National Guard.

The plaintiffs John Aaron, et al, at the hearing on 
September 20, 1957, were granted leave to file, and did 
file, a supplemental complaint against the appellants as 
additional defendants, in which the plaintiffs prayed for a 
preliminary injunction to prohibit the appellants from 
using the Arkansas National Guard to prevent the orders 
of the court requiring effectuation of the approved plan



12a

of integration from being carried out. The only objection 
to the filing of the plaintiffs’ supplemental complaint and 
its consolidation with the petition of the Government was 
made by the appellants upon the ground that “ these 
plaintiffs have passed out of this action by the Court’s 
order of August 15, 1956, in denying their prayer for 
relief.”

At the hearing the court granted the motion of the 
Government to strike the affidavit of prejudice on the 
grounds that it was untimely filed and was legally in­
sufficient. The court then denied the several motions of 
the appellants to dismiss the petition of the Government.

At the conclusion of the hearing on September 20,1957, 
the court made the following statement:

“ It is very clear to this Court from the evidence 
and the testimony adduced upon the hearing today 
that the plan of integration adopted by the Little 
Rock School Board and approved by this Court and 
the Court of Appeals for the Eighth Circuit has been 
thwarted by the Governor of Arkansas by the use of 
National Guard troops.

“ It is equally demonstrable from the testimony 
here today that there would have been no violence in 
carrying out the plan of integration and that there 
has been no violence.

“ The petition of the United States of America 
as amicus curiae for a preliminary injunction 
against Governor Paubus, General Clinger and 
Colonel Johnson, and all others named in the petition 
is granted; and such injunction shall issue without 
delay, enjoining those respondents from obstruct­
ing or preventing, by use of the National Guard 
or otherwise, the attendance of Negro students at 
Little Rock Central High School under the plan of 
integration approved by this Court and from other­



13a

wise obstructing or interfering with orders of this 
Court in connection with the plan of integration.

“ Findings of fact, conclusions of law and order, 
and related instruments will be prepared by the at­
torneys for the United States.”

The order granting the preliminary injunction, from 
which this appeal has been taken, was made on September 
20, 1957, and filed on September 21, 1957, together with 
supporting findings of fact and conclusions of law, the 
sufficiency of which are not challenged.

The first question for decision is whether the affidavit 
of prejudice filed by Governor Faubus against Judge 
Davies the day before the petition of the Government and 
the supplemental complaint of the plaintiffs seeking a 
preliminary injunction were heard, was timely and suffi­
cient.

Section 144 of Title 28 U.S.C., so far as pertinent, 
provides:

“ Whenever a party to any proceeding in a 
district court makes and files a timely and sufficient 
affidavit that the judge before whom the matter is 
pending has a personal bias or prejudice either 
against him or in favor of any adverse party, such 
judge shall proceed no further therein, but another 
judge shall be assigned to hear such proceeding.

“ The affidavit shall state the facts and the rea­
sons for the belief that bias or prejudice exists, 
and shall be filed not less than ten days before the 
beginning of the term at which the proceeding is to 
be heard, or good cause shall be shown for failure 
to file it within such time * *

No facts are stated in the affidavit of prejudice which, 
in our opinion, justified the Governor in waiting until 
the day before the hearing to file it. He stated in his 
affidavit that he did not file it ten days “ before the be­



14a

ginning of the present term of court for the reason that 
he had not at that time been made respondent in this 
case, and that he was not, in fact, made a respondent 
herein until September 10, 1957.”  He also stated that he 
filed it as soon “ as the facts of the bias and prejudice of 
Judge Davies became known to him.”  The reasons given 
by the Governor for his belief that Judge Davies had a 
personal prejudice against him and a bias in favor of his 
adversaries are all based on events, occurrences and pro­
ceedings which took place and were well known before 
September 10, 1957.

There was, in our opinion, undue delay in the filing of 
the affidavit of prejudice. See and compare, Bishop v. 
United States, 8 Cir., 16 F. 2d 410, 411-412; Rossi v. United 
States, 8 Cir., 16 F. 2d 712, 716; Bommarito v. United 
States, 8 Cir., 61 F. 2d 355. The situation called for the 
utmost promptness if Judge Davies was to be disqualified 
and another judge assigned to take his place. Apparently 
no other federal district judge then in either District in 
Arkansas was available. We find it unnecessary to con­
sider whether the affidavit would have been sufficient to 
disqualify Judge Davies had it been filed in time.

The second question for decision is whether the Dis­
trict Court had jurisdiction to make its order of September 
9, 1957, inviting the Attorney General and the United 
States Attorney to appear as amici curiae, and authorizing 
them to submit pleadings, evidence, arguments and briefs, 
and to file a petition for injunctive relief to prevent ob­
structions to the carrying out of the court’s orders. The 
appellants contend that the court was without authority to 
make the order, and that the Attorney General and the 
United States Attorney as amici curiae were without au­
thority to file a petition for injunctive relief.



15a

Tlie District Court in the Aaron case, as has already 
been stated, reserved, in its judgment and decree, juris­
diction “ for the entry of such other and further orders as 
may be necessary to obtain the effectuation of the plan [of 
gradual school integration]”  as contemplated and set 
forth in its opinion. When the court was informed that 
the effectuation of the plan which it had approved and 
ordered into effect was being* prevented by the appellants’ 
use of the National Guard, action was called for to vin­
dicate the court’s judgment and orders.

It was proper for the court to do all that reasonably 
and lawfully could be done to protect and effectuate its 
orders and judgments and to prevent them from being 
thwarted by force or otherwise. The court could not, with 
propriety, employ private counsel to do the necessary in­
vestigative and legal work. It has, we think, always in 
the past been customary for a federal District Court to 
call upon the law officers of the United States for aid 
and advice, in comparable situations.

As the Supreme Court said in Universal Oil Products 
Co. v. Root Refining Co., 328 U.S. 575, 581, “ After all, a 
federal court can always call on law officers of the United 
States to serve as amici # * *. Amici selected by the court 
to vindicate its honor ordinarly ought not to be in the 
service of those having private interests in the outcome.”

In our opinion, the status of the Attorney General and 
the United States Attorney was something more than that 
of mere amici curiae in private litigation. They were act­
ing under the authority and direction of the court to take 
such action as was necessary to prevent its orders and 
judgments from being frustrated and to represent the 
public interest in the due administration of justice.

It seems to us unnecessary to labor the point, since the 
plaintiffs in the Aaron case were, at the time of the hear-



16a

mg' on September 20, 1957, still real parties in interest 
and they joined the Government in praying for tbe pre­
liminary injunction which was granted and which we do 
not doubt the court had power to grant. We are satisfied 
that the District Court did not abuse its discretion in 
granting the preliminary injunction. See Shearman v. 
Missouri Pacific Railroad Co., 8 Cir., 250 F. 2d 191, 195.

Whether the District Court should have dismissed the 
petitions of the United States and the plaintiffs for in­
junctive relief, for failure to convene a three-judge Dis­
trict Court under 28 U.S.C. § 2281, is the next question for 
review.

That section—which is headed “ Injunction against en­
forcement of State statute; three-judge court required” — 
provides:

“ An interlocutory or permanent injunction re­
straining the enforcement, operation or execution 
of any State statute by restraining the action of 
any officer of such State in the enforcement or 
execution of such statute or of an order made by 
an administrative board or commission acting un­
der State statutes, shall not be granted by any 
district court or judge thereof upon the ground of 
the unconstitutionality of such statute unless the 
application therefor is heard and determined by a 
district court of three judges under section 2284 of 
this title.”

Neither the petition of the United States nor the sup­
plemental complaint of the plaintiffs challenge the validity 
of any provisions of the Constitution or laws of Arkansas 
conferring executive and military powers on the Governor. 
The only claim made was that the Governor was using 
military force in violation of law and of the plaintiffs’ 
rights under the Constitution of the United States and 
the orders of the court. No claim was made that he could



17a

not use the Arkansas National Guard to preserve law 
and order. His right to do so was expressly recognized by 
the District Court. The appellees’ contention is, in effect, 
that he could not use State troops, ostensibly to preserve 
order, in violation of law.

In a comparable situation, the Supreme Court in Phil­
lips v. United States, 312 U.S. 246, 252-253, held 28 U.S.C. 
§ 2281 inapplicable. In that case the Court said:

“ * * * But an attack on lawless exercise of au­
thority in a particular case is not an attack upon 
the constitutionality of a statute conferring the au­
thority even though a misreading o f the statute 
is invoked as justification. At least not within the 
Congressional scheme of § 266 [now 28 U.S.C. 
§ 2281], It is significant that the United States 
in its complaint did not charge the enabling acts of 
Oklahoma with unconstitutionality, hut assailed 
merely the Governor’s action as exceeding the bounds 
of law. In other words, it seeks a restraint not of 
a statute hut of an executive action. But the en­
forcement of a ‘ statute’, within the meaning of 
§ 266, is not sought to be enjoined merely because 
a state official seeks shelter under it by way of 
defense against a charge of lawlessness. * * *

“ * * * No one questions Oklahoma’s authority 
to give her Governor ‘ Supreme Executive power’ 
nor to make him Commander-in-Chief of her militia. 
What is here challenged is a single, unique exercise, 
of these prerogatives of his office. * * * ”

The Supreme Court distinguished Sterling v. Constantin, 
287 U.S. 378, which had been decided by a three-judge 
District Court. It said of that case (page 253 of 312 U .S .):

“  Sterling v. Constantin, 287 U.S. 378, which is 
invoked as a precedent, was a very different case. 
There martial law was employed in support of an 
order of the Texas Bailroad Commission limiting 
production of oil in the East Texas field. The



18a

Governor was sought to be restrained as part of the 
main objective to enjoin ‘ the execution of an order 
made by an administrative * * * commission,’ and 
as such was indubitably within § 266. * * * ”

While we are of the opinion that it would not have 
been improper, and would probably have been wise, for the 
District Judge to have convened a three-judge District 
Court to hear the petitions for a preliminary injunction, 
we think, in view of Phillips v. United States, supra, 312 
U.S. 246, he was not compelled to do so. Had he con­
vened such a court, its order, like that of a single district 
judge, would have been appealable to the United States 
Court of Appeals, and not directly to the Supreme Court 
of the United States. Phillips v. United States, supra, 
page 254 of 312 U.S. The appellants’ contention that 
they were entitled to a dismissal because of the District 
Court’s failure to convene a three-judge court is over­
ruled on the authority of the Phillips case.

We think there is no merit in the appellants’ argument 
that the discretion of the Governor in using the National 
Guard in derogation of the judgment and orders of the 
federal District Court and in violation of the constitutional 
rights of the eligible Negro students could not be ques­
tioned. In Sterling v. Constantin, 287 U.S. 378, at page 
397, the Supreme Court said of an analogous contention:

“ If this extreme position could be deemed to be 
well taken, it is manifest that the fiat of the state 
Governor, and not the Constitution of the United 
States, would be the supreme law of the land; that 
the restrictions of the Federal Constitution upon the 
exercise of state power would be but impotent 
phrases, the futility of which the State may at any 
time disclose by the simple process of transferring 
powers of legislation to the Governor to be exercised 
by him, beyond control, upon his assertion of neces­
sity. Under our system of government, such a con-



19a

elusion is obviously untenable. There is no such 
avenue of escape from the paramount authority of 
the Federal Constitution. When there is a sub­
stantial showing that the exertion of state power 
has overriden private rights secured by that Con­
stitution, the subject is necessarily one for judicial 
inquiry in an appropriate proceeding directed 
against the individuals charged with the transgres­
sion. * * *”

In that case the Court also said (page 393 of 287 U .S.):

“ The District Court had jurisdiction. The suit 
is not against the State. The applicable principle is 
that where state officials, purporting to act under­
state authority, invade rights secured by the Federal 
Constitution, they are subject to the process of the 
federal courts in order that the persons injured may 
have appropriate relief. # * * The Governor of the 
State, in this respect, is in no different position 
from that of other state officials. * *

See also and compare, Powers Mercantile Co. v. Olson, 
D. C. Minn., 7 F. Supp. 865, 868, and Strutwear Knitting 
Co. v. Olson, D. C. Minn., 13 F. Supp. 384. What was said, 
more than twenty years ago, in the case last cited, in which 
a United States District Court for the District of Minne­
sota, composed of three judges, in 1936, enjoined the 
Governor of Minnesota, the Adjutant General of the 
State, and the Mayor of Minneapolis, from using the 
Minnesota National Guard, under the guise of preserving- 
law and order, to deprive the Strutwear Company of the 
use of its plant because of a strike, may, we think, with 
propriety be repeated here (page 391 of 13 F. Supp.):

“ That surrender to the demands of a public 
enemy in time of war or accession to the demands 
of insurrectionists or rioters, at other times, is one 
way of restoring peace and quelling disorder, no 
one will deny. It has a direct, even though a dis­
honorable, relation to the maintenance of order, but



20a

no relation at all to the preservation of law. It 
results in the restoration of peace and order at the 
sacrifice of law. As the plaintiff has aptly pointed 
out in this case, it does not require troops or police 
to assist it in surrendering its constitutional rights 
to possess and use its plant. It can do that for 
itself.

“ It is certain that while the state government 
is functioning, it cannot suppress disorders the ob­
ject of which is to deprive citizens of their lawful 
rights, by using its forces to assist in carrying out 
the unlawful purposes of those who create the dis­
orders, or by suppressing rights wdiich it is the duty 
of the state to defend. The use of troops or 
police for such purposes would breed violence. It 
would constitute an assurance to those who resort to 
violence to attain their ends that, if they gathered 
in sufficient numbers to constitute a menace to 
life, the forces of law would not only not oppose 
them, but would actually assist them in accomplish­
ing their objective. There could be but one final 
result, namely, a complete breakdown of government 
and a resort to force both by the law-abiding and 
the lawless. A  rule which would permit an official, 
whose duty it was to enforce the law, to disregard 
the very law which it was his duty to enforce, in 
order to pacify a mob or suppress an insurrection, 
would deprive all citizens of any security in the 
enjoyment of their lives, liberty, or property. The 
churches, the stores, the newspapers, and the chan­
nels of communication and of trade and commerce, 
and the homes of the people themselves, could be 
closed by the civil authorities under such a rule, in 
case the owners had in some way offended a suf­
ficiently large group of persons willing to resort 
to violence in order to close them. Carried to its 
logical conclusion, the rule would result in the civil 
authorities suppressing lawlessness by compelling 
the surrender of the intended victims of lawlessness. 
The banks could be closed and emptied of their cash 
to prevent bank robberies; the post office locked to



21a

prevent the mails being robbed; the citizens kept o ff 
the streets to prevent holdups; and a person accused 
of murder could be properly surrendered to the mob 
which threatened to attack the jail in which he was 
confined.”

Our conclusion is that nothing advanced by the appel­
lants in the insant case would justify the reversal by 
this Court of the order appealed from.

The order is affirmed.

A true copy.

Attest:

R obert C. T ucker

Clerk, U. S. Court of Appeals, Eighth Circuit.