Brown v. City of Meridian Brief for Appellants

    I n '  T H E

Inttpft Btntm Glmtrt u! Appmlz
F ob the F ifth Circuit 

No. 21730

A ddie Sue Brown, et al.,
Appellants,

City of Meridian,
Appellee.

ON A P PE A L  FRO M  T H E  U N IT E D  STATES DISTRICT COURT 
FOR T H E  SO U T H E R N  DISTRICT OF M ISSISSIP PI

BRIEF FOR APPELLANTS

Carsie A. Hall
Jack H. Y oung

115% North Farish Street 
Jackson, Mississippi 39201

J ack Greenberg
Melvyn Zarb

10 Columbus Circle 
New York, N. Y. 10019

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

A nn Cooper
294 Washington Street 
Boston, Massachusetts

Attorneys for Appellants



I N D E X

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

Specifications of Error ......................................................  6

A rgument

I. This Court Has Jurisdiction to Review the
Remand O rders......................................................  6

II. Appellants’ Removal Petitions Sufficiently State
a Removable Case Under 28 U. S. C. § 1443(2) 7

A. “ Color of Authority” .......................................... 9

B. “Law Providing for Equal Rights” .............  14

C. The Acts for Which Appellants Are Prose­
cuted ......................................................................  18

III. Appellants’ Removal Petitions Sufficiently State
a Removable Case Under 28 U. S. C. § 1443(1) 19

A. The State Laws Under Which Appellants
Are Prosecuted Offend the Constitution of 
the United States ............................................  19

B. The Pendency of These Prosecutions in the
State Courts Is Designed to Harass Appel­
lants and to Suppress Their First Amend­
ment Rights ........................................................  25

C. The State Courts in Which Appellants Are
Prosecuted Are Hostile to Appellants .........  27

IV. Appellants’ Removal Petitions Were Timely
Filed .......................................................................... 34

Conclusion..................................................................................  36

PAGE



Statutory A ppendix

28 U. S. C. § 1443..........................................................  la

28 U. S. C. § 1446....................................................... . la

28 U. S. C. § 1447(d) ..................................................  2a

Miss. Code Ann. 1942, Kec., §2089.5 (1962 Supp.) 2a

Code of Ordinances of the City of Meridian, Sec.
3-1, Sec. 3-2 ......................................................    3a

Table of Cases

Arkansas v. Howard, 218 F. Snpp. 626 (E. D. xlrk. 
1963) .................................................................................. 7

Baggett v. Bullitt, 377 U. S. 360 (1964) ...................... 25, 26
Braun v. Sauerwein, 10 Wall. 218 (1869) ....... ...............  8
Bush v. Kentucky, 107 IT. S. 110 (1882) .................... .....  19

Colorado v. Symes, 286 U. S. 510 (1932) ....................... 33
Congress of Racial Equality y. Town of Clinton, No. 

20960 (5th Cir., September 22, 1964) .......................  7

Dienstag v. St. Paul Fire and Marine Ins. Co., 164 F.
Supp. 603 (S. D. N. Y. 1957) ..........................................  35

Douglas v. Jeannette, 319 TJ. S. 157 (1943) ................... 16

Edwards v. South Carolina, 372 TJ. S. 229 (1963) ..... ..18, 24
Egan v. Aurora, 365 U. S. 514 (1961) ..............................  16
England v. Louisiana State Board of Medical Exam­

iners, 375 U. S. 411 (1964) ..........................................  30

Feiner v. New York, 340 IT. S. 315 (1951) ....................... 26
Fields v. South Carolina, 375 U. S. 44 (1963) ...............18, 24
Fowler v. Rhode Island, 345 U. S. 67 (1953) ................... 16

11

PAGE



111

PAGE

Georgia v. Tuttle, 377 U. S. 987 (1964) ........................... 33
Gibson v. Mississippi, 162 U. S. 565 (1896) ...............19,24

Hague v. C. I. 0., 307 IT. S. 496 (1939) ........................... 16
Harris v. Pace, 8 Race Rel. L. Rep. 1355 (M. D. Ga.,

November 1, 1963) ........................................................  22
Henry v. Rock Hill, 376 U. S. 776 (1964) ....................... 18, 25
Herndon v. Lowry, 301 U. S. 242 (1937) ..... .................  22
Hillv. Pennsylvania, 183 F. Supp. 126 (W. D. Pa. 1960) 15
Hodgson v. Millward, 12 Fed. Cas. 285 (E. D. Pa. 1863) 8
Hodgson v. Millward, 3 Grant (Pa.) 412 (1863) ...........  8

In re Duane, 261 Fed. 242 (D. Mass. 1919) ...................  35

Jamison v. Texas, 318 U. S. 413 (1943) ........................... 23

Kentucky v. Powers, 201 U. S. 1 (1906) ...............19, 20, 23,
26, 28, 33

Lanzetta v. New Jersey, 306 IJ. S. 451 (1939) ...............  22
Lefton v. Hattiesburg, No. 21441 (5th Cir., June 5,

1964) .................................................................................  34
Lovell v. Griffin, 303 U. S. 444 (1938) ............................... 23

Marsh v. Alabama, 326 IT. S. 501 (1946) ....................... 25
Maryland v. Soper, 270 IT. S. 9 (1926) ......................... 33
Monroe v. Pape, 365 IT. S. 167 (1961) .......................16,17, 32
Murray v. Louisiana, 163 IT. S. 101 (1896) ...... ............  19

N. A. A. C. P. v. Alabama ex rel. Flowers, 377 IT. S. 288
(1964) ...............................................................................  16

N. A. A. C. P. v. Button, 371 IT. S. 415 (1963) ....16, 22, 25, 27
Neal v. Delaware, 103 U. S. 370 (1880) .......................19, 24
Nesmith v. Alford, 318 F. 2d 110 (5th Cir. 1963) ...........  22
Niemotko v. Maryland, 340 IT. S. 268 (1951) .............-....  16



IV

Rachel v. Georgia, No. 21354 (5th Cir., March 12, 1964) 33

PAGE

Reece v. Georgia, 350 U. S. 85 (1955) ........................... 29

Schneider v. Irvington, 308 U. S. 147 (1939) ....... .......  23
Smith v. Mississippi, 162 U. S. 592 (1896) ................... 19
Steele v. Superior Court, 164 F. 2d 781 (9th Cir. 1948),

cert, denied, 333 U. S. 861 (1948) ..............................  15
Strauder v. West Virginia, 100 IJ. S. 303 (1879) .......19, 25

Talley v. California, 362 IJ. S. 60 (1960) .......................23, 25
Tennessee v. Davis, 100 U. S. 257 (1879) ......... .............  19

Valentine v. Chrestensen, 316 U. S. 52 (1942) ..............  23
Virginia v. Rives, 100 U. S. 313 (1879) ..... ..19, 20, 26, 28, 33

Williams v. Mississippi, 170 TJ. S. 213 (1898) ............... 19
Wright v. Georgia, 373 U. S. 284 (1963) ...................... 22, 25

F edebal Statutes

28 IT. 

28 IT. 

28 U. 

28 U. 

28 IT. 

28 TJ. 

28 U. 

28 U. 
42 IT. 

42 U.

S. C. §74 (1940) .....................  11,31,35

S. C. §1442(a) (1) ............    14

S. C. §1443(1) ............................. 14,15,19,21,26,27

S. C. §1443(2) ..........7,8,11,12,14,15,16,17,18,19
S. C. §1446 (a) ......................................................  34

S. C. §1446 (c) ..............................................    35

S. C. §1446(e) ....................................................... 3,4

S. C. §1447(d) ......................................................  6,7

S. C. §1981 ............................................................  32

S. C. §1983 .......................................................... 16,17



V

Rev. Stat. §641 .......................................... 10,11,15,18, 31, 35

Judicial Code §31 (1911) ........................-............. U> 15, 31, 35

Judicial Code §297 (1911) ................................................  11

Act of September 24, 1789,1 Stat. 7 3 ..............................  31

Act of February 4, 1815, 3 Stat. 195...............................13, 31

Act of March 2,1833, 4 Stat. 632 .................................... 14, 31

Act of March 3,1863, 12 Stat. 755 ..............................9,12,18

Act of June 30, 1864, 13 Stat. 223 .......... ............... -.........  14

Act of March 3, 1865, 13 Stat. 507 .......... ........................  13

Civil Rights Act of 1866, 14 Stat. 2 7 ...................9,12,13,15,
17,18, 31, 32

Act of July 13, 1866, 14 Stat. 9 8 ......................................  14

Act of July 16, 1866, 14 Stat. 173 ................................... 13

Act of May 31, 1870, 16 Stat. 140...................-.10,15,17, 32

Act of April 20, 1871, 17 Stat. 13 ....................... 10,16,17,18

Civil Rights Act of 1964, 78 Stat. 241 ..................... -....  7

State Statutes and Obdinances

Miss. Code Ann. 1942, Ree., §1202 ................................  35

Miss. Code Ann. 1942, Rec., §2089.5 (1962 Supp.) ....2,21 

Section 3-1, Code of Ordinances of the City of Meridian 23 

Section 3-2, Code of Ordinances of the City of Meridian
1, 22

PAGE



VI

Other A uthorities

PAGE
Amsterdam, Note, The Void-for-Vagueness Doctrine in 

the Supreme Court, 109 U. of Pa. L. Rev. 67 (1960) .... 27

Cong. Globe, 39th Cong., 1st Sess.....................................  32

I Farrand, Records of the Federal Convention (1911) 31

The Federalist, No. 80 (Hamilton) ........................ ........  30

The Federalist, No. 81 (Hamilton) ......... .......................  30



In t h e

ItttW (tort of Ajtpoalo
F or the F ifth Circuit 

No. 21730

A ddie Sue Brown, et al.,
Appellants,

—■y.—

City op Meridian,
Appellee.

ON A PPE A L PROM  T H E  U N IT E D  STATES D ISTRICT COURT 
FOR T H E  SO U TH E R N  DISTRICT OP M ISSISSIPPI

BRIEF FOR APPELLANTS

Statement o f  the Case

On May 23, 1964, appellant Watson handed leaflets to 
Negro pedestrians on a city street in Meridian, Mississippi 
(Mimeographed Record 4-5). Mr. Watson acted as a mem­
ber of the Mississippi Student Union, a civil rights organi­
zation which was attempting to eliminate segregation prac­
tices in employment and in public accommodations in the 
City of Meridian (M. R. 4). The leaflets urged Negroes 
not to make purchases in stores that discriminated against 
Negroes in their hiring policies and operated segregated 
lunch counters (M. R. 5). Watson did not obstruct the 
movement of persons on the sidewalk, and at all times acted 
in an orderly manner (M. R. 5). Watson was placed under 
arrest and charged with distribution of advertising matter, 
in violation of Section 3-2 of the Code of Ordinances of



2

the City of Meridian. (See Statutory appendix, infra, 
p. 3a.)

On May 30, 1964, about 12:45 p.m., appellant Hosley, 
a participant in the Mississippi Student Union program, 
appeared in the vicinity of the Woolworth store on Fifth 
Street in Meridian (M. R. 5). Shortly thereafter, a 
Meridian police officer approached Hosley and arrested 
him for “ interfering with a man’s business” (M. R. 5). 
During the afternoon of May 30, appellants Brown, Harris, 
Johnson, Jones, Packer, Smith and Waterhouse, all par­
ticipants in the Mississippi Student Union program, ap­
peared in the same vicinity and conversed with Negro 
pedestrians, advising them of the Mississippi Student 
Union program (M. E. 5-6). Appellants did not obstruct 
the movement of persons on the sidewalk and at all times 
acted in an orderly manner (M. R. 5-6). After a time, 
appellants left and then reappeared. While appellants 
Harris, Packer and Waterhouse were standing on a street 
corner, waiting for a traffic light to change, they were 
arrested (M. R. 6 ); appellants Brown, Johnson and Smith, 
across the street at the time, were also placed under 
arrest (M. R. 6). Appellant Jones, president of the local 
branch of the Mississippi Student Union, was arrested 
while talking with a friend at the Negro lunch counter 
in the Woolworth store (M. R. 6-7). All these appellants 
were charged with disturbing the peace, in violation of 
Miss. Code Ann. 1942, Rec., §2089.5 (1962 Supp.). (See 
Statutory Appendix, infra, p. 2a.)

Appellants’ cases were called in the Police Court of 
the City of Meridian at 2:00 p.m., June 3, 1964 (M. R. 
8). Appellants appeared in person and, by their counsel, 
John Due of the Florida bar, moved for a continuance 
to enable counsel to adequately prepare the cases (M. R.



3

8). A  continuance was granted until 2 p.m., June 10, 1964 
(M. R. 8).

Mr. Due was working in association with Carsie Hall of 
the Mississippi bar (Supplemental Mimeographed Record 
3). On June 6, 1964, Mr. Hall attempted to file in the 
United States District Court for the Southern District 
of Mississippi a petition for removal covering the prosecu­
tions against appellants (S. M. R. 6). The petition was 
refused for filing by the District Court on the grounds 
that (1) separate removal petitions were required for each 
criminal defendant and (2) that the separate removal 
petitions were required to be verified by the appellants 
(S. M. R. 6). Although believing that these require­
ments for filing were not lawful, counsel nevertheless 
attempted to comply with them (S. M. R. 6).

At 11:30 a.m., June 10, 1964, several hours before ap­
pellants’ trial in the Police Court, Mr. Due presented to 
the clerk of the United States District Court for the 
Southern District of Mississippi, Meridian Division, sepa­
rate removal petitions individually verified by appellants 
(S. M. R. 7). The clerk refused to file these petitions on 
the ground that the petitions were required to be filed in 
duplicate (S. M. R. 8). Mr. Due had no knowledge or 
notice of such a requirement (S. M. R. 8). He did not 
have duplicate copies of the petitions, having prepared, 
under pressure of time, only enough copies for filing and 
for service under 28 U. S. C. § 1446(e), nor could duplicate 
petitions be prepared in the remaining time (S. M. R. 8). 
Before the cases were called in the Police Court, Mr. Due, 
with the consent of the clerk, left the petitions in her pos­
session and personally served notices of removal with 
attached petitions on the Meridian city attorney and the 
clerk of the Police Court (S. M. R. 8).



4

At 2 p.m., June 10, 1964, appellants’ eases were called 
for trial in the Police Court. Mr. Due entered formal 
objection to the jurisdiction of the Police Court on the 
ground that the lodging of the removal petitions with the 
clerk of the District Court and proper service on the 
clerk of the Police Court and the city attorney had per­
fected removal jurisdiction of the District Court—thereby 
ousting the Police Court of jurisdiction under the express 
terms of 28 U. S. C. § 1446(e) (S. M. R. 9-10). The objection 
was overruled (S. M. R. 10). The cases proceeded to 
trial; appellants advanced their numerous constitutional 
defenses, which were rejected, and appellants were each 
convicted and fined $50.00 (S. M. R. 10).

Subsequently, counsel for appellants prepared, inter alia, 
petitions for writ of habeas corpus for submission to the 
Honorable William Harold Cox, Chief Judge of the United 
States District Court for the Southern District of Missis­
sippi, in which Mr. Due set forth under oath the above facts 
(S. M. R.).

On June 12, 1964, at 8:30 a.m., Mr. Hall presented the 
petitions to Judge Cox (Mr. Hall’s affidavit). Judge Cox 
directed Attorney Hall to call the city attorney and stay 
the commitment of appellants, which had been scheduled 
for later that morning (Mr. Hall’s affidavit).

On June 16, 1964, duplicate petitions were submitted to, 
and accepted by, the clerk (M. R. 3).

On June 30, 1964, the City of Meridian moved to remand 
the cases to the Police Court, contending that the petitions 
for removal had not been timely filed and that a case for 
removal under 28 IT. S. C. § 1443 had not been sufficiently 
alleged therein (M. R. 14). Appellants responded to the 
motions to remand, contending that the petitions had in 
fact been timely filed, having been wrongfully refused by 
the clerk of the United States District Court prior to the



5

Police Court trial, and that a case for removal under 28 
U. S. C. § 1443 had been sufficiently alleged therein (M. R. 
15).

On July 13, 1964, a hearing on appellee’s motions to 
remand was had before the Honorable Sidney C. Mize, 
Judge of the United States District Court for the Southern 
District of Mississippi. No affidavits were submitted by the 
parties (M. R. 22), but counsel for appellants submitted a 
memorandum of law (M. R. 22). Counsel for appellants 
treated appellee’s motions to remand— since they did not 
controvert any of the factual allegations contained in the 
petitions—as in the nature of demurrers testing the suffi­
ciency in law of the petitions (M. R. 29). Judge Mize 
granted the motions to remand, holding that the removal 
petitions had not been timely filed (M. R. 35), and that 
they did not state a removal case under 28 U. S. C. § 1443 
(M. R. 36). Judge Mize also denied appellants’ motion for 
a stay of the remand orders pending appeal (M. R. 40).

On July 14, 1964, appellants offered into evidence one 
of the petitions for writ of habeas corpus, setting forth 
under oath of Mr. Due the circumstances of the filing of the 
removal petitions (M. R. 41). Judge Mize refused to 
allow the petition into evidence, on the ground that it was 
irrelevant and immaterial (M. R. 41), but allowed it to be 
made part of this record (M. R. 42). The orders granting 
remand and appellants’ notices of appeal were filed on 
July 14, 1964, as well as an order consolidating the cases 
for purposes of filing a record on appeal in this court 
(M. R. 1).

The orders granting remand stated:

. . .  28 U. S. C. [§]1443 has no application to the 
matters alleged and set forth in the petition [s] for 
removal (M. R. 17).



6

On July 16, 1964, appellants filed a motion for a stay 
pending appeal in this Court.

This Court granted a stay of the remand orders on 
July 23, 1964, saying:

The petition for removal in these cases was based 
in part on alleged unconstitutionality of certain city 
ordinances and thus would warrant the District Court’s 
retaining jurisdiction under 28 U. S. C. A. § 1443.

Specifications of Error

1. The District Court erred in remanding the cases for 
failure of the removal petitions to state a removable 
case under 28 U. S. C. § 1443.

2. The District Court erred in remanding the cases for 
failure of the removal petitions to be timely filed.

A R G U M E N T

I.
This Court Has Jurisdiction to Review the Remand 

Orders.

The present cases were removed from the state court 
by petitions filed in June, 1964, relying on 28 U. S. C. 
§ 1443. They were remanded on July 14, 1964 and notices 
of appeal were filed July 14, 1964. Prior to July 2, 1964, 
28 IT. S. C. § 1447(d) read:

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



7

On July 2, 1964, Congress enacted the Civil Rights Act 
of 1964, 78 Stat. 241, which provides in § 901, 78 Stat. 266:

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

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

The applicability of the new statute to the present 
cases—pending in the District Court at the time of its 
enactment, but neither remanded nor appealed until after 
the statute took effect—is plain. Congress of Racial 
Equality v. Town of Clinton, No. 20960 (5th Cir., Septem­
ber 22,1964), and cases cited.

II.

Appellants’ Removal Petitions Sufficiently State a Re­
movable Case Under 28  U. S. C. § 1 4 4 3 (2 ) .

Subsection 2 of 28 U. S. C. § 1443 allows removal by a 
defendant of any prosecution ‘‘ [f]or  any act under color 
of authority derived from any law providing for equal 
rights” . This provision has seldom been litigated and has 
never been construed in its application to circumstances 
like those in the present case.1 Appellants here contend:

1 In Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 1963), 
removal was sought of prosecutions for assault with intent to kill 
and for carrying a knife, charges arising out of a fight between the 
defendant and a white student after rocks were thrown at the 
station wagon in which defendant was escorting home from school



8

(A) That an act is under “ color of authority” of law 
if it is done in the exercise of freedoms protected by that 
law;

(B) That 42 IT. S. G. § 1983 is a “ law providing for 
equal rights” and protects, inter alia, acts in the exercise 
of freedom of speech to protest racial discrimination; and

(C) That appellants are being prosecuted for such pro­
tected acts.

two Negro students (one, defendant’s niece) who had that day 
been enrolled under federal court order in a previously segregated 
school. Defendant invoked §1443(2) on the theory that in escort­
ing the children and in protecting himself and them from persons 
who sought to frustrate enrollment, he was acting under color of 
authority derived from the Civil Rights Act of 1960, under which 
the enrollment order was made. The District Court assumed argu­
endo that in some circumstances removal under §1443(2) was 
available to a private individual charged with an offense arising out 
of his act of escorting pupils to a school being desegregated under 
federal court order, but held that this defendant, in his knife fight 
with the white student, was not implementing the court’s integra­
tion order, since that order made no provision for transporting or 
escorting the children to school (in light of the previously peaceful 
history of the school controversy, by virtue of which, prior to the 
day of enrollment, there was no reason to anticipate violence) ; 
hence there was no “proximate connection,” 218 F. Supp. at 634, 
between the court’s order and defendant’s fight.

In Hodgson v. Millward, 12 Fed. Cas. 285 (E. D. Pa. 1863), ap­
proved in Braun v. Sauerwein, 10 Wall. 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. 
§1443(2) where it appeared that the defendants in a civil trespass 
action, a United States marshal and his deputies, seized the plain­
tiff’s property under a warrant issued by the federal district attor­
ney, purportedly under authority of a Presidential order, notwith­
standing that the order might have been invalid. For the facts of 
the case, see Hodgson v. Millward, 3 Grant (Pa.) 412 (Strong, J. 
at nisi prim, 1863). This ease establishes the proposition that 
“color of authority” may be found where a federal officer acts under 
an order which is illegal. But it does not advance inquiry as to 
whether “ color of authority” exists in any other than the evident 
case of a regular federal officer acting under express warrant of his 
office.



9

A. “ Color of Authority

On its face, the authorization of removal by a defendant 
prosecuted for any act “under color of authority derived 
from” any law providing for equal civil rights might mean 
to reach (a) only federal officers enforcing the civil rights 
acts, (b) federal officers enforcing the civil rights acts 
and also private persons authorized by the officers to 
assist them in enforcing the acts, or (c) federal officers 
and persons enforcing or exercising rights under the civil 
rights acts. Legislative history supports the third con­
struction.

In 1863, Congress enacted the first removal provision 
applicable to other than revenue-enforcement cases. The 
Act of March 3, 1863, 12 Stat. 755, was a Civil War meas­
ure. It undertook principally to authorize Presidential 
suspension of the writ of habeas corpus, and to immunize 
from civil and criminal liability persons making searches, 
seizures, arrests and imprisonments under Presidential 
orders. Section 5, 12 Stat, 756, allowed removal of all 
suits or prosecutions “ against any officer, civil or military, 
or against any other person, for any arrest or imprison­
ment made, or other trespasses or wrongs done or com­
mitted, or any act omitted to be done, at any time during 
the present rebellion, by virtue or under color of any 
President of the United States, or any act of Congress.” 
This was the predecessor of the removal provision of the 
Civil Rights Act of 1866, 14 Stat. 27:

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



10

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 mili­
tary, or other person, for any arrest or imprisonment, 
trespasses, or wrongs done or committed by virtue 
or under color of authority derived from this act or 
the act establishing a Bureau for the relief of Freed- 
men and Refugees, and all acts amendatory thereof, 
or for refusing to do any act upon the ground that it 
would be inconsistent with this act, such defendant 
shall have the right to remove such cause for trial to 
the proper district or circuit court in the manner 
prescribed by the “ Act relating to habeas corpus and 
regulating judicial proceedings in certain cases,” ap­
proved March three, eighteen hundred and sixty-three 
and all acts amendatory thereof . . .

The 1866 provision was reenacted by reference in the 
second civil rights act (Enforcement Act of May 31, 1870, 
16 Stat. 140, 144), and, as affected by the third civil rights 
act (Ku Klux Act of April 20, 1871, 17 Stat. 13), became 
Rev. Stat. § 641:

Sec. 641. When any civil suit or criminal prosecu­
tion 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 pro­
viding for the equal civil rights of citizens of the 
United States, or of all persons within the jurisdiction



11

of the United States, or against any officer, civil or 
military, or other person, for any arrest or imprison­
ment or other trespasses or wrongs, made or com­
mitted 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 held in the district where it is 
pending. Upon the filing of such petition all further 
proceedings in the State courts shall cease, and shall 
not be resumed except as hereinafter provided . . .

In 1911, in the course of abolishing the old circuit courts, 
Congress technically repealed Rev. Stat. §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. § 74 (1940), and in 1948, with 
changes in phraseology, the removal provision assumed its 
present form as 28 U. S. C. § 1443.

This history indicates that, of the three suggested alter­
native constructions of § 1443(2), alternative (a), reading 
“ color of authority” as restricted to federal officers, 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 other person” 
was retained in the Revised Statutes and the Judicial



12

Code of 1911. Both “ officer” and “ person” were dropped 
in the 1948 revision, but, as the Revisor’s Note indicates 
(“ Changes were made in phraseology” ), no substantive 
change in the section was intended. Thus § 1443(2) reaches 
“ persons” other than “ officers” .

This history also requires rejection of alternative (b), 
which would restrict that class of “ persons” to persons 
authorized by federal officers to assist in the enforcement 
of the civil rights acts. The strongest argument for such a 
restriction of removal would be that the 1866 act desig­
nated 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 
authority derived from this act or the act establishing a 
Bureau for the relief of Freedmen and Refugees, and all 
acts amendatory thereof . . .” (emphasis added). This 
language might on its face seem directed to actions arising 
from law enforcement activity rather than to actions aris­
ing from the exercise of the rights given by the law. The 
language is patterned on the identical phraseology of the 
1863 habeas corpus act, 12 Stat. 755, where the authori­
zation of removal of actions against officers or persons 
“ 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” pretty clearly was addressed to actions aris­
ing from arrests, seizures and injuries performed by Union 
officers and persons acting under them.

However, although the 1866 act adopted the basic frame­
work of the act of 1863, it is evident that it adopted it for 
other and broader purposes. Whereas the 1863 legisla­
tion was concerned principally with protecting Union offi­



13

cers in their conduct of wartime activities, and gave no 
rights or immunities to private individuals, the later 
statutes to which the 1866 act refers—the 1866 Civil Eights 
Act itself, the Freedmen’s Bureau Act of March 3, 1865, 
13 Stat. 507, and the amendatory Freedmen’s Bureau Act 
of July 16, 1866, 14 Stat. 173 (which was debated by the 
1866 Congress as companion legislation to the 1866 Civil 
Eights Act)—did grant to private individuals extensive 
rights and immunities in the exercise of which it was fore­
seeable that “ trespasses or wrongs” might be charged 
against them. Section 1 of the 1866 Civil Eights Act, 14 
Stat. 27, and Sec. 14 of the amendatory Freedmen’s Bureau 
Act, 14 Stat. 176, for example, gave all citizens the right 
to 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 to resist arrest under discriminatory state 
legislation, citizens exercising their federally-granted 
rights would doubtlessly commit acts for which they might 
be civilly or criminally charged in the state courts. By 
Section 3 of the 1866 Civil Eights Act, Congress meant to 
authorize removal in such cases, and not merely in cases 
in which the freedmen acted under the authority of a 
federal officer. This appears clearly from the absence of 
any words of limitation in the allowance of removal of 
actions against any person 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 18152 and again in the revenue

2 Act of February 4, 1815, §8, 3 Stat. 195, 198.



14

act of 1866.3 By the latter, the same Congress which passed 
the Civil Rights Act of 1866 limited the broader removal 
provisions of the 1833 and 1864 revenue acts.4 Comparison 
of the revenue-act removal provisions with those of the 
civil rights acts strongly supports the conclusion that the 
latter are not limited to persons acting under the directions 
of a federal enforcement officer.

Indeed, this interpretation is the only plausible one 
under the pattern of removal jurisdiction presently in 
force by virtue of the 1948 Judicial Code. Section 
1442(a)(1) authorizes removal of suits or prosecutions 
against any federal officer or person acting under him for 
any act under color of his office, whether in civil rights 
cases or otherwise. If the separate removal provision of 
§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 in­
dividuals not “ acting under” a federal officer in the asser­
tion of their civil rights. Since private individuals acting 
as such derive authority from federal law only by exer­
cising privileges under it, appellants submit that it is 
inescapable that § 1443(2) authorizes removal by any per­
son exercising rights guaranteed by “ any law providing 
for equal rights.”

B. Law Providing for Equal Rights.

It is clear that “ any law providing for equal rights” in 
28 IT. S. C. § 1443(2) means the same thing as the language 
of Sec. 1443(1): “ any law providing for the equal civil

3 Act of July 13, 1866, §67, 14 Stat. 98,171.
4 Act of March 2, 1833, §3, 4 Stat. 632, 633; Act of June 30, 1864, 

§50, 13 Stat. 223, 241.



15

rights of citizens of the United States, or of all persons 
within the jurisdiction thereof.” 5

Cases may be found holding that the only right protected 
by this latter language is the right of equal protection of 
the laws.6 Even under such a restrictive view, the removal 
petitions filed by appellants adequately state a case for 
removal, for they allege both (a) that the prosecution of 
appellants has the purpose and effect of harassing them 
and unequally depriving them of their right of free ex­
pression—that is, of diserirninatorily denying them their 
rights to speak, assemble and protest grievances (M. R.

5 As originally enacted by Sec. 3 of the 1866 Civil Rights Act, 
the provision authorized removal by any persons who could not en­
force in the state courts “any of the rights secured to them by the 
first section of this act” and also by officers or persons for wrongs 
done under color of authority “ derived from this act or the act 
establishing a Bureau for the relief of Freedmen and Refugees, and 
all acts amendatory thereof.” Sections 16 to 18 of the Act of May 
31, 1870, 16 Stat. 140, 144, slightly extended the civil rights pro­
tected by Sec. 1 of the 1866 Act and provided that the rights thus 
created should be enforced according to the provisions of the 1866 
Act. In the Revised Statutes, §641, the removal provision extended 
to any person who could not enforce in the state courts “any rights 
secured to him by any law providing for the equal civil rights of 
citizens of the United States, or of all persons within the jurisdic­
tion of the United States,” and to officers or persons charged with 
wrongs done under color of authority “derived from any law pro­
viding for equal rights as aforesaid.” These two removal authoriza­
tions (now respectively subsections (1) and (2) of Sec. 1443) 
appeared in the 1911 Judicial Code, §31, 36 Stat. 1087, 1096, exactly 
as they had appeared in the Revised Statutes, with the “ color of 
authority” passage referring explicitly back to the “as aforesaid” 
laws described in the “cannot enforce” passage. Omission of “ as 
aforesaid” in the 1948 revision effected no substantive change, for 
as indicated by the Revisor’s Note, the 1948 revision intended only 
“ Changes . . .  in phraseology.”

6 Steele v. Superior Court, 164 P. 2d 781 (9th Cir. 1948) (alter­
native ground), cert, denied, 333 U. S. 861 (1948) ; Mill v. Penn­
sylvania, 183 P. Supp. 126 (W. D. Pa. 1960).



1G

8-9),7 and (b) that their prosecution has the purpose and 
effect of suppressing the exercise of free speech to protest 
racial discrimination in the City of Meridian (M. E. 8-9).8

However, the pertinent statutes are persuasive that the 
statement of an equal protection claim is not a requisite to 
invoking § 1443, and that free speech and other due process 
claims are rights “ under any law providing for the equal 
civil rights of citizens of the United States, or of all persons 
within the jurisdiction thereof” (§1443(2)).

42 U. S. C. § 1983 provides that “ Every person who, 
under color of any statute, ordinance, regulation, custom, 
or usage, of any State or Territory, subjects, or causes 
to be subjected, any citizen of the United States or other 
person within the jurisdiction thereof to the deprivation 
of any rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper proceed­
ing for redress.” This provision, which protects due proc­
ess rights,9 including the right of free speech10 derives 
from Sec. 1 of the Ku Klux Act of April 20, 1871, 17 Stat. 
13, the third civil rights act—clearly, in its history and

7 Supporting such a substantive claim, see Niemotho v. Maryland, 
340 U. S. 268, 272 (1951) (adverting to “ The right to equal pro­
tection of the laws, in the exercise of those freedoms of speech and 
religion protected bv the First and Fourteenth Amendments . . . ” ) ;  
cf. Hague v. C. I. 0., 307 U. S. 496 (1939) ; Fowler v. Rhode Island, 
345 U. S. 67 (1953).

8 Supporting such a substantive claim, see N. A. A. C. P. v. But­
ton, 371 U. S. 415, 428-431 (1963) ; N. A. A. C. P. v. Alabama, ex 
rel. Floivers, 377 U. S. 288, 307-309 (1964).

9 Monroe v. Pape, 365 U. S. 167 (1961).
10 Egan v. Aurora, 365 IT. S. 514 (1961) ; Douglas v. Jeannette, 

319 U. S. 157, 161-162 (1943) (relief denied on other grounds); 
Hague v. C. I. 0., 307 U. S. 496, 518, 527 (1939) (opinion of Justice 
Stone).



17

purposes, a “ law providing for . . . equal civil rights.” 11 
This, as a matter of plain language, brings a civil rights 
demonstrator’s free speech claim, founded on the First 
and Fourteenth Amendments and 42 U. S. C. § 1983, and 
unaccompanied by ancillary equal protection claims, within 
the removal provisions of 28 U. S. C. §1443(2).

Closer inspection of the original statutes is conclusive. 
The language (<any law providing for . . . equal civil rights” 
first appeared in § 641 of the Revised Statutes, and that 
language clearly meant to include not only the rights to 
equality assured by the first (1866) and second (1870) 
civil rights acts, but also the rights protected by the third 
civil rights act (1871), now 42 U. S. C. § 1983.12

11 The history of the 1871 act is extensively discussed in the opin­
ions in Monroe v. Pape, supra, note 9.

12 Section 1 of the 1871 act provided:
Be it enacted by the Senate and House of Representatives of 

the United States of America in Congress assembled, That any 
person who, under color of any law, statute, ordinance, regula­
tion, custom or usage of any State, shall subject, or cause to be 
subjected, any person within the jurisdiction of the United 
States to the deprivation of any rights, privileges, or immuni­
ties secured by the Constitution of the United States, shall, any 
such law, statute, ordinance, regulation, custom or usage of 
the State to the contrary notwithstanding, be liable to the 
party injured in any action at law, suit in equity, or other 
proper proceeding for redress; such proceeding to be prose­
cuted in the several district or circuit courts of the United 
States, with and subject to the same rights of appeal, review 
upon error, and other remedies provided in like cases in such 
courts, under the provisions of the act of the ninth of April, 
eighteen hundred and sixty-six, entitled ‘An act to protect all 
persons in the United States in their civil rights, and to furnish 
the means of their vindication’ ; and the other remedial laws of 
the United States which are in their nature applicable in such 
eases.

The sweeping language “other remedies provided in like cases in 
[the federal] . . . courts, under the provisions of the [1866 A ct]” 
was broad enough to include the 1866 Act’s removal provisions; and



18

C. The Acts for Which Appellants Are Prosecuted.

Under the construction of 28 U, S. C. § 1443(2) advanced 
in the preceding paragraphs, state criminal defendants 
prosecuted for acts in the exercise of First Amendment 
freedoms may remove their prosecutions to the federal 
courts. That appellants’ petitions bring them within the 
statute so construed is evident. The petitions allege, and 
appellee does not controvert, the fact that appellants are 
being prosecuted (1) for communicating to Negro pedes­
trians on a public sidewalk the information that certain 
stores in the City of Meridian, Mississippi discriminate 
aaginst Negroes and (2) for urging the pedestrians not to 
patronize those stores. After Edwards v. South Carolina, 
372 U. S. 229 (1963), Fields v. South Carolina, 375 U. S. 44 
(1963), and Henry v. Rock Hill, 376 U. S. 776 (1964), it is 
not to be doubted that such conduct is within the scope of 
constitutionally protected freedom of speech.

Of course, in order to establish the jurisdiction of a fed­
eral district court on removal, a defendant need not make 
out his federal constitutional defense on the merits, and 
need not conclusively show that his conduct was protected 
by the federal law on which he relies. That defense is the 
very matter to be tried in the federal court after removal is 
effected. To support federal jurisdiction, it is sufficient that 
the acts charged against the defendant be acts “under color 
of authority derived from” a federal civil rights law. 28 
U. 8. C. §1443(2). (Emphasis added.)

the still more sweeping reference to “ the other remedial law's of the 
United States which are in their nature applicable in such eases” 
was effective to invoke the removal provisions of the 1863 statute, 
upon which those of 1866 were also based. Plainly, the 1871 Act 
in terms extended that class of rights in service of which removal 
was available, and it was properly on this assumption that the 1873 
revision leading to Rev. Stat. §641 proceeded.



19

This has been clear since the earliest application of the 
criminal removal statutes in Tennessee v. Davis, 100 U. S. 
257, 261-62 (1879). In short, sidewalk communication is 
clearly colorable First Amendment activity.

Hence, appellants submit that their cases are removable 
under §1443(2).

III.

Appellants’ Removal Petitions Sufficiently State a Re­
movable Case Under 28 U. S. C. §1443 ( 1 ) .

A. The State Laws Under W hich Appellants A re Prosecuted  
Offend the Constitution of the United States.

Subsection 1 of 28 U. S. C. § 1443 allows removal of any 
criminal prosecution in which the defendant “ is denied or 
cannot enforce in the courts of [the] . . . State a right under 
any law providing for the equal civil rights of citizens of 
the United States . . . ” Unlike subsection 2, discussed in 
Argument II, subsection 1 has several times been before the 
Supreme Court of the United States. Strauder v. West Vir­
ginia, 100 U. S. 303 (1879); Virginia v. Rives, 100 U. S. 313 
(1879); Neal v. Delaware, 103 U. S. 370 (1880); Bush v. 
Kentucky, 107 U. S. 110 (1882); Gibson v. Mississippi, 162 
U. S. 565 (1896); Smith v. Mississippi, 162 U. S. 592 (1896); 
Murray v. Louisiana, 163 U. S. 101 (1896); Williams v. 
Mississippi, 170 U. S. 213 (1898); and Kentucky v. Powers, 
201 U. S. 1 (1906). All of these cases involved the claim 
that a state criminal defendant held for trial on a murder 
charge was denied federal rights under the equal protection 
clause of the Fourteenth Amendment by reason of sys­
tematic discrimination in the selection of the grand and 
petit juries.13 In Strauder, where a Negro .defendant seek­
ing removal could point to a statute in force in a state

13 The discrimination complained of in Powers was along political 
party lines; in all the other cases it was racial. An additional claim-



20

where he was held for trial expressly restricting eligibility 
for jury service to whites, removal was upheld. In the other 
cases, from Rives to Powers, the Court found that the state 
legislation controlling jury selection was non-discrimina- 
tory and even-handed, and that what the defendants com­
plained of was systematic discriminatory exclusion of 
jurors practiced by jury-selection officials absent sanction 
of state constitutional or statutory law. In these cases, 
removal was disallowed on the following grounds, stated in 
Rives, 100 U. S. at 321-322:

Now, conceding as we do, and as we endeavored to 
maintain in the case of Strauder v. West Virginia 
(supra, p. 303), that discrimination by law against the 
colored race, because of their color, in the selection of 
jurors, is a denial of the equal protection of the laws 
to a Negro when he is put upon trial for an alleged 
criminal offense against a State, the laws of Virginia 
make no such discrimination. If, as was alleged in the 
argument, though it does not appear in the petition or 
record, the officer to whom was intrusted the selection 
of the persons from whom the juries for the indictment 
and trial of the petitioners were drawn, disregarding 
the statute of the State, confined his selection to white 
persons, and refused to select any persons of the col­
ored race, solely because of their color, his action was a 
gross violation of the spirit of the State’s laws as well 
as of the act of Congress of March 1, 1875, which pro­
hibits and punishes such discrimination. He made 
himself liable to punishment at the instance of the 
State and under the laws of the United States. In one 
sense, indeed, his act was the act of the State, and was 
prohibited by the constitutional amendment. But inas-

—state court refusal to honor a state-granted pardon—was ad­
vanced in Powers, but that claim presented no genuine issue of a 
denial of a federal right.



21

much as it was a criminal misuse of the State law, it 
cannot be said to have been such a “ denial or disability 
to enforce in the judicial tribunals of the State”  the 
rights of colored men, as is contemplated by the re­
moval act. Sec. 641. It is to be observed that act gives 
the right of removal only to a person “who is denied, 
or cannot enforce, in the judicial tribunals of the State 
his equal civil rights.” And this is to appear before 
trial. When a statute of the State denies his right, or 
interposes a bar to his enforcing it, in the judicial 
tribunals, the presumption is fair that they will be 
controlled by it in their decisions; and in such a case a 
defendant may affirm on oath what is necessary for a 
removal. Such a case is clearly within the provisions 
of sect. 641. But when a subordinate officer of the 
State, in violation of State law, undertakes to deprive 
an accused party of a right which the statute law* 
accords to him, as in the case at bar, it can hardly be 
said that he is denied, or cannot enforce, ‘in the judicial 
tribunals of the State’ the rights which belong to him. 
In such a case it ought to be presumed the court will 
redress the wrong. . . ”

Under these decisions, the least to which appellants are 
plainly entitled is removal of the prosecution insofar as 
based upon a state statute or local ordinance which—like 
the Strauder statute—is on its face unconstitutional under 
a federal law “ providing for . . . equal civil rights.” 14

Miss. Code Ann. 1942, Rec. §2089.5 (1962 Supp.), see 
statutory appendix, p. 2a, infra, proscribing disturbance 
of the peace, under which all appellants other than appel­

«  The meaning of the quoted phrase in 28 U. S. C. §1443(1) is 
discussed in Argument II B, and appellants’ position is there docu­
mented that the language includes a federal law e.g., 42 U. S. C. 
§1983, protecting First and Fourteenth Amendment rights.



lant Watson are prosecuted, is invalid under First-Four­
teenth Amendment doctrines of vagueness and overbreadth 
as developed in Herndon v. Lowry, 301 U. S. 242 (1937); 
Wright v. Georgia, 373 U. S. 254 (1963); and Harris v. 
Pace, 8 Race Rel. L. Rep. 1355 (M. D. Ga., November 1, 
1963). This statute does not warn that it punishes merely 
the act of communicating one’s views to passers-by on a 
public sidewalk; it requires persons such as appellants to 
speculate at peril of liberty as to its meaning. See Lan- 
zetta v. Hew Jersey, 306 U. S. 451, 453 (1939). The Su­
preme Court of the United States has consistently warned 
that, where freedom of expression is involved, vague penal 
laws cannot be tolerated. N. A. A. C. P. v. Button, 371 U. S. 
415, 433 (1963). One important reason for this ban is that 
statutes such as § 2089.5 provide law enforcement officers 
with a blank check. In effect, § 2089.5 gives a policeman 
discretion to arrest any person on a public street whom he 
finds offensive. Thus, a person may not only be forced to 
relinquish his constitutional right of free speech, but may 
also be forced to answer criminally for its exercise. As this 
Court recognized in Nesmith v. Alford, 318 F. 2d 110, 121 
(5th Cir. 1963):

. . . [L]iberty is at an end if a police officer may with­
out warrant arrest, not the persons threatening vio­
lence, but those who are its likely victims merely be­
cause the person arrested is engaging in conduct which, 
though peaceful and legally and constitutionally pro­
tected, is deemed offensive and provocative to settled 
social customs and practices. When that day comes . . . 
the exercise of [First Amendment rights] must then 
conform to what the conscientious policeman regards 
the community’s threshold of intolerance to be.

Section 3-2 of the Code of Ordinances of the City of 
Meridian (see Statutory Appendix, p. 3a, infra, under



23

which appellant Watson is charged), taken alone, seems to 
be nothing more than a permissible proscription of com­
mercial handbills. See Valentine v. Chrestensen, 316 U. S. 
52 (1942). However, taken in the context of the open-ended 
definition of “ advertising matter” contained in section 3-1, 
see Statutory Appendix, p. 3a, infra, the proscription is 
exposed as an indefensible abridgment of the right of free 
speech. By these ordinances, the City of Meridian seeks to 
make criminal any distribution of any circular or pamphlet 
upon a public sidewalk in Meridian. This it may not con­
stitutionally do. Lovell v. Griffin, 303 U. S. 444 (1938); 
Schneider v. Irvington, 308 U. S. 147 (1939); Jamison v. 
Texas, 318 IT. S. 413 (1943); and Talley v. California, 362 
U. S. 60 (1960) (reversing a conviction for distribution of 
handbills urging a boycott of stores having racially dis­
criminatory hiring policies). As the Supreme Court of 
the United States said in Jamison v. Texas, 318 U. S. 413, 
416 (1943):

[0]ne who is rightfully on a street . . . carries with 
him there as elsewhere the constitutional right to ex­
press his views in an orderly fashion . . .  by handbills 
and literature as well as by the spoken word.

Further, under the rationale of Supreme Court decisions, 
all of the charges against appellants are severally remov­
able by reason of the showing in the removal petitions that 
even those charges which are not unconstitutional on their 
face are unconstitutional if applied to make criminal appel­
lants’ federally protected conduct. The most restrictive 
test of removal, as enunciated in Kentucky v. Powers, 201 
U. S. 1 (1906), is whether or not state statutory law dic­
tates the federally unconstitutional result complained of in 
the removal petition. Under this test, whenever one who is 
prosecuted in a state court makes a substantial showing that 
the substantive statute under which he is charged is uncon­



24

stitutional in its application to him, denying him his fed­
eral civil rights, his case is eo ipso removable, notwithstand­
ing that he cannot point to any other, procedural provision 
of state statutory law which impedes the enforcement of his 
rights in the state courts. And for these purposes, it mat­
ters not whether the state statute in question is unconsti­
tutional on its face (i.e., in all applications) or unconsti­
tutional as applied (i.e., insofar as it condemns his fed­
erally protected conduct), for in each case it is the statute 
which directs the state court to the constitutionally imper­
missible result.

It is significant that the whole line of Supreme Court 
decisions from Rives to Powers involved claims of denial 
of federal rights by reason of an unconstitutional trial pro­
cedure, viz., discrimination in the selection of jurors. In 
none of these cases did the defendant claim that the sub­
stantive criminal statute on which the prosecution was 
based was invalid (either on its face or as applied to his 
conduct) by reason of federal limitations on the kind of 
conduct which a state may punish. Neal v. Delaware, 103 
U. S. 370, 386 (1880), and subsequent cases, e.g., Gibson v. 
Mississippi, 162 U. S. 565, 581 (1896), explain the Rives- 
Powers line as holding that “ since [the removal] . . . section 
only authorized a removal before trial, it did not embrace 
a case in which a right is denied by judicial action during 
the trial . . . ” But a defendant who attacks the underlying 
criminal statute as unconstitutional does not predicate his 
attack on “ judicial action during the trial.” He says that 
if he is convicted at all under the statute his conviction will 
be illegal.

Here appellants maintain that their acts of communicat­
ing to pedestrians on a public sidewalk information about 
racially discriminatory practices may not constitutionally 
be punished. Edwards v. South, Carolina, 372 U. S. 229 
(1963); Fields v. South Carolina, 375 U. S. 44 (1963);



25

Henry v. Rode Hill, 376 U. S. 776 (1964); Talley v. Cali­
fornia, 362 U. S. 60 (1960); Wright v. Georgia, 373 U. S. 
284 (1963); and N. A. A. C. P. v. Button, 371 U. S. 415 
(1963). Thus, irrespective of the procedure forthcoming 
at trial (but cf. I l l  C, infra), they may not be constitu­
tionally punished under the statute and ordinance invoked, 
and thus “ cannot enforce in the courts of [the] . . . State” 
their federal civil rights.15

B. The Pendency of These Prosecutions in the State Courts 
Is Designed to Harass Appellants and to Suppress Their 
First Amendment Rights.

The United States Supreme Court has consistently said 
that First-Fourteenth Amendment rights occupy a consti­
tutionally “ preferred position.” 16 It has recognized that 
“ the threat of sanctions may deter their exercise almost as 
potently as the actual application of sanctions.” 17 Where 
a state defendant petitioning for removal can show a fed­
eral court that the prosecution against him is maintained 
with the purpose and effect of harassing and punishing him 
for the past exercise of these rights, and deterring him and 
others similarly situated from the future exercise of these 
rights, a particularly strong case for immediate federal 
court intervention is made.18

15 Except, of course, that the state court may hold the statute 
unconstitutional and enforce appellants’ federal claims. But it is 
always possible to say that a state court may do this, and if this 
possibility blocks removal, the removal statute is entirely read off 
the books. This would require repudiation of Strauder v. West Vir­
ginia, 100 U. S. 303 (1879), and rejection of the assumption on 
which the Rives-Powers line of cases was decided, viz., that if an 
unconstitutional state statute were found, removal would be proper.

16 Marsh v. Alabama, 326 U. S. 501, 509 (1946), and cases cited.
17 N. A. A. C. P. v. Button, 371 U. S. 415, 433 (1963) (voiding a 

state statute whose vagueness and overbreadth the Court found 
likely to deter the exercise of First Amendment freedoms).

18 See Baggett v. Bullitt, 377 U. S. 360 (1964).



26

Removal, which brings before the federal courts at an 
early stage the very litigation which the defendant claims 
is an instrument for infringing his rights, allows timely 
vindication of those rights. Were it otherwise, the defen­
dant would likely be disadvantaged during “ an undue length 
of time,” 19 while he attempted to assert his rights in un­
sympathetic state trial and appellate courts. In cases in­
volving free speech, unlike cases of the Rives-Powers type, 
the very pendency of prosecution in the state courts denies 
the defendant his civil rights, and disables him from enforc­
ing them, within the meaning of 28 U. S. C. §1443(1).

Moreover, the essential purpose of removal jurisdiction 
—to provide the removing party with a federal trial court 
expert in hearing issues of fact underlying federal claims— 
has particular application to cases involving First Amend­
ment defenses. The scope of First Amendment protection 
turns largely on questions of fact, and the power of the 
trier of fact to find the facts adversely to defendant is the 
power to effectively deprive him of his First Amendment 
freedoms. See, e.g., Feiner v. New Torh, 340 IT. S. 315, 319, 
321 (1951). When one who is charged with crime for the 
exercise of colorable First Amendment freedoms is required 
to try the facts in state courts which, as the removal legis­
lation recognizes, are likely to be less sympathetic to pro­
tect federal freedoms than the federal judiciary, the major 
danger is not the existence of state constitutional or statu­
tory law, which on its face denies federal constitutional 
rights, but the risk of biased or incompetent fact-finding.

Recent Supreme Court development of the void-for- 
vagueness doctrine has recognized that a cardinal constitu­
tional objection to the vague or overbroad state statute op­
erating in the First Amendment area is its susceptibility to 
improper application by a trier of fact insulated against

19 Baggett v. Bullitt, 377 U. S. 360, 379 (1964).



27

federal appellate review.20 Historically, Congress has used 
the device of federal removal precisely to protect litigants 
having preferred federal claims from the risk of hostile 
state court fact-finding, which fact-finding not only works 
to impede vindication of federal rights of defendants who 
actually go to trial in state courts but which also deters 
the exercise of those rights by those defendants and others 
similarly situated in the future. In any realistic sense, 
appellants’ liability to trial in state court for colorable 
First Amendment conduct in itself denies them—and makes 
them unable to enforce—their federal civil rights within 
the meaning of 28 U. S. C. § 1443(1).

C. The State Courts in Which Appellants Are Prosecuted Are 
Hostile to Appellants.

Appellants’ removal petitions state that appellants “ are 
unable to enforce their federal rights . . .  in the courts of 
Mississippi, and particularly in the Municipal Court of 
Meridian and the Circuit Court of Lauderdale County, 
because [those] courts are hostile to [appellants] by rea­

20 Striking down Virginia barratry statutes on the ground that 
their overbreadth threatened First Amendment guarantees, the 
Court in N. A. A. C. P. v. Button, 371 U. S. 415, 432-433 (1963), 
wrote: “The objectionable quality of vagueness and overbreadth 
does not depend upon absence of fair notice to a criminally accused 
or upon unchanneled delegation of legislative powers, but upon the 
danger of tolerating, in the area of First Amendment freedoms, the 
existence of a penal statute susceptible of sweeping and improper
application.14” ,

Footnote 14 cites: “Amsterdam, Note, The Void-for-Vagueness 
Doctrine in the Supreme Court, 109 U. of Pa. L. Rev. 67 (I960).” 
The cited note points out (109 TJ. of Pa. L. Rev. at 80) : “ . . . Fed­
eral review of the functioning of state judges and juries in the 
administration of criminal and regulatory legislation is seriously 
obstructed by statutory unclarity. Prejudiced, discriminatory, or 
over-reaching exercises of state authority may remain concealed 
beneath findings of fact impossible for the Court to redetermine 
when such sweeping statutes have been applied to the complex, 
contested fact constellations of particular cases.”



28

son of race and by reason of the commitment of those 
courts to enforce Mississippi’s policy of racial discrimina­
tion” (M. E. 11).

Appellee’s motions to remand do not controvert this 
allegation (M. E. 15-16).

Judge Mize held that “ the matters alleged and set forth 
in the petition[s] for removal” have “no application” to 
28 II. S. C. § 1443 (M. E. 17).

Appellants submit that hostility on the part of a state 
court is a sufficient ground for removal to federal court 
under 28 U. S. C. § 1443. Thus, appellants submit that 
the doctrine of Kentucky v. Powers, 201 U. S. 1 (1906), 
should be rejected insofar as it teaches that removal under 
§ 1443 is proper only where the removal petitioner claims 
an inability to enforce his federal rights in a state court 
arising out of the destruction of his rights by the con­
stitution or statutory laws of the state wherein the action 
is pending.

The doctrine of the Powers case seems the product of a 
development which misconceived what was held in Virginia 
v. Rives, 100 lT. S. 313 (1879). In Rives, the Court held 
that removal was improperly allowed on a petition which 
alleged that petitioners were Negroes charged with murder 
of a white man; that there was strong race prejudice 
against them in the community; that the grand jury which 
indicted them and the jurors summoned to try them were 
all white; that the judge and prosecutor had refused peti­
tioners’ request that a portion of the trial jury be composed 
of Negroes; and that, notwithstanding that state laws re­
quired jury service of males without discrimination as to 
race, Negroes had never been allowed to serve as jurors 
in the county. The Court found that these allegations 
“ fall short of showing that any civil right was denied, or



29

that there had been any discrimination against the de­
fendants because of their color or race. The facts may have 
been as stated, and yet the jury which indicted them, and 
the panel summoned to try them, may have been impar­
tially selected.” Id. at 322. What was wanting as a matter 
of pleading (in those early days before experience in the 
trial of jury discrimination claims bred the “ prima facie” 
showing doctrine of, e.g., Reece v. Georgia, 350 U. S. 85 
(1955)) was an allegation of purposeful or intentional 
discrimination, and the Court said that this might have 
been supplied by averment that a statute of the State 
barred Negroes from jury service:

When a statute of the State denies his right, or 
interposes a bar to his enforcing it, in the judicial 
tribunals, the presumption is fair that they will be 
controlled by it in their decisions; and in such a case 
a defendant may affirm on oath what is necessary for 
a removal (100 U. S. at 321).

Thus, the Court thought that the inability to enforce fed­
eral rights of which the removal statute spoke “ is pri­
marily, if not exclusively, a denial of such rights, or an 
inability to enforce them, resulting from the Constitution 
or laws of the State, rather than a denial first made mani­
fest at the trial of the case.” Id. at 319. But the Court did 
not suggest as an inflexible prerequisite to removal that the 
bar to effective enforcement of federal rights be statutory.

Nor could it reasonably have done so. The case in which 
there exists a state statutory or constitutional provision 
barring enforcement of a federal right is the case in which 
removal to a federal trial court is least needed. The impact 
of such a written obstruction of federal law is relatively 
easily seen and dealt with on direct review of the state 
court judgment by the Supreme Court of the United States.



30

Where removal is most needed is the case in which the 
impingement on federal rights is more subtle, more im­
pervious to appellate correction, as where state-court hos­
tility and bias warp the process by which the facts under­
lying the federal claim are found. As was said in England 
v. Louisiana State Board of Medical Examiners, 375 U. S. 
411, 416-417 (1964):

How the facts are found will often dictate the de­
cision of federal claims. “ It is the typical, not the 
rare, case in which constitutional claims turn upon the 
resolution of contested factual issues.” Townsend v. 
Sain, 372 U. S. 293, 312.

The case in which local prejudice and local resistance 
pitch the risk of biased fact-finding strongly against fed­
eral claims presents the clearest justification for federal 
trial jurisdiction. It is in such situations that Congress 
has, from the beginning, authorized removal.21

21 Since the inception of the government, federal removal juris­
diction has been progressively expanded by Congress to protect 
national interests in cases “ in which the state tribunals cannot be 
supposed to be impartial and unbiased” ( T h e  F e d e r a l is t , No. 80 
(Hamilton)). Hamilton wrote: “ The most discerning cannot fore­
see how far the prevalency of a local spirit may be found to 
disqualify the local tribunals for the jurisdiction of national 
causes . . . ”  ( T h e  F e d e r a l is t , No. 81 (Hamilton)). In the fed­
eral convention Madison pointed out the need for such protection:

Mr. [Madison] observed that unless inferior tribunals were 
dispersed throughout the Republic with final jurisdiction in 
many cases, appeals would be multiplied to a most oppressive 
degree; that besides, an appeal would not in many eases be a 
remedy. What was to be done after improper Verdicts in State 
tribunals obtained under the biassed directions of a dependent 
Judge, or the local prejudices of an undirected jury? To 
remand the cause for a new trial would answer no purpose. To 
order a new trial at the supreme bar would oblige the parties 
to bring up their witnesses, tho’ ever so distant from the seat 
of the Court. An effective Judiciary establishment commensu­



31

The language and statutory history, as well as the pur­
pose, of the 1866 statute which, without change of sub­
stance, is present 28 U. S. 0. § 1443, refute any rigid 
requirement of civil rights removal being predicated on a 
state statute or constitution. Section 3 of the 1866 Civil 
Rights Act, 14 Stat. 27, provided that removal might be 
had by persons “who are denied or cannot enforce in the 
courts or judicial tribunals of the State or locality where 
they may he any of the rights secured to them by the first 
section of this act.” (Emphasis added.) The reference to 
“ locality” suggests that something less than statutory 
obstruction to the enforcement of rights was thought to be 
sufficient.22 The rights enumerated in Section 1 included 
“ full and equal benefit of all laws and proceedings for the 
security of person and property, as is enjoyed by white 
citizens . . . , any law, statute, ordinance, regulation, or 
custom, to the contrary notwithstanding.” (Emphasis

rate 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. I P a r - 
b a n d , R e c o r d s  o f  t h e  F e d e r a l  C o n v e n t io n  124 (1911).

The Judiciary Act of 1789 allowed removal in specified classes of 
cases where it was particularly thought that local prejudice would 
impair national concerns (Act of September 24, 1789, §12, 1 Stat. 
73, 79-80), and extensions of the removal jurisdiction were em­
ployed in 1815 and 1833 to shield federal customs officials (Act of 
February 4, 1815, §8, 3 Stat. 195, 198; Act of March 2, 1833, §3, 4 
Stat. 632, 633).

22 The “locality” provision was rephrased in Rev. Stat. §641, 
which turned removal on the inability to enforce federal rights “ in 
the judicial tribunals of the State, or in the part of the State where 
such suit or prosecution is pending.” This wording was carried for­
ward in §31 of the Judicial Code of 1911, 36 Stat. 1087, 1096, and 
appeared in 28 U. S. C. §74 (1940). In the 1948 revision it was 
“omitted as unnecessary,” Revisor’s Note, presumably on the theory 
that one who may remove from a state court may thereby remove 
from the court of any part of the state. The omission tokens no sub­
stantive change in the statute.



32

added.)23 24 “ Proceedings” was certainly intended to add 
something to “ laws” , and the inclusion of reference to 
“ custom” was not inadvertent. Senator Trumbull, who 
introduced, reported and managed the hill which became 
the aet2i twice told the Senate that it was intended to allow 
removal “ in all cases where a custom prevails in a State, 
or where there is a statute-law’ of the State discriminating 
against [the freedman].” (Emphasis added.)25 Cf .Monroe 
v. Pape, 365 U. S. 167 (1961). Indeed, the Senator ex­
pressly said that it was not the existence of a statute, any 
more than that of a custom, that constituted such a failure 
of state process as to authorize removal; rather, in each 
case, ’whether custom or statute, it was the probability that 
the state court would fail adequately to enforce federal 
guarantees.26

23 Section 1 of the Civil Rights Act of 1866 was reenacted by 
Sections 16 and 18 of the Enforcement Act of 1870, 16 Stat. 140, 
144. It appeared in Rev. Stat. §1977, now 42 U. S. C. §1981, with­
out the “notwithstanding” clause. No intention to effect a substan­
tive change appears. The “notwithstanding” clause, although in­
dicative of legislative purpose respecting application of the statute, 
was not an effective provision, since the Supremacy Clause of the 
Constitution made it unnecessary.

24 Introduced, Cong. Globe, 39th Cong., 1st Sess. 129 (1/5/1866). 
Reported, id. at 184 (1/11/1866). Taken up, id. at 211 (1/12/1866).

25 Id. at 1759 (4/4/1866). See id. at 475 (1/29/1866).
26 Cong. Globe, 39th Cong., 1st Sess. 1759 (4/4/1866) :

So in reference to this third section, the jurisdiction is given 
to the Federal courts of a case affecting the person that is dis­
criminated against. Now, he is not necessarily discriminated 
against, because there may be a custom in the community dis­
criminating against him, nor because a Legislature may have 
passed a statute discriminating against him; that statute is 
of no validity if it comes in conflict with a statute of the United 
States with which it was in direct conflict, and the case would 
not therefore rise in which a party was discriminated against 
until it was tested, and then if the discrimination was held 
valid he would have a right to remove it to a Federal court—



33

There is recent case support for re-examining the doc­
trine of Kentucky v. Powers.

Georgia v. Tuttle, 377 U. S. 987 (1964), involved the at­
tempted removal under § 1443 of a number of criminal 
trespass prosecutions in Atlanta, Georgia. The circum­
stances and legal theories of the removal were quite similar 
to those in the present case (with the possible difference 
that the First Amendment claims and the allegations of 
state-court hostility were weaker than those of appellants 
here). The federal district court remanded the cases, and 
the Court of Appeals for the Fifth Circuit Court stayed 
the remand order pending appeal. Rachel v. Georgia, No. 
21354 (5th Cir., March 12, 1964). The State of Georgia 
petitioned for writs of prohibition and mandamus from the 
United States Supreme Court to vacate the stays. On the 
last day of the term, the Court denied Georgia’s petition 
without opinion.

In view of the Court’s traditional willingness to issue 
the prerogative writs, at the instance of a State, to correct 
lower federal courts’ improper assumptions of jurisdiction 
in criminal removal cases,27 the summary disposition of 
Georgia v. Tuttle indicates that the Court had no difficulty 
in concluding that the argument for removal was tenable.

or, if undertaking to enforce his right in a State court he was 
denied that right, then he could go into the Federal court; but 
it by no means follows that every person would have a right 
in the first instance to go to the Federal court because there 
was on the statute book of the State a law discriminating 
against him, the presumption being that the judge of the court, 
when he came to act upon the case, would, in obedience to the 
paramount law of the United States, hold the State statute to 
be invalid.

27 Virginia v. Rives, 100 U. S. 313 (1879); Kentucky v. Powers, 
201 U. S. 1 (1906) ; Maryland v. Soper, 270 U. S. 9 (1926) ; Colo­
rado v. Symes, 286 U. S. 510 (1932).



34

IV.
Appellants’ Removal Petitions Were Timely Filed.

Judge Mize held that the removal petitions ‘Svere not 
filed within the proper time” (M. R. 35). This holding, 
appellants submit, is incorrect.

Hours before appellants’ trial was called in the Police 
Court of the City of Meridian, on June 10, 1964, Mr. John 
Due presented to the clerk of the United States District 
Court for the Southern District of Mississippi. Meridian 
Division, separate removal petitions, individually verified 
by each of the appellants (S. M. R. 7). The clerk refused 
to file these petitions on the ground that they were required 
to be filed in duplicate (S. M. R. 8). With the consent of 
the clerk, Mr. Due left the petitions in her possession and 
personally served notices of removal with attached peti­
tions on the Meridian city attorney and the clerk of the 
Police Court (S. M. R. 8).

The duplicate-petition requirement is flatly inconsistent 
with 28 U. S. C. § 1446(a), which provides for the filing of 
"a verified petition” (emphasis added). Absent the clear 
command of a statute, burdensome technical requirements 
should not be judicially invented, nor should procedures 
obstructing effective enforcement of civil rights be adopted. 
See 42 U. S. C. §1988; Lefton v. Hattiesburg, No. 21441 
(5th Cir., June 5, 1964). No reason for this requirement 
appears; its effect, at least in this case, is to bar “ effective 
access to the Federal courts” (Lefton v. Hattiesburg, 
supra).

Further, it is submitted that even were the requirement 
somehow valid, failure to file a duplicate petition would 
not be a jurisdictional defect until a reasonable time had



35

lapsed since the filing of the single petition. Thus the 
requirement was ineffective here to defeat the attachment 
of federal jurisdiction upon the filing of a single petition.28

Moreover, the removal petitions were filed “before trial” 
within the meaning of 28 U. S. C. § 1446(c), since they were 
filed before appellants’ trial de novo in a court of record.29 
This is demonstrated by the legislative history of 28 
U. S. C. § 1446(c). Prior to 1948, the civil rights removal 
provisions pertaining to criminal prosecutions allowed the 
filing of a removal petition “ at any time before the trial 
or final hearing. . . . ” 30 31 Under these provisions, removal 
was timely if effected subsequent to a summary trial but 
prior to a trial de novo.51 The 1948 revisors apparently in­
tended no change. In the “Historical and Revision Notes” 
to 28 U. S. C. § 1446(c), they said: “Words ‘or final hearing’ 
following the words ‘before trial’, were omitted for pur­
poses of clarity and simplification of procedure.” 32 Thus 
it would appear that removal prior to trial de novo is still 
timely.33

28 The failure of the clerk to formally file the removal petitions 
had no effect upon the jurisdiction of the District Court, since 
removal jurisdiction attaches when the removal petitions are pre­
sented or deposited for filing. See Dienstag v. St. Paul Fire and 
Marine Ins. Co., 164 P. Supp. 603, 605 (S. D. N. Y. 1957).

29 Mississippi law permits a trial de novo in a court of record 
after a summary trial in a court of no record. Miss. Code Ann. 
1942, Rec., §1202.

80 Rev. Stat. §641; Judicial Code §31 (1911); 28 U. S. C. §74 
(1940).

31 In re Duane, 261 Fed. 242 (D. Mass. 1919).
32 This revision note may be contrasted with the note to §1446(b), 

governing civil cases, where a change of law was clearly intended.
33 There can be no question that, in the Police Court, appellants 

did not waive their right to remove their cases before trial de novo, 
even assuming that such waiver is possible (see M. R. 35). Counsel 
for appellants specifically objected to the jurisdiction of the Police 
Court (S. M. R. 9-10).



36

CONCLUSION

For the foregoing reasons, the orders o f the District 
Court remanding appellants’ cases should be vacated, 
with directions to retain jurisdiction in these cases.

Respectfully submitted,

Carsie A. Hall
Jack H. Y oung

115% North Farish Street 
Jackson, Mississippi 39201

Jack Greenberg
Melvyn Zarr

10 Columbus Circle 
New York, N. Y. 10019

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

A nn Cooper
294 Washington Street 
Boston, Massachusetts

Attorneys for Appellants

Certificate of Service

T his is to certiey that on October........... , 1964, I served
a copy of the foregoing Brief for Appellants upon Thomas 
K. Holyfield, attorney for appellee, by mailing a copy 
thereof to him, c /o  Holyfield & Goldman, 925 Lamar Build­
ing, Meridian, Mississippi by IT. S. mail, postage prepaid.

Attorney for Appellants



A P P E N D I X



la

Statutory Appendix

28 U. S. C. § 1443 

§ 1443. Civil rights cases.

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

(1) Against any person who is denied or cannot 
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 jurisdic­
tion 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.

28 U. S. C. § 1446 

§ 1446. Procedure for removal.
(a) A defendant or defendants desiring to remove 

any civil action or criminal prosecution from a State 
court shall file in the district court of the United States 
for the district and division within which such action 
is pending a verified petition containing a short and 
plain statement of the facts which entitle him or them 
to removal together with a copy of all process, plead­
ings and orders served upon him or them in such 
action.



2a

(c) The petition for removal of a criminal prosecu­
tion may be filed at any time before trial.

(e) Promptly after the filing of such petition and 
bond the defendant or defendants shall give written 
notice thereof to all adverse parties and shall file a 
copy of the petition with the clerk of such State court, 
which shall effect the removal and the State court shall 
proceed no further unless and until the case is re­
manded.

28 U. S. C. § 1447(d), as A mended by § 901 of the Civil 
R ights A ct of 1964, 78 Stat. 241, 266

§ 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, 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 appeal 
or otherwise.

Miss. Code A nn . 1942, R ec., § 2089.5 (1962 Supp.)

§ 2089.5. Disturbance of the public peace, 
or the peace of others.

1. Any person who disturbs the public peace, or the 
peace of others, by violent, or loud, or insulting, or 
profane, or indecent, or offensive, or boisterous con­
duct or language, or by intimidation, or seeking to 
intimidate any other person or persons, or by conduct 
either calculated to provoke a breach of the peace, or 
by conduct which may lead to a breach of the peace, 
or by any other act, shall be punished by a fine of not 
more than five hundred dollars ($500.00), or by impris­
onment in the county jail not more than six (6) months, 
or both.. . .



3a

Code of Ordinances of the City of Meridian,
Sec. 3-1, Sec. 3-2

Sec. 3-1. Definitions.
(a) Advertising Matter. The term “ advertising mat­

ter” as used in this chapter shall mean any written or 
printed card, poster, circular, coupon, pamphlet or 
folder intended for general distribution, except news­
papers. (1949 Code, ch. 3, § 1).

Sec. 3-2. Distribution of Advertising Matter, Samples.

No person shall throw, scatter or distribute, or cause 
to be thrown, scattered or distributed any advertising 
matter or sample of merchandise upon any sidewalk, 
street, lane, alley, public ground or other public place 
or upon any private lot or porch within the corporate 
limits of the City; provided that it shall not be unlaw­
ful to distribute advertising matter or samples to pri­
vate residences, offices or mercantile establishments if 
the same are handed in at the door or securely fastened 
to prevent it from being blown or scattered about. 
(1949 Code, ch. 3, § 2).



agjgg)B 38