Georgia v. Rachel Brief for Respondents Rachel in Opposition
Public Court Documents
January 1, 1965
Cite this item
-
Brief Collection, LDF Court Filings. Georgia v. Rachel Brief for Respondents Rachel in Opposition, 1965. 0349e22e-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e7e883f8-f31b-447d-9683-428527769999/georgia-v-rachel-brief-for-respondents-rachel-in-opposition. Accessed July 19, 2025.
Copied!
I n T H E
( ta r t nf tlj? Uniteii BtatzB
October Term, 1963
No. 1361 Misc.
Georgia,
—v.—
Petitioner,
H onorable E lbert P. T uttle, et at..,
Respondents.
ON PE T ITIO N EOR W RIT OP PRO H IB ITIO N AND ORDER IN T H E
NATURE OP MANDAMUS TO T H E U N ITE D STATES COURT OF APPEALS
FOR T H E F IF T H CIRCUIT
BRIEF FOR RESPONDENTS RACHEL ET AL.
IN OPPOSITION
Donald L. H ollo well
H oward Moore, J r.
859% Hunter Street, N.W.
Atlanta, Georgia 30314
J ack Greenberg
10 Columbus Circle
New York, New York 10019
Of Counsel
Anthony G. Amsterdam
Melyyn Zarr
I N D E X
PAGE
Statement of the Case .................................................. 1
Allegations in Response to the Petition _.................... 4
Statutes and Rules......................................................... 5
Statutory History ........................................... 9
A r g u m e n t
The Relief Sought by the State of Georgia Should
Not Be Granted If (I) the Court of Appeals Argu
ably Has Jurisdiction of the Case Pending Before It,
and (II) the Court of Appeals Could Arguably De
cide the Case in Favor of Respondents ................. 28
I. The Court of Appeals Arguably Has Jurisdic
tion of the Case Pending Before I t ..................... 31
II. The Court of Appeals Arguably Could Decide
the Case in Favor of Respondents..................... 51
Conclusion .................................................................... 59
A ppen dix :
Indictment of Rachel.............................................. 1
Petition for Removal................. 3
Order of Remand ............................ .......... ........... 8
Notice of Appeal ................. 13
Motion for Stay Pending Appeal ..... .................. 15
Motion to Dismiss Appeal ........................ 18
11
Opinion and Order of Conrt of Appeals .......... 22
Order of Superior Court of Fulton County.......... 24
Motion for Further Relief and Amendment There
to ...... .................................................................. 25
Order Enjoining Solicitor General ....................... 34
Opinion and Order Enjoining Sheriff ................. 37
Order of Superior Court of Fulton County of
April 1, 1964 ............... ............ ......................... 42
Order of Superior Court of Fulton County of
April 20, 1964 .................. ................................... 48
Table of Cases
Aetna Casualty & Surety Co. v. Flowers, 330 U. S. 464
(1947) ......................... ............... ................................ 35
Arceneaux v. Louisiana, 84 S. Ct. 777 (1964) .......... 31
Babbitt v. Clark, 103 U. S. 606 (1880) ........................ 33
Baines v. Danville, 321 F. 2d 643 (4th Cir. 1963) ...... 30
Baker v. Grice, 169 U. S. 284 (1898) ............................ 47
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) ..29, 53
Burton v. Wilmington Parking Authority, 365 U. S.
715 (1961) ................................................................. 5
Carroll v. United States, 354 U. S. 394 (1957) ........ 37
Cleary v. Bolger, 371 U. S. 392 (1963) ......................... 48
Cole v. Garland, 107 Fed. 759 (7th Cir. 1901), writ of
error dism’d, 183 U. S. 693 (1901) ................. 42,43,44
Colorado v. Symes, 286 U. S. 510 (1932) .................... 28
Commissioner v. Estate of Church, 335 U. S. 632
(1949) ......................... ............................................... 52
Congress of Racial Equality v. City of Clinton, Louisi
ana (Fifth Circuit, appeal pending) ........................ 3
Coppedge v. United States, 369 U. S. 438 (1962) ....34,45
PAGE
Deekert v. Independence Shares Corp., 311 U. S. 282
(1940) .................. .................. ..... ............. ................ 28
Dnrfee v. Duke, 375 U. S. 106 (1963) ............................ 40
Edwards v. South Carolina, 372 U. S. 229 (1963) ...... 5, 29
Employers Reinsurance Corp. v. Bryant, 299 U. S.
374 (1937) ................................... ............... ................. 33
England v. Louisiana State Board of Medical Exam
iners, 375 U. S. 411 (1964) ____ _______ ___ _____ 56
Ex parte Bain, 121 U. S. 1 (1887) .... 46
Ex parte Newman, 14 Wall. 152 (1871) __ 33
Ex parte Royall, 117 U. S. 241 (1886) ........................ 47
Ex parte Siebold, 100 U. S. 371 (1879) ..... ............... 46
Fay v. Noia, 372 U. S. 391 (1963) _______11, 40, 46, 48, 49
Garner v. Louisiana, 368 U. S. 157 (1961) ................. 5,29
Gay y. Ruff, 292 U. S. 25 (1934) .....................33,35,42,43
German Nat’l Bank v. Speckert, 181 U. S. 405 (1901) .. 43
Girouard v. United States, 328 U. S. 61 (1946) ....... 52
Heflin v. United States, 358 U. S. 415 (1959) ............ 34
Henry v. Rock Hill, 84 S. Ct. 1042 (1964) ........... 29
Hoadley v. San Francisco, 94 IT. S. 4 (1876) ......... 33
In re Hohorst, 150 U. S. 653 (1893) _______ 45
In re Loney, 134 U. S. 372 (1890) .................... 49
In re Neagle, 135 U. S. 1 (1890) .... 49
In re Pennsylvania Co., 137 U. S. 451 (1890) ...........34,37
In re Snow, 120 U. S. 274 (1887) _____ 46
Insurance Co. v. Comstock, 16 Wall. 258 (1872) .......... 33
Jones v. Cunningham, 371 U. S. 236 (1963) ................. 45
Kentucky v. Powers, 201 U. S. 1 (1906) .............. 51,52,53
Labuy v. Howes Leather Co., 352 U. S. 249 (1957) ..32, 33,45
Local No. 438 v. Curry, 371 U. S. 542 (1963) ..... ........... 52
Lombard v. Louisiana, 373 U. S. 267 (1963) ...... ...........5, 52
I l l
PAGE
IV
McClellan v. Garland, 217 U. S. 268 (1910) .............. 33
McLaughlin Bros. v. Hallowell, 228 U. S. 278 (1913) .... 44
Marsh v. Alabama, 326 IT. S. 501 (1946) .....................5, 53
Maryland v. Soper, 270 IT. S. 9 (1926) ............ .......... 28, 29
Metropolitan Casualty Ins. Co. v. Stevens, 312 IT. S.
563 (1941) .......................... ...... ............................... .17,44
Missouri Pacific By. Co. v. Fitzgerald, 160 IT. S. 556
(1896) .......................................................................33, 39
Mitchell v. United States, 368 U. S. 439 (1962).............. 34
Monroe v. Pape, 365 U. S. 167 (1961) ........................ 52, 57
Morey v. Lockhart, 123 U. S. 56 (1887) ......................... 39
N.A.A.C.P. v. Button, 371 U. S. 415 (1963) ...........29, 53, 54
Nielsen, Petitioner, 131 IT. S. 176 (1889) ..................... 46
New York v. Eno, 155 U. S. 89 (1894) ................. ....... 47
New York Times Co. v. Sullivan, 84 S. Ct. 710 (1964) 53
Ohio v. Thomas, 173 U. S. 276 (1899) ......................... 49
Peterson v. Greenville, 373 U. S. 244 (1963) ................. 5
Platt v. Minnesota Mining & Mfg. Co., 84 S. Ct. 769
(1964) ............................................... 33
Prendergast v. New York Telephone Co., 262 U. S. 43
(1923) .......................................... 28,30
Prince v. Massachusetts, 321 U. S. 158 (1944) .............. 53
Bailroad Co. v. Wiswall, 23 Wall. 507 (1874) ............. 33
Beece v. Georgia, 350 U. S. 85 (1955) ............. 54
Saia v. New York, 334 U. S. 558 (1948) ............. 53
Shelley v. Kraemer, 334 U. S. 1 (1948) ____________ 5
Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) ..............38, 42
Speiser v. Bandall, 357 U. S. 513.................................. 55
Stack v. Boyle, 342 U. S. 1 (1951) ................................ 46
Stefanelli v. Minard, 342 U. S. 117 (1951) ..................... 48
PAGE
V
Tennessee v. Davis, 100 U. S. 257 (1879) ........ ............ 31
Thornhill v. Alabama, 310 U. S. 88 (1940) ..................... 5
Townsend v. Sain, 372 U. S. 293 (1963) ..................... 40
Turner v. Farmers’ Loan & Trust Co., 106 IT. S. 552
(1882).................................... -.........-............................ 33
United States v. Borden Co., 308 U. S. 188 (1939) .... 42
United States v. Jackson, 302 U. S. 628 (1938) .......... 42
United States v. Morgan, 346 U. S. 502 (1954) .............. 34
United States v. Noce, 268 U. S. 613 (1925) ................. 42
United States v. Rice, 327 U. S. 742 (1946) ...... 33, 37, 39, 42
United States v. Sanges, 144 U. S. 310 (1892) .............. 36
United States v. Smith, 331 U. S. 469 (1947) .............. 33
United States v. United Mine Workers, 330 U. S. 258
(1947) ......................................................................... 28
United States Alkali Export Assn. v. United States,
325 U. S. 196 (1945) .................................................. 42
Virginia v. Rives, 100 U. S. 313 (1879) .....................54,55
Waley v. Johnston, 316 U. S. 101 (1942) ..................... 46
Waugaman v. United States (5th Cir. No. 21077), de
cided April 27, 1964 .................................................. 45
Wildenhus’s Case, 120 U. S. 1 (1887) ......................... — 49
Wright v. Georgia, 373 U. S. 284 (1963) ..................... 47
F ederal Statutes and R ules :
28 U. S. C. §1291 (1958) .................................. 5
28 U. S. C. §1443 (1958) ....................... 6
28 U. S. C. §1447(d) (1958) ..................................... 6
28 U. S. C. §1651 (1958) _____ 6
28 U. S. C. §2241 (1958) ...... 7
28 U. S. C. §2254 (1958) ........... .......................... 7
Fed. Rule Civ. Pro. 81(b) ........... ........................ 8
Fed. Rule Crim. Pro. 37 ....................................... 8
PAGE
S t a t e S t a t u t e :
Ga. Code Ann. §26-3005 (1963 Supp.) (Georgia
Laws, 1960, pp. 142-43) __ __________1, 2, 3, 4, 5
Other Authorities :
Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners, 76 Harv.
L. Rev. 441 (1963) _____________________ _
Cong. Globe, 37th Cong., 3d Sess. 538 (1/27/1863)
Cong. Globe, 39th Cong., 1st Sess. 129 (1/5/1866),
184 (1/11/1866), 211 (1/12/1866) ................
Cong. Globe, 39th Cong., 1st Sess. 475 (1/29/1866)
Cong. Globe, 39th Cong., 1st Sess. 1759 (4/4/86) ..
Cong. Globe, 39th Cong., 1st Sess. 4150-51
(7/25/1866) ................................ ..... ...... ............ .
95 Cong. Rec. 5020 (81st Cong., 1st Sess. (4/26/
49)) ------ -------------------------------------------- -
95 Cong. Rec. 5827 (81st Cong., 1st Sess.
(5/6/49)) .................. ......27,
Desty, The Removal of Causes From State to
Federal Courts (3d ed. 1893) ...........................
Dillon, Removal of Causes From State Courts to
Federal Courts (5th ed. 1889) ______________
I l l Elliot’s Debates (1836) ...................................
I Farrand, Records of the Federal Convention
(1911) ......................... 9,
The Federalist, No. 80 (Hamilton) (Warner, Phil
adelphia ed. 1818) .... 9,
The Federalist, No. 81 (Hamilton) (Warner, Phil
adelphia ed. 1818) .................................. ............
Frankfurter & Landis, The Business of the Su
preme Court (1928) ..... .................................. .19,
', 8
37
53
57
57
57
48
27
35
38
38
10
53
10
9
37
Vll
PAGE
Hart & Wechsler, The Federal Courts and the
Federal System (1953) ______ ___________9,35
H. E. Eep. No. 352, 81st Cong., 1st Sess. (1949) .... 27
H. R. Eep. No. 1078, 49th Cong., 1st Sess. (1886) 37
McKitrick, Andrew Johnson and Reconstruction
(1960) ____________________ ______ ____ __ 48
1 Morison & Commager, Growth of the American
Republic (4th ed. 1950) ........................ .............. 11
Randall, The Civil War and Reconstruction (1937) 48
Speer, Removal of Causes From the State to Fed
eral Courts (1888) ................................. ........... . 38
Isr t h e
§>ttprm£ (Erntrl nf % Itttteft States
O c t o b e r T e r m , 1963
No. 1361 Misc.
G e o r g ia ,
-v.-
Petitioner,
H o n o r a b l e E l b e r t P . T u t t l e , e t a l .,
Respondents.
o n p e t i t i o n e o r w r i t o p p r o h i b i t i o n a n d o r d e r i n t h e
NATURE OP MANDAMUS TO T H E U N ITED STATES COURT OP APPEALS
FOR T H E P IP T H CIRCUIT
BRIEF FOR RESPONDENTS RACHEL ET AL.
IN OPPOSITION
Statement of the Case
Respondents1 Rachel et al. attempted, during May and
June of 1963, to obtain desegregated service at segregated
restaurants in Atlanta, Georgia (see verified petition for
removal, (|1) (App. pp. 3-6). When respondents refused to
leave these restaurants after having been requested to do
so, they were arrested and charged with violation of Ga.
Code Ann. §26-3005 (1963 Supp.) (Georgia Laws, 1960, pp.
142-43), p. 8, infra, which makes it a misdemeanor to re
fuse to leave the premises of another upon request.
1 Throughout this brief the term “respondents” refers to the
defendants in the criminal actions sought to be removed, who are
respondents in this Court by reason of the Court’s Rule 31(3).
The term “respondents” is not used to refer to the judges of the
Court of Appeals for the Fifth Circuit.
2
On August 2, 1963, indictments against respondents for
violations of section 26-3005 were returned by the grand
jury of Fulton County (see, e.g., App. pp. 1-2).
On February 17, 1964, respondents herein petitioned the
United States District Court for the Northern District of
Georgia, Atlanta Division, for removal of the prosecutions
from the Superior Court of Fulton County. Respondents
alleged in their verified petition that removal was neces
sary and proper under 28 U. S. C. §1443, because respon
dents could not enforce in the state court their rights under
the First Amendment and the Due Process and Equal Pro
tection clauses of the Fourteenth Amendment to the Con
stitution of the United States. Moreover, respondents al
leged they were being prosecuted for acts done under color
of authority of the federal Constitution and laws and for
refusing to do acts inconsistent with the Constitution and
laws (App. pp. 6-7).
The following day, United States District Judge Boyd
Sloan remanded sua sponte, without hearing or argument,
construing section 1443 to be inapplicable “where a party is
deprived of any civil right by reason of discrimination or
illegal acts of individuals or judicial or administrative
officers” (App. p. 11).
Respondents herein filed a notice of appeal from Judge
Sloan’s order on March 5, 1964 (App. p. 13). On March
12, 1964, they filed in the Court of Appeals for the Fifth
Circuit a motion for a stay pending appeal, to which was
appended a copy of the petition for removal and the re
mand order. The motion recited that Judge Durwood T.
Pye of the Superior Court of Fulton County had ordered
defendants in companion cases to show cause wdiy their
bonds should not be increased and that respondents here
in stood threatened with the immediate prospect of their
bonds being increased by Judge Pye, who had already in
3
creased the bond of one accused misdemeanant from $500
to $7000. If respondents’ bonds were increased, many of
them would be required to remain in jail because of in
ability to make the increased bond. The motion further
recited that the criminal prosecutions prevented them from
exercising their rights under the federal Constitution and
laws, that if Judge Sloan had granted a hearing respon
dents herein would have shown facts sustaining federal re
moval jurisdiction, and that unless a stay were granted
the substantial issues raised by respondents would become
moot (App. pp. 15-17).
Also on March 12th, the State of Georgia moved to dis
miss the appeal and to deny the stay, arguing that the
Court of Appeals was without jurisdiction of the case
(App. pp. 18-21).
The same day, the Court of Appeals, on the authority
of Congress of Racial Equality v. City of Clinton, Louisiana
(appeal pending in the Fifth Circuit), ordered the remand
order of the district court stayed pending disposition of
the instant appeal or earlier order (App. pp. 22-23).
In the face of the order of the Court of Appeals retaining
federal jurisdiction over the cases, Judge Pye “declined to
surrender jurisdiction,” ordered the Solicitor General, At
lanta Judicial Circuit, to proceed with the prosecutions in
his court, and directed the sheriff of Fulton County to defy
the order of the United States District Court commanding
the sheriff to surrender Prathia Laura Ann Hall, a peti
tioner for removal in a companion case, to the United States
marshal (App. p. 24 (Verified motion, adopted as findings
of fact by Order, App. p. 35)). Respondents, together with
others charged with §26-3005 violations who had filed re
moval petitions, moved the district court to forestall fur
ther action by Judge Pye (App. pp. 25-32).
4
On March 21, 1964, District Judge Sloan enjoined the
Solicitor General from proceeding further in any of the
removed cases until further order (App. pp. 34-36), and on
March 25th, Judge Sloan enjoined the sheriff of Fulton
County or any other person acting under orders of Judge
Pye from taking the respondents herein and others similarly
situated into custody for purposes of these prosecutions
(App. pp. 37-41).
On April 1, 1964, Judge Pye ordered the Solicitor Gen
eral, Atlanta Judicial Circuit, to apply to this Court for
writs of mandamus and prohibition against the Court of
Appeals for the Fifth Circuit directing that Court to va
cate its stay order and to proceed no further with the
case (App. pp. 42-47).
On April 20, 1964, Judge Pye struck the instant prosecu
tions from his calendar “until the rule of law shall be re
stored within the territorial limits of the United States
Court of Appeals for the Fifth Judicial Circuit” (App.
pp. 48, 51).
Allegations in Response to the Petition
The State of Georgia notes in its petition (Petn., p. 16)
that respondents have not attacked the constitutionality of
Ga. Code Ann. §26-3005 (1963 Supp.), the criminal tres
pass statute under which the prosecutions sought to be
removed are maintained. Respondents made no such specific
challenge to the statute in their removal petition because
the unconstitutionality of the statute is principally a mat
ter for defense on the merits to prosecution of the removed
actions. Had the District Judge permitted hearing or argu
ment before remanding the cases, respondents would have
argued under the First and Fourteenth Amendment claims
of their removal petition (App. pp. 3, 6-7) that the federal
rights which they cannot enforce in the state courts (28
5
U. S. C. §1443(1) (1958)),2 and the rights which they were
exercising under color of federal authority in refusing to
leave the restaurants in obedience to orders which would
have compelled them to act inconsistently with federal law
(28 IT. S. C. §1443(2)), were, inter alia, their rights to
immunity from sanctions imposed for violation of an un
constitutional statute, §26-3005. For purposes of clarifica
tion of their argument in defense to Georgia’s original peti
tion in this Court, respondents therefore allege that Ga.
Code Arm. §26-3005 (1963 Supp.) is unconstitutional on its
face under the First and Fourteenth Amendments, cf.
Marsh v. Alabama, 326 U. S. 501 (1946) and Thornhill v.
Alabama, 310 U. S. 88 (1940); Garner v. Louisiana, 368
U. S. 157, 185 (1961) (Mr. Justice Harlan, concurring),
and under the Equal Protection Clause of the Fourteenth
Amendment, cf. Burton v. Wilmington Parking Authority,
365 U. S. 715, 726-730 (1961) (separate opinions of Justices
Stewart, Frankfurter and Harlan), and unconstitutional
as applied under the First and Fourteenth Amendments,
cf. Marsh v. Alabama, supra; Edwards v. South Carolina,
372 U. S. 229 (1963), and under the Equal Protection
Clause of the Fourteenth Amendment, cf. Peterson v. Green
ville, 373 IT. S. 244 (1963); Lombard v. Louisiana, 373 U. S.
267 (1963); Shelley v. Kraemer, 334 U. S. 1 (1948).
Statutes and R ules
28 IT. S. C. §1291 (1958):
§1291. Final decisions of district courts.
The courts of appeals shall have jurisdiction of ap
peals from all final decisions of the district courts of
the United States, . . .
2 These rights derive from the First Amendment and the Due
Process and Equal Protection clauses of the Fourteenth. They are
protected by Rev. Stat. §§1977-1981, 42 U. S. C. §§1981-1986
6
28 U. S. C. §1443 (1958):
§1443. Civil rights cases.
Any of the following civil actions or criminal prose
cutions, commenced in a State court may be removed
by the defendant to the district court of the United
States for the district and division embracing the place
wherein it is pending:
(1) Against any person who is denied or cannot en
force in the courts of such State a right under any
law providing for the equal civil rights of citizens of
the United States, or of all persons within the jurisdic
tion thereof;
(2) For any act under color of authority derived
from any law providing for equal rights, or for refus
ing to do any act on the ground that it would be in
consistent with such law.
28 U. S. C. §1447(d) (1958):
§1447. Procedure after removal generally.
(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise. . . .
28 U. S. C. §1651 (1958):
§1651. Writs.
(a) The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.
(1958). Throughout this brief the terms “federal rights” or “con
stitutional rights” refer to these rights and invoke both consti
tutional and statutory protection.
7
28 U. S. C. §2241 (1958):
§2241. Power to grant writ.
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective jurisdic
tions. The order of a circuit judge shall be entered in
the records of the district court of the district wherein
the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any
circuit judge may decline to entertain an application
for a writ of habeas corpus and may transfer the ap
plication for hearing and determination to the district
court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to
a xmisoner unless—
(3) He is in custody in violation of the Constitu
tion or laws or treaties of the United States; . . .
28 U. S. C. §2254 (1958):
§2254. State custody; remedies in State Courts.
An application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that
the applicant has exhausted the remedies available in
the courts of the State, or that there is either an ab
sence of available State corrective process or the exist
ence of circumstances rendering such process ineffec
tive to protect the rights of the prisoner.
An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within
the meaning of this section, if he has the right under
the law of the State to raise, by any available pro
cedure, the question presented.
8
Fed. Rule Civ. Pro. 81 (b ):
(b) Scire Facias and Mandamus. The writs of scire
facias and mandamus are abolished. Relief heretofore
available by mandamus or scire facias may be obtained
by appropriate action or by appropriate motion under
the practice prescribed in these rules.
Fed. Rule Crim. Pro. 37:
Rule 37.
(a) Taking Appeal to a Court of Appeals.
(1) Notice of Appeal. An appeal permitted by law
from a district court to a court of appeals is taken by
filing with the clerk of the district court a notice of
appeal in duplicate. . . .
(2) Time for Taking Appeal. An appeal by a defen
dant may be taken within 10 days after entry of the
judgment or order appealed from. . . .
Ca. Code Ann. §26-3005 (1963 Supp.):
26-3005. Refusal to leave premises of another when
ordered to do so by owner or person in charge.—It
shall be unlawful for any person, who is on the prem
ises of another, to refuse and fail to leave said prem
ises when requested to do so by the owner or any
person in charge of said premises or the agent or em
ployee of such owner or such person in charge. Any
person violating the provisions of this section shall be
guilty of a misdemeanor and upon conviction thereof
shall be punished as for a misdemeanor. (Acts 1960,
p. 142.)
9
S ta tu to ry H is to ry
Progressively since the inception of the Government, fed
eral removal jurisdiction has been expanded by Congress3
to protect national interests in cases “in which the state
tribunals cannot be supposed to be impartial and un
biassed,” 4 for, as Hamilton wrote in The Federalist, “The
most discerning cannot foresee how far the prevalency of
a local spirit may be found to disqualify the local tribunals
for the jurisdiction of national causes. . . . ” 5 In the fed
eral convention Madison pointed out the need for such
protection, just before he successfully moved the Commit
tee of the Whole to authorize the national legislature to
create inferior federal courts:6
“Mr. [Madison] observed that unless inferior tri
bunals were dispersed throughout the Republic with
final jurisdiction in many cases, appeals would be multi
plied to a most oppressive degree; that besides, an
3 See H art & Wechsler, The F ederal Courts and the F ederal
System 1147-1150 (1953). Before 1887, the requisites for removal
jurisdiction were stated independently of those for original fed
eral jurisdiction; since 1887, the statutory scheme has been to
authorize removal generally of cases over which the lower federal
courts have original jurisdiction and, additionally, to allow removal
in special classes of cases particularly affecting the national inter
est: suits or prosecutions against federal officers, military per
sonnel, persons unable to enforce their equal civil rights in the
state courts, person acting under color of authority derived from
federal law providing for equal rights or refusing to act inconsis
tently with such law, the United States (in foreclosure actions),
etc. 28 U. S. C. §§1441-1444 (1958); see H art & Wechsler supra,
at 1019-1020.
4 The F ederalist, No. 80 (Hamilton) (Warner, Philadelphia ed.
1818), at 429.
5 Id., No. 81, at 439.
61 F arrand, Records of the F ederal Convention 125 (1911).
Mr. Wilson and Mr. Madison moved the matter in pursuance of
a suggestion of Mr. Dickinson.
10
appeal would not in many cases be a remedy. What
was to be done after improper Verdicts in State tri
bunals obtained under the biassed directions of a de
pendent Judge, or the local prejudices of an undirected
jury? To remand the cause for a new trial would an
swer no purpose. To order a new trial at the supreme
bar would oblige the parties to bring up their wit
nesses, tho’ ever so distant from the seat of the Court.
An effective Judiciary establishment commensurate to
the legislative authority, was essential. A Government
without a proper Executive & Judiciary would be the
mere trunk of a body without arms or legs to act or
move.” 7
The Judiciary Act of 1789 allowed removal in specified
classes of cases where it was particularly thought that local
prejudice would impair national concerns,8 and extensions
of the removal jurisdiction were employed in 1815 and 1833
to shield federal customs officials, respectively, against New
England’s resistance to the War of 1812 and South Caro
lina’s resistance to the tariff.'9 The 1815 act allowed re
71 id. 124.
8 The Act of September 24, 1789, ch. 20, §12, 1 Stat. 73, 79-80,
authorized removal in three classes of cases where more than $500
was in dispute: suits by a citizen of the forum state against an out-
stater ; suits between citizens of the same state in which the title
to land was disputed and the removing party set up an outstate
land grant against his opponent’s land grant from the forum state;
suits against an alien. The first two classes were specifically de
scribed by Hamilton as situations “in which the state tribunals
cannot be supposed to be impartial,” The F ederalist, No. 80
(Warner, Philadelphia ed. 1818), at 432; and Madison, speaking
of state courts in the Virginia convention, amply covered the
third: “We well know, sir, that foreigners cannot get justice done
them in these courts. . . . ” I l l E lliot’s Debates 583 (1836).
9 Act of February 4, 1815, ch. 31, §8, 3 Stat. 195, 198. Concern
ing Northern resistance to the War culminating in the Hartford
1 1
moval of “any suit or prosecution” (save prosecutions for
offenses involving corporal punishment) commenced in a
state court against federal officers or other persons acting
under color of the act or as customs officers, 3 Stat, 198;
the 1833 act allowed removal in any case where “suit or
prosecution” was commenced in a state court against any
federal officer or other person acting under color of the
revenue laws, or on account of any authority claimed under
the revenue laws, 4 Stat. 633.
Congress was thus acting within a tradition of enforcing
national policies against resistant localities by use of the
removal jurisdiction when, in 1863, it provided “That if
any suit or prosecution, civil or criminal, has been or shall
be commenced in any state court against any officer, civil
or military, or against any other person, for any arrest or
imprisonment made, or other trespasses or wrongs done
or committed, or any act omitted to be done, at any time
during the present rebellion, by virtue or under color of
any authority derived from or exercised by or under the
President of the United States, or any act of Congress,”
the defendant might remove the proceeding into a circuit
court of the United States. Act of March 3, 1863, eh. 81,
§5, 12 Stat. 755, 756. Certain procedural amendments to
the 1863 act were effected by the Act of May 11, 1866, eh. 80,
14 Stat. 46, which also provided in its fourth section “That
if the State court shall, notwithstanding the performance
Convention of 1814-1815, see 1 Morison & Commager, Growth
of the A merican Republic 426-429 (4th ed. 1950).
Act of March 2, 1833, ch. 57, §3, 4 Stat. 632, 633. Concerning
South Carolina’s resistance to the successive tariffs, culminating
in the nullification ordinance, see 1 Morison & Commager, supra
475-485. The Force Act of March 2, 1833, responded to the South
ern threat not merely by extending the removal jurisdiction of the
federal courts, hut by establishing a new head of habeas corpus
jurisdiction. Section 7, 4 Stat. 632, 634. See Fay v. Noia, 372
U. S. 391, 401 n. 9 (1963).
12
of all tilings required for the removal of the case to the
circuit court . . ., proceed further in said cause or prose
cution [before receipt of a certificate from the circuit court
stating that the removal has not been perfected] . . ., then,
in that case, all such further proceedings shall be void and
of none effect. . . . ”
Earlier in the same 1866 session, Congress passed, over
the presidential veto, the first civil rights act, Act of April
9, 1866, ch. 31, 14 Stat. 27. The first and third sections of
the act, reproduced below, significantly expanded federal
removal jurisdiction within the traditions of the 1815, 1833
and 1863 enforcement legislation:
“Be it enacted by the Senate and House of Repre
sentatives of the United States of America in Congress
assembled, That all persons born in the United States
and not subject to any foreign power, excluding Indians
not taxed, are hereby declared to be citizens of the
United States; and such citizens, of every race and
color, without regard to any previous condition of
slavery or involuntary servitude, except as a punish
ment for crime whereof the party shall have been duly
convicted, shall have the same right, in every State and
Territory in the United States, to make and enforce
contracts, to sue, be parties, and give evidence, to
inherit, purchase, lease, sell, hold, and convey real and
personal property, and to full and equal benefit of all
laws and proceedings for the security of person and
property, as is enjoyed by white citizens, and shall
be subject to like punishment, pains, and penalties, and
to none other, any law, statute, ordinance, regulation,
or custom, to the contrary notwithstanding.
“Sec. 2. And be it further enacted, That any person
who, under color of any law, statute, ordinance, regu
lation, or custom, shall subject, or cause to be subjected,
13
any inhabitant of any State or Territory to the depriva
tion of any right secured or protected by this act, or
to different punishment, pains, or penalties on account
of such person having at any time been held in a condi
tion of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have
been duly convicted, or by reason of his color or race,
than is prescribed for the punishment of white persons,
shall be deemed guilty of a misdemeanor, and, on con
viction, shall be punished by line not exceeding one
thousand dollars, or imprisonment not exceeding one
year, or both, in the discretion of the court.
“Sec. 3. And be it further enacted, That the district
courts of the United States, within their respective
districts, shall have, exclusively of the courts of the
several States, cognizance of all crimes and offences
committed against the provisions of this act, and also,
concurrently with the circuit courts of the United
States, of all causes, civil and criminal affecting per
sons who are denied or cannot enforce in the courts or
judicial tribunals of the State or locality where they
may be any of the rights secured to them by the first
section of this act; and if any suit or prosecution, civil
or criminal, has been or shall be commenced in any
State court, against any such person, for any cause
whatsoever, or against any officer, civil or military, or
other person, for any arrest or imprisonment, tres
passes, or wrongs done or committed by virtue or un
der color of authority derived from this act or the act
establishing a Bureau for the relief of Freedmen and
Refugees, and all acts amendatory thereof, or for re
fusing to do any act upon the ground that it 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
14
the ‘Act relating to habeas corpus and regulating ju
dicial proceedings in certain cases/ approved March
three, eighteen hundred and sixty-three, and all acts
amendatory thereof. The jurisdiction in civil and crim
inal matters hereby conferred on the district and cir
cuit courts of the United States shall be exercised and
enforced in conformity with the laws of the United
States, so far as such laws are suitable to carry the
same into effect; but in all cases where such laws are
not adapted to the object, or are deficient in the pro
visions necessary to furnish suitable remedies and
punish offences against law, the common law, as modi
fied and changed by the constitution and statutes of
the State wherein the court having jurisdiction of the
cause, civil or criminal, is held, so far as the same is
not inconsistent with the Constitution and laws of the
United States, shall be extended to and govern said
courts in the trial and disposition of such cause, and,
if of a criminal nature, in the infliction of punishment
on the party found guilty.”
The 1866 statute was reenacted by reference in the civil
rights act of 1870,10 and, with stylistic changes, became
Kev. Stat. §641:
10 The Enforcement Act of May 31, 1870, ch. 114, §§16-18, 16
Stat. 140, 144:
“Sec. 16. And be it further enacted, That all persons with
in the jurisdiction of the United States shall have the same
right in every State and Territory in the United States to
make and enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and proceedings
for the security of person and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, pen
alties, taxes, licenses, and exactions of every kind, and none
other, any law, statute, ordinance, regulation, or custom to
the contrary notwithstanding. No tax or charge shall be im
posed or enforced by any State upon any person immigrating
thereto from a foreign country which is not equally imposed
and enforced upon every person immigrating to such State
15
“Sec. 641. When any civil suit or criminal prose
cution is commenced in any State court, for any cause
whatsoever, against any person who is denied or can
not enforce in the judicial tribunals of the State, or in
the part of the State where such suit or prosecution is
pending, any right secured to him by any law provid
ing for the equal civil rights of citizens of the United
States, or of all persons within the jurisdiction of the
United States, or against any officer, civil or military,
or other person, for any arrest or imprisonment or
other trespasses or wrongs, made or committed by
virtue of or under color of authority derived from any
law providing for equal rights as aforesaid, or for
refusing to do any act on the ground that it would be
inconsistent with such law, such suit or prosecution
may, upon the petition of such defendant, filed in said
State court, at any time before the trial or final hearing
of the cause, stating the facts and verified by oath, be
removed, for trial, into the next circuit court to be
from any other foreign country; and any law of any State in
conflict with this provision is hereby declared null and void.
“Sec. 17. And be it further enacted, That any person who,
under color of any law, statute, ordinance, regulation, or
custom, shall subject, or cause to be subjected, any inhabitant
of any State or Territory to the deprivation of any right
secured or protected by the last preceding section of this act,
or to different punishment, pains, or penalties on account of
such person being an alien, or by reason of his color or race,
than is prescribed for the punishment of citizens, shall be
deemed guilty of a misdemeanor, and, on conviction, shall be
punished by fine not exceeding one thousand dollars, or im
prisonment not exceeding one year, or both, in the discretion of
the court.
“Sec. 18. And be it further enacted, That the act to pro
tect all persons in the United States in their civil rights, and
furnish the means of their vindication, passed April nine,
eighteen hundred and sixty-six, is hereby re-enacted; and sec
tions sixteen and seventeen hereof shall be enforced according
to the provisions of said act.”
16
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 Eev. Stat. §6411:l but carried
its provisions forward without change (except that removal
jurisdiction was given the district courts in lieu of the cir
cuit courts) as §31 of the Judicial Code.11 12 Section 31
verbatim became 28 U. S. C. §74 (1940),13 and in 1948, with
11 Judicial Code of 1911, §297, 36 Stat. 1087, 1168.
12 Judicial Code of 1911, §31, 36 Stat. 1087, 1096:
“Sec. 31. When any civil suit or criminal prosecution is
commenced in any State court, for any cause whatsoever,
against any person who is denied or cannot enforce in the
judicial tribunals of the State, or in the part of the State where
such suit or prosecution is pending, any right secured to him
by any law providing for the equal civil rights of citizens of
the United States, or of all persons within the jurisdiction of
the United States, or against any officer, civil or military, or
other person, for any arrest or imprisonment or other tres
passes or wrongs made or committed by virtue of or under
color of authority derived from any law providing for equal
rights as aforesaid, or for refusing to do any act on the ground
that it would be inconsistent with such law, such suit or prose
cution may, upon the petition of such defendant, filed in said
State court at any time before the trial or final hearing of
the cause, stating the facts and verified by oath, be removed
for trial into the next district court to be held in the district
where it is pending. Upon the filing of such petition all fur
ther proceedings in the State courts shall cease, and shall not
be resumed except as hereinafter provided. . . . ”
13 28 U. S. C. §74 (1940) :
Ҥ74. (Judicial Code, section 31.) Same; causes against
persons denied civil rights.
“When any civil suit or criminal prosecution is commenced
in any State court, for any cause whatsoever, against any
person who is denied or cannot enforce in the judicial tri
bunals of the State, or in the part of the State where such
suit or prosecution is pending, any right secured to him by
17
changes in phraseology,14 15 it assumed its present form as
28 U. S. C. §1443 (1958) :16
Ҥ1443. Civil rights cases.
“Any of the following civil actions or criminal pros
ecutions, commenced in a State court may be removed
any law providing for the equal civil rights of citizens of the
United States, or of all persons within the jurisdiction of the
United States, or against any officer, civil or military, or other
person, for any arrest or imprisonment or other trespasses or
wrong's made or committed by virtue of or under color of
authority derived from any law providing for equal rights
as aforesaid, or for refusing to do any act on the ground
that it would be inconsistent with such law, such suit or prose
cution may, upon the petition of such defendant, filed in said
State court at any time before the trial or final hearing of
the cause, stating the facts and verified by oath, be removed
for trial into the next district court to be held in the district
where it is pending. Upon the filing of such petition all fur
ther proceedings in the State courts shall cease, and shall not
be resumed except as hereinafter provided. . . . ”
14 Revisor’s Note to 28 U. S. C. §1443 (1958) :
u
“Words ‘or in the part of the State where such suit or
prosecution is pending’ after ‘courts of such States,’ [sic]
were omitted as unnecessary.
“Changes were made in phraseology.”
15 Act of June 25, 1948, ch. 646, §1443, 62 Stat. 869, 938. The
1948 Code made important changes in removal procedure. Prior
to 1948, a party seeking to remove a case or prosecution filed a
removal petition in the state court where the case was pending.
The state court passed upon the propriety of removal and granted
or denied the petition. Its denial was subject to direct review in
the state appellate courts and ultimately this Court, or to col
lateral attack by the filing of the record in the lower federal court
to which removal was authorized by statute. See Metropolitan
Casualty Ins. Co. v. Stevens, 312 U. S. 563 (1941). Under the 1948
Code the removal petition in “any civil action or criminal prose
cution” is filed in the first instance in the federal district court,
28 U. S. C. §1446 (a) (1958), which alone decides whether or not
removal is allowable. Removal petitions in civil actions must be
filed within 20 days following receipt of the initial pleading (or
18
by the defendant to the district court of the United
States for the district and division embracing the
place wherein it is pending:
“ (1) Against any person who is denied or cannot
enforce in the courts of such State a right under any
law providing for the equal civil rights of citizens of
the United States, or of all persons within the juris
diction thereof;
“ (2) For any act under color of authority derived
from any law providing for equal rights, or for refus
ing to do any act on the ground that it would be in
consistent with such law.”
All of the statutes thus far traced from 1815 to the 1948
codification dealt with the removal of civil and criminal
actions against federal officers and others acting under
federal authority; and after 1866 specifically with the re
moval of civil and criminal actions against officers and
persons enforcing, or obedient to, federal civil rights leg
islation or who could not enforce their federal civil rights
in the state courts. In 1875, the fourth and last nineteenth
century civil rights act was enacted, granting to all per
sons within the United States further “equal civil rights”
(Rev. Stat. §641, supra) enforceable under inter alia the
removal provisions of the act of 1866 codified in §641. * 28
the first subsequent pleading stating a removable case, where the
case stated by the initial pleading is not removable), but removal
petitions in criminal prosecutions may be filed at any time before
trial. 28 U. S. C. §1446(b), (c) (1958). Filing of a copy of the
removal petition with the clerk of the state court effects removal
and deprives the state court of jurisdiction to proceed. 28 U. S. C.
§1446(e) (1958). As under earlier practice, the federal court to
which removal is effected may stay subsequent state proceedings,
28 U. S. C. §2283 (1958), and, in criminal prosecutions, takes the
defendant into federal custody by habeas corpus, 28 U. S. C.
§1446(f) (1958).
19
Act of March 1, 1875, ch. 114, 18 Stat. 335. In the same
year, a distinct statutory development extended the removal
jurisdiction in quite different directions and for quite dif
ferent purposes. This was the Judiciary Act of 1875 which,
beginning as a bill to expand the diversity jurisdiction,16
was enacted as a regulation of the general civil (non-
civil-rights) jurisdiction of the circuit courts of the United
States. Act of March 3, 1875, ch. 137, 18 Stat. 470. This
act for the first time17 gave the lower federal courts orig
inal federal-question jurisdiction; its first section gave
the circuit courts jurisdiction “of all suits of a civil nature
at common law or in equity” involving the requisite juris
dictional amount and “arising under” federal law, or be
tween citizens of different states, or citizens of a State and
foreign states or subjects, or between citizens of the same
State claiming under land grants of different States, or
where the United States was plaintiff. 18 Stat. 470. No
original civil-rights jurisdiction was given; this had been
specially created by the civil rights acts and was codified,
in pertinent part, in Rev. Stat. §629, Sixteenth, Seventeenth,
Eighteenth,18 now 28 U. S. C. §1343(1), (2), (3) (1958).19
Section 1 of the 1875 Judiciary Act also gave the circuit
courts exclusive criminal jurisdiction “of all crimes and
offenses cognizable under the authority of the United
States, except as otherwise provided by law, and concur
rent jurisdiction with the district courts of the crimes and
16 F rankfurter & Landis, The Business op the Supreme Court
66-68 (1928).
17 Excepting the short-lived federalist Act of February 13, 1801,
ch. ® , §11, 2 Stat. 89, 92, repealed by the Act of March 8, 1802,
ch. • , 2 Stat. 132.
18 The civil rights jurisdiction of the district courts was sepa
rately codified in Rev. Stat. §563, Eleventh, Twelfth.
19 Original federal jurisdiction in federal question, diversity, and
diversity land grant cases is now provided respectively by 28
U. S. C. §§1331,1332,1354 (1958).
2 0
offenses cognizable therein.” 18 Stat. 470. Sections 2
through 7 of the act dealt with removal jurisdiction. They
authorized removal of “any suit of a civil nature, at law
or in equity” involving the requisite jurisdictional amount
and “arising under” federal law, or between citizens of
different States, or citizens of a State and foreign states
or subjects, or between citizens of the same State claiming
under land grants of different States, or where the United
States was plaintiff. 18 Stat. 470-471. No civil-rights
removal jurisdiction was given, nor any removal jurisdic
tion over criminal cases. Section 5 of the act provided
that, whenever it appeared that jurisdiction of an original
or removed suit was lacking, the circuit court should dis
miss or remand the suit to the state court as justice might
require; “but the order of said circuit court dismissing or
remanding said cause to the State court shall be reviewable
by the Supreme Court on writ of error or appeal, as the
case may be.” 18 Stat. 472.20
The Act of March 3, 1887, ch. 373, 24 Stat. 552, amended
to correct enrollment by the Act of August 13, 1888, ch.
866, 25 Stat. 433, extensively amended the Judiciary Act
of 1875. Although it left the original jurisdiction largely
unaltered (the jurisdictional minimum was raised from
20 “Sec. 5. That if, in any suit commenced in a circuit court or
removed from a State court to a circuit court of the United States,
it shall appear to the satisfaction of said circuit court, at any time
after such suit has been brought or removed thereto, that such
suit does not really and substantially involve a dispute or con
troversy properly within the jurisdiction of said circuit court, or
that the parties to said suit have been improperly or collusively
made or joined, either as plaintiffs or defendants, for the purpose
of creating a case cognizable or removable under this act, the said
circuit court shall proceed no further therein, but shall dismiss
the suit or remand it to the court from which it was removed as
justice may require, and shall make such order as to costs as shall
be ju st; but the order of said circuit court dismissing or remanding
said cause to the State court shall be reviewable by the Supreme
Court on writ of error or appeal, as the case may be.”
21
$500 to $2,000, and creation of diversity jurisdiction by
assignment of a negotiable instrument was precluded), the
Act of 1887 fundamentally rewrote the jurisdictional
grounds for, and the procedure in, civil removal cases.
Section 1, 25 Stat. 434-435, in pertinent part, provided:
“That the second section of said act [of 1875] be,
and the same is hereby, amended so as to read as fol
lows :
“Sec. 2. That any suit of a civil nature, at law or
in equity, arising under the Constitution or laws of
the United States, or treaties made, or which shall be
made, under their authority, of which the circuit courts
of the United States are given original jurisdiction
by the preceding section, which may now be pending,
or which may hereafter be brought, in any State court,
may be removed by the defendant or defendants therein
to the circuit court of the United States for the proper
district. Any other suit of a civil nature, at law or
in equity, of which the circuit courts of the United
States are given jurisdiction by the preceding section,
and which are now pending, or which may hereafter
be brought, in any State court, may be removed into
the circuit court of the United States for the proper
district by the defendant or defendants therein, being
non-residents of that State. And when in any suit
mentioned in this section there shall be a controversy
which is wholly between citizens of different States, and
which can be fully determined as between them, then
either one or more of the defendants actually inter
ested in such controversy may remove said suit into
the circuit court of the United States for the proper
district. And where a suit is now pending, or may be
hereafter brought, in any State court, in which there
is a controversy between a citizen of the State in which
the suit is brought and a citizen of another State, any
2 2
defendant, being such citizen of another State, may
remove such suit into the circuit court of the United
States for the proper district, at any time before the
trial thereof, when it shall be made to appear to said
circuit court that from prejudice or local influence he
will not be able to obtain justice in such State court,
or in any other State court to which the said defendant
may, under the laws of the State, have the right, on
account of such prejudice or local influence, to remove
said cause: Provided, That if it further appear that
said suit can be fully and justly determined as to the
other defendants in the State court, without being
affected by such prejudice or local influence, and that
no party to the suit will be prejudiced by a separation
of the parties, said circuit court may direct the suit
to be remanded, so far as relates to such other defen
dants, to the State court, to be proceeded with therein.
“At any time before the trial of any suit which is
now pending in any circuit court or may hereafter be
entered therein, and which has been removed to said
court from a State court on the affidavit of any party
plaintiff that he had reason to believe and did believe
that, from prejudice or local influence, he wras unable
to obtain justice in said State court, the circuit court
shall, on application of the other party, examine into
the truth of said affidavit and the grounds thereof,
and, unless it shall appear to the satisfaction of said
court that said party will not be able to obtain justice
in such State court, it shall cause the same to be re
manded thereto.
“Whenever any cause shall be removed from any
State court into any circuit court of the United States,
and the circuit court shall decide that the cause was
improperly removed, and order the same to be re
manded to the State court from whence it came, such
23
remand shall be immediately carried into execution,
and no appeal or writ of error from the decision of
the circuit court so remanding such cause shall be
allowed.”
Section 6 of the 1887 act provided: “That the last para
graph of section five of the act [of 1875; this reference is
to the review provision of §5, supra p. 20, n. 20] . . . and
all laws and parts of laws in conflict with the provisions of
this act, be, and the same are hereby repealed. . . . ” 25
Stat. 436-437. But §5 of the 1887 act contained this saving
clause:
“ Sec. 5. That nothing in this act shall be held,
deemed, or construed to repeal or affect any juris
diction or right mentioned either in sections six hun
dred and forty-one, or in six hundred and forty-two, or
in six hundred and forty-three, or in seven hundred and
twenty-two, or in title twenty-four of the Revised Stat
utes of the United States, or mentioned in section eight
of the act of Congress of which this act is an amend
ment, or in the act of Congress approved March first,
eighteen hundred and seventy-five, entitled ‘An act to
protect all citizens in their civil and legal rights.’ ” 21
Like the Act of 1875 which it amended, the Act of 1887 did
not affect federal removal jurisdiction in criminal cases.
21 The provisions to which reference is made are as follows:
§641 is the civil rights (civil and criminal) removal statute set
out supra pp. 15-16; §642 requires the clerk of the circuit court to
issue a writ of habeas corpus cum causa for the body of the defen
dant who has removed any suit or prosecution under §641; §643
authorizes removal of “any civil suit or criminal prosecution”
against a federal revenue officer, or any officer or person acting
under the federal voting laws; §722 describes the law to be applied
in civil rights (civil and criminal) removed cases; title 24 of the
Revised Statutes is the civil rights title; §8 of the Judiciary Act
of 1875 provides for service of process on absent defendants in civil
actions to enforce or remove liens or incumbrances on property
within the court’s jurisdiction; the Act of March 1, 1875, is the
fourth civil rights act, supra pp. 18-19.
24
As indicated above, the Judicial Code of 1911 technically
repealed Rev. Stat. §641, for the purpose of abolishing the
jurisdiction of the circuit courts. It carried forward §641’s
exact provisions as a grant of civil rights (civil and crim
inal) removal jurisdiction to the district courts by virtue
of Judicial Code §31, supra, p. 16, n. 12. The civil (non-
civil-rights) removal provisions of the Judiciary Act of
1887, amending that of 1875, were carried forward virtu
ally unchanged as Judicial Code §§28-30. Section 28, the
principal provision, reenacted inter alia the 1887 prohibi
tion of appellate review of remand orders, supra pp. 22-23.22
22 36 Stat. 1094-1095. Italicized in pertinent part, §28 reads:
Sec. 28. Any suit of a civil nature, at law or in equity,
arising under the Constitution or laws of the United States,
or treaties made, or which shall be made, under their authority,
of which the district courts of the United States are given
original jurisdiction by this title, which may now be pending
or which may hereafter be brought, in any State court, may
be removed by the defendant or defendants therein to the
district court of the United States for the proper district.
Any other suit of a civil nature, at law or in equity, of which
the district courts of the United States are given jurisdiction
by this title, and which are now pending or which may here
after be brought, in any State court, may be removed into the
district court of the United States for the proper district by
the defendant or defendants therein, being non-residents of
that State. And when in any suit mentioned in this section
there shall be a controversy which is wholly between citizens
of different States, and which can be fully determined as be
tween them, then either one or more of the defendants actu
ally interested in such controversy may remove said suit into
the district court of the United States for the proper district.
And where a suit is now pending, or may hereafter be brought,
in any State court, in which there is a controversy between
a citizen of the State in which the suit is brought and a citizen
of another State, any defendant, being such citizen of another
State, may remove such suit into the district court of the
United States for the proper district, at any time before the
trial thereof, when it shall be made to appear to said district
court that from prejudice or local influence he will not be able
to obtain justice in such State court, or in any other State court
to which the said defendant may, under the laws of the State,
have the right, on account of such prejudice or local in
fluence, to remove said cause: Provided, That if it further
25
Section 297 of the Code, 36 Stat. 1168, specifically repealed
the Judiciary Act of 1875 and §§1, 2, 3, 4, 6 and 7 of the
Judiciary Act of 1887—that is, every part of the act of 1887
except §5, the civil rights saving clause, supra p. 23. Sec
tion 297 further provided, 36 Stat. 1169:
“Also all other Acts and parts of Acts, in so far as
they are embraced within and superseded by this Act,
are hereby repealed; the remaining portions thereof
to be and remain in force with the same effect and to
the same extent as if this Act had not been passed.” 23
appear that said suit can be fully and justly determined as to
the other defendants in the State court, without being affected
by such prejudice or local influence, and that no party to the
suit will be prejudiced by a separation of the parties, said
district court may direct the suit to be remanded, so far
as relates to such other defendants, to the State court, to be
proceeded with therein. At any time before the trial of
any suit which is now pending in any district court, or
may hereafter be entered therein, and which has been re
moved to said court from a State court on the affidavit of
any party plaintiff that he had reason to believe and did
believe that, from prejudice or local influence, he was
unable to obtain justice in said State court, the district court
shall, on application of the other party, examine into the truth
of said affidavit and the grounds thereof, and, unless it shall
appear to the satisfaction of said court that said party will
not be able to obtain justice in said State court, it shall cause
the same to be remanded thereto. Whenever any cause shall
be removed from any State court into any district court of the
United States, and the district court shall decide that the cause
was improperly removed, and order the same to be remanded
to the State court from whence it came, suck remand shall be
immediately carried into execution, and no appeal or writ
of error from the decision of the district court so remanding
such cause shall be allowed: Provided, That no case arising
under an Act entitled “An Act relating to the liability of
common carriers by railroad to their employees in certain
cases,” approved April twenty-second, nineteen hundred and
eight, or any amendment thereto, and brought in any State
court of competent jurisdiction shall be removed to any court
of the United States.
23 Section 297 of the Judicial Code of 1911 was not affected by
the enactment of Title 28, U. S. C. in 1948. See 62 Stat. 869, 996.
26
Sections 28, 29 and 30 of the Judicial Code appear as 28
U. S. C. §§71, 72 and 73 (1940), respectively. By reason
of the abolition of the writ of error in all cases, civil and
criminal, in 1928,24 the sentence in §28 carrying forward
the 1887 preclusion of review by “appeal or writ of error,”
supra pp. 24-25, n. 22, omits reference to the writ. It reads:
“ . . . Whenever any cause shall be removed from any State
court into any district court of the United States, and the
district court shall decide that the cause was improperly
removed, and order the same to be remanded to the State
court from whence it came, such remand shall be immedi
ately carried into execution, and no appeal from the deci
sion of the district court so remanding such cause shall be
allowed.” 28 U. S. C. §71 (1940). No other significant
change appears.25
The 1948 Code (A) reenacted the civil rights (civil and
criminal) removal jurisdiction without substantive change,
28 U. S. C. §1443 (1958), supra pp. 17-18; (B) significantly
broadened the scope of removal jurisdiction (civil and
criminal) in cases involving federal officers and persons
acting under them, 28 U. S. C. §1442 (1958); (C) substan
tially rewrote the jurisdictional bases of general civil re
moval jurisdiction (descendent from the Judiciary Acts of
1875,1887, the Judicial Code of 1911, §§28-30 and 28 U. S. C.
§§71-73 (1940)), 28 U. S. C. §1441 (1958) ;26 (D) con
24 Act of January 31, 1928, ch. 14, 45 Stat. 54. The enactment
is general and has no special pertinence to removal cases.
25 Apart from the omission of reference to the writ of error, the
1940 sections differ from those of the 1911 Judicial Code only in
that 28 U. S. C. §71 (1940) reflects the Act of January 20, 1914,
eh. 11, 38 Stat. 278, limiting removal in actions brought against
railroads and common carriers for damages for delay, loss of, or
injury to property received for transportation.
26 §1441. Actions removable generally.
(a) Except as otherwise expressly provided by Act of Con
gress, any civil action brought in a State court of which the
2 7
siderably altered the removal procedures for both civil and
criminal actions, 28 U. S. C. §§1446, 1447 (1958), see supra
pp. 17-18, n. 15; and (E) inadvertently omitted the provi
sion of the earlier general civil removal statutes which pro
hibited appellate review of remand orders. The Act of
May 24, 1949, ch. 139, §84(b), 63 Stat. 89, 102, supplied
the latter omission by adding a new subsection (d) to 28
U. S. C. §1447. The 1949 act was an omnibus technical
amendment statute, intending no “enactment of substantive
law, but merely correction of errors, misspellings, and in
accuracies in revision.” 27 The House Report says that the
purpose of the new subsection is “to remove any doubt
that the former law as to the finality of an order of remand
to a State court is continued.” 28 28 U. S. C. §1447(d) reads:
district courts of the United States have original jurisdiction,
may be removed by the defendant or the defendants, to the
district court of the United States for the district and division
embracing the place where such action is pending.
(b) Any civil action of which the district courts have origi
nal jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of
the parties. Any other such action shall be removable only if
none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.
(e) Whenever a separate and independent claim or cause
of action, which would be removable if sued upon alone, is
joined with one or more otherwise non-removable claims or
causes of action, the entire case may be removed and the dis
trict court may determine all issues therein, or, in its discre
tion, may remand all matters not otherwise within its original
jurisdiction.
27 Mr. O’Connor in the Senate, 95 Cong. Ree. 5827 (81st Cong.,
1st Sess. 5/6/49). Senator O’Connor reported the bill from the
Senate Committee on the Judiciary. 95 Cong. Rec. 5020 (81st
Cong., 1st Sess. 4/26/49).
28 H. R. Rep. No. 352, 81st Cong., 1st Sess. (1949), 2 U. S. Code
Cong. Serv., 81st Cong., 1st Sess., 1949, 1254, 1268 (1949).
“(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise.”
A R G U M E N T
T h e R e lie f S ough t by th e S ta te o f G eo rg ia S h o u ld N ot
Be G ra n te d I f ( I ) th e C o u rt o f A ppea ls A rguab ly H as
J u r is d ic t io n o f th e Case P e n d in g B e fo re It, a n d (II) th e
C o u rt o f A ppea ls C ould A rguab ly D ecide th e Case in
F a v o r o f R e sp o n d e n ts .
The stay order of the Court of Appeals which the State
of Georgia seeks to have this Court review by extraordinary
writs is an interim order temporarily staying the District
Court’s remand “pending final disposition of this appeal
on the merits or the earlier order of [the Circuit] . . .
Court” (App. p. 23). Notwithstanding Georgia’s challenge
to the jurisdiction of the Court of Appeals to entertain the
pending proceeding, that court “unquestionably had the
power to issue a restraining order for the purpose of pre
serving existing conditions pending a decision upon its
own jurisdiction.” United States v. United Mine Workers,
330 U. S. 258, 290 (1947) (alternative ground). In the
granting of such interim orders to preserve the subject of
the litigation and protect the parties pending final deter
mination of their rights, the lower federal courts have a
broad discretion reviewable only for abuse. Prendergast
v. New York Telephone Co., 262 U. S. 43, 50-51 (1923);
Deckert v. Independence Shares Corp., 311 U. S. 282, 290
(1940).29
29 Thus, the appropriate scope of review of the Fifth Circuit’s
stay order is considerably narrower than would be the scope of
this Court’s review of a District Court order denying remand.
See, e.g., Maryland v. Soper (No. 1), 270 TJ. S. 9 (1926); Colorado
v. Symes, 286 U. S. 510 (1932). Such an order is final, and once
29
The temporary stay was justified here by a number of
considerations. As Georgia concedes, the underlying prose
cutions of respondents arose from demonstrations (Petn.,
p. 10) in which respondents sought to exercise their consti
tutionally protected rights of free expression, Edwards v.
South Carolina, 372 U. S. 229, 235 (1963); Henry v. Rock
Hill, 84 S. Ct. 1042 (1964), to protest racial discrimination
in places of public accommodation. See Garner v. Louisiana,
368 U. S. 157, 185, 201-202 (1961) (Mr. Justice Harlan,
concurring) and cases cited. “These freedoms are delicate
and vulnerable, as well as supremely precious in our society.
The threat of sanctions may deter their exercise almost as
potently as the actual application of sanctions.” N.A.A.C.P.
v. Button, 371 U. S. 415, 433 (1963). See Bantam Books,
Inc. v. Sullivan, 372 U. S. 58 (1963). In their removal
petition, respondents alleged that their arrests were ef
fected for the sole purpose of perpetuating such racial
segregation (App. pp. 6-7) ; that they were indicted and
their cases set for trial under Georgia’s criminal trespass
statute, Ga. Code Ann., §26-3005 (1963 Supp.), supra; that
these prosecutions were for doing acts under color of au
thority derived from the federal Constitution and laws
(App. pp. 6-7); that respondents could not enforce their fed
eral rights in the Georgia courts because, inter alia, Georgia
by statute, custom and usage maintains a policy of racial
discrimination (App. p. 7) ;30 and that removal was sought
the ease goes to trial in the District Court, “a judgment of ac
quittal in that court is final,” Maryland v. Soper, supra, at 30,
irretrievably depriving the State of criminal jurisdiction in the
removed case.
30 Georgia’s assertion in this Court that “the official policy of
the City of Atlanta is one of integration” (Petn. p. 17) has, of
course, no support in the record. As respondents pointed out in
the Court of Appeals, Georgia is seeking to sustain a remand order
which the District Court issued without a hearing at which respon
30
to protect respondents’ rights under the First and Four
teenth Amendments (App. p. 6). In their motion for a stay
pending appeal, respondents further alleged that unless the
remand order was stayed, respondents were in immediate
danger of having their bonds raised by the Fulton Superior
Court (App. p. 16); that many of them would be unable to
make the increased bond and so would be required to re
main in jail by reason of their poverty (App. p. 16); that
they would be tried in the immediate future in the Superior
Court, rendering moot the issues presented by their appeal
to the Fifth Circuit (App. p. 16); and that these Georgia
criminal prosecutions prevented them from exercising their
federal constitutional rights (App. p. 16). Eesponsive to
these allegations, Georgia in its motion to dismiss asserted
no circumstances showing that postponement of the prose
cutions pending disposition of the Fifth Circuit appeal
would work the slightest injury to the State (App. 18-21)
and even in its petition to this Court asserts no circum
stances of exigency save those common to “every prosecu
tion in a State Court resulting from a civil rights ‘sit-in’
or other protest demonstration. . . . ” (Petn., p. 31). Clearly,
on this record, “the balance of injury as between the par
ties” 81 favors issuance of the stay. See Baines v. Danville,
321 F. 2d 643, 644 (4th Cir. 1963). Continued state prose
cution serves no legitimate State interest if the removal is
proper. It does (A) take appellants to trial in courts
where, by their allegations, they cannot enforce their fed
eral rights, (B) subject them to the restraints of the state 31
dents “would have been able to show facts . . . sustaining the alle
gations of their removal petition” (App. p. 16), including the
allegation that Georgia by statute, custom and usage maintains
a policy of racial discrimination.
31 Prendergasl v. New York Telephone Co., 262 U. S. 43, 51
(1923).
31
criminal process, cf. Tennessee v. Davis, 100 U. S. 257, 263
(1879), during the very period when their rights to federal
removal is being tested, (C) potentially meet the question
of the propriety of the removal, cf. Arceneaux v. Louisi
ana, 84 S. Ct. 777 (1964); and (D) thus punish them for
exercising, and inhibit their exercise of, their federal rights
including rights of free expression and to equal protection
of the laws. See pp. 53-54 infra.
In these circumstances, this Court may appropriately
vacate the Fifth Circuit’s stay order as an abuse of discre
tion only if (A) it is clear beyond reasonable argument that
the Fifth Circuit lacks jurisdiction of the case pending be
fore it, or (B) it is clear beyond reasonable argument that,
although the Fifth Circuit may have jurisdiction of the
case, its only proper exercise of that jurisdiction must be
to affirm the remand order of the District Court.
I.
T h e C o u rt o f A ppea ls A rg u ab ly H as J u r is d ic t io n o f
th e Case P e n d in g B e fo re I t.
Georgia attacks the jurisdiction of the Court of Ap
peals on the grounds that (i) 28 U. S. C. §1447(d) (1958)
bars all appellate review of the District Court’s remand
order, and (ii) respondents’ attempts to secure review by
the Court of Appeals were untimely under Fed. Rule Crim.
Pro. 37(a)(2). It is respondents’ position that: (A)(1)
the remand order is reviewable by a proceeding in the nature
of mandamus in the Court of Appeals under 28 U. S. C.
§1651 (1958); (2) the record in the Court of Appeals
permits that court to entertain the case as on petition
for a writ of mandamus; (B) 28 U. S. C. §1447(d) (1958)
does not apply to (1) criminal cases or (2) cases sought
to be removed under the civil rights acts, 28 U. S. C. §1443
32
(1958); (C) the ten day appeal time allowable under Crim
inal Rule 37(a)(2) has no application to review of remand
orders by proceedings in the nature of mandamus; (D)
whether or not the remand order is reviewable by pro
ceedings in the nature of mandamus under §1651, the
validity of respondents’ custody following remand of their
cases to the state court is cognizable by petition for writs
of habeas corpus to the judges of the Court of Appeals
under 28 IT. S. C. §2241(c)(3) (1958), and in such pro
ceedings, which the Court of Appeals may entertain as
timely and properly before it, the validity of remand may be
tested; or (E), alternatively to all of the foregoing, the
Court of Appeals may properly construe respondents’ veri
fied removal petition as a petition to the District Court for
writs of habeas corpus under 28 U. S. C. §2241 (c) (3)
(1958), whose denial is appealable to the Court of Appeals
under 28 U. S. C. §2253 (1958).
(A) Reserving questions presented by § 1447(d), the
remand order is reviewable by the Court of Ap
peals in proceedings in the nature of mandamus
which are properly before that court
(1) Under the all writs section of the Judicial Code,
28 U. S. C. §1651 (1958), the Courts of Appeals have power
to issue orders in the nature of mandamus32 in aid of their
appellate jurisdiction. Since, pursuant to 28 U. S. C. §1291
(1958), the Court of Appeals for the Fifth Circuit could
review final decisions of the District Court for the Northern
District of Georgia in these removed criminal actions, Fifth
Circuit review “agreeable to the usages and principles of
32 Respondents agree with the State of Georgia (Petn., pp. 26-27)
that Fed. Rule Civ. Pro. 81(b), formally abolishing the writ of
mandamus and providing that all relief previously available by
mandamus may be obtained by appropriate action or motion, does
not affect the scope of relief in the nature of mandamus which a
federal appellate court may give. La Buy v. Howes Leather Co.,
352 U. S. 249 (1957) (by implication).
33
law” (§1651) of interlocutory orders in the cases is allow
able, United States v. Smith, 331 U. S. 469 (1947); La Buy
v. Howes Leather Go., 352 U. S. 249 (1957); Platt v. Min
nesota Mining & Mfg. Co., 84 S. Ct. 769 (1964) (by implica
tion), particularly where the interlocutory order prevents
the cases from coming to final judgment in the District
Court and thus defeats the normal appellate jurisdiction of
the Court of Appeals under §1291. McClellan v. Garland,
217 U. S. 268 (1910).
“Applications for a mandamus to a subordinate court are
warranted by the principles and usages of law in cases
where the subordinate court, having jurisdiction of a ease,
refuses to hear and decide the controversy. . . . ” Ex parte
Newman, 14 Wall. 152, 165 (1871) (dictum). See Insur
ance Co. v. Comstock, 16 Wall. 258 (1872) (issuing ad
visory opinion to do service for mandamus). Relying on
Newman and Comstock, this Court in B,ailroad Co. v. Wis-
wall, 23 Wall. 507 (1874), decided that an order of a fed
eral trial court remanding a removed case to the state
court was reviewable by mandamus.33 That ruling has
never been questioned in subsequent cases. See Hoadley v.
San Francisco, 94 U. S. 4, 5 (1876); Babbitt v. Clark, 103
U. S. 606, 610 (1880) ; Turner v. Farmers’ Loan & Trust Co.,
106 IT. S. 552, 555 (1882); Gay v. Ruff, 292 U. S. 25, 28 n. 3
(1934); Employers Reinsurance Corp. v. Bryant, 299 U. S.
374, 378 (1937); also Missouri Pacific By. Co. v. Fitzgerald,
160 U. S. 556, 580 (1896); United States v. Rice, 327 U. S.
742, 749-750 (1946). It is accordingly clear that, but for
any question arising from 28 U. S. C. §1447(d), “the power
33 The Wiswall case was decided before the creation of the Courts
of Appeals in 1891, at a time when this Court had the same imme
diate appellate superintendence over the old Circuit Courts that
the Courts of Appeals now have over the District Courts. In
Wiswall the Court dismissed a writ of error to the Circuit Court
on the ground that the proper remedy was an application to the
Court for mandamus.
34
of the court to issue the mandamus would be undoubted.”
In re Pennsylvania Co., 137 U. S. 451, 453 (1S90).
(2) It is evident also that the Court of Appeals may
properly treat the present case as though before it on ap
plication for relief in the nature of mandamus. Fed. Rule
Civ. Pro. 81(b) provides that “Relief heretofore available
by mandamus . . . may be obtained by appropriate action
or by appropriate motion under the practice prescribed in
[the] . . . rules.” Respondents’ March 12 motion in the
Court of Appeals (App. p. 15), to which were attached cop
ies of the removal petition and the remand order (App.
pp. 3, 8), adequately served to put before that court a pro
ceeding in the nature of mandamus. It is unimportant
that the motion did not in terms speak of “mandamus.”
See United States v. Morgan, 346 U . S. 502 (1954); Heflin
v. United States, 358 U. S. 415 (1959); Mitchell v. United
States, 368 U. S. 439 (1962); Coppedge v. United States,
369 U. S. 438, 442 n. 5 (1962); Fed. Rule Crim. Pro. 52(a).
(B) §1447(d) does not bar review of
the remand order
(1) Section 1447(d) provides broadly: “An order re
manding a case to the State court from which it was re
moved is not reviewable on appeal or otherwise.” On its
words alone the statute appears so sweeping as to bar re
view of any remand order issued by any federal court in
any case. But, as shown by the only pertinent legislative
document, the purpose of this undebated technical enact
ment of 1949 was to “remove any doubt that the former
law as to the finality of an order of remand to a State
court is continued.” See p. 27 supra. Thus, notwithstand
ing the comprehensive statutory wording, it would be ab
surd, for example, to suppose that an enactment which the
Senate was told by the floor manager of the bill “ [i]n no
35
sense is . . . any enactment of substantive law,” 34 meant
to overrule the long-standing doctrine of this Court that
orders of a Court of Appeals directing remand of a removed
case are reviewable by the Court on certiorari. E.g., Gay
v. Ruff, 292 U. S. 25 (1934); Aetna Casualty & Surety Co.
v. Flowers, 330 U. S. 464 (1947). The sweeping language
of the 1949 enactment plainly seems to have this unintended
overreach, for it omits the limitation of the original 1887
statute to “decision of the circuit court” (see p. 23 supra),
and the limitation of the 1911 Judicial Code to “decision
of the district court” (see pp. 24-25, n. 22 supra), upon
which limitation Gay and Flowers rested. But the statute
cannot rationally be given the effect which its words appear
to command. Plainly §1447(d) looks broader than it is.
The statutory history set out at pp. 9-28 supra also dem
onstrates that when Congress barred review of a remanded
“case” in §1447 (d) it meant a civil case and did not mean
to preclude review of remand orders by mandamus in crimi
nal cases. The criminal removal jurisdiction of the federal
courts was the creature of a series of relatively limited
and specific enactments throughout the nineteenth century
—principally the acts of 1815, 1833, and 1866, and related
enactments.35 These concerned federal officers, persons act
ing under them, and civil rights defendants; the statutes
invariably spoke of “suit or prosecution,” or “suit or prose
cution, civil or criminal.” See pp. 10-14 supra. The general
civil removal jurisdiction was created, and its scope altered
from time to time, by an entirely different line of statutes,36
of which the Judiciary Acts of 1875 and 1887 are the most
34 Senator O’Connor at 95 Cong. Ree. 5827 (81st Cong., 1st Sess.
5/6/49), quoted in part supra p. 27 at n. 27.
36 Citations to the statutes are collected in H art & Wechsler,
The F ederal Courts and the F ederal System 1147-1150 (1953).
36 See H art & W echsler, supra note 35, at 1019-1020.
36
important. See pp. 19-24 supra. The removal provisions
of these statutes are in terms limited to civil actions: “any
suit of a civil nature, at law or in equity.” See pp. 20, 21
supra. Section 5 of the 1875 act for the first time authorized
review of remand orders by appeal or writ of error: it pro
vided that “in any suit commenced in a circuit court or
removed from a State court to a circuit court of the United
States,” a circuit court finding that “such suit does not
really and substantially involve a dispute or controversy
properly within the jurisdiction of said circuit court,”
should “dismiss the suit or remand it to the court from
which it was removed,” “but the order of said circuit court
dismissing or remanding said cause to the State court shall
be reviewable by the Supreme Court on writ of error or
appeal, as the case may be.” See p. 20, n. 20 supra (em
phasis added). “Cause” is used interchangeably with “suit”
and refers to the only “suits” with which the act deals:
civil suits. This is clear beyond dispute, for the same
provisions of §5 which authorize review of an “order . . .
remanding” a removed suit also authorize review of an
“order . . . dismissing” a removed or original suit, and it
has never been supposed that the act of 1875 gave the Gov
ernment a right of appeal in criminal cases. See United
States v. Sanges, 144 U. S. 310 (1892). Like the act of
1875, the act of 1887 dealt, in its removal provisions, only
with suits “of a civil nature, at law or in equity.” See
p. 21 supra. It was in these provisions that the Congress,
reversing its decision of 1875, for the first time enacted the
preclusion of review which is the predecessor of the present
§1447(d). Section 1 of the act of 188737 amended §2 of the
1875 act substantially to circumscribe the civil removal
jurisdiction of the circuit courts and, in so doing, provided
37 As amended to correct enrollment by the act of 1888. See
pp. 20-23 supra.
37
that whenever a circuit court remanded a cause as improp
erly removed, “such remand shall be immediately carried
into execution, and no appeal or writ of error from the
decision of the circuit court so remanding such cause shall
be allowed.” See pp. 22-23 supra.
Such a disallowance of “appeal or writ of error” in 1887
could not conceivably have been intended to apply to crimi
nal cases, because prior to 1889 there was in the federal
courts “no jurisdictional provision for appeal or writ of
error in criminal cases.” Carroll v. United States, 354 IT. S.
394, 400 n. 9 (1957); Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 H arv. L.
R ev. 441, 473 n. 75 (1963). The act of 1875 had given none,
and there was no other.38 Moreover, the exclusive preoccu
pation of the 1887 statute with matters of civil removal is
evident. The act was a compromise between the House and
Senate as to the means of relieving the lower federal courts
which were “overloaded with business.” 39 The overload
had been a subject of Congressional agitation during a
number of years preceding 1887, and the agitation had con
cerned civil cases.40 All of the changes of law worked by
38 Of course in civil cases, which were clearly within the scope
of preclusion of review (being in 1887 reviewable either by appeal
or writ of error, and the class of case with which the 1887 statute
was concerned), this Court subsequently held that the effect of the
statute was to bar mandamus in those cases where it barred appeal
or writ of error. In re Pennsylvania Co., 137 U. S. 451 (1890) ; cf.
United States v. Bice, 327 U. S. 742 (1946). This was concluded on
reasoning that, where Congress had shut one door tight, it did not
intend that another stand open. Neither the cases nor the reasoning
have pertinency to the question of the applicability of the review
bar to criminal removal proceedings unless it can be shown on
independent grounds that, with respect to such proceedings, Con
gress did intend to shut one door tight. Such an intent is the more
doubtful because the only door then open in criminal cases was
mandamus, and the statute does not speak of mandamus.
39 H. R. Rep. No. 1078, 49th Cong., 1st Sess. (1886), p. 1.
40 The story is told in F rankfurter & Landis, The Business of
the Supreme Court 56-102 (1928).
38
the jurisdictional provisions of the act of 1887 were changes
affecting civil cases/1 Contemporary comment on the act of
1887 is concerned exclusively with civil cases.41 42 In this con
text, the provision barring review of remanded “cause [s]”
can only plausibly be read to refer to civil causes. Con
gress dealt with nothing else, considered nothing else, in
1887. The Judicial Code of 1911 merely carried forward the
1887 provision without change,43 and this was the “former
law” 44 which Congress reinstated when it enacted §1447 (d)
in 1949.
None of the authorities cited by the State of Georgia holds
that §1447(d) applies to criminal cases, and respondents
have been unable to find any case so holding. Snypp v.
Ohio, 70 F. 2d 535 (6th Cir. 1934) (Petn., p. 22), seems to
be the only criminal case in which the issue might have
been raised and, although the court in Snypp appears tenta
tively disposed to reject the specific contention that the
1887 provision precluding review of remand orders applies
only to cases removed under the 1887 removal provisions,
the court leaves the issue undecided and affirms the remand
order on the merits. Of course, it is not respondents’ con
tention, as it was Snypp’s, that the §1447(d) bar is limited
to eases sought to be removed under so much of the removal
41 See pp. 19-24 supra.
42 See Desty, The Removal of Causes F rom State to F ederal
Courts 207 (3d ed. 1893); D illon, Removal op Causes F rom
State Courts to F ederal Courts 81 (5th ed. 1889); Speer, Re
moval of Causes F rom the State to F ederal Courts 59 (1888).
These discussions concern the removal provisions of the 1887 act
and do not address themselves specifically to construction of the
passage barring review of remand orders. What is significant here
is that all the writers agree in assuming that the act of 1887 affects
only civil cases.
43 Except that “district court” was substituted for “circuit court”,
see pp. 16, 24-25 supra.
44 See pp. 27, 34 supra.
39
statutes as presently continue the removal jurisdiction
granted by the 1887 act. Respondents concede that other
civil cases fall within the bar because they fall within the
range of concern of the 1887 Congress which undertook a
general revision of the civil removal jurisdiction, United
States v. Rice, 327 U. S. 742 (1946); cf. Morey v. Lockhart,
123 U. S. 56 (1887), and within the policy to which that
Congress gave effect. “Congress, by the adoption of these
provisions, . . . established the policy of not permitting
interruption of the litigation of the merits of a removed
cause by prolonged litigation of questions of jurisdiction
of the district court to which the cause is removed.” United
States v. Rice, supra, at 751. “So far as the mere question
of the forum was concerned, Congress was manifestly of
opinion that the determination of the Circuit Court [now
district court] that jurisdiction could not be maintained
should be final,” since, even in the case of applications for
removal on the ground that the case involved questions of
federal law, “finality was . . . expedient as questions of the
latter character if decided against the claimant would be
open to revision [on direct review by the Supreme Court
of the state court’s judgment] . . ., irrespective of the rul
ing of the Circuit Court in that regard in the matter of
removal.” Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S.
556, 583 (1896). “It must be remembered that when Fed
eral questions arise in causes pending in the state courts,
those courts are perfectly competent to decide them, and it
is their duty to do so.” Ibid.
But congressional adoption of such a policy in civil
cases hardly supports the inference that the Congress
meant to adopt it in criminal cases as well. Recognition
of the unique needs of the criminal defendant for ade
quate safeguards in the proceedings by which his liberty
or life is put in jeopardy runs deep in our traditions. Under
the Constitution and laws, the relationship of the federal to
the state courts appropriately differs in civil and criminal
40
matters. Compare Durfee v. Duke, 375 U. S. 106 (1963),
with Fay v. Noia, 372 U. S. 391 (1963). The protection of
the federal rights and interests of the civil litigant may
perhaps be committed to the nnreviewable decision of a
single federal district judge on the theory that “the mere
question of the forum” is not worth the inconvenience of
more extended litigation, in view of the competency of
state tribunals to decide federal questions. But, at least
since 1867, Congress has manifested a particular unwilling
ness to commit to the state courts the final disposition
of factual issues underlying those questions in criminal
cases. Act of February 5, 1867, cli. 28, §1, 14 Stat. 385,
now 28 U. S. C. §2241 (c) (3); Fay v. Noia, supra; Townsend
v. Sain, 372 U. 8. 293 (1963). By the habeas corpus juris
diction, it has expressed “the manifest federal policy that
federal constitutional rights of personal liberty shall not be
denied without the fullest opportunity for plenary federal
judicial review.” Fay v. Noia, supra, at 424. And since
1885, when it restored this Court’s jurisdiction over habeas
appeals, Act of March 3, 18S5, eh. 353, 23 Stat. 437, it has
shown itself unwilling to leave the federal judicial protec
tion of state criminal defendants to a single federal judge
in a court of first instance. Against a background of his
tory and context which unambiguously demonstrates the
exclusively civil direction of the 1887 removal provisions,
it is in the last degree implausible to attribute to a portion
of those provisions—now §1447(d)—a purpose to strip of
all federal appellate redress the state criminal defendant
who unsuccessfully asserts before trial a colorable claim for
removal.
(2) If, however, criminal cases are reached at all by the
1887 statute, criminal cases sought to be removed under
the civil rights acts—as well as civil cases sought to be
removed under the same authority—are expressly excepted
from the statute’s operation. Section 5 of the act of 1887
41
provided: “That nothing in this act shall be held, deemed,
or construed to repeal or affect any jurisdiction or right
mentioned either in sections six hundred and forty-one
. . . or in seven hundred and twenty-two, or in title twenty-
four of the Revised Statutes . . . ” or in other enumerated
statutes principally affecting civil rights. See p. 23 supra.
Section 641, the civil rights act (civil and criminal) re
moval provision, was carried forward without substantive
change as §31 of the Judicial Code of 1911, see pp. 15-16
supra, and in 1948 was reenacted with changes in phrase
ology as 28 U. S. C. §1443 (1958), see pp. 17-18 supra. Sec
tion 722 of the Revised Statutes was the present 42 U. S. C.
§1988 (1958), set out below.45 Title 24 comprised the sub
stantive civil rights act provisions, Rev. Stat. §§1977-1981,
now found in 42 IT. S. C. §§1981, 1982, 1983, 1985 and 1986
(1958), see p. 5, n. 2, supra, together with certain enforce
ment provisions. Thus, the provisions saved by §5 in 1887
remain extant. And the saving clause itself was preserved
by §297 of the 1911 Code, which expressly repealed every
48 Rev. Stat. §722 derived from the same Act of April 9, 1866,
eh. 21, §3, 14 Stat. 27, reenacted by the Act of May 31, 1870, ch.
114, §18, 16 Stat. 140, 144, which created the civil rights removal
jurisdiction, present 28 U. S. C. §1443 (1958), invoked by respon
dents in the present cases. See pp. 12-18 supra. Section 722 is:
“Sec. 722. The jurisdiction in civil and criminal matters
conferred on the district and circuit courts by the provisions
of this Title, and of Title ‘Civil R ights,’ and of Title ‘Crimes,’
for the protection of all persons in the United States in their
civil rights, and for their vindication, shall be exercised and
enforced in conformity with the laws of the United States, so
far as such laws are suitable to carry the same into effect; but
in all eases where they are not adapted to the object, or are
deficient in the provisions necessary to furnish suitable reme
dies and punish offenses against law, the common law, as
modified and changed by the constitution and statutes of the
State wherein the court having jurisdiction of such civil or
criminal cause is held, so far as the same is not inconsistent
with the Constitution and laws of the United States, shall be
extended to and govern the said courts in the trial and dis
position of the cause, and, if it is of a criminal nature, in the
infliction of punishment on the party found guilty.”
42
section of the 1887 act save §5, and farther provided that
“all other . . . parts of Acts, in so far as they are embraced
within and superseded by this Act, are hereby repealed;
the remaining portions thereof to be and remain in force
with the same effect and to the same extent as if this Act
had not been passed.” P. 25, supra. It is difficult to im
agine what more affirmative indication Congress could have
given of its purpose to retain uninterrupted the protec
tions of the civil rights acts’ removal provisions in and
after 1887. Neither §5 of the 1887 act nor §297 of the Judi
cial Code have ever been expressly repealed (indeed, §297
continues §5 in force); and, in view of the legislative his
tory of 28 U. S. C. §1447 (d) enacted in 1949 with a pur
pose to continue former law, see pp. 27, 34, supra, respon
dents hardly need the benefit of the usual presumption46 to
resist any contention of implied repeal.
Georgia cites four decisions for the proposition that the
saving clauses of 1887 and 1911 do not preserve a right to
review of remand orders in civil rights removal cases.
United States v. Rice, 327 IT. S. 742 (1946), may be put
aside, for the ease involved no issue under the saving
clause and did not purport to discuss its effect. The foot
note in Gay v. Ruff, 292 U. S. 25, pp. 29-30, n. 5 (1934),
is dictum, expresses only a tentative judgment, and over
looks the force of §297 of the Judicial Code of 1911. Snypp
v. Ohio, 70 F. 2d 535 (6th Cir. 1934), is still more tenta
tive and altogether unreasoned; the court in fact exer
cises jurisdiction over the appeal and affirms the remand
order, apparently on the ground that the substance of
the appeal is more easily disposed of than the jurisdic
tional question. There remains Cole v. Garland, 107 Fed.
759 (7th Cir. 1901), writ of error dism’d, 183 U. S. 693
46 E.g., United States v. Noce, 268 U. S. 613, 619 (1925); United
States v. Jackson, 302 U. S. 628, 631 (1938); United States v.
Borden Co., 308 U. S. 188, 195-206 (1939); United States Alkali
Export Assn. v. United States, 325 U. S. 196, 204-210 (1945).
43
(1901). This Court’s disposition in Cole is not presently
pertinent47 but the lower court’s opinion does support
Georgia’s position. The case is somewhat of an instance
of an easy ease making bad law, both because the removal
in Cole was patently unsupportable as a civil rights matter
and because Mr. Cole, a plaintiff in the state court, could
not in any event have invoked the civil rights removal
jurisdiction, which is limited to defendants—a point which
the Seventh Circuit made an alternative ground of disposi
tion. But the court’s reasoning is, in any event, wrong on
its face. Its argument is that because §641 of the Revised
Statutes does not contain within its four corners any provi
sion for review of remand orders, any right to review of
such orders depended in 1887 upon the appeal provisions
of the act of 1875; so that repeal in 1887 of the 1875 act
abolished the right of appeal without “affecting” any right
given by §641. This is unsupportable on several grounds.
First, it is clear that prior to 1875 orders remanding re
moved cases to a state court were reviewable on mandamus.
See pp. 33-34 supra. This was so by virtue of the appellate
superintendence exercised by this Court over the inferior
federal courts, in the ordinary course of which a lower
court’s wrongful refusal to assume jurisdiction would be
reviewed. The only obstacle to this ordinary appellate re
view is the act of 1887, and to the extent that it makes un-
reviewable a usually reviewable decision defeating the
right of removal given by §641, it “affects” that right. Sec
ond, the “right” given by §641 is not a “right” to have an
unreviewable wrong decision of a federal judge remand
ing a case to the state courts, but a “right” to have the case
removed where removal is proper under the statute. To
47 The Court dismissed on authority of German National Bank v.
Speckert, 181 U. S. 405 (1901), that is, on the ground that the
Court of Appeals’ order was not final for purposes of review on
writ of error. See Gay v. Buff, 292 U. S. 25, 29 (1934).
44
the extent that the 1887 enactment is pnt forward to sub
stitute the former “right” for the latter, it “affects” the
§641 right. Third, the act of 1887 saves not only §641,
but also §722, a portion of the original civil rights removal
statute of 1866. Section 722 provides that the jurisdiction
conferred upon the inferior federal courts by, inter alia,
§641 “shall be exercised and enforced in conformity with
the laws of the United States, so far as such laws are suit
able to carry the same into effect; but in all cases where
they are not adapted to the object, or are deficient in the
provisions necessary to furnish suitable remedies . . . , ”
resort may be had in the trial and disposition of cases to
state law consistent with the federal Constitution and laws.
The purpose of this provision amply to implement the aims
of the removal jurisdiction is obvious. And one of the
“laws” in conformity with which the lower federal courts’
jurisdiction was to be exercised suitably “to carry the [re
moval jurisdiction] . . . into effect” was Rev. Stat. §716,
present 28 U. S. C. §1651 (1958), the all writs provision,
under which this Court, and now the Courts of Appeals, in
proper cases review and regulate the exercise of jurisdic
tion by the lower courts. Thus, quite apart from Cole’s ad
ditional erroneous assumption that the propriety of the
remand order might be tested on review of the state court’s
decision on the merits, 107 Fed. at 762,48 Cole is a wholly
unpersuasive authority which the Court of Appeals for the
Fifth Circuit may properly reject.
(C) Relief was not untimely sought in.
the Court of Appeals
As the case is properly before the Court of Appeals as
on petition for an order in the nature of mandamus, see
pp. 32-34 supra, the 10-day appeal period of Fed. Rule
48 E.g., Metropolitan Casualty Ins. Co. v. Stevens, 312 U. S. 563
(1941); McLaughlin Bros. v. Hallowell, 228 U. S. 278 (1913).
45
Grim. Pro. 37(a)(2) lias no application. The matter is
cognizable on original application to the Court of Appeals,
whose jurisdiction is not confined by the appeal provisions
of the Criminal Eules. Cf. Coppedge v. United States, 369
U. S. 438, 445 n. 10 (1962). The timeliness of an applica
tion for mandamus is governed by principles of laches,
In re Hohorst, 150 U. S. 653 (1893), within the broad
discretion which is commonplace to the extraordinary writ,
La Buy v. Howes Leather Go., 352 U. S. 249 (1957). That
discretion is not appropriately controlled by the preroga
tive writs sought in this Court.
(D) If review of the remand order is not available
by a proceeding in the nature of mandamus in
the Court of Appeals, the individual judges of
that court have power to issue writs of habeas
corpus in this case
Under 28 U. S. C. §2241 (a), the judges of the Court of
Appeals for the Fifth Circuit have authority to issue writs
of habeas corpus, and in this case they may appropriately
treat respondents’ papers of March 12, 1964 (App. p. 15),
as applications to them individually for the writ. Wauga-
man v. United States, 5th Cir., No. 21077, decided April 27,
1964; and see authorities cited supra p. 34. The require
ment of custody is satisfied by the restraints incident to
respondents’ bail status, cf. Jones v. Cunningham, 371 U. S.
236 (1963), particularly in view of respondents’ allegations
of imminent danger that their bonds would be raised and
that they were unable to make the raised bonds (App. p. 16).
Because the legality of their continued state detention de
pends upon the validity of the order of the District Court,
the case is an appropriate one for retention of jurisdiction
by the judges of the Court of Appeals, in their discretion
under 28 U. S. C. §2241 (b) (1958).
Respondents have argued that the remand order of the
District Court is reviewable by a proceeding in the nature
46
of mandamus. If it is not, respondents have no other ade
quate remedy available, compare Stack v. Boyle, 342 U. S.
1, 7 (1951), and habeas corpus lies to challenge their deten
tion by the State of Georgia “in violation of the Constitu
tion [and] . . . laws . . . of the United States,” 28 U. S. C.
§2241 (c) (3) (1958),—that is, of 28 U. S. C. §1443 (1958),
the civil rights removal statute, and the federal constitu
tional guarantees which it implements. Such a use of the
writ does not contravene the bar of 28 U. S. C. §1447(d)
(1958), because the judges on habeas do not “revise the
[district] . . . court judgment; [they] can act only on the
body of the [habeas] petitioner.” Fay v. Noia, 372 U. S.
391, 431 (1963). And respondents’ detention for trial in
a state court where by their allegations they cannot enforce
their federal constitutional and statutory rights, in viola
tion of the removal statute designed by Congress to pro
tect them from such a trial, and upon a remand order issued
without hearing or argument, fails “to conform with the
fundamental requirements of law.” Fay v. Noia, supra, at
402. Intolerable exercises of an unreviewable power by a
single federal judge spurred this Court’s expansion of the
scope of the writ of habeas corpus throughout the nine
teenth century. E.g., Ex parte Siebold, 100 U. S. 371 (1879) ;
In re Snow, 120 U. S. 274 (1887); Ex parte Bain, 121 U. S.
1 (1887); Nielsen, Petitioner, 131 U. S. 176 (1889). If
28 U. S. C. §1447 (d) (1958) is construed to insulate similar
abuses against review today, “the writ is the only effective
means of preserving [respondents’] . . . rights,” Waley v.
Johnston, 316 U. S. 101, 105 (1942), and its issuance is
proper.
47
(E) The Court of Appeals has jurisdiction in
this case as on appeal from the denial of a
petition for writ of habeas corpus
Another ground sustains the jurisdiction of the Circuit
Court. Viewing respondents’ verified removal petition with
the liberality authorized by this Court’s decisions, supra
p. 34, the petition may appropriately be treated as an
application to the District Court for a writ of habeas
corpus. 28 U. S. C. §2241 (1958). So treated, its essential
allegations are that respondents herein are held on bail
to answer criminal trespass charges following their arrests
for the sole purpose of perpetuating local customs and
usages of racial discrimination in places of public accom
modation; that these charges grow out of respondents’ at
tempts to secure service at segregated restaurants; and that
by reason of a policy of racial discrimination which the
State of Georgia supports by statute, custom, usage and
practice, respondents cannot enforce in the state courts
their federal constitutional rights, including rights of free
expression and rights under the Due Process and Equal
Protection Clauses of the Constitution (App. pp. 6-7). Such
assertions state a case of detention in violation of the
federal Constitution, see cases cited supra p. 5; Wright v.
Georgia, 373 U. S. 284 (1963), and would make a case for
hearing but for the exhaustion doctrine of Ex parte Royall,
117 U. S. 241 (1886), and its progeny. E.g., New York v.
Eno, 155 U. S. 89 (1894); Baker v. Grice, 169 U. S. 284
(1898).
The exhaustion doctrine was a judicially developed canon
of discretionary self-restraint in the exercise of an ad
mitted jurisdiction. Ex parte Royall, supra, at 250-252.
Its enunciation in Royall was the product of milder times
following the Reconstruction Era at whose pitch the Con
gress acted by the Act of February 5, 1867, ch. 28, §1, 14
Stat. 385, now 28 U. S. C. §2241(c)(3) (1958), to “enlarge
48
the privilege of the writ of hobeas [sic] corpus, and make
the jurisdiction of the courts and judges of the United
States coextensive with all the powers that can he con
ferred upon them” 49 50 responsive to demands “to enforce
the liberty of all persons.” 30 This Court has recognized
that “Congress seems to have had no thought . . . that a
state prisoner should abide state court determination of
his constitutional defense . . . before resorting to federal
habeas corpus. Rather, a remedy almost in the nature of
removal from the state to the federal courts of state pris
oners’ constitutional contentions seems to have been en
visaged.” Fay v. Noia, 372 U. S. 391, 416 (1963) (original
emphasis). Such a sweeping grant of power was essential
to enforce “the liberty of all persons” during the period
when the Thirteenth, Fourteenth and Fifteenth Amend
ments were written into law to overcome fierce Southern
resistance to the emancipation.51 Its exercise was inappro
priate in normal times, and the exhaustion doctrine re
sponded to the sense of inappropriateness, as well as to the
justified fear, reflected also in the doctrine of Stefanelli v.
Minard, 342 U. S. 117, 123 (1951), that the assertion of
anticipatory federal power “would expose every State crim
inal prosecution to insupportable disruption.” “Such direct
intrusion in state processes does not comport with proper
federal-state relationships.” Cleary v. Bolger, 371 U. S.
392, 401 (1963). The practice accordingly grew of with
holding federal relief in the ordinary case until the ordi
nary state channels for raising federal claims had been
in due course of the state trial exhausted.
49 Cong. Globe, 39th Cong., 1st Sess. 4151 (7/25/1866) (Repre
sentative Lawrence). Representative Lawrence reported the House
Bill from the Committee on the Judiciary. Id. at 4150.
50 Id. at 4151.
51 See Randall, The Civil W ar and Reconstruction (1937) ;
McK itrick, Andrew J ohnson and Reconstruction (1960).
49
Of course, the exhaustion doctrine was never a doctrine
entirely denying the legitimacy of federal intervention in
advance of a state criminal trial. Where the federal in
terest asserted was sufficiently weighty or the probable
efficacy of state remedies fully to protect that federal in
terest insufficiently sure, pretrial federal habeas corpus
was available.52 When Congress partially53 codified the ex
haustion doctrine in 1948, 28 U. S. C. §2254 (1958), it
recognized the validity of the exceptions to the ordinary
rule and carefully preserved substantial authority for
extraordinary exercises of federal judicial power where
needed. Under §2254, an application for a writ of habeas
corpus is not to be granted on behalf of a state prisoner
“unless it appears that the applicant has exhausted the
remedies available in the courts of the State, or that there
is either an absence of available State corrective process
or the existence of circumstances rendering such process in
effective to protect the rights of the prisoner.” The statute
appears fairly to reflect this Court’s development of the doc
trine in pretrial as well as postconviction cases. And the
Court’s likening of the 1867 habeas corpus jurisdiction to
the 1866 civil rights removal jurisdiction in Fay v. Noia,
supra, at 416, suggests that the same conditions in the
state court which would authorize removal on behalf of a
criminal defendant who alleges that he “cannot enforce in
the courts of [the] . . . State” his federally protected rights,
see II infra, would also authorize anticipatory federal
habeas to try the validity of his federal contentions, on the
ground that there exist “circumstances rendering [state
™E.g., Wildenhus’s Case, 120 U. S. 1 (1887) ; In re Loney, 134
U. S. 372 (1890) ; In re Neagle, 135 U. S. 1 (1890) ; Ohio v. Thomas,
173 U. S. 276 (1899) (after justice’s trial).
53 28 U. S. C. §2254 (1958) applies only to persons “in custody
pursuant to the judgment of a State court.”
50
corrective] . . . process ineffective to protect the rights of
the prisoner.”
Under the allegations of respondents’ petitions, the issue
is fairly raised whether by reason of Georgia’s maintenance
through statute, custom, usage and practice of a constitu
tionally impermissible state policy of racial discrimination,
trial in the state court on charges of criminal trespass
arising out of sit-in demonstrations will adequately protect
respondents’ rights of free expression and to due process
and equal protection of the laws. At a hearing it is open to
respondents to show that there exist in Georgia today con
ditions more nearly akin to those of Southern resistance
at the time of enactment of the Reconstruction-era habeas
corpus statute than have existed in this country since that
time. Respondents were denied their opportunity to make
a showing by the District Court’s summary disposition of
the petition. But the petition on its face is sufficient, and it
follows that, on timely54 appeal the Court of Appeals for
the Fifth Circuit has jurisdiction to review the action of
the District Court. 28 U. S. C. §2253 (1958).
54 The appeal was timely within 30 days. Fed. Rules Civ. Pro.
73(a), 81(a)(2); 28 U. S. C. §2107 (1958). Concededly, respon-
dents have not yet obtained a certificate of probable cause under
28 U. S. C._§2253 (1958), but the judges of the Court of Appeals,
may, in their discretion, issue a certificate in the proceeding before
them.
51
II.
T h e C o u rt o f A ppea ls A rg u ab ly C ould D ecide th e
Case in F a v o r o f R esp o n d e n ts .
Although Georgia’s principal argument in this Court is
lack of jurisdiction of the Court of Appeals, it also urges
that the criminal prosecutions were not removable under 28
U. S. C. §1443 (1958) (Petn. 12-17). That is not the issue
on the merits in the Court of Appeals. Still less is it the
issue here. The issue in the Court of Appeals is whether
the District Judge committed reversible error in remand
ing the criminal cases to the state court sua sponte one day
after the filing of the removal petition and without af
fording respondents opportunity to offer evidence or argu
ment in support of the removal, or leave to amend the re
moval petition.55 The issue in this Court is whether the
Court of Appeals, in the exercise of its supervisory power
over the District Court, might arguably so hold. If it might,
its power to issue the questioned stay is indisputable.
The denial of hearing or argument in the District Court
results in an appellate record which is utterly inadequate
to support litigation of the important statutory questions
raised by respondents’ attempt to remove. Georgia argues,
in effect, that to sustain removal, the Court would have to
overrule a line of cases of which Kentucky v. Powers, 201
U. S. 1 (1906) is the latest. Were that so, it would not prove
an insuperable obstacle to respondents’ ultimate success in
this litigation, for the Court has not infrequently reversed
55 See respondents’ contention in the Court of Appeals that “Had
the Honorable Judge Sloan granted the appellants a hearing prior
to remanding the subject cases, appellants would have been able
to show facts at the hearing sustaining the allegations of their
removal petition sufficiently to justify the exercise of the jurisdic
tion of the said Court to hear and try the indictments pending in
the state court against the appellants” (App. p. 16).
52
itself on matters of statutory construction, at least in non
commercial areas of the law where reliance by individuals
on prior decisions is not a weighty factor. See e.g., Girouard
v. United States, 328 U. S. 61 (1946); Commissioner v.
Estate of Church, 335 U. S. 632 (1949). Recently the Court
overruled itself on the construction of another important
section of the Judicial Code, Local No. 438 v. Curry, 371
IT. S. 542 (1963), and Monroe v. Pape, 365 IT. S. 167 (1961),
it undertook to reexamine on the merits its earlier construc
tion of a significant civil rights act provision. But the short
of the matter is that it is impossible to say on this record
whether Powers would or would not have to be overruled
to sustain the jurisdiction here. The Powers rule, as stated
by the District Court, is that removal under §1443 is proper
only where the removal petitioner’s claimed inability to
enforce his federal rights in the state court arises “out
of the destruction of such right by the Constitution or
statutory laws of the State wherein the action is pending”
(App. p. 11). Respondents’ removal petition alleged that
respondents “cannot enforce in the Courts of the State of
Georgia rights under the Constitution and Laws . . . , in
that, among other things, the State of Georgia by statute,
custom, usage, and practice supports and maintains a policy
of racial discrimination” (App. p. 7, emphasis added). In
sofar as based on statute, the petition arguably complies
with even the most restrictive reading of Powers and, in
sofar as based on custom, usage and practice, it raises
significant questions—whose precise scope remains unde
fined—as to how far conduct attributable to a State as state
“policy,” but which has not assumed the fixed form of
statute, satisfies the Powers requirements for removal,
Cf. Lombard v. Louisiana, 373 U. S. 267 (1963).
53
Moreover, the allegations of the petition which invoke
the First and Fourteenth Amendments (App. p. 6) raise
the question, not heretofore decided by this Court, whether
the Powers requirement obtains where the right which a
removal petitioner cannot enforce in a state court is the
constitutionally preferred56 right of free expression. Where
the maintenance of state court proceedings offering ineffec
tive protection of First Amendment freedoms may punish
past, or inhibit future, exercises of constitutionally pro
tected speech, there is particular justification for immedi
ate relief, notwithstanding the intrusion on protected speech
has not assumed the formal dignity of statute. Cf. Bantam
Boohs, Inc. v. Sullivan, 372 U. S. 58 (1963). More: non-
statutory state-court obstructions—particularly the threat
involved in the risk of biased fact findings57 when one who
is charged with crime for the exercise of colorable First
Amendment freedoms is required to go to trial in the forum
of a State whose policy is that of resistance to the ideas
56 Marsh v. Alabama, 326 U. S. 501, 509 (1946), and opinions
cited - Prince v. Massachusetts, 321 U . S. 158, 164 (1944) ; Saia v.
New York, 334 U. S. 558, 562 (1948); cf. N. A. A. G. P. v. Button,
371 U. S. 415, 433 (1963) ; New York Times Co. v. Sullivan, 84
S. Ct. 710, 720-721 (1964).
57 See Madison, supra, pp. 9-10. See also Cong. Globe, 37th Cong.,
3d Sess. 538 (1/27/1863) (Senator Cowan in support of the bill
which became the 1863 federal-officer removal statute) : “Besides,
the character of this defense is one of fact to a great extent, and
might depend on probable cause, and that has to be passed upon
by a jury under the direction of the court; because if the court
could pass upon the question of fact, there is an end of i t n o
appeal lies from a tribunal which is intrusted with the determina
tion of questions of fact. In the first place, the question on which
the defense rests must exist in criminal cases, as a general rule,
in parol—this order of the President may have been by parol—
and it must be submitted to the jury, and determined by the jury
under the direction of the court, with authority to try it. I do not
undertake to say that the criminal might not submit himself to
that jurisdiction, because the jurisdiction of the United States is
not exclusive. He might submit to i t ; but if he was desirous to have
the question determined in the courts of the United States, he
has unquestionably a clear right to have it so determined.”
54
which he expounds—may well be far more damaging incur
sions upon protected freedoms of expression than any state
statute patently affecting his federal defense. This Court
has recently recognized that the doctrine of the “vagueness”
cases responds, in First Amendment areas, to just such
threatening incursions. N. A. A. C. P. v. Button, 371 U. S.
415, 432-433 (1963); see also Note, 109 IT. Pa. L. Eev. 67,
80-81, 88-96, 107-109 (1960). But the nature and extent of
the incursion here were left unexplored, for want of hear
ing.
First Amendment considerations aside, the doctrine of
the Powers case seems the product of a development which
misconceives what was held in Virginia v. Rives, 100 IT. S.
313 (1879). In Rives, the Court held that removal was im
properly 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 com
munity; that the grand jury which indicted them and the
jurors summoned to try them were all white; that the judge
and prosecutor had refused petitioners’ request that a por
tion of the trial jury be composed of Negroes; that, not
withstanding the state laws required jury service of males
without discrimination of race, Negroes had never been
allowed to serve as jurors in the county, in any case in
which their race was interested. The Court found that
these allegations “fall short of showing that any civil right
was denied, or that there had been any discrimination
against the defendants because of their color or race. The
vice. “When a statute of the State denies his right, or inter
facts may have been as stated, and yet the jury which in
dicted them, and the panel summoned to try them, may have
been impartially selected.” Id. at 322. What was wanting
(in those early days before experience in the trial of jury
discrimination claims bred the “prima facie” showing doc
trine of, e.g., Reece v. Georgia, 350 U. S. 85 (1955)) was an
55
allegation of purposeful or intentional discrimination, and
the Court said that this might have been supplied by averment
that a law 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 pre
sumption is fair that they will be controlled by it in their
decisions; and in such a case a defendant may affirm on
oath what is necessary for a removal.” 100 U. S. at 321.
Thus, by reason of the requirement of factual showing
under the removal statute that a defendant could not en
force his federal rights in the state court, the Court thought
that the inability to enforce federal rights of which the
removal statute spoke “is primarily, if not exclusively, a
denial of such rights, or an inability to enforce them, re
sulting from the Constitution or lawTs of the State, rather
than a denial first made manifest at the trial of the case.”
Id. at 319. But the Court did not suggest as an inflexible
prerequisite to removal that the state-court bar to effective
enforcement of federal rights be statutory.
Nor could it reasonably have done so. A statute may
provide particularly clear evidence of state-court obstruc
tion, but it is not the only admissible evidence. When Con
gress subsequently, for example, authorized removal by
the act of 1887 on grounds of diversity and “prejudice or
local influence,” see pp. 21-22 supra, it provided for verified
allegation and trial of the issue on demand of the opposing
party. Ibid. Moreover, the case in which there exists a
state statutory or constitutional provision barring enforce
ment of a federal right is the case in which removal to a
federal trial court is least needed. The existence and effect
of such an ostensible, written obstruction of federal law
are relatively easily seen and coped with on direct review
by this Court of the state court judgment. Where removal
is most needed is the case in which the impingement on fed
eral rights is more subtle, more impervious to appellate
correction, as where state-court hostility and bias warp the
56
process by which the facts underlying the federal claim are
found. “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 resolu
tion of contested factual issues.’ Townsend v. Sain, 372
U. S. 293, 312. ‘There is always in litigation a margin of
error, representing error in factfinding. . . . ’ Speiser v.
Randall, 357 U. S. 513, 525.” England v. Louisiana State
Board of Medical Examiners, 375 U. S. 411, 416-417 (1964).
The case in which local prejudice, local resistance, pitch
this risk of error strongly against federal contentions pre
sents the clearest justification for a federal trial jurisdic
tion, and it is in situations supposed to present such a case
that Congress has traditionally utilized removal. See pp.
9-18 supra.
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. C. §1443 (1958), refute any
rigid requirement that civil rights removal be predicated
on a state statute or constitution. The 1866 act provided in
§3, supra pp. 13-14, 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 enforce
ment of rights was thought to be sufficient.58 The rights
58 The “locality” provision was rephrased in Rev. Stat. §641,
supra pp. 15, 16, 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 forward in §31 of the Judicial Code of 1911,
supra p. 16, n. 12, and appears in 28 U. S. C. §74 (1940), supra
pp. 16-17, n. 13. In the 1948 revision they were “omitted as un
necessary,” Revisor’s Note, supra p. 17, n. 14, presumably on the
theory that one who may remove from “a State court” may thereby
remove from the court of any locality in the State. The omission
tokens no substantive change in the statute.
57
enumerated in §1, supra, p. 12, included “full and equal
benefit of all laws and proceedings for the security of per
son and property, as is enjoyed by white citizens . . . , any
law, statute, ordinance, regulation, or custom, to the con
trary notwithstanding.” (Emphasis added.)59 “Proceed
ings” was certainly intended to add something to “laws,”
and the inclusion of reference to “custom” was not inad
vertent. Senator Trumbull, who introduced, reported and
managed the bill which became the act60 twice told the Sen
ate 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].” 61 Cf.
Monroe v. Pape, 365 U. S. 167 (1961). Indeed, the Senator
expressly said that it was not the existence of a statute, any
more than of a custom, that constituted such a failure of
state process as to authorize removal; but in each case, cus
tom or statute, it was the probability that the state court
would fail adequately to enforce federal guarantees.62 Such
59 Section 1 of the Act of 1866 was reenacted by §§16 and 18
of the Enforcement Act of 1870, pp. 14-15, n. 10, supra. It ap
peared in Rev. Stat. §1977, now 42 U. S. C. §1981 (1958), without
the “notwithstanding” clause. A similar clause was omitted by the
revisors in carrying forward section 1 of the Act of April 20, 1871
eh. 22, 17 Stat. 13, as Rev. Stat. §1979, now 42 U. S. C.’§1983
(1958). In neither case does any intention appear to effect a sub
stantive change. The “notwithstanding” clauses, although indica
tive of legislative purpose in respect of some application of the
statutes—as here—never were effective provisions, since the Su
premacy Clause of the Constitution made them unnecessary.
60 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).
61 Id. at 1759 (4/4/1866). See id. at 475 (1/29/1866).
62 Cong. Globe, 39th Cong., 1st Sess. 1759 (4/4/86) :
So in reference to this third section, the jurisdiction is given
to the Federal courts of a case affecting the person that is
discriminated against. Now, he is not necessarily discriminated
58
an issue of probability is a matter for proof by any com
petent means, and allegations raising tlie issue should, if
controverted, call for hearing.
The remand ordered by the district judge, -without hear
ing, and without allowing argument to explore the substan
tial issues raised and clarify them for the appellate record,
was therefore more than arguably prejudicial error prop
erly revisable by the Court of Appeals and was well within
its discretion in issuing the challenged stay of remand.
against, because there may be a custom in the community
discriminating against him, nor because a Legislature may
have passed a statute discriminating against him; that stat
ute is of no validity if it comes in conflict with a statute of
the United States; and it is not to be presumed that any judge
of a State court would hold that a statute of a State discrimi
nating against a person on account of color was valid when
there was a statute of the United States with which it was in
direct conflict, and the case would not therefore rise in which a
party was discriminated against until it was tested, and then if
the discrimination was held valid he would have a right to
remove it to a Federal court—or, if undertaking to enforce
his right in a State court he was denied that right, then he
could go into the Federal court; but it by no means follows
that every person would have a right in the first instance to go
to the Federal court because there was on the statute book of
the State a law discriminating against him, 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.
59
CONCLUSION
The petition for extraordinary writs should be denied.
Respectfully submitted,
Donald L. H ollowell
H oward Moore, J r.
859% Hunter Street, N.W.
Atlanta, Georgia 30314
J ack Greenberg
10 Columbus Circle
New York, New York 10019
Of Counsel
Anthony G. A msterdam
Melvyn Zarr
APPENDIX
APPENDIX
Indictment of Rachel
STATE OF GEORGIA
County of F ulton
I n the Superior Court oe Said County
T he Grand J urors selected, chosen and sworn for the
County of Fulton, to-wit:
1.............. ............................. ...............Foreman
1. Lawrence A. Nelson, Foreman
2. Wilburn A. Askew, 11. Joseph G. Copeland
Asst. Foreman 12. J. T. Embrey
3. Agnes R. Johnson, 13. J. E. Hopper
Secretary 14. Arnold G. Kennedy
4. Elwood R. Dryden, 15. Quinton S. King
Asst. Secretary 16. J. A. Lanier
5. R. F. Adamson 17. Christian D. Lebey
6. George L. Beatie 18. Jack B. Peters
7. Ores L. Bobo 19. Edmund L. Saul
......................... ......ARJ 20. Robert Springer
8. Thomas D. Brogdon 21. John G. Thompson, Sr.
___ ____ _____...A R J 22. S. S. Tison, Jr.
9. Willis A. Brown 23. Frank P. Walker
10. William S. Cooley
10. 21.
11. 22.
12. 23.
in the name and behalf of the citizens of Georgia, charge and
accuse
T homas R achel
with the offense of Misdemeanor (Georgia Laws 1960, pages
142 and 143) for that said accused, in the County of Fulton,
2
State of Georgia, on the 17th day of June, 1963, with force
and arms, being on the premises of another, to w it: Lebco,
Inc. doing business under the name of Leb’s located on
Luckie Street, said county, and being requested to leave said
premises by Charles Lebedin an agent and employee of said
owner, who was then in charge of said premises, accused did
refuse and fail to leave said premises when requested to do
so by the said person in charge of said premises,—contrary
to the laws of said State, the good order, peace and dignity
thereof.
W illiam T. B oyd, Solicitor General.
Special Presentment.
3
P e tit io n f o r R em oval
I n the
UNITED STATES DISTRICT COURT
F oe the Northern Dxstbict oe Georgia
A tlanta Division
No. 23869
T he State of Georgia
vs.
T homas Raoi-iel, J ebby W alker, Labby Cbaweord F ox,
Debbie A mis, W illie P aul Berrien, J r., Lynn P puhl,
Michael Sayeb, J ulian M. Samstein, Ralph M. Moobe,
R onald F ranklin T urner, Carl C. Arnold, J ames F.
T hompson, Archer Columbus Black, Carl Vincent
H ill, J eanette Stockton H ume, J ames Arthur Cherry,
R ussell C. Campbell, Allen R. E lliott, Anna J o
W eaver, and Charles E dward W ells
To the Judges of the United States District Court for the
Northern District of Georgia, Atlanta Division:
1. The above-named petitioners are presently at liberty
on bail and are charged with violating Title 26, Georgia
Code Annotated, Section 3005. Petitioners were arrested
by members of the Police Department of the City of At
lanta, and their arrests were effected for the sole purpose
of aiding, abetting, and perpetuating customs, and usages
which have deep historical and psychological roots in the
mores and attitudes which exist within the City of Atlanta
with respect to serving and seating members of the Negro
4
race in such places of public accommodation and conven
ience upon a racially discriminatory basis and upon terms
and conditions not imposed upon members of the so-called
white or Caucasian race. Members of the so-called white
or Caucasian race are similarly treated and discriminated
against when accompanied by members of the Negro race.
The petitioners, T homas Rachel, J eeey W alker, Larry
Crawford Fox, Debbie A mis, W illie P aul Berrien, J r.,
Lynn P fuhl, Michael Sayer, and J ulius M. Samstein,
were arrested on June 17, 1963 when they sought to obtain
service, food, entertainment, and comfort at Lebco, I nc.,
d/b/a L eb’s, a privately owned restaurant opened to the
general public, 66 Luckie Street, Atlanta, Fulton County,
Georgia.
The following-named petitioners were arrested at L ebco,
I nc., d/b/a Leb’s, a restaurant owned and operated, as
aforesaid, and charged by special presentment of the July-
August, 1963 Term Grand Jury of Fulton County, Georgia,
with violating the above-mentioned statute:
(a) Ralph M. Moore, May 18, 1963;
(b) Ronald Franklin Turner, May 18, 1963;
(c) Carl C. Arnold, June 8, 1963;
(d) Julius M. Samstein, June 7, 1963;
(e) James F. Thompson, June S, 1963;
(f) Archer Columbus Black, June 8, 1963;
(g) Carl Vincent Hill, May 3, 1963;
(h) Jeanette Stockton Hume, May 4, 1963.
The petitioners, James Arthur Cherry, Julius M. Sam
stein, and Willie Paul Berrien, Jr., were arrested on May 4,
1963 when they sought to obtain service, food, entertain
5
ment, and comfort at Davis House No. 3, Inc., d/b/a Davis
Fine Food Cafeteria, a privately owned cafeteria-styled
restaurant opened to the general public, on Marietta Street,
Atlanta, Fulton County, Georgia.
Additionally, the following named petitioners were ar
rested at Davis House No. 3, Inc., d/b/a Davis Fine Food
Cafeteria, a cafeteria-styled restaurant owned and oper
ated, as aforesaid, and charged by special presentment of
the July-August, 1963 Term, Grand Jury of Fulton County,
Georgia, with violating the above-mentioned statute:
(a) Ralph M. Moore, May 1, 1963;
(b) Willie Paul Berrien, May 1, 1963;
(c) Willie Paul Berrien, June 6, 1963.
Petitioners, Anna Jo Weaver, Russell C. Campbell, and
Allen Elliott, were arrested on April 30, 1963, when they
sought to obtain service, food, entertainment, and comfort
at the Ship Ahoy, Inc., a privately owned restaurant opened
to the general public, located on Luckie Street, Atlanta,
Fulton County, Georgia and charged by special present
ment of the July-August, 1963 Term of the Fulton County
Grand Jury with violating the above-mentioned statute.
The Petitioner, Carl C. Arnold, was arrested at the Ship
Ahoy on May 23, 1963.
Petitioner, Carl C. Arnold was arrested on May 1, 1963,
and petitioner, Charles Edward Wells on May 4, 1963,
when petitioners sought to obtain service, food, entertain
ment, and comfort at Davis Brothers, Incorporated, a pri
vately owned restaurant opened to the general public,
located on Luckie Street, Atlanta, Fulton County, Georgia,
and charged by special presentment of the July-August,
1963 Term of the Fulton County Grand Jury with violating
the aforementioned statute.
6
Petitioner, Willie Paul Berrien, Jr., was arrested on
March. 13, 1963 when he sought lodging, food, service, en
tertainment and comfort at the H. & G. Hotel Corporation,
d/b/a Henry Grady Hotel, a hotel facility opened to the
general public built on real estate owned by the State of
Georgia but leased for a term of years to the H. & G.
Hotel Corporation, located in Atlanta, Fulton County,
Georgia, and charged by special presentment of the July-
August, 1963, Term of the Fulton County Grand Jury
with violating the aforementioned statute.
2. Subsequent to the petitioners’ arrests, as aforesaid,
the July-August, 1963 Term of the Fulton County Grand
Jury returned special presentments against the petitioners
charging them with violating Title 26, Georgia Code Anno
tated, Section 3005, as aforesaid. The cases of the State
of Georgia vs. Thomas Rachel, et al., growing out of the
aforesaid arrests and special presentments, are presently
pending in the Superior Court of Fulton County, Georgia,
to be heard during the week of February 17th through 22nd,
1964, the first case to be called for trial at 9 :30 A.M.
February 17, 1964.
3. By virtue of Title 28, United States Code Annotated,
Section 1443(1) and (2), this Court has jurisdiction to
hear and try the charges now pending against the peti
tioners. Removal is sought to protect the rights guaran
teed the petitioners under the due process and equal
protection clauses of Section 1, Fourteenth Amendment of
the Constitution of the United States and to protect the
right of free speech, association, and assembly guaranteed
by the First Amendment of the Constitution of the United
States.
Moreover, petitioners are being prosecuted for acts done
under color of authority derived from the Constitution and
Laws of the United States and for refusing to do an act
7
which was, and is, inconsistent with the Constitution and
Laws of the United States.
4. The petitioners are denied and/or cannot enforce in
the Courts of the State of Georgia rights under the Con
stitution and Laws of the United States providing for the
equal rights of citizens of the United States and all persons
within the jurisdiction thereof, in that, among other things,
the State of Georgia by statute, custom, usage, and practice
supports and maintains a policy of racial discrimination.
5. Bond with good and sufficient surety is not required
to be filed herewith, since the cases pending against the
petitioners are criminal.
Further, since the petitioners are at liberty on bond,
this Court is not required to issue its writ of habeas corpus
to bring the petitioners before the Court.
W herefore, in view of these facts, petitioners pray that
the aforesaid criminal proceedings may be removed from
the Superior Court of Fulton County to the United States
District Court for the Northern District of Georgia, At
lanta Division, for trial and pray that said prosecution
stand so removed as provided for in Title 28, United States
Code Annotated, Section 1446 (c) and (d).
Donald L. H ollowell
H oward Moobe, J r.
Attorneys for Petitioners
P. 0. Address:
859% Hunter Street, N.W.
Atlanta, Georgia 30314
525-8372
(Filed in Clerk’s Office and a True Copy Certified, this
February 17, 1964. B. G. Nash, Clerk. By: D. K. Kirk
patrick, Deputy Clerk.)
8
Order of Remand
I n the
UNITED STATES DISTRICT COURT
Northern Distbict op Georgia
A tlanta Division
No. 23869
T he State oe Georgia
vs.
T homas Rachel, J erry W alker, L arry Craweord F ox,
Debbie A mis, W illie P aul Bebrien, J r., Lynn P etjhl,
Michael Sayer, J ulian M. Samstein, Ralph M. Moobe,
R onald F ranklin T urner, Carl C. Arnold, J ames F.
T hompson, Archer Columbus Black, Carl V incent
H ill, J eanette Stockton H ume, J ames Arthur Cherry,
R ussell C. Campbell, Allen R. E lliott, Anna J o
W eaver, and Charles E dward W ells
C r i m i n a l
In a petition for removal verified by counsel, filed in
this Court on February 17, 1964, by the above named
defendants, the petitioners allege:
That they are presently at liberty on bail on a charge
of having violated Title 26, Georgia Code Annotated,
§3005; that they were arrested by members of the Police
Department of the City of Atlanta and that “their ar
rests were effected for the sole purpose of aiding, abet
9
ting, and perpetuating customs, and usages which have
deep historical and psychological roots in the mores and
attitudes which exist in the City of Atlanta with respect
to serving and seating members of the Negro race in such
places of public accommodations and convenience upon a
racially discriminatory basis and upon terms and condi
tions not imposed upon members of the so-called white
or Caucasian race. Members of the so-called white or
Caucasian race are similarly treated and discriminated
against when accompanied by members of the Negro raee.”
It is alleged that petitioner, William Paul Berrien, Jr.,
was arrested “when he sought lodging, food, service, en
tertainment and comfort at the H & G Corporation d/b/a
Henry Grady Hotel” which is alleged to be a hotel facility
open to the general public, built on real estate owned by the
State of Georgia, but leased to said corporation. It is
alleged that the other petitioners were arrested at specified
privately owned restaurants and cafeterias in the City of
Atlanta, all of the arrests being on specified dates in 1963
and it being alleged that all of petitioners were indicted
by the July-August, 1963, Grand Jury of Fulton County,
Georgia, for violation of said statute; that the cases are
presently pending in the Superior Court of Fulton County,
Georgia, and are set to be heard during the week of Febru
ary 17 to February 22, 1964, “the first case to be called for
trial at 9:30 A.M. on February 17, 1964.”
Petitioners allege that this Court has jurisdiction to hear
and try the charges presently pending against them by
virtue of 28 United States Code Annotated §1443(1) (2);
that removal is sought to protect rights guaranteed to
petitioners under the due process and equal protection
clauses of the Fourteenth Amendment to the Constitution
of the United States and to protect the right of free speech,
association, and assembly guaranteed by the First Amend
ment to the Constitution of the United States; that “peti
10
tioners are prosecuted for acts done under color of au
thority from the constitution and laws of the United States
and for refraining to do an act which was, and is, incon
sistent with the Constitution and Laws of the United
States;” that they are denied and/or cannot enforce in the
courts of the State of Georgia the specified rights claimed
under the Constitution and laws of the United States, “in
that, among other things, the State of Georgia by statute,
custom, usage, and practice maintains a policy of racial
discrimination.” Petitioners pray for removal of said
criminal proceedings from the state court to this court for
trial and “that said prosecutions stand so removed as pro
vided for in Title 28, United States Code Annotated, Sec.
1446(c) and (d).”
The criminal statute under which these movant defen
dants are indicted is §26-3005 of the Georgia Code, which
reads, as follows:
“Refusal to leave premises of another when ordered
to do so by owner or person in charge.—It shall be
unlawful for any person, who is on the premises of
another, to refuse and fail to leave said premises when
requested to do so by the owner or any person in
charge of said premises or the agent or employee of
such owner or such person in charge. Any person vio
lating the provisions of this section shall be guilty
of a misdemeanor and upon conviction thereof shall
be punished as for a misdemeanor.”
The defendants do not here contend that this statute is
unconstitutional. The Supreme Court of Georgia has re
cently held that this statute does not violate the due process
clause of the federal constitution.1
1 Clark v. State of Georgia (28971), Supreme Court of Georgia
—Case No. 22,323, decided Jan. 30,1964.
11
It is the duty of the district court to examine on its own
motion the question of whether a case removed to it should
he remanded to the state court without waiting for a mo
tion to remand.2
The removal statute—§1443, Title 28, U. S. C.—is to be
strictly construed.3
A criminal prosecution or a civil cause under this stat
ute [28 IT. S. C., §1443] because of a civil right or the en
forcement of such right must arise out of the destruction
of such right by the Constitution or statutory laws of the
State wherein the action is pending. The statute does not
justify federal interference where a party is deprived of
any civil right by reason of discrimination or illegal acts
of individuals or judicial or administrative officers. If the
alleged wrongs are permitted by officers or individuals the
remedy is the prosecution of the case to the highest court of
the State and then to the Supreme Court of the United
States as the laws of the United States authorize. The
statute contemplates that during the trial of a particular
case, the state court will respect and enforce the right of the
defendant to the equal protection of the laws of the State or
the constitutional laws of the United States.4
2 In Re MacNeil Bros. Co. (CCA Mass. 1958) 259 F. 2d 386;
Westark Production Credit Ass’n v. Fidelity & Deposit Co., (D. C.
W. D. Ark. 1951) 100 F. Supp. 52, 56; Rand v. State of Arkansas
(D. C. W. D. Ark. 1961) 191 F. Supp. 20; Title 28, §1447 (e),u. s. c.
3 Shamrock Oil Corp. v. Sheets, 313 U. S. 100; City of Birming
ham, Ala. v. Croskey, 217 F. Supp. 947.
4 Hull v. Jackson County Circuit Court (CCA Mich. 1943), 138
F. 2d 820; Rand v. State of Arkansas, supra, note 1; City of Bir
mingham, Ala. v. Croskey, supra, note 2; People of State of Cali
fornia v. Lamson, 12 F. Supp. 813; 2 Cye. of Fed. Procedure, Sec.
3.82.
12
The duty to enforce and protect every right granted
and secured by the United States Constitution rests equally
upon State and Federal Courts.5
Considered in the light of the aforementioned authority,
the petition for removal to this Court does not allege facts
sufficient to justify the removal that has been effected.
Since the case was improperly removed to this Court,
it is the duty of this Court to remand the same to the
Superior Court of Fulton County, Georgia, [§1447(c) Title
28, U. S. C.] and the defendants named in the above styled
case are hereby required to report without delay to the
Superior Court of Fulton County, Georgia, and there at
tend from day to day thereafter as may be ordered by said
Superior Court.
It is therefore Ordered, Adjudged and Decreed that the
above styled case is hereby remanded to the Superior Court
of Fulton County, Atlanta, Georgia.
This the 18th day of February, 1964.
Boyd Sloan
United States District Judge
(Filed in Clerk’s Office and a True Copy Certified, This
February 19, 1964, B. G. Nash, Clerk. By Dalton K. Kirk
patrick, Deputy Clerk.)
5 Gibson v. State of Mississippi, 162 U. S. 565, 40 L. Bd. 1075;
Ex Parte Royal], 117 U. S. 241, 248, 29 L. Bd. 868 at p. 870; Synpp
v. State of Ohio, 70 F. 2d 535.
13
(Filed in Clerk’s Office March 5, 1964, B. G. Nash, Clerk.
By: SG, Deputy Clerk.)
N o tice o f A ppeal
1st the
UNITED STATES DISTRICT COURT
F ob the Northern D istrict op Georgia
Atlanta Division
No. 23869
T he State op Georgia
vs.
T homas R achel, J erry W alker, Larry Crawford F ox,
Debbie A mis, W illie P aul Berrien, J r., L ynn P fuhl ,
Michael Sayer, J ulian M. Samstein, Ralppi M. Moore,
R onald F ranklin T urner, Carl C. Arnold, J ames F.
T hompson, Archer Columbus Black, Carl V incent
H ill, J eanette Stockton H ume, J ames Arthur Cherry,
R ussell C. Campbell, Allen E. E lliott, A nna J o
W eaver, and Charles E dward W ells
Notice is hereby given that T homas Rachel, et ah, plain
tiffs in the above-stated case, hereby appeal to the United
States Court of Appeals for the Fifth Circuit from the
Order of the United States District Court for the Northern
14
District of Georgia, Atlanta Division, of February 18, 1964,
dismissing their removal petition sua sponte. Said order
was entered February 18, 1964.
H oward Moore, J r.
Donald L. H ollowell
H oward Moore, J r.
8591/2 Hunter St., N.W.
Atlanta, Georgia 30314
Attorneys for Appellants
15
I n t h e
UNITED STATES COURT OF APPEALS
F oe the F ifth Circuit
No...............
M otion fo r Stay P e n d in g A p p ea l
T homas Rachel, et al.,
—v.—
Appellants,
T he State of Georgia,
Appellee.
Appellants respectfully move this Court for a stay of
further proceedings and for a stay of the prosecution
of the criminal cases against them presently pending in
the Superior Court of Fulton County, Georgia, in the
matters individually entitled State of Georgia v. Thomas
Rachel, Jerry Walker, Larry Crawford Fox, Debbie Amis,
Willie Paul Berrien, Jr., Lynn Pfuhl, Michael Sayer, Julian
M. Samstein, Ralph M. Moore, Ronald Franklin Turner,
Carl C. Arnold, James F. Thompson, Archer Columbus
Black, Carl Vincent Hill, Jeanette Stockton Hume, James
Arthur Cherry, Russell C. Campbell, Allen R. Elliott, Anna
Jo Weaver, and Charles Edward Wells. These prosecu
tions should be stayed pending hearing and determination
of petitioners’ appeal herein from the order of Judge Boyd
Sloan remanding said matters to the aforesaid state court
after they had been removed to the United States District
Court for the Northern District of Georgia, Atlanta Divi
sion.
16
Appellants respectfully show that some eighteen (18)
defendants who are on the same Calendar in the Criminal
Division of the Fulton Superior Court and who are charged
with the same misdemeanor offense as the appellants, were
ordered to show cause before the said trial judge at 9:30
A.M., Thursday, March 12, 1964, as to why their bonds
should not be increased and, also, as to why they should
not be required to give further surety. Though only one
of the appellants had his bond increased from $500.00 to
$7,000.00, the appellants stand threatened with the immedi
ate prospect of their bonds being so raised and with their
being required to give further security. That should such
demands be made upon the appellants, many of them would
be required to remain in jail because of their inability to
make said bond; also, as a result of such incarceration, the
appellants would have the effectiveness of their right to
counsel substantially minimized.
Had the Honorable Judge Sloan granted the appellants
a hearing prior to remanding the subject cases, appellants
would have been able to show facts at the hearing sustain
ing the allegations of their removal petition sufficiently to
justify the exercise of the jurisdiction of the said Court to
hear and try the indictments pending in the state court
against the appellants.
The matters will be tried in the immediate future by the
Honorable Durwood T. Pye, Judge, Fulton Superior Court,
unless the proceedings are stayed pending a hearing in this
matter, otherwise the issues raised and to be raised herein
will become moot.
In view of the fact that criminal prosecutions which
appellants seek to stay prevents them from exercising the
rights, privileges and immunities of United States citizens
under the United States Constitution and Laws, appellants
make the following requests in connection with this mo
tion:
17
A. That the Court by one of its Judges, issue the re
quested stay forthwith and on the basis of the record herein.
B. If the Court deems it improper to determine this mo
tion by one of its judges that the Court, by a three judge
panel, issue the requested stay forthwith and on the basis
of the record herein.
C. Whether the Court is to determine this motion by one
of its judges or by a three-judge panel, and if the Court is
not to determine the motion on the basis of the record
herein, that the Court set down the motion for argument on
the shortest possible notice that the Court deems proper in
the premises, and grant leave to defendants to serve notice
of argument on plaintiffs by telephone, telegraph, or any
other proper and expeditious means.
To expedite the proceedings a copy of the petition for
removal and remand order are attached hereto as exhibits
“A” and “B” respectively.
This 12th day of March, 1964.
D onald L. H ollowell
H oward Moore, J r.
Attorneys for Appellants
P. 0. Address:
859% Hunter St., N.W.
Atlanta 14, G-a.
JA. 5-8372
18
I n the
UNITED STATES COURT OF APPEALS
F or the F ifth Circuit
No. 23,869—Criminal.
M otion to D ism iss A p p ea l
T homas Rachel, J erry W alker, Larry Crawford F ox,
Debbie A mis, W illie P all Berrien, J r., Lynn P fiih l ,
Michael Sayer, J ulian M. Samstein, Ralph M. Moore,
R onald F ranklin T urner, Carl C. A rnold, J ames F.
T hompson, Archer Columbus Black, Carl Vincent
H ill, J eanette Stockton H ume, J ames Arthur Cherry,
Russell C. Campbell, Allen R. E lliott, A nna J o
W eaver, and Charles E dward W ells
vs.
T he State of Georgia
Statement of the Case
On February 17, 1964, the above named defendants in a
number of criminal cases then pending in Fulton Superior
Court, Fulton County, Georgia, charging violations of
Section 26-3005 of the Code of Georgia filed a petition for
removal verified by counsel, relying upon Section 1443(1)
(2) Title 28, United States Code.
On February 18, 1964, Honorable Boyd Sloan, United
States District Judge for the Northern District of Georgia,
issued an opinion and order remanding all of said cases
to the Superior Court of Fulton County, Atlanta, Georgia.
19
On March 5, 1964, petitioners filed a notice of appeal
to this Court from the Order of Judge Boyd Sloan re
manding said cases sua sponte.
Petitioners have now filed a motion for a stay of the
proceedings in Fulton County Superior Court pending
said Appeal from the Order remanding the cases for trial
in the Fulton Superior Court.
The State of Georgia moves to dismiss said Appeal on
the following grounds:
1.
The notice of Appeal from the Order of February 18,
1964, remanding the cases was not timely filed, having
been filed more than ten days from the date of said Order.
2.
The said Order of Judge Boyd Sloan remanding said
cases to the State Court for trial is not reviewable by
this Court on appeal or otherwise.
The State of Georgia also urges this Court to deny a
stay of proceedings in the Fulton Superior Court because
the Order of Remand is not appealable.
Argument and Authorities
This brief will be necessarily very sketchy since coun
sel for the State of Georgia has had less than twenty-four
hours notice of the hearing before this Honorable Court.
However, Section 1447, Title 28 United States Code reads
in part as follows:
“ (d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise. June 25, 1948, c. 646, 62 Stat. 939,
amended May 24, 1949, c. 139, Sect. 84, 63 Stat. 102.”
20
In the limited time available, counsel for the State of
Georgia has not been able to find any reported federal
case holding contrary to the last quoted section. There
are many federal decisions, however, holding that an Order
of Remand to a State Court is not appealable. For example,
in the case of Aetna Casualty & Surety Co. et al. v. Flowers,
1946, 330 U. S. 464, the United States Supreme Court
stated the following:
“ An order of a District Court remanding a cause
to the state court from whence it came is not appeal-
able, and hence may not be reviewed either in the
Circuit Court of Appeals or here.”
Other recent federal decisions holding to the same effect
are: Kromer v. McNabb, 10 Cir., 1962, 308 F. 2nd 863;
Hirsch v. Bruchhausen, 2 Cir., 1960, 284 F. 2d 783; in Re
Bear River Drainage District, 10 Cir., 1959, 267 F. 2d
849; and F & L Drug Corp. v. American Cent. Ins. Co.,
D. C. Conn. 1961, 200 F. Supp. 718.
It is also earnestly insisted by the State of Georgia that
this notice of appeal was filed too late. These are criminal
proceedings in the Georgia Court and have been removed
to Federal Court as a criminal case and have been given
a criminal number in the United States District Court.
Therefore, the notice of appeal from the Order of Judge
Sloan remanding the cases should have been filed within ten
days from the date of his Order of February 18, 1964,
pursuant to Rule 37(a)(2) Federal Rules of Criminal Pro
cedure. The cases were properly remanded to Fulton Su-
erior Court. The State of Georgia also respectfully insists
that the cases were properly remanded to the Fulton Su
perior Court for trial for the reasons set out by Judge
Sloan in his five page opinion. The State of Georgia relies
upon the authority cited by Honorable Boyd Sloan and will
not repeat those authorities here for lack of time.
21
Wherefore, the State of Georgia prays:
1 .
That the appeal of said petitioners from the Order of
Remand be dismissed.
2.
That the stay requested by petitioners be denied.
3.
That the State of Georgia be permitted to file an original
and four typewritten copies of this motion in lieu of hav
ing been printed because of want of time in which to
have this motion printed pursuant to the rules of this
Court.
Respectfully submitted,
W illiam T. B oyd,
Solicitor General
Atlanta Judicial Circuit
J. R obert Sparks,
Assistant Solicitor General, A. J. C.
22
O p in io n a n d O rd e r o f C o u rt o f A ppeals
(U. S. Court of Appeals, Filed March 12, 1964.
Edward W. Wadsworth, Clerk.)
I n th e
UNITED STATES COURT OF APPEALS
F oe the F ifth Circuit
No. 21,354
T homas Rachel, et al.,
v.
Appellants,
T he State of Georgia,
Appellee.
Appeal from the United States District Court for the
Northern District of Georgia
B e f o r e :
T uttle, Chief Judge,
W isdom, Circuit Judge, and Carswell, District Judge.
P er Curiam:
This Court having heretofore, in the case of Congress
of Racial Equality v. City of Clinton, Louisiana, granted
a stay of the order of remand returning the said case
to the state courts of Louisiana, pending an appeal from
such order of remand on the merits, we conclude that con
sistent with that order a stay should be granted to the
appellants here.
23
The question of the appealability of an order of re
mand is presented in the C.O.R.E. case which will be
promptly heard by this Court. We conclude that the ef
fectiveness of the order of the District Court, dated Feb
ruary 18, 1964, remanding these cases to the Superior
Court of Fulton County should be delayed pending a de
termination of the appeal on the merits.
It is, therefore, Ordered that the said order of Feb
ruary 18, 1964, be and the same is hereby stayed pending
final disposition of this appeal on the merits or the earlier
order of this Court.
This 12th day of March, 1964.
/ s / E lbert P. T uttle
Elbert P. Tuttle
United States Circuit Judge
/ s / J ohn Minor W isdom
John Minor Wisdom
United States Circuit Judge
Carswell, District Judge, Dissenting:
Orders of remand are not appealable under the affirma
tive language of the statute, nor have the courts before
this held them so to be. The nature of the particular case
does not, in my view, afford legally sufficient cause to
disturb this universally applied rule.
I would, therefore, grant appellee’s motion to dismiss
this appeal.
This 12th day of March, 1964.
/s / Gf. H arrold Carswell
Gr. Harrold Carswell
United States District Judge
Northern District of Florida
24
O rd e r o f S u p e r io r C o u rt o f F u lto n C ounty
(Filed in Office this the 23 day of March, 1964.
Lillian P. Jones, Deputy Clerk.)
1st the Superior Court of
F ulton County, Georgia
In reference to the indictments now pending against
Thomas Rachel, Jerry Walker, Larry Crawford Fox,
Debbie Amis, Willie Paul Berrien, Jr., Lynn Pfuhl, Michael
Sayer, Julian M. Samstein, Ralph M. Moore, Ronald Frank
lin Turner, Carl C. Arnold, James F. Thompson, Archer
Columbus Black, Carl Vincent Hill, Jeanette Stockton
Hume, James Arthur Cherry, Russell Carmichael Campbell
(Russell C. Campbell), Arthur Reginald Elliott (Allen R.
Elliott), Anna Jo Weaver and Charles Edward Wells, Sr.
(Charles Edward Wells):
The Court having declined to surrender jurisdiction in
each and all of the above cases, the Solicitor General is
ordered to proceed in each case.
This 20th day of March, 1964.
Durwood P ye
Judge, Superior Court
Atlanta Judicial Circuit
25
Motion for Further Relief and
Amendment Thereto
(Further Relief Thereto. Filed in Clerk’s Office Mar. 20,
1964. B. G. Nash, Clerk; By R. B. C., Deputy Clerk)
Isr the
UNITED STATES DISTRICT COURT
F ob the Northern District of Georgia
A tlanta Division
No. 23869
State of Georgia
v.
T homas Rachel, et al.
No. 23875
State of Georgia
v.
R afael Benti-iam, et al.
No. 23886
State of Georgia
v.
P rathia Laura A nn H all, et al.
Come now petitioners for removal in Cases No. 23869,
23875, and 23886, now pending in this Honorable Court,
26
and move the Court for such further relief as is necessary
or appropriate in aid of the jurisdiction of this Court and
agreeable to the usages and principles of law and to pre
serve and protect rights granted the petitioners by the
laws and Constitution of the United States.
1. This Court has authority to grant the relief sought
by the petitioners by virtue of 28 U. S. C. A., Section 1651
and by virtue of Article VI, Section 2, United States Con
stitution.
2. On February 17, 1964, petitioners in Case No. 23869
filed a petition in this Court removing certain criminal
indictments pending against them in the Superior Court
of Fulton County, Georgia.
(a) The petitioners therein alleged that this Court had
jurisdiction to try and hear the indictments charging them
with a violation of Title 26, Georgia Code, Annotated,
Section 3005, by virtue of Title 28, U. S. C. A. 1443(1) and
( 2 ).
(b) Additionally, the petitioners therein alleged that
they were denied and/or could not enforce in the Courts
of the State of Georgia rights under the Constitution and
Laws of the United States providing for the equal rights of
citizens of the United States because the State of Georgia,
by statute, custom, usage, and practice supports and main
tains a policy of racial discrimination.
3. On February 19, 1964, the order of this Court remanding
said cases to the Superior Court of Fulton County was filed.
4. On March 5, 1964, the petitioners in Case No. 23869,
filed a notice of appeal from the above mentioned order of
remand in the United States Court of Appeals for the Fifth
Circuit.
5. On March 12, 1964, the petitioners in Case No. 23869
filed a motion for stay pending appeal in which they al
27
leged, inter alia, that they faced imminent jeopardy of
being afflicted with cruel and inhuman punishment by virtue
of the fact that the Honorable Durwood T. Pye, Judge,
Fulton County Superior Court, to whose jurisdiction said
cases had been erroneously remanded was likely to require
the petitioners to give better security on their appearance
bonds and likely to increase the amount of said bonds to an
amount which the petitioners would be unable to give.
Pursuant to the order of the United States Court of
Appeals for the Fifth Circuit, this Court reduced the bail of
Debbie Helen Amis who was unrepresented by counsel
from $7,000.00 to $1,000.00.
6. On March 12, 1964, the motion for stay pending appeal
came on for hearing before the United States Court of
Appeals for the Fifth Circuit, sitting in Atlanta, Georgia.
After hearing arguments of counsel for the petitioner and
the State of Georgia, that Court entered its order staying
the effect of the aforementioned remand order “pending
final disposition of [the] appeal on the merits or the
earlier order of [that] Court.” A copy of said order is
hereto attached, marked Exhibit “A,” and made a part of
this paragraph and petition.
7. On March 12, 1964, petitioners in Case No. 23875 filed
a petition in this Court removing certain criminal indict
ments then pending against them, in the Superior Court of
Fulton County, charging a violation of the so-called anti
trespass act (Title 26—Georgia Code Annotated, Section
3005). In addition to the allegations set out in paragraph
2 above, these petitioners alleged that they were being
denied rights accorded them under Title 42, U. S. C. A.
1981 and that petitioners were either actually being sub
jected to or were immediately threatened with cruel and
inhuman treatment by reason of the excessive, unnecessary,
and unreasonably high bail which had been fixed by the
said Judge Pye for their appearances or which was imme
diately likely to be fixed.
This Court thereupon issued its order admitting one of
the petitioners therein, Wilkie LaMar Alford, to bail in the
amount of $500.00 with surety to be approved by the Clerk,
and thereby reducing petitioner’s bond which had been set
by the said Judge Pye at $3,000.00.
8. On March 19, 1964, petitioners in Case No. 23875,
amended their petition by striking paragraph 8 therefrom
in its entirety and substituting therefor a new paragraph
to be known as paragraph 8. This Court ordered the
amendment filed on the same day. A copy of said amend
ment is attached hereto, marked Exhibit “B,” and thereby
made a part of this paragraph and petition.
9. On March 19, 1964, petitioners in Case No. 23886 filed
a motion in this Court removing certain indictments pend
ing against them in the Superior Court of Pulton County,
Gleorgia, charging them with violation of Title 26, Georgia
Code Annotated, Section 3005.
(a) Petitioner Prathia Laura Ann Hall alleged therein
that she was then incarcerated in the common jail of Fulton
County, Georgia, due solely to her inability to post bail in
the amount of $4,500.00; that the Court had recessed the
arraignment on the charges against her and attended to
other matters not affecting the petitioner; and, that the
Court had denied her alternative motions that (1) she be
permitted to sign her own bond, (2) reduce the amount of
the bond, or (3) that the Court proceed to trial of her
case.
(b) Petitioner Hall sought to have this Court issue its
order reducing her bond or pursuant to Title 28, U. S. C. A.,
Section 1446(f) issue its writ of habeas corpus.
29
(c) Pursuant to the aforementioned request for relief,
this Court issued its order directing the United States
Marshal to bring petitioner Hall before one of the Com
missioners of this Court or its Clerk in order that she
might execute a proper bond in the amount of $1,000.00.
This order remains unexecuted by reason of the inter
position of the order of the Honorable Durwood T. Pye
directing the Sheriff of Fulton County to retain custody
of this petitioner. A copy of the order of this Court re
ducing this petitioner’s bond and directing the United
States Marshal, as aforesaid is hereto attached, marked
Exhibit “C,” and a copy of the order of the Honorable
Durwood T. Pye, as aforesaid, is hereto attached, marked
Exhibit “D.” Said orders are made a part of this petition
and paragraph.
10. All of the petitioners are immediately threatened with
irreparable harm and injury for which there is no adequate
remedy at law by reason of the announced intention of the
State Trial Court to, on Monday, March 23, 1964, “take up
the business of the Court,” presumably the cases which
have been removed to this Court, as the same is made to
more fully appear by the transcript of the proceedings in
said state court which is attached hereto, marked Exhibit
“E,” and made a part of this petition and paragraph.
11. In order for this Court to preserve its jurisdiction and
to protect the petitioners in the enjoyments of rights ac
corded them by the laws and Constitution of the United
States that the Honorable William T. Boyd, Solicitor, At
lanta Judicial Circuit, the Honorable T. Ralph Grimes,
Sheriff of Fulton County, Georgia, and their agents, suc
cessors in office, duly appointed and/or deputized assis
tants, employees, or any person acting by order of the
Honorable Durwood T. Pye in their place and stead, and
all others acting in concert with them ought to be enjoined
30
and restrained throughout the pendency of the appeal in
Case No. 23869 and enjoined and restrained during the
pendency of Cases No. 23875 and 23886 before this Court
and throughout the pendency of any appeal taken from any
order of this Court remanding said cases to the Superior
Court of Fulton County, from interfering with any order
of this Court directed to the United States Marshal or to
any other person directed by this Court to perfect the re
lease of any of the petitioners from the custody of the
Sheriff of Fulton County, or from the Custody of any
other state officer holding such persons for trial of the
cases which have hereinbefore been removed to this Court
or from prosecuting any of the petitioners in any Court
of the State of Georgia on the indictments which have been
removed to this Court and from appearing before any
Judge of the Superior Court of Fulton County or any
other magistrate or judge, grand or traverse jury for the
purpose of trying and prosecuting the petitioners upon the
charges laid in the indictments now pending in this Court.
12. Unless restrained and enjoined the above-named par
ties, their agents, successors in office, and such others, as
aforesaid, will immediately undertake to try and convict
the petitioners in the Superior Court of Fulton County,
Georgia, upon the charges laid in the indictments herein
before removed to this Court and to subject most, if not all
of the petitioners, to cruel and inhuman punishment in
manner as aforesaid in utter disregard of the petitioners’
rights and in calculated derogation of and for the au
thority, dignity and majesty of the Courts of the United
States.
W h e r e f o r e , p e t i t i o n e r s m o v e t h a t a n o r d e r b e i s s u e d i n
t h e f o l l o w i n g t e r m s :
(a) Restraining and enjoining the Honorable William
T. Boyd, Solicitor General, Atlanta Judicial Circuit, his
31
agents, successors in office, duly appointed and/or depu
tized assistants, employees, or any other person acting by
order of the Honorable Durwood T. Pye in their place and
stead, and all others acting in concert with them from prose
cuting in any court of the State of Georgia any of the peti
tioners upon the charges laid in the indictments before this
Court and from appearing before any judge or tribunal of
the State of Georgia for the purpose of trying and convict
ing any of the petitioners upon said charges until such time
as said indictments are disposed of by this Court or further
order of this Court;
(b) Restraining and enjoining the Honorable T. Ralph
Grimes, Sheriff of Fulton County, Georgia, his agents,
successors in office, duly appointed and/or deputized as
sistants, employees, or any person acting by order of the
Honorable Durwood T. Pye in his place and stead, and ail
others acting in concert with him, from interfering with
any United States Marshal directed by this Court to take
any of the petitioners into custody;
(c) Directing the Honorable T. Ralph Grimes to forth
with deliver the body of the petitioner, Prathia Laura Ann
Hall, to the custody of the United States Marshal;
(d) Restraining and enjoining the Honorable T. Ralph
Grimes, his agents, successors in office, duly appointed
and/or deputized assistants, employees or any person act
ing by order of the Honorable Durwood T. Pye in his place
and stead, and all others acting in concert with him, from
taking any of the petitioners into custody, except pursuant
to any order of this Court, for the purpose of securing their
presence before the Superior Court of Fulton County, to
answer the charges laid in the indictments now pending in
this Court;
(e) Counsel for the petitioners be permitted to give no
tice to counsel for the State of Georgia on the shortest
32
possible notice of this Motion for Further Eelief and that
this Court forthwith set this matter down for determina
tion;
(f) Such other and further relief as is warranted and
proper in the premises.
H oward M oore, J r.
D onald L. H ollo w e l l
H oward Moore, J r .
Attorneys for Petitioners
859V2 Hunter Street, N.W.
Atlanta, Georgia 30314
JA. 5-8372
33
Am e n d m e n t to M ovants’ M otion fo r
F u r th e r R e lie f
Come now the movants in the above styled eases and
amend their Motion for Further Relief filed in this Court
March 20, 1964 by adding another paragraph at the end
thereof to be known as paragraph “13.”
13. Movants show that on the 20th day of March, 1964,
the said Judge Pye held an all-day hearing in open court in
which he dictated an opinion and order pertaining to cases
which presently are in this court as No. 23869. As a part
thereof, the said Judge Pye passed an order placing the
said cases on the calendar for trial Monday, March 23,
1964, before him and directing the solicitor general to pro
ceed with each of said cases before him at that time.
Wherefore, movants pray that this amendment be al
lowed.
This 21st day of March, 1964.
D onald L. H ollowell
H oward Moore, J r.
Movants’ Attorneys
34
(Filed in Clerk’s Office and a True Copy Certified, This
March 21, 1964, B. G. Nash, Clerk, By .Dalton K. Kirk
patrick, Deputy Clerk.)
O r d e r E njo in ing Solic itor G en eral
I n the
UNITED STATES DISTRICT COURT
F ob the N orthern D istbict oe Geobgia
A tlanta D ivision
No. 23869
— --------------------- ----- ---------------- — ----------------
S tate oe Georgia
v.
T homas R achel, et al.
No. 23875
S tate oe Georgia
v.
R afael B entham , et al.
No. 23886
State oe Georgia
v.
P rathia L aura A n n H all, et al.
The above and foregoing Motion for Further Relief
coming on for hearing before me this date at the request
of the movants, and counsel for both the movants and the
35
State of Georgia as to the Honorable William T. Boyd,
Solicitor General, Atlanta Judicial Circuit being present
before the Court, and after the hearing of argument by
counsel pertaining to the facts of the verified motion,
which facts are adopted by this court as the findings of
facts herein.
Now T herefore, I t Is Considered, Ordered and Ad
judged :
(1) That the Honorable William T. Boyd, Solicitor Gen
eral, Atlanta Judicial Circuit, his agents, successors in
office, duly appointed and/or deputized assistants, em
ployees, or any other person acting by order of the Hon
orable Durwood T. Pye in their place and stead, and all
others acting in concert with them, be and the same are
hereby restrained and enjoined from prosecuting in any
Court of the State of Georgia any of the petitioners upon
the charges laid in the indictments before this Court and
from appearing before any judge or tribunal of the State
of Georgia for the purpose of trying and convicting any of
the said petitioners upon said charges until such time as
said indictments are disposed of by this Court on further
order of this Court.
(2) That Honorable T. Ralph Grimes, Sheriff of Fulton
County, Georgia, his agents, successors in office, duly
appointed and/or deputized assistants, employees, or any
person acting by order of the Honorable Durwood T. Pye
in his place and stead, and all others acting in concert
with him, be, and they are hereby temporarily restrained
and enjoined from taking any of the petitioners into cus
tody for the purpose of securing their presence before the
Superior Court of Fulton County to answer the charges
laid in the said indictments now pending in this Court ex
cept pursuant to any further order of this Court. And,
36
they are further temporarily restrained and enjoined from
taking into custody any other participants of record in said
cases for the purpose of securing their presence before the
Superior Court of Fulton County for the purpose of prose
cuting, defending and responding to any pleadings and/or
citations or orders issued by the said Honorable Durwood T.
Pye in his place and stead in connection with said eases.
(3) That after consideration of the motions by the
State of Georgia to remand Case No. 23875, State v.
Bentham, et al., and Case No. 23886, Slate v. Hall, et al.,
to Fulton Superior Court, this Court has decided to hold,
and by this order does hereby hold said motions in abey
ance until the United States Court of Appeals for the
Fifth Circuit has decided Case No. 23869, State of Georgia
v. Rachel, et al., now pending on appeal in that Court,
as that case involves substantially the same issues pre
sented by said motions.
(4) Let the Sheriff of Fulton County, T. Ralph Grimes,
show cause before me on the 25th day of March, 1964,
at the United States District Court, Room 322-324, Old
Post Office Building, Atlanta, Georgia, at 2:00 o’clock
p.m., why the relief prayed for in the Motion for Fur
ther Relief should not be granted as to him. Let a copy of
the said Motion, as amended, and a copy of this order be
served by the Marshal of this Court upon the said sheriff.
D one This 21st day of March, 1964 in Open Court.
B oyd S loan
United States Judge
37
Opinion and Order Enjoining Sheriff
(Filed in Clerk’s Office March 25, 1964, B. G. Nash, Clerk,
by: R. T., Deputy Clerk.)
I n the
UNITED STATES DISTRICT COURT
Northern District of Georgia
A tlanta Division
No. 23869
State oe Georgia
v.
T homas R achel, et al.
No. 23875
State of Georgia
v.
R aeael Bentham, et al.
No. 23886
State oe Georgia
v.
P rathia L aura A nn H all, et al.
The above stated cases having been, by the filing of
proper petitions for removal, removed to this Court, and
the defendants therein on March 20, 1964, filed motions
for further relief wherein they allege that they were im
mediately threatened with irreparable harm and injury
for which they had no remedy at law by reason of the
announced intention of the State trial judge to take up
the removed cases which are the subject matter of cases No.
23,869 and No. 23,875.
Movants further contend that in order to protect the
jurisdiction of this Court and the rights of petitioners
it was necessary that an injunction be granted enjoining
the Honorable William T. Boyd, Solicitor-General of the
Atlanta Judicial Circuit, and all others acting for him
or in his stead from prosecuting in any court of the State
of Georgia any of the petitioners on the charges made in
these indictments and from appearing before any judge
or tribunal of the State for the purpose of trying and
convicting any of said petitioners upon said charges until
such time as the indictments are disposed of by this Court.
They alleged that for said purposes it was necessary
that injunction issue enjoining Honorable T. Ralph Grimes,
Sheriff of Fulton County, Georgia, his agents, succes
sors, deputies, or assistants, or any person acting by order
of the Honorable Durwood T. Pye in his place and stead
from taking any of the petitioners into custody for the
purpose of securing their presence before the Superior
Court of Fulton County, Georgia, to answer the charges
in said indictments and from taking into custody any
other participant of record in said cases for the purpose
of securing their presence before the Superior Court of
Fulton County, Georgia, for the purpose of prosecuting,
defending and responding to any pleadings, citations or
orders issued by the Honorable Durwood T. Pye.
On March 21, 1964, after the filing of an amendment
by counsel for this petitioner and other petitioners and
after the filing of a response by the Honorable William
39
T. Boyd, Solicitor-General of the Atlanta Judicial Cir
cuit, and after argument of counsel, this Court was of
the opinion that the injunctive relief prayed for was
necessary in order to protect the rights of movants, the
defendants in said indictments, the Court entered its
order restraining the Honorable William T. Boyd, Solici
tor-General of the Atlanta Judicial Circuit, and all those
acting for him or in his place and stead in prosecuting
in any court of the State of Georgia any of the charges made
in these indictments, etc.
Also, as a part of said order, this Court temporarily
restrained and enjoined the Honorable T. Ralph Grimes,
his deputies, agents, successors, or any one acting in his
place and stead from taking any of the petitioners into
custody for the purpose of securing their presence before
the Superior Court of Fulton County, Georgia, etc. and
inasmuch as the said sheriff had not been served with a
copy of the pleadings, this Court then ordered the said
sheriff to show cause before it on the 25th day of March,
1964, as to why the prayers of the movants should not be
granted. A copy of said motion and order was ordered
served upon the sheriff.
Now in response to said show cause order, the Honor
able T. Ralph Grimes, Sheriff of Fulton County, Georgia,
has appeared and filed his response to such order and the
hearing was had.
The factual allegations of the original motion for fur
ther relief and amendment thereto not being in dispute, the
Court adopts those allegations as its findings of fact
herein.
There is no contention on the part of movants that
Sheriff T. Ralph Grimes has been guilty of official mis
conduct or that he intends to disobey or violate the orders
of this Court.
40
However, as the Court understands it, it is the conten
tion of movants that in all probability that T. Ralph
Grimes will be required by order of Superior Court of
Fulton County, Georgia, to take into custody and produce
for trial in the State court, the movants herein unless in
junctive relief is granted.
This Court finds that unless restrained and enjoined
respondents herein, their agents and successors in office
or others designated to act in their place and stead will
undertake to take into custody, try and convict the movants
in the Superior Court of Fulton County, Georgia, upon
the charges made in these indictments which have been
heretofore removed to this Court and which are now pend
ing in this Court.
This Court further finds that in order to protect the
rights of movants, the defendants in the above named in
dictments, and to protect the jurisdiction of this Court
it is necessary that a preliminary injunction be issued en
joining the Honorable T Ralph Grimes and his agents,
deputies or those acting in his place and stead as prayed.
It is, therefore
Ordered that the Honorable T. Ralph Grimes, Sheriff
of Fulton County, Georgia, his agents, successors in office,
duly appointed and/or deputized assistants, employees, or
any person acting by order of the Honorable Durwood T.
Pye in his place and stead, and all others acting in concert
with him, be, and they are hereby restrained and enjoined
from taking any of the petitioners into custody for the
purpose of securing their presence before the Superior
Court of Fulton County, Georgia, to answer the charges
laid in the said indictments now pending in this Court ex
cept pursuant to any further order of this Court. And they
are further restrained and enjoined from taking into cus
tody any other participant of record in said cases for the
purpose of securing their presence before the Superior
41
Court of Fulton County, Georgia, for the purpose of prose
cuting, defending and responding to any pleadings and/or
citations or orders issued by the said Honorable Durwood
T. Pye or others in his place and stead in connection with
said cases.
This the 25th day of March, 1964.
B oyd Sloan
XJnited States District Judge
42
Order of Superior Court of Felton County
of April 1, 1964
I n th e
SUPERIOR COURT OF FULTON COUNTY, GEORGIA
Whereas, the Grand Jury of this County, in the name
and behalf of the citizens of Georgia, heretofore duly and
regularly returned into this Court separate bills of indict
ment charging in each instance each of the following de
fendants with violation of the penal laws of the State, viz:
Thomas Rachel, Jerry Walker, Larry Crawford Fox, Deb
bie Amis, Willie Paul Berrien, Jr., Lynn Pfuhl, Michael
Sayer, Julian M. Samstein, Ralph M. Moore, Ronald Frank
lin Turner, Carl C. Arnold, James F. Thompson, Archer
Columbus Black, Carl Vincent Hill, Jeanette Stockton
Hume, James Arthur Cherry, Russell Carmichael Camp
bell (Russell C. Campbell), Arthur Reginald Elliott (Allen
R. Elliott), Ann Jo Weaver, and Charles Edward Wells,
Sr. (Charles Edward Wells) :
And whereas, said indictments are now pending in this
Court in separate cases styled The State versus each such
defendant, and are undisposed of and on the calendar for
trial for April 20, 1964;
And whereas, there was filed in this Court on the 17th
day of February 1964, a certified copy of a petition for
removal filed in the District Court of the United States for
the Northern District of Georgia on the 17th day of Feb
ruary 1964, praying in one joint petition that each of said
indictments be removed from this Court into said United
States Court for trial, same being #23,869 United States
District Court;
43
And whereas, said petition disclosed no cause for re
moval. See, the following controlling authorities, to-wit:
Kentucky v. Powers, Ex parte Commonwealth of Kentucky,
201 U. S. 1; Snypp v. State of Ohio, 70 Fed. R. (2) 535;
Westark Production Credit Association v. Fidelity and
Deposit Company of Maryland, 100 Fed. Supp. 52; Hand
v. State of Arkansas, 191 Fed. Supp. 20; Shamrock Oil Cor
poration v. Sheets, 313 U. S. 100, 108; Hull v. Jackson
County Circuit Court, 138 Fed. R. (2) 820; People of State
of California v. Lamson, 12 Fed. Supp. 813; City of Birm
ingham, Alabama v. Henry Croskey, et at., 217 Fed. Sirpp.
947; State of North Carolina v. David A. Jackson, 135 Fed.
Supp. 682; McGuire v. North American Aviation, Inc., 69
Fed. Supp. 917; 2 Cyclopedia of Federal Procedure, Sec.
3.82;
And whereas, on the 18th day of February 1964, His
Honor Boyd Sloan, Judge of said United States District
Court, issued an opinion and order remanding said cases
to this Court, a certified copy of which order of remand
was filed with the Clerk of this Court on the 20th day of
February 1964;
And whereas, said order of remand was final and con
clusive, Title 28, Section 1447, Subsection (d), United States
Code, providing: “(d) An order remanding a case to the
State Court from which it was removed is not reviewable
on appeal or otherwise”;
And whereas, the United States Court of Appeals for
the Fifth Circuit on the 12th day of Mareh 1964, upon con
sideration of a notice of appeal and motion for stay pend
ing appeal filed by the defendants in said indictments in
respect of said order of remand, entered in said remanded
cases an order of stay without ruling on the motion to dis
miss filed on behalf of the State by the Solicitor-General
44
and calling attention to said section 1447, subsection (d),
title 28, United States Code, said order of stay being in
cluded in the opinion and judgment of the Court, as follows,
to-wit: “This Court having heretofore, in the case of Con
gress of Racial Equality v. City of Clinton, Louisiana,
granted a stay of the order of remand returning the said
case to the state courts of Louisiana, pending an appeal
from such order of remand on the merits, we conclude that
consistent with that order a stay should be granted to the
appellants here.
“The question of the appealability of an order of remand
is presented in the C.O.R.E. case which will be promptly
heard by this Court. We conclude that the effectiveness of
the order of the District Court, dated February 18, 1964,
remanding these cases to the Superior Court of Fulton
County should be delayed pending a determination of the
appeal on the merits.
“It is, therefore, Ordered that the said order of February
18, 1964, be and the same is hereby stayed pending final
disposition of the appeal on the merits or the earlier order
of this Court.”
And whereas, said order of stay was entered by His
Honor, Chief Judge Elbert Tuttle, United States Circuit
Judge, and His Honor, Judge John Minor Wisdom, United
States Circuit Judge, sitting in said United States Court
of Appeals, His Honor, G. Harrold Carswell, United States
District Judge, dissenting;
And whereas, said United States Court of Appeals and
said judges sitting therein were without jurisdiction of said
appeal, and without jurisdiction to grant said stay and
such want of jurisdiction of the subject matter disabled said
court and judges from entering said stay order and the
45
same was therefore void: See the authorities cited in the
order of this Court stated in Open Court March 20, 1964,
and entered March 23,1964;
And whereas, thereafter, and on March 14, 1964, based
on the aforesaid stay of the Court of Appeals said District
Judge entered a warrant and order directed to the United
States Marshal in respect of the indictment aforesaid
against said Debbie Amis, and pursuant thereto the United
States Marshal entered the jail of Fulton County, Georgia,
demanded the person of said defendant Debbie Amis, and
upon her delivery to him removed her from said jail and
from the jurisdiction of this Court, and she was further
pursuant to said warrant and order released on bail return
able to said United States District Court;
And whereas, on the 21st and 25th days of March 1964,
acting pursuant to the aforesaid stay of the United States
Court of Appeals, said District Judge entered an order
upon motion of defendants in said indictments for further
relief in the aforesaid removal proceedings, enjoining and
restraining the prosecuting authorities of the State and
the Sheriff of the County from carrying out their official
duties in reference to the aforesaid indictments;
And whereas, as a result of said unauthorized stay issued
contrary to said Title 28, Section 1447(d), United States
Code, said order being issued by Judges and by a Court
without jurisdiction of the subject matter, and without au
thority to act in the premises, the legal processes of the
Courts of this State have been thwarted, in substance the
exercise of the sovereign powers of the State enjoined, the
jurisdiction of the Courts of the State to try offenses
against its own laws and violation of its own peace and
dignity wrested from it; which are matters of grave and
serious import and destructive of our federal system;
46
And whereas, the Supreme Court of the United States in
the case entitled In the Matter of the National Labor Rela
tions Board, 304 U. S. 486, 496, held that where “The Cir
cuit Court was without jurisdiction of the subject matter”,
writs of prohibition and mandamus directed to the Judges
would lie “for unwarranted assumption by the Circuit Court
of Appeals of jurisdiction” ;
And whereas, the Supreme Court of the United States in
the case of Maryland v. Soper, Judge, 270 U. S. 9, ruled as
follows: “1. The remedy of mandamus is grantable by this
Court, in its sound discretion, on petition of a State to
determine the legality of a removal of a criminal case from
a State to a federal Court.” Page 29: “In respect of the
removal of State prosecutions, there should be a more
liberal use of mandamus than in removal of civil cases . . .
In the case before us . . . the jurisdiction of the Courts
of the State to try offenses against its own laws and viola
tion of its own peace and dignity is wrested from it by an
order of an inferior federal court.” In that case mandamus
was awarded to require that the prosecution be returned
to the Courts of the State of Maryland. Likewise, in Colo
rado v. Symes, Judge, 286 U. S. 510, mandamus was em
ployed to restore the prosecution to the Courts of the State
of Colorado.
It is therefore, ordered,
That the Solicitor-G-eneral, in the name and behalf of
the State of Georgia, apply as expeditiously as possible to
the Supreme Court of the United States for the issuance
of the writs of mandamus and prohibition and all other
appropriate relief against said United States Court of
Appeals for the Fifth Circuit, and His Honor Elbert Tuttle,
and His Honor John Minor Wisdom, Judges as aforesaid,
to the end that said Court and said Judges may be ordered
47
and required by the Supreme Court to vacate and set aside
the aforesaid order of stay of said remand order of the
District Court, and directed to proceed no further with
the consideration of the aforesaid appeal therefrom.
Let this order be entered upon the minutes of the Court.
This 1st day of April, 1964.
D tjrwood T. P ye
Judge, Superior Court
Atlanta Judicial Circuit
48
O rd e r o f S u p e r io r C o u rt o f F u lto n C oun ty
o f A p ril 2 0 , 1 9 6 4
I n the
SUPERIOR COURT, ATLANTA JUDICIAL CIRCUIT
I n and foe the County of F ulton
Atlanta, F ulton County, Georgia
ORDER
In the matter of the indictments on the calendar for
April the 20th, 1964, against the following defendants, the
indictments being separate indictments against each of
said defendants, to-wit: Debbie Amos, Carl C. Arnold,
Archer Columbus Black, Willie Paul Berrien, Junior, Rus
sell Carmichael Campbell, John Arthur Cherry, Arthur
Reginald Elliott, Larry Crawford Fox, Carl Vincent Hill,
Jeannett Stockton Hume, Ralph M. Moore, Lynn Pfuhl,
Thomas Rachel, Julius M. Samstein, Michael Sayer, James
F. Thompson, Ronald Franklin Turner, Jerry Walker,
Anna Jo Weaver, and Charles Edward Wells, Senior:
Upon the sounding of said cases, the Solicitor General
responded in respect of each case that he was unable to
proceed for the reason, as stated in substance by the So
licitor General, the prosecuting authorities of the State
have been enjoined and restrained by the United States
District Court from performing their official duties in re
spect of each of said cases, it being also stated by the
Solicitor General that the Sheriff has been similarly en
joined and restrained by said Court from performing his
official duties in respect of each of said cases.
Under these circumstances, the Court is physically un
able to proceed with any of these cases.
49
These cases were the subject matter of the order stated
in open court March 20, 1964, and entered March 23, 1964,
to which reference is hereby made.
Briefly stated, a copy of a petition to remove said cases
from this court to the United States District Court was
filed with the Clerk of this Court shortly after the filing
in the United States court of the original petition for re
moval. The next day the United States District Judge
entered an opinion and order remanding these cases to
this court and directed that the defendants appear forth
with in this court for trial and remain until excused.
Thereafter, a notice of appeal to the United States Court
of Appeals was filed by the defendants, and subsequently
a motion to stay the effectiveness of said order of remand.
Thereafter, the United States Court of Appeals for the
Fifth Circuit entered an order by vote of two to one of
the Judges presiding wherein that court undertook to enter
an order staying the effectiveness of the order of remand
theretofore issued by the District Court. This Court,
thereafter in the aforesaid order, entered March 23, 1964,
considered these two federal orders and concluded that
there was no impediment to this Court proceeding with the
cases. That order concluded, as follows:
“This Court is of opinion that the aforesaid cases
are now pending in this court and within the jurisdic
tion of this court and subject to no legal obstacle as
relates to jurisdiction, and it is so ordered.
“The Court orders that said cases be placed upon
the calendar for trial.”
Later based upon the proceedings in the United States
Court of Appeals and a petition for further relief filed by
the defendants in said cases, the United States District
Court entered the order of injunction against the Solicitor
50
General and the Sheriff above referred to. Therefore, it
follows, as stated, that this Court is disabled from proceed
ing with the cases. The disability thus imposed upon this
Court results, of course, from the stay order granted by
the United States Court of Appeals. This stay order was
granted in the teeth of the Act of Congress of the United
States set forth in Title 28, Section 1447, United States
Code, sub-section (d), as follows:
“An order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise.”
It was by reason of this Act of the Congress that this
Court was of the opinion and held in the aforesaid order
of March 23, 1964, that the stay order of the United States
Court of Appeals was null and void.
Judge Benjamin Harvey Hill left the Court of Appeals
of Georgia years ago to take his place on this Bench. Some
of the things he wrote are pertinent, as follows:
“ . . . the omnipresent and omnipotent, although in
visible, spirit of the law,—a protection, in a land where
the people are truly free, more invincible than armed
men or granite walls.”
He also stated that:
“ . . . every official who imagines that his office alone
clothes him with authority to disregard the commands
and restraints of the law, and that in becoming its
minister he ceases to be its servant. Let him remember
that the law is the ruler of us all, the official as well
as the citizen; . . . ” 7 Appeals 421, 422.
The United States Supreme Court in the great case of
the United States versus Lee, decided 1882, said this:
51
“No man in this country is so high that he is above
the law. No officer of the law may set the law at de
fiance with impunity. All the officers of the govern
ment, from the highest to the lowest, are the creatures
of the law and are bound to obey it. It is the only
supreme power in our system of government, and
every man who by accepting office participates in its
functions is only the more strongly bound to submit
to that supremacy and to observe the limitations which
it imposes upon the exercise of the authority which
it gives.”
The United States Court of Appeals for the Fifth Judi
cial Circuit is a great court. In territory its jurisdiction
extends from the Rio Grande to the Florida Keys. It em
braces the great States of Texas, Louisiana, Mississippi,
Alabama, Georgia, and Florida. Over twenty-seven million
human souls reside under its rule and reign. It, however,
like all courts, is subject to the law.
Said cases are removed from the calendar until the rule
of law shall be restored within the territorial limits of the
United States Court of Appeals for the Fifth Judicial
Circuit.
This, the 20th day of April, 1964.
Dubwood T. P ye
Judge, Superior Court
Atlanta Judicial Circuit
MjgSU® 3 8