Georgia v. Rachel Brief for Respondents Rachel in Opposition

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January 1, 1965

Georgia v. Rachel Brief for Respondents Rachel in Opposition preview

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  • 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 June 13, 2025.

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    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) :
“§74. (Judicial Code, section 31.) Same; causes against 

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

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



17

changes in phraseology,14 15 it assumed its present form as 
28 U. S. C. §1443 (1958) :16

“§1443. 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



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