Georgia v. Rachel Brief for Respondents Rachel in Opposition
Public Court Documents
January 1, 1965

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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 MjgSU® 3 8