Booker v. Tennessee Board of Education Brief Opposing Leave to File Petition for Writ of Mandamus

    SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM., 1955.

RUTH BOOKER et al.

STATE OF TENNESSEE BOARD 
OF EDUCATION et al.

BRIEF OPPOSING LEAVE TO FILE PETITION 
FOR WRIT OF MANDAMUS.

GEORGE F. McCANLESS,
Attorney General of Tennessee, 

ALLISON B, HUMPHREYS, JR., 
Solicitor General,

NAT TIPTON,
Advocate General,

Supreme Court Building, 
Nashville 3, Tennessee.

St. Louis Law Pbinting Co., 415 North Eighth Street. CEntral 1-4477.



INDEX.

Statement of the case
Page 
. 2

I.
There really exists now no substantial question as to 

the invalidity of such statutes and constitutional 
provisions; and to require the convening of a 
three-judge court would be a useless formality.. . .  3

II.
Mandamus does not lie where the remedy by appeal 

is plain and unembarrassed....................................  4

III.
Since the appeal is now pending in the Circuit Court 

of Appeals of the Sixth Circuit, application for the 
writ should be made to that Court.........................  6

IV.
In any event, the United States Supreme Court 

should reserve action on the petition pending the
action of the Circuit Court of Appeals..................  7

Cases Cited.
Brown v. Topeka, 349 U. S. 294....................................2, 3, 7
Capital Service, Inc., v. District Court, 198 F. (2d) 18 

(9th Circ.) ..................................................................  4,6
Ex Parte Fahey, 332 U. S. 258.......................................  4, 5
Ex Parte United States, 287 U. S. 241........................... 6
Ex Parte Valerie Cogdell et ah, Petitioners, 342 U. S.

163, 96 L. ed. 181, 72 S. Ct. 196..................................  8
Roche v. Evaporated Milk Assn., 319 U. S. 21..............  4, 5



SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1955.

RUTH BOOKER et al.

vs.

STATE OF TENNESSEE BOARD 
OF EDUCATION et al.

No.

BRIEF OPPOSING LEAVE TO FILE PETITION 
FOR WRIT OF MANDAMUS.

M ay I t P lease t h e  Co u r t :

These respondents, the Tennessee State Board of Educa­
tion and the other defendants to the original suit in the 
District Court of the United States for the Western Dis­
trict of Tennessee, automatically becoming parties to this 
petition under Rule 31 (3) of the rules of this Court, file 
this brief in opposition to the petition. Believing that the 
statement of facts in the petition does not fully divulge all 
pertinent facts, they desire to make their statement of the
case.



•—  2 •—

STATEMENT OF THE CASE.

Petitioners brought suit in the District Court of the 
United States for the Western District of Tennessee 
against the State Board of Education of Tennessee, a body 
having jurisdiction over a number of institutions affording 
both collegiate and graduate work, such institutions hav­
ing an enrollment of approximately 12,000 students, to re­
quire their admission to Memphis State College, an insti­
tution under the control of said Board. The suit was 
brought as a class action for the benefit of all persons in 
like situation. Petitioners averred that they were mem­
bers of the colored race, that their admission was denied 
by reason of certain Tennessee statutes and constitutional 
provisions which they aver were invalid and prayed for a 
three-Judge District Court to be convened to hear the case. 
Answer was filed on behalf of the respondents in which 
the validity of the challenged statutes and constitutional 
provisions was mentioned in the following language:

‘ ‘ They deny that the statutes and constitutional pro­
vision of the State of Tennessee quoted in the com­
plaint have ever been adjudicated invalid as being in 
conflict with the Constitution of the United States and 
they deny such invalidity.”

The answer then proceeded to submit a plan for gradual 
desegregation of the institutions under the control of the 
Tennessee State Board of Education, which plan sought to 
conform to the principles laid down by this Court in Brown 
v. Topeka, 349 U. S. 294, in tacit recognition of the su­
premacy of the Constitution of the United States as inter­
preted by this Court.

Upon the hearing of the cause, the District Judge was 
of the opinion that the challenged statutes and constitu­
tional provisions had been invalid since the date of the 
opinion in Brown v. Topeka, supra, May 31, 1955, and that



3

it was not necessary to assemble a three-judge court to 
determine this question. He then proceeded to a considera­
tion of the proposed plan for gradual desegregation and, 
after a hearing, approved such.

Petitioners prayed, were granted and perfected an ap­
peal to the Circuit Court of Appeals of the Sixth Circuit. 
There they assigned, among other errors, the failure of 
the District Court to convene a three-judge court, the same 
action as is complained of here. Defendants prayed no 
appeal from the judgment of the District Court holding 
the statute and constitutional provisions had been invalid 
since May 31, 1955, but acquiesced in his determination as 
to such invalidity. The appeal of petitioners from the 
District Court is now pending in the Circuit Court of Ap­
peals and will be heard in due course by that Court. Re­
spondents submit that the petition for the writ of man­
damus should be denied for the following reasons:

I.

There really exists now no substantial question as to the 
invalidity of such statutes and constitutional provisions; 
and to require the convening of a three-judge court would 
be a useless formality.

Brown v. Topeka, supra, lays down the broad principle 
that all provisions of law permitting or requiring segrega­
tion in public education must yield to the holding there 
announced, that such violate the Fourteenth Amendment. 
Coming from this Court it constitutes the supreme law of 
the land and is so recognized by respondents. It was so 
declared by the District Judge and from such holding re­
spondents did not appeal. So far as they be concerned, 
they are bound by that decision. Pursuant to it, two mem­
bers of the colored race have been admitted to the gradu­
ate school under their control and one to the graduate 
school in another institution. To now convene a three-



— 4 —

judge tribunal to formally declare these statutes and con­
stitutional provision offensive to the Constitution of the 
United States would be analogous to executing a sentence 
of death upon a corpse.

II.

Mandamus does not lie where the remedy by appeal is 
plain and unembarrassed. Roche v. Evaporated Milk 
Assn., 319 TJ. S. 21; Ex Parte Fahey, 332 U. S. 258; Capital 
Service, Inc., v. District Court, 198 F. (2d) 18 (9th Cire.).

In the instant cause the District Judge had jurisdiction 
to consider and determine whether the issues presented 
were such as to require the convening of a three-judge 
tribunal. Any supposed error in his decision upon this 
question would not affect his jurisdiction to so determine. 
An appeal lies from his determination to the Circuit Court 
of Appeals. That Court possesses full jurisdiction to de­
termine the error, if any, in the conclusion of the District 
Judge and to order the case remanded to be heard by a 
three-judge Court.

An appeal from his holding in this respect has been duly 
perfected to the Circuit Court of Appeals and his action in 
holding that the case was not one to be heard by a three- 
judge Court has been duly assigned as error in the Circuit 
Court of Appeals. That question will be duly heard by the 
appellate court when the case be heard by it and their 
holding in the premises is reviewable by this Court upon 
writ of certiorari. No obstacle has been presented to a 
review of this question by the Circuit Court of Appeals 
but, to the contrary, the appeal is duly pending and affords 
an appropriate forum wherein the holding of the District 
Court may be reviewed.

The holdings of this Court are to the effect that it will 
not interfere by mandamus with the normal processes of



— 5 —

appeal except under extraordinary circumstances. We 
respectfully insist that no such extraordinary circum­
stances are present in the instant case. In passing upon 
this question in Eoche v. Evaporated Milk Assn., supra, 
this Court said:

“Considerations of importance to our answer here 
are that the trial court, in striking the pleas in abate­
ment, acted within its jurisdiction as a district court; 
that no action or omission on its part has thwarted 
or tends to thwart appellate review of the ruling; and 
that while a function of mandamus in aid of appellate 
jurisdiction is to remove obstacles to appeal, it may 
not appropriately be used merely as a substitute for 
the appeal procedure prescribed by the statute.

“  ‘The traditional use of the writ in aid of appel­
late jurisdiction both at common law and in the 
federal courts has been to confine an inferior court to 
a lawful exercise of its prescribed jurisdiction or to 
compel it to exercise its authority when it is its duty 
to do so.’ (Citing cases.) Even in such cases appellate 
courts are reluctant to interfere with the decision of 
a lower court on jurisdictional questions which it was 
competent to decide and which are reviewable in the 
regular course of appeal.” (Citing cases.) (Emphasis 
ours.)

In Ex Parte Fahey, supra, it was likewise said:
“ Mandamus, prohibition and injunction against 

judges are drastic and extraordinary remedies. We 
do not doubt power in a proper case to issue such 
writs. But they have the unfortunate consequence of 
making the judge a litigant, obliged to obtain personal 
counsel or leave his defense to one of the litigants 
before him. These remedies should be resorted to only 
where appeal is a clearly inadequate remedy. We are 
unwilling to utilize them as a substitute for appeal.



6

As extraordinary remedies, they are reserved for 
really extraordinary causes.” (Emphasis ours.)

In Capital Service, Inc., v. District Court, supra, the 
exact question here made was presented and that Court 
disposed of it in the following language:

“ Since the issue concerning the use of a three- 
judge court may be raised in the pending appeal, the 
petition for writ of mandamus is denied.”

It occurs to respondents that these authorities should 
be controlling and cause the denial of the petition.

III.

Since the appeal is now pending in the Circuit Court of 
Appeals of the Sixth Circuit, application for the writ 
should be made to that Court. Ex Parte United States, 
287 U. S. 241.

The general rule as deduced from the above authority 
seems to be as follows:

“ The rule deducible from the later decisions, and 
which we now affirm, is that this court has full power 
in its discretion to issue the writ of mandamus to a 
federal District Court, although the case be one in re­
spect of which direct appellate jurisdiction is vested in 
the Circuit Court of Appeals—this court having ulti­
mate discretionary jurisdiction by certiorari—hut that 
such power will be exercised only where a question of 
public importance is involved, or where the question 
is of such a nature that it is peculiarly appropriate 
that such action by this court should be taken. In 
other words, application for the writ ordinarily must 
he made to the intermediate appellate court, and made 
to this court as the court of ultimate review only in 
such exceptional cases.” (Emphasis ours.)



— 7 —

We respectfully insist that the present case discloses no 
exceptional circumstances which would justify the use of 
extraordinary writ of mandamus or that would cause this 
Court to depart from its normal procedure of requiring 
applications for extraordinary writs to be made to the 
Court having direct jurisdiction upon appeal.

IV.

In any event, the United States Supreme Court should 
reserve action on the petition pending the action of the 
Circuit Court of Appeals.

The District Judge was of the opinion that the invalidity 
of the State statutes and constitution provisions had been 
determined prior to the hearing, to-wit, on May 31, 1955, 
the date of the opinion in Brown v. Topeka, supra, and 
so held in the conclusions of law. (See Motion for Leave 
to File Petition, p. 21, where the “ Conclusions of Law” of 
the District Judge are set forth.) The District Judge held 
further that, being of this opinion, the three-judge statutes 
did not require him to assemble a court thereunder.

This determination involved two questions of law: (1) 
Were the State statutes and constitution provisions in­
validated on May 31, 1955? (2) Where the judge is of the 
opinion that the State laws sought to be enjoined have 
been invalidated prior to the trial, do the three-judge court 
statutes require him to assemble a court thereunder, re­
gardless?

These are real questions of law, to be answered by the 
Circuit Court of Appeals.

How the last question is to be answered depends upon 
the construction placed upon the three-judge statutes. 
That is, whether the District Judge is so bound by the 
allegations of the complaint that he cannot consider the



— 8 —

existing law in deciding to assemble the three-judge court. 
In view of the duty of the District Judge to act in accord 
with existing, relevant law, and in view of the incon­
venience and delay incident to assembling a three-judge 
court, it would seem the Judge not only has the right but 
the duty not to assemble the Court where in his opinion 
the State laws have been invalidated prior to the hearing 
on the pending application, and that his refusal so to do 
would not be error. And, especially would this refusal 
not be reversible error, where the State officials, defend­
ants to the suit, acquiesce in the Court’s holding, as here.

Where there are genuine law questions for decision by 
the Circuit Court of Appeals, the decision of those law 
questions should be left to the Circuit Court of Appeals, 
without interference with the jurisdiction of that court 
by the writ of mandamus. Ex Parte Valerie Cogdell 
et al., petitioners, 342 IT. S. 163, 96 L. ed. 181, 72 S. Ct. 
196.

So these respondents respectfully insist that the peti­
tion for the writ of mandamus should be denied.

GEORGE F. McCANLESS,
Attorney General of Tennessee,

ALLISON B. HUMPHREYS, JR., 
Solicitor General,

NAT TIPTON,
Advocate General,

Supreme Court Building, 
Nashville 3, Tennessee.

I hereby certify that I  have mailed to Thurgood Mar­
shall, 107 West 43rd Street, New York, New York, copies 
of this reply.

Nat Tipton.



S U P R E M E  COURT OF T H E  U N I T E U

Office • Saturn Court, U.S, 
IF’ l  53 LO

1< 1956

SHIES:,; fV*M
OCTOBER TERM 1955

No. 692 Misc.

RUTH BOOKER, ET AL,

v.

STATE OF TENNESSEE BOARD OF EDUCATION,
ET AL.

SUPPLEMENT TO BRIEF OPPOSING LEAVE TO FILE 
PETITION FOR WRIT OF MANDAMUS

Respondents tender this supplement to their brief in op­
position to the petition for writ of mandamus, in order to 
assert their reliance upon the opinion of the United States 
Circuit Court of Appeals, Fifth Circuit, in the case of 
Board of Supervisors of Louisiana State University and 
Agricultural and Mechanical College, et al, v. Alexander 
P. Tureaud, Jr., decided January 6, 1956, in which petition 
for the writ of certiorari was denied by this Court on May 
7, 1956. The Circuit Court of Appeals held that a three- 
judge court is unnecessary in a suit to enjoin enforcement 
of a constitutional provision requiring* race segregation in 
state schools since, whether such provisions are invalid, is 
no longer a substantial question of law.

Though in the pending suit the District Judge declined 
to grant either a temporary or a permanent injunction as



prayed because the respondents presented an acceptable 
and necessary plan of gradual desegregation, under which 
petitioners were not qualified for admission, the ruling in 
the Tureaud is clearly applicable in the pending matter and 
requires the denial of the petition for the writ of mandamus.

Respondents respectfully insist that the petition for writ 
of mandamus should be denied.

George F. M cCanless,
Attorney General of Tennessee,

A llison  B. H u m ph rey s , J r..,
Solicitor General,

N at T ipt o n ,
Advocate General,

Supreme Court Building,
Nashville, Tennessee.

(9079-5)



98