Mississippi v. Meredith Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit
Public Court Documents
December 12, 1962
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Brief Collection, LDF Court Filings. Mississippi v. Meredith Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit, 1962. 2a95e8e7-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ec144698-25fc-4c6b-95dd-7da78f5b36d3/mississippi-v-meredith-petition-for-writ-of-certiorari-to-the-us-court-of-appeals-for-the-fifth-circuit. Accessed May 15, 2025.
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No.
IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM 1962
THE STATE OF MISSISSIPPI, et al_____Petitioners
vs.
JAMES HOWARD MEREDITH, etc______ Respondent
(UNITED STATES OF AMERICA, Amicus Curiae)
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JOE T. PATTERSON, Attorney General
of the State of Mississippi
JOHN C. SATTERFIELD
THOMAS H. WATKINS
MALCOLM B. MONTGOMERY
GARNER W. GREEN
PETER M. STOCKETT
Special Assistant Attorneys General
of the State of Mississippi
New Capitol Building
Jackson, Mississippi
CHARLES CLARK, Special Assistant
Attorney General of the
State of Mississippi
P. 0. Box 1046
Jackson, Mississippi
Counsel for Petitioners
X.
I N D E X
TABLE OF CASES ______________________
OTHER AUTHORITIES____________________
PE TITIO N _______________________________________ 1
A. OPINIONS BELOW _______________________ 2
B. JURISDICTIONAL GROUNDS ____________ 2
C. QUESTIONS PRESENTED ________________ 5
D. PERTINENT CONSTITUTIONAL
PROVISIONS & STATUTES _____________ 7
E. STATEMENT OF THE C A S E _____________ 9
1. Jurisdiction _____________________________ 9
2. Pleading's and Proceedings ______________ 9
3. Statement of the Pacts ___________________ 11
F. ARGUMENT ______________________________ 14
I. THE COURT OF APPEALS SO FAR
DEPARTED FROM THE ACCEPT
ED, USUAL AND STATUTORY
COURSE OF JUDICIAL PROCEED
INGS AS TO CALL FOR AN EXER
CISE OF THIS COURT’S POWER
OF SUPERVISION _________________ 14
a. The United States, as Amicus Cur
iae, Improperly Assumed Control
and Direction of Private Litigation _ 15
b. The Court of Appeals Cannot Issue
Personal Writs Across State Lines
Returnable Outside of the State
Where Service Thereof Was Made__ 16
c. Intervention in An Appellate Court
as a Plaintiff to Assert a Permis
sive and Independent Claim Against
New Defendants is Unprecedented__ 17
Page
11.
d. The Court of Appeals Usurped the
Jurisdiction and Functions of the
District Court in These Proceed
ings ______________________________ 18
II. THE ISSUANCE OF THE TEMPO
RARY RESTRAINING O R D E R S
AND THE PRELIMINARY INJUNC
TION O R D E R AGAINST THE
STATE OF MISSISSIPPI VIOLAT
ED THE ELEVENTH AMEND
MENT TO THE CONSTITUTION
OF THE UNITED STATES AND
WAS CONTRARY TO THE HOLD
ING OF THIS COURT IN THE
CASE OF MISSOURI V. F1SKE, 290
U. S. 18 _____________________________ 22
III. NEITHER THE APPELLANT NOR
THE UNITED STATES MET THE
BURDEN OF P R O V I N G THE
FACTS ESSENTIAL TO ESTAB
LISH SUCH JURISDICTION AS
THEY CLAIMED WAS VESTED IN
THE COURT OF APPEALS _______ 28
IV. THE ACTIONS OF THE AMICUS
CURIAE CONSTITUTE AN ASSER
TION BY IT OF INDIVIDUAL AND
PRIVATE FOURTEENTH AMEND
MENT RIGHTS CONTRARY TO
THE DECISIONS OF THIS COURT
IN SHELLEY V. KRAEMER, 334
U. S. 1, AND HAGUE V. C. I. 0., 307
U. S. 496
Page
30
111.
V. THE ACTIONS OF THE COURT OF
APPEALS IN CONDUCTING EN
F O R C E M E N T PBOCEEDINGS
CONFLICTED WITH THE HOLD
INGS OF THE EIGHTH CIRCUIT
IN THE CASES OF DOWAGIAC
MFG. CO. V. MINNESOTA-MOLINE
PLOW CO., 124 F. 735, and MERE
DITH V. JOHN DEERE PLOW CO.,
244 F. 2d 9 __________________________ 31
VI. THE SHOW CAUSE CITATIONS
ISSUED TO GOVERNOR BARNETT
AND LT. GOVERNOR JOHNSON
WHICH REQUIRED THEM TO AP
PEAR OUTSIDE OF THE STATE
WITHIN LESS THAN FORTY-
EIGHT HOURS FROM THE IN
STANT OF ATTEMPTED SERVICE
OF SUCH CITATIONS DID NOT
ACCORD CONSTITUTIONAL AND
PROCEDURAL DUE PROCESS TO
THESE PARTIES __________________ 34
VII. THE JUDICIAL BRANCH OF THE
FEDERAL GOVERNMENT CAN
NOT MANDATORILY ENJOIN THE
CHIEF EXECUTIVE OF A STATE
TO PERFORM FUTURE DISCRE
TIONARY A C T S ____________________ 35
VIII. THE ISSUANCE OF THE PRELIM
INARY INJUNCTION AND THE
CONTEMPT JUDGEMENTS B Y
THE COURT OF APPEALS RE-
Page
IV.
Page
SULTED IN THE DECISION OF IM
PORTANT QUESTIONS OF FED
ERAL LAW WHICH HAVE NOT
BEEN BUT SHOULD BE DECIDED
BY THIS COURT ______ __________ 41
IX. THE ISSUANCE OF THE TEMPO
RARY RESTRAINING ORDERS
AND THE PRELIMINARY INJUNC
TION ORDER BY THE COURT OF
APPEALS RESULTED IN THE DE
CISION OF IMPORTANT STATE
QUESTIONS IN A W AY THAT CON
FLICTED W I T H APPLICABLE
STATE LAW _______________________ 46
X. THE PRELIMINARY INJUNCTION
WAS SO BROAD, VAGUE, GENER
AL AND INDEFINITE AS TO BE
IMPROVIDENT AND IMPROPER .... 48
XI. THE CIVIL C O N T E M P T PRO
CEEDINGS AND ORDERS BY THE
COURT OF APPEALS WERE IM
PROPER ____________________________ 49
a. The United States Should Not Have
Been Permitted to Intervene In a
Private Law Suit to Invoke Court
Proceeding's In Civil Contempt ____ 49
b. A Contempt Judgment Cannot Im
pose Both Fine and Imprisonment
For a Single Course of Action Al
leged to Constitute Civil Con
tempt 50
Y.
Page
c. No Pinal and Unremittable Fine
Other Than a Compensatory Fine
Payable to the Complaining Party
May Be Assessed in a Civil Con
tempt Judgment __________________ 51
d. A Civil Contempt Fine Cannot Be
Imposed In The Absence of a Show
ing of Damages by the Party to
Whom the Fine is Payable_________ 53
e. An Order Adjudging Civil Con
tempt Cannot Impose Purge Terms
Which Broaden the Scope of the
Injunction on Which the Contempt
Citation Was Based ______________ 55
f. The Civil Contempt Judgments
Against the Governor and the
Lieutenant Governor Are Now Moot
and Should Be Dismissed _________ 56
CONCLUSION ___________________________________ 57
CERTIFICATE OF SERVICE __________________ 58
INDEX TO APPENDIX _________________ ai
APPENDIX _____________________________________ A l
VI.
TABLE OF CASES
Alemite Mfg. Corp. v. Staff, (CA 2) 42 F. 2d 832 ___ 29
Arhens v. Clark, 335 U. S. 188, 92 L. Ed. 1898, 68
S. Ct. 1443 ____________________________________ 17
Babee-Tenda Corp. v. Sebarco Mfg. Co., 156 F.
Supp. 582 _____ ________________________________ 54
Barrows v. Jackson, 346 U. S. 249, 73 S. Ct. 1031,
97 L. Ed. 1586 ________________________________ 21
Bisbee v. Drew, 17 Fla, 6 7 _________________________ 39
Boman v. Birmingham Transit Co., (CA 5) 292 F.
2d 4 ___________________________________________ 20
Boylan v. Detrio, (CA 5) 187 F. 2d 375 ____________ 53
Brownlow v. Schwartz, 261 U. S. 216, 67 L. Ed. 620,
43 S. Ct. 263 __________________________________ 57
Bush v. Orleans Parish School Board, 191 F. Supp.
811 -------------------------------------------------------------------- 49
Champion Spark Plug Co. v. Reich, 98 F. Supp. 242 __ 54
City National Bank v. Hunter, 152 U. S. 512, 38
L. Ed. 534, 14 S. Ct. 675 _________________________ 32
Chase National Bank v. Norwalk, 291 U. S. 431, 78
L. Ed. 894, 54 S. Ct. 475 _________________________ 29
Cliett v. Hammonds, (CA 5) 305 F. 2d 565 _________ 52
Debs, In Re., 158 U. S. 564, 39 L. Ed. 1092, 15 S. Ct.
900 ____________________________________________ 17
Dennett, In Re., 32 Maine 508 _____________________ 39
Donnelly v. Roosevelt, 259 N. 4, 356 ________________ 39
Dowagiac Mfg. Co. v. Minn.-Moline Plow Co.,
(CA 8) 124 F. 735 _____________________________ 35
Page
V ll.
Doyle v. London Gty. and Acc. Ins. Co., 204 IT. S.
599, 51 L. Ed. 641, 27 S. Ct. 313__________________ 52
Egan v. Aurora, 367 U. S. 514, 5 L. Ed. 2d 741, 81
S. Ct. 684 ______________________ _______________ 22
Estes v. Potter, (CA 5) 18 3 F. 2d 865, Cert. Den. 340
U. S. 920, 95 L. Ed. 664, 71 8. Ct. 356 ____________ 50
Fitts v. McGhee, 172 17. S. 516, 43 L. Ed. 535, 19
S. Ct. 269 _______________________________________ 23
Glidden Co. v. Zdanok, ------U. S.------ , 8 L. Ed. 2d
671 82 S. Ct. 1459 _____________________________ 47
Gompers v. Bucks Stove & Range Co., 221 U. S.
418, 55 L. Ed. 797, 31 S. Ct. 492 ___________ 49, 53, 57
Hague v. CIO, 307 IT. S. 496, 83 L. Ed. 1423, 59 S.
Ct. 954 _____________ _______________________ 30
Hanes Supply Co. v. Valley Evaporating Co. (CA 5)
261 F. 2d 29____________________________ _____ 17
Hans v. Louisiana, 134 IT. S. 1, 33 L. Ed. 842, 10 S.
Ct. 504 _________________________________________ 24
Harrison v. NAACP, 360 U. S. 167, 3 L. Ed. 2d 1152,
79 S. Ct. 1025 _______________ _________________ 47
Hawkins v. Governor, 1 Ark. 570 __________________ 39
Herndon v. Lowry, 301 U. S. 242, 81 L. Ed. 1066, 57
S. Ct. 732 _________________ 49
Hess v. Pawloski, 274 IT. S. 352, 71 L. Ed. 1091, 47
S. Ct. 632 __________________ 17
Holland v. Board of Public Instruction, (CA 5) 258
F. 2d 730 ____________________ 18
Houston Railroad Co. v. Randolph, 24 Texas 317____ 39
Illinois, People of v. Bissell, 19 111. 229 _____________ 39
Page
V lll.
Illinois, People of v. Yates, 40 111. 126_____________ 39
Leman v. Krentler-Arnold Hinge Last Co. 284 U. S.
448, 76 L. Ed. 389, 52 S. Ct. 238 _________________ 57
Louisiana Land & Exploration Co., v. State Mineral
Board (CA 5) 229 F. 2d 5 _________________________ 23
Louisiana Power & Light Co. v. Thibodaux, 360 H. S.
25, 3 L. Ed. 2d 1058, 79 S. Ct. 1070 ________________ 47
Louisiana, State of v. Warmoth, 22 La. Ann. 1 ____ 39
Low v. Towns, 8 Ga. 360 _________________________ 39
McComb v. Jacksonville Paper Co., 336 U. S. 187,
93 L. Ed. 599, 69 S. Ct. 497 _____________________ 53
McCrone v. U. S., 307 U. S. 61, 83 L. Ed. 1108, 59 S.
Ct. 685 _________________________________________ 54
McNutt v. General Motors Acceptance Corp., 298
U. S. 178, 56 S. Ct. 780, 80 L. Ed. 1135__________ 29
Mauran v. Smith, 8 R. I. 192______________________ 39
Meredith v. John Deere Plow Co., (CA 8) 244 F. 2d
9, Cert. Den. 355 U. S. 831, 2 L. Ed. 2d 43, 78
S. Ct. 44 _______________________________________ 34
Meridian v. So. Bell T. & T. Co., 358 U. S. 639, 3 L.
Ed. 2d 562 79 S. Ct. 455 _______________________ 47
Mississippi, State of v. McPhail, 182 Miss. 360, 180
So. 387 ________________________________________ 45
Missouri v. Fiske, 290 U. S. 18, 78 L. Ed. 145, 54 S.
Ct. 18 ______________________________________ 24, 27
Missouri, v. Governor 39 Mo. 388 __________________ 39
Missouri, Inquiries by Governor of, 58 Mo. 369 ____ 39
Monroe v. Pape, 365 U. S. 167, 5 L. Ed. 2d 492, 81
S. Ct. 473
Page
22
IX.
Page
Mutual Life Ins. Co. of N. Y. v. Holly, (CA 7) 135
F. 2d 675 ______________________________________ 32
New Jersey, State of v. Governor, 1 Dutch. 331____ 39
New York v. U. S., 326 XL S. 572, 90 L. Ed., 326, 64
S. Ct. 1286 ________________ ______ ______________ 47
Nordstrom v. Wahl, (CA 7) 41 F. 2d 910___________ 54
Nye v. IT. S., 313 U. S. 33, 85 L. Ed. 1172, 61 S. Ct.
810 ________________________ 54
Ohio Oil Company v. Thompson, (CA 8) 120 F. 2d
831 ___________________________________________ 832
Omaha Electric Light & Power Co. v. Omaha, (CA 8)
216 F. 848 __________________________________ ____ 31
Parker v. U. S., (CA 1) 153 F. 2d 66, 163 A. L. R. 379_ 53
Penfield Co. v. S. E. C., 330 TJ. S. 585, 91 L. Ed. 1117,
67 S. Ct. 918 ___________________________________ 51
Phillips v. U. S., 312 TJ. S. 246, 85 L. Ed. 800, 61 S.
Ct. 480 ________________________________________ 20
Regal Knitwear Co. v. N. L. R. B., 324 U. S. 9, 89
L. Ed. 661, 65 S. Ct. 478 __________________________ 29
Republic of Peru, Ex Parte, 318 U. S. 578, 87 L. Ed.
1014, 63 S. Ct. 793 _________________ 31
Rice v. Governor, 19 Minn. 103_____________________ 39
Roller v. Holly, 176 U. S. 398, 44 L. Ed. 520, 20 S. Ct.
410 ____________________________________________ 35
Shelly v. Kraemer, 344 U. S. 1, 92 L. Ed. 1161, 68 S.
Ct. 836 _________________________________________ 30
Scott v. Donald, 165 IT. S. 107, 41 L. Ed. 648, 17 S.
Ct. 262 _________________________________________ 29
X.
Sibbad v. IT. S., 37 U. S. 488, 12 Pet. 488, 9 L. Ed.
1176 ------------------------------------------------------------------ 32
Smith v. American Asiatic Underwriters (CA 9)
134 F. 2d 233 __________________________________ 18
South Carolina v. U. S., 199 U. S. 437, 50 L. Ed. 261,
26 S. Ct. 110 ___________________________________ 47
Southerland v. Governor, 29 Mich. 320 ____________ 39
Star Bedding Co. v. Englander Co., (CA 8) 239 F.
2d 537 _________________________________________ 56
Sterling v. Constantin, 287 U. S. 378, 77 L. Ed. 375,
53 S. Ct. 190 ___________________________________ 42
Stone v. Interstate Natural Gas Co., (CA 5) 103 F.
2d 544, Aff., 308 U. S. 522, 84 L. Ed. 442, 60 S. Ct.
292 -------------------------------------------------------------------- 22
Strutwear Knitting Co. v. Olsen, 13 F. Supp. 384 42
Terminal E. E. Assn, of St. Louis v. U. S., 226 U. S.
17, 69 L. Ed. 150, 45 S. Ct, 5 ____________________ 56
Texas v. White, 74 U. S. 700, 19 L. Ed. 227 _________ 47
Turner v. Bank of North America 4 Dali. 8, 1 L. Ed.
718 ------------------------------------------------- 29
Turnpike Co. v. Brown, 8 Baxter 490 _____________ 39
U. S. v. Alabama, 171 F. Supp. 720, (CA 5) 267 F.
2d 808 _________________________________________ 30
U. S. v. Detroit, 355 U. S. 466, 2 L. Ed. 2d 424, 78
S. Ct. 474 _____________________________________ 47
CJ. S. v. E. I. Du Pont, 366 U. S. 316, 6 L. Ed. 2d 318,
81 S. Ct. 1243 __________________________________ 32
U. S. v. Mayer, 235 U. S. 55, 59 L. Ed. 129, 35 S. Ct.
16
Page
31
si.
U. S. v. Montgomery, 155 F. Snpp. 633 _____________ 50
U. S. v. Onan, (CA 8) 190 F. 2d 1, Cert. Den. 342
('. S. 864 96 L. Ed. 654, 72 S. Ct. 112_____________ 53
U. S. v. United Mine Workers, 330 U. S. 258, 91 L.
Ed. 884, 67 S. Ct. 677 ___________________________ 52
Vicksburg & Meridian R. R. Co. v. Lowry, 61 Miss.
102, 48 Am. Rep. 76 ____________________________ 40
Wenborn-Karpen Drier Co. v. Cutler Dry Kiln Co.
(CA 2) 292 F. 861 _____________________________ 18
Wooten v. Bomar, (CA 6) 266 F. 2d 27_____________ 32
Wuchter v. Pizzutti, 276 U. S. 13, 72 L. Ed. 446, 48 S.
Ct. 259 ________________________________________ 17
Yanish v. Barber (CA 9) 232 F. 2d 932 ____________ 53
Page
XU .
OTHER AUTHORITIES
Federal Rules of Civil Procedure
Rule 4 (f) ___________________________________ 16, 17
Rule 24 (a) - (c) ______________________________ 18
Rule 65 (d) ____________________________________ 48
Mississippi Code of 1942
Section 3975 ___________________________________ 36
Section 3978 ___________________________________ 36
Section 6726.7 __________________________________ 36
Section 8082 ___________________________________ 36
Section 8576 ___________________________________ 36
Regular Legislative Session of 1962
House Bill No. 403 _____________________________ 36
Senate Bill No. 1710 ___________________________ 36
Mississippi Constitution of 1890
Article 4, Section 50 ___________________________ 37
Article 5, Section 116 __________________________ 35
Section 119 __________________________ 35
Section 123 __________________________ 35
Article 9, Section 217 __________________________ 36
United States Code
Title 10, Section 332, 333 _______________________ 44
Title 18, Section 401 _________________________50, 51
Section 402 ___________________________ 50
Title 28, Section 547 (a), (b) & (c) __________16, 44
Section 713 (d) ______________________ 44
Section 1254 __________________________ 5
Section 1291 __________________________ 18
Page
Page
Section 1345 ________________________ 19
Section 1391 (b) ______________________ 19
Section 1404 (a) ______________________ 19
Section 1651 ________________________ 31
Section 2071 ________________________ 8
Section 2101 (c) ______________________ 5
Section 2281 _______________________42, 47
Section 2403 ________________________ 18
Title 42, Section 1983 ________________________ 22
United States Constitution
Article III Section 2, Clause 2 __________________ 19
Article IV, Section 4 ___________________________ 38
Amendment V __________________________________ 8
Amendment X __________________________________ 47
Amendment XI _____________________________22, 24
Rules of the U. S. Court of Appeals
For the Fifth Circuit
Rule 8 _________________________________________ 20
Rule 9 _________________________________________ 16
Rule 10 ________________________________________ 20
42 ABA Journal 833 _____________________________ 21
44 ABA Journal 113 _____________________________ 45
Barron & Holtzhoff, Federal Practice and Procedure
§597 ___________________________________________ 18
36 C. J. S. 784 ____________________________________ 38
7 Cong. Deb. 21st. Cong. 2d Sess. Cols. 560-561 _____ 51
Cyclopedia of Federal Procedure, 3rd Ed. Vol. 15,
Contempt §87.23 ________________________________ 56
High’s Extraordinary Legal Remedies 3rd. Ed. p.
128 ____________________________________________ 41
Report of Advisory Committee, Vol. 3-A, p. 542-4 __ 17
X l l l .
IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM 1962
THE STATE OF MISSISSIPPI, et al______ Petitioner
V S.
JAMES HOWARD MEREDITH, etc______ Respondent
(UNITED STATES OF AMERICA, Amicus Curiae)
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The State of Mississippi; Ross R. Barnett, Governor
of the State of Mississippi; Joe T. Patterson, Attorney
General of the State of Mississippi; T. B. Birdsong,
Commissioner of Public Safety of the State of Missis
sippi; Paul G. Alexander, County Attorney of Hinds
County, and William R. Lamb, District Attorney of
Lafayette County; J. Robert Gilfoy, Sheriff of Hinds
County, and J. W. Ford, Sheriff of Lafayette County;
William D. Rayfield, Chief of Police of the City of
Jackson, James D. Jones, Chief of Police of the City
of Oxford, and Walton Smith, Constable of the City
of Oxford, hereinafter referred to as “ Petitioners” ,
pray that a Writ of Certiorari issue to review the judg
ments and orders of the U. S. Court of Appeals for
the Fifth Circuit hereinafter set out in Section B-l of
this Petition.
2
A.
OPINIONS BELOW
No opinions were delivered in the Court of Appeals
in connection with the orders and other procedures re
quested to be reviewed by this Petition. A Petition
for a Writ of Certiorari to said Court was previously
filed and docketed in this Supreme Court as Cause
No. 347, October Term, 1962, seeking a review of the
final decision and other matters in the case of Meredith
v. Fair, et al. This Petition was denied by this Court
on October 8, 1962. The present Petition does not cover
any matters presented to this Court in the former
Petition for Certiorari.
B.
JURISDICTIONAL GROUNDS
1. The sixteen Judgments and Orders of the United
States Court of Appeals for the Fifth Circuit sought
to be reviewed were dated and entered as set out be
low:
(a) Order designating the United States as Amicus
Curiae.
Dated and Entered: September 18, 1962.
(A. 18)
(b) Order enjoining Appellees from:
(1) Enforcing Senate Bill No. 1501, enacted
September 20, 1962, against Appellant, Mer
edith ;
(2) Taking any steps to effectuate the misde
meanor conviction of Appellant of Sep
tember 20, 1962; and
3
(3) Complying with a State Court Injunction
issued September 19, 1962 by the Chancery
Court of Jones County, Mississippi.
Dated and Entered : September 20, 1962.
(A. 19)
(c) Show Cause Order in Civil Contempt directed
to all members of Board of Trustees on appli
cation of Amicus Curiae.
Dated and Entered-. September 21, 1962.
(A. 21)
(d) Show Cause Order in Civil Contempt directed
to all Appellees on application of Appellant.
Dated and Entered: September 22, 1962.
(A. 23)
(e) Order requiring Trustees to take enumerated
actions.
Dated and Entered: September 24, 1962.
(A. 24)
(f) Temporary Restraining Order directed to the
State of Mississippi, Governor Barnett and oth
ers on application of Amicus Curiae.
Dated and Entered: September 25, 1962.
(A. 26)
(g) Order adding Governor Barnett as new party
defendant.
Dated and Entered: September 25, 1962.
(A. 30)
(h) Temporary Restraining Order directed to Gov
ernor Barnett and others on application of Ap
pellant.
Dated and Entered: September 25, 1962.
(A. 31)
4
(i) Show Cause Order in Civil Contempt directed to
Governor Barnett on application of Amicus
Curiae.
Dated and Entered: September 25, 1962.
(A. 33)
(j) Show Cause Order in Civil Contempt directed
to Governor Barnett on application of Appellant.
Dated and Entered: September 26, 1962.
(A. 35)
(k) Show Cause Order in Civil Contempt directed
to Lt. Governor Johnson on application of Amicus
Curiae.
Dated and Entered: September 26, 1962.
(A. 36)
(l) Judgment of Civil Contempt against Governor
Barnett.
Dated and Entered: September 28, 1962.
(A. 38)
(m) Judgment of Civil Contempt against Lt. Gov
ernor Johnson.
Dated and Entered: September 29, 1962.
(A. 41)
(n) Order dismissing contempt citation as to Ap
pellants.
Dated and Entered: October 2, 1962. (A. 45)
(o) Order continuing hearing on Motion for Temp
orary Injunction.
Dated and Entered: October 2, 1962. (A. 46)
(p) Judgment and Order granting Preliminary In
junction.
Dated and Entered: October 19, 1962. (A. 46)
5
2. No orders have been sought or entered respecting
rehearing or extension of time within which to file
this petition.
3. Jurisdiction to review each of these orders of the
United States Court of Appeals for the Fifth Circuit
is conferred upon this Honorable Court by Title 28 USC,
§1254 (1) and §2101 (c). (A. 4, 5).
C.
QUESTIONS PRESENTED
1. Did the Court of Appeals so far depart from the
accepted, usual and statutory course of judicial pro
ceedings as to call for an exercise of this Court’s power
of supervision in the following particulars:
(a) Was the United States as Amicus Curiae, im
properly and unnecessarily allowed to assume
control and direction of private litigation?
(b) Can a Court of Appeals issue a personal writ
across state lines returnable outside of the state
where service thereof was made?
(c) Can a party intervene in an appellate court as a
plaintiff to assert a permissive and independent
claim against new defendants?
(d) Did the Court of Appeals usurp the jurisdiction
and functions of the District Court in entering
the orders set out in Section B-l above?
2. Did the issuance of the Temporary Restraining
Orders and the Preliminary Injunction Order against
the State of Mississippi violate the Eleventh Amend
ment to the Constitution of the United States contrary
to the holding of this court in the case of Missouri v.
Fiske 290 US 18?
6
3. Did the appellant and the United States meet the
burden of proving all facts essential to establish the
jurisdiction which they claimed was vested in the Court
of Appeals to conduct these proceedings?
4. Did the actions of the United States, as Amiens
Curiae, amount to the assertion by it of individual and
private Fourteenth Amendment rights contrary to the
decisions of this Court in Shelly v. Kraemer, 334 U. S. 1,
and Hague v. CIO, 307 U. S. 496?
5. Was the conduct of the enforcement proceedings in
the Court of Appeals contrary to and in conflict with
the holdings of the 8th Circuit in the cases of Dowagiac
Mfg. Co. v. M-M Plow Co. 124 F 735 and Meredith v.
John Deere Plow Co. 244 F 9?
6. Did the Show Cause Citations to Governor Barnett
or Lt. Governor Johnson directing them to appear out
of the state within less than 48 hours from the instant
of attempted service of process accord to these parties
due process of law required by the Fifth Amendment to
the Constitution of the United States?
7. Can the Judicial Branch of the Federal Govern
ment mandatorily enjoin the Chief Executive of a State
to perform future discretionary acts?
8. Did the issuance of the Preliminary Injunction and
the Contempt Judgments by the Court of Appeals de
cide important questions of Federal Law which have
not been but should be decided by this Court?
9. Did the issuance of the Temporary Restraining Or
ders and Preliminary Injunction Order by the Court
of Appeals result in the decision of important state
questions in a way that conflicted with applicable state
law?
7
10. Was the Preliminary Injunction so broad, vague,
general and indefinite as to be improvident or improper ?
11. With regard to the Civil Contempt proceedings by
the Court of Appeals:
(a) Can the United States intervene in a private law
suit to invoke court proceedings in civil contempt?
(b) Can a Civil Contempt Judgment impose both fine
and imprisonment for a single course of action
alleged to constitute civil contempt?
(c) Can a final and unremittable fine, other than
a compensatory fine payable to the complaining
party, be assessed in a civil contempt judgment?
(d) Can a compensatory civil contempt fine be im
posed absent a showing of damages by the party
to whom such fine is payable?
(e) Can an order adjudging civil contempt impose
purge terms which broaden the scope of the in
junction on which the contempt citation was
based?
(f) Should the civil contempt judgments against the
Governor and the Lt. Governor now be dismissed
as moot?
D.
PERTINENT CONSTITUTIONAL
PROVISIONS AND STATUTES
Because of the length of the provisions involved, their
citation alone is set out at this point and pertinent text
is set forth in the Appendix, as indicated.
The Constitution of the United States-.
Article III, §2, Clause 2 (A. 1)
Article IV, §4 (A. 1)
8
Amendment Y (A. 1)
Amendment X (A. 1)
Amendment XI (A. 2)
United States Code:
Title 18, use, §401 (A. 2)
§402 (A. 2)
Title 28, use, §547 (A. 3)
§713 (d) A. 4)
§1254 (1) (A. 4)
§1291 (A. 4)
§1345 (A. 5)
§1391 (b) (A. 5)
§1404 (a) (A. 5)
§2071 (A. 5)
§2101(c) (A. 5)
§2281 (A. 6)
§2403 (A. 6)
Title 42 use <51983 (A. 7).
Rules of the U. S. Court of Appeals for the Fifth Cir
cuit :
Rule 8 (A.7)
Rule 9 (A. 7)
Rule 10-1 (A. 7)
Federal Rules of Civil Procedure:
Rule 4 (f) (A. 8)
Rule 24 (A. 8)
Mississippi Constitution of 1890:
Article IV, §50 (A. 9)
Article V, §116 (A. 9)
§119 A. 10)
§123 (A. 10)
9
Article IX, §217 (A. 10)
Mississippi Code of 1942:
§3975 (A. 10); §3978 (A. 12)
§6724(a) & (c) (A. 12); §6726.7 (A. 13);
§8082(a) 1-3 and (b) (A. 14); §8576, Par.
1 (A. 15);
Section 3 of HB 403, Regular Legislative Session
of 1962 (A. 16);
SB 1710, Regular Legislative Session of 1962 (A. 17).
E.
STATEMENT OF THE CASE
1.
JURISDICTION
Petitioners respectfully contend that there was no
basis for Federal Jurisdiction in the U. S. Court of
Appeals for the Fifth Circuit, which was the Court of
first instance for all actions brought here for review.
Petitioners contend that such jurisdiction as was as
serted by the Honorable U. S. Court of Appeals for
the Fifth Circuit was, under the Acts of Congress and
the Constitution of the United States, possessed only
by this Honorable Supreme Court and by the Honorable
District Court for the Southern District of Mississippi.
2.
PLEADINGS AND PROCEEDINGS
On the 13th day of September, 1962, the U. S. Dis
trict Court for the Southern District of Mississippi
entered its Permanent Injunction in this cause. (A. 56).
On the 20th day of September, 1962, on the petition
of the United States, as Amicus Curiae, the U. S. District
10
Court for the Southern District of Mississippi cited
Registrar Ellis, Dean Lewis and Chancellor Williams
of the University of Mississippi to appear on the 21st
day of September, 1962 in Meridian, Mississippi to show
cause why they should not he found in civil contempt
of the court’s injunction of September 13, 1962. On
September 20, 1962, Appellant, Meredith, also moved the
District Court to enjoin the Appellees from applying
an act of the legislature of the State of Mississippi,
SB 1501, to Meredith. The hearing on this motion was
continued because the Court of Appeals set a conflicting
hearing. The Court of Appeals entered an order en
joining any action under this act on the same day (A. 19).
On the 21st day of September, 1962 at 1 :30 o ’clock
P.M. the said District Court heard the citation for con
tempt against these three college officials and found
that they were not guilty of civil or criminal contempt
of the court’s permanent injunction order. [The Court
of Appeals later came to the exact same conclusion.
(A. 45).] Neither the Appellant nor the Amicus Curiae
ever took any subsequent action concerning this matter
in the U. S. District Court for the Southern District of
Mississippi, but instead both the Appellant and the
Amicus proceeded to conduct all subsequent matters
in the Court of Appeals.
Section B-l above presents in chronological sequence
all of the sixteen orders entered by the U. S. Court
of Appeals for the Fifth Circuit which are involved on
this petition. To save prolixity, said orders and the
petitions or motions on which they were granted are
not restated here. The Court of Appeals conducted
six original hearings in New Orleans, Louisiana in these
proceedings, as follows:
11
(a) On the 24th day of September, 1962, an en banc
hearing was held on that court’s Show Cause
Order directed to the Board of Trustees and
University officials.
(b) On the 28th day of September, 1962, the Court
heard en banc, the Show Cause Order directed
to Governor Boss B. Barnett on a citation for
civil contempt.
(c) On the 29th day of September, 1962, a division
of the Court heard the citation for civil contempt
against Lt. Governor Paul B. Johnson.
(d) On the 1st day of October, 1962 a division of the
court heard a motion to dissolve the temporary
restraining order issued September 25, 1962.
(e) On the 2nd day of October, 1962, a division of
the Court held a hearing on the contempt orders
issued against Governor Barnett and Lt. Gov
ernor Johnson.
(f) On the 12th day of October, 1962, the Court
held an en banc hearing on the motion of the
Appellant and the Amicus Curiae for a Pre
liminary Injunction and on the contempt orders
issued against Governor Barnett and Lt. Gov
ernor Johnson.
3.
STATEMENT OF THE FACTS
On the evening of September 13, 1962 Governor Bar
nett made a state-wide radio and television broadcast
to the citizens of the State of Mississippi. During the
course of this broadcast he published a Proclamation,
pursuant to a state legislative resolution and statute,
directing the officials vested with the authority of op
erating the colleges and universities of the State of
Mississippi to uphold the laws of the state and to oppose
12
any illegal usurpation of their powers. (Govt. Ex. No.
6, Hearing 9/28/62 p. 69).
On the 18th day of September, 1962, the United
States requested leave of court to appear as amicus
curiae in this cause. It did not make this appearance
in the U. S. District Court, whose permanent injunction
had been issued prior to the Governor’s broadcast, but
strangely, it went instead, before a division of the Court
of Appeals, then sitting in another case in Hattiesburg,
Mississippi, and, without notice, applied for leave to
intervene as an Amicus Curiae. On this motion, with
out a hearing, this division granted Amicus Curiae
status to the United States to appear both in that
Court and in the District Court.
On the 20th day of September, 1962, the legislature
of the State of Mississippi enacted Senate Bill 1501
(Govt. Ex. No. 12, Hearing 10/12/62 p. 15) making
it a misdemeanor for any person charged with a crime
involving moral turpitude to attempt to enroll in any
institution of higher learning in the State of Mississippi.
On the same day Governor Barnett, in the exercise of
the police power of the State of Mississippi, by Procla
mation, directed the Board of Trustees of Institutions
of Higher Learning to refuse admission to the University
of Mississippi to James H. Meredith (Govt. Ex. No. 7,
Hearing 9/28/62 p. 69). On the same date, and contrary
to the wishes of Governor Barnett, this Board of Trus
tees appointed the Governor as Registrar of the Uni
versity of Mississippi for the purpose of dealing with
the application of Meredith (A. 59). This date was
the first day for admission of transfer students. Mere
dith presented himself at the University for admission.
Governor Barnett refused him admission and delivered
13
to Meredith at that time a Proclamation covering such
denial (Govt. Ex. No. 8, Hearing 9/28/62 p. 69).
On the 25th day of September, 1962 Governor Barnett
directed all sheriffs and law enforcement officials of
the counties and municipalities of Mississippi to pro
ceed to do all things necessary to the end that the
peace and security of the people of the state would
be fully protected. (Govt. Ex. No. 10, Hearing 9/28/62,
p. 70). In New Orleans the Court of Appeals, on the
applications of the Amicus Curiae and Meredith, grant
ed Temporary Restraining Orders, without notice, or
hearing, enjoining the State of Mississippi, Governor
Barnett, Lt. Governor Johnson and numerous other
persons who had never been parties to this cause at
any stage of the proceedings. (A. 26, 31).
Also on the 25th day of September, the Board of
Trustees entered an order stating that Governor Bar
nett’s appointment as Registrar was revoked. Subse
quent thereto, the Governor issued and personally de
livered to James H. Meredith a Proclamation finally
denying him admission to the University of Mississippi
(Govt. Ex. No. 11, Hearing 9/28/62, p. 70). In the
evening of this day, the Court of Appeals, on the ap
plication of the Amicus Curiae, without notice or hear
ing, issued a Citation to Governor Barnett to appear
in New Orleans, Louisiana and Show Cause why he
should not be held in civil contempt. (A. 33). A copy
of the court’s Show Cause Citation was “ attempted”
to be served on September 26, 1962 but no personal or
other service was made on the Governor. The return
of the Deputy U. S. Marshall on this Citation shows
that he did not leave a copy thereof at the Governor’s
office or at his home. (Govt. Ex. No. 3, Hearing 9/28/62,
p. 23).
14
On the 26th day of September, 1962, Lt. Governor
Johnson met Meredith at the entrance to the campus
of the University in Oxford and, acting- on behalf of
Governor Barnett, denied Meredith admittance to the
University of Mississippi. (Hearing 9/29/62, p, 19).
On the 27th day of September, 1962, a Deputy U. S.
Marshal “ served” a Citation in Civil Contempt issued
to him “ by leaving a true and correct copy thereof with
Mrs. Paul B. Johnson, Jr., personally.” (Govt. Ex.
No. 3, Hearing 9/29/62, p. 10).
On Sunday, September 30, 1962, Meredith, accompani
ed by armed U. S. Marshals, entered the campus of
the University of Mississippi and, upon demand by
the United States that housing be furnished immediate
ly, he and the accompanying US marshals were assigned
to a suite of rooms in a dormitory at said institution.
Demands for the special registration of Meredith on
that Sunday were denied by the University.
On October 1, 1962, Meredith registered as a student
at the University of Mississippi, and since that date
he has been continuously enrolled as a student in said
institution and has been attending classes there.
F.
ARGUMENT
I.
THE COURT OF APPEALS SO FAR DEPART
ED FROM THE ACCEPTED, USUAL AND
STATUTORY COURSE OF JUDICIAL PRO
CEEDINGS AS TO CALL FOR AN EXERCISE
OF THIS COURT’S POWER OF SUPERVISION.
A simple recitation of the fact that in the course of
thirty days an appellate court of limited jurisdiction
15
issued sixteen original judgments and orders in Hat
tiesburg, Mississippi, New Orleans, Louisiana and At
lanta, Georgia in a case which had previously been
remanded to the District Court and that all such pro
ceedings were done after the issuance of the District
Court’s Permanent Injunction, should be sufficient
argument to carry this point without the necessity of
detailing that none of these orders were directed to
the court of original jurisdiction whose actions this
appellate court is constituted to review. The majority
of these orders were directed to persons who had never
been parties to the action in the District Court. At least
such recitation will indicate that no precedent exists
for such a procedure. We pray the court’s consideration
of the following analysis.
a.
The United States, as Amicus Curiae, Improperly
Assumed Control and Direction of Private Litiga
tion.
The case of Meredith v. Fair was an action by an
individual citizen asserting rights under the Fourteenth
Amendment to the Constitution of the United States.
The United States applied to the Court of Appeals
for the designation of the United States as Amicus
Curiae, but, under this aegis, instead of befriending
the court it dominated and controlled all subsequent pro
ceedings which are here sought to be reviewed.
An allegation was made in the application to the
court that such designation was necessary because the
interest of the United States could not be adequately
represented by the “ Plaintiff ” in the proceeding. Not
only was no evidence introduced to support this alle
gation but rather the contrary clearly appears from
16
the record which show that the “ Plaintiff” secured sub
stantially duplicating orders in the Court of Appeals
at most of the stages in this proceeding.
Just why the Department of Justice assumed this
role and why it chose to conduct its actions in the
appellate court and not in the court having jurisdiction
of the cause is not readily discernible from any study
of legal precedents. What is abundantly clear is that
the allowance of this course of judicial proceeding by
the Court of Appeals is so unusual and unaccepted that
it should invoke the powers of supervision of this Hon
orable Supreme Court.
b.
The Court of Appeals Cannot Issue Personal Writs
Across State Lines Returnable Outside of the State
Where Service Thereof Was Made.
Historically and traditionally, personal summonses to
parties-defendant in courts of the Federal Judiciary
have been limited by the territorial boundaries of the
sovereign states which formed and composed the Federal
Union, in the absence of a specific statute of the United
States to the contrary. Rule 4 (f), Federal Rules of
Civil Procedure. (A. 8). Yet, in this instance, the
Court of Appeals issued summonses which did not
comply with its own Rule 9 or with Rule 59(1) of this
Supreme Court, and caused such summonses to be served
by Deputy Marshals who were not acting as the marshals
of that court (Hearing 10/12/62 p. 19). Title 28 USC,
§547(a). (A. 3). This process allegedly served in Mis
sissippi was returnable in the State of Louisiana.
It is interesting to note that this court has not yet
seen fit to adopt the provision of the 1955 Report of
17
the Advisory Committee, which proposed a liberalization
of Buie 4(f) to permit service outside of the state but
within 100 miles of the place where the suit is to be
tried. Report of the Advisory Committee, Yol. 3-A,
Pages 542-544. Neither attempted service was within
a 100 mile radius of New Orleans. The Fifth Circuit
has ruled that service outside of the territorial limits
of the state by a District Court is unavailing. Hanes
Supply Co. v. Valley Evaporating Co., 261 F. 2d 29. Cf.
Hess v. Pawloski 274 US 352, 71 L. Ed. 1091, 47 S. Ct.
632; Wuchter v. Pizzutti 276 US 13, 72 L. Ed. 446, 48
S. Ct. 259, and Ahrens v. Clark, 335 US 138, 92 L. Ed.
1898, 68 S. Ct. 1443.
c.
Intervention in An Appellate Court as a Plaintiff
to Assert a Permissive and Independent Claim
Against New Defendants is Unprecedented.
The United States made a drastic change in its posi
tion in these proceedings when the question of the bar
of the Eleventh Amendment was raised. Despite its
designation as Amicus Curiae, the United States now
apparently wishes to assert that it became a new party-
plaintiff in the case of Meredith v. Fair in the Court of
Appeals. Its amicus curiae pleadings assert a general
right on its own behalf to preserve the administration
of justice and the integrity of the judicial processes
of the United States courts as distinguished from an
amicus curiae duty to aid the court in this cause. Such
a general right, if it did exist, would be a separate and
distinct claim from any claim asserted by the original
plaintiff, Meredith, cf. In Re Debs, 158 U. S. 564, 39
L. Ed. 1092, 15 S. Ct. 900.
18
In dealing with the subject of intervention in courts
of first instance, this court has prescribed two distinct
conditions of intervention:
(1) Intervention as of right, under Buie 24 (a) of
the Federal Rules of Civil Procedure, (A. 8) must
involve a situation where the applicant is or may be
bound by the judgment in the action in which he in
tervenes. Barron & Holtzoff, Federal Practice and Pro
cedure, §597.
(2) Permissive intervention under Rule 24(b) is ap
plicable, where a statute of the United States confers
a conditional right to intervene or, the claim asserted
involves a common question of law or fact. None of
these conditions were here present if the United States
is asserting a general right in its own behalf. It should
also be of interest to note that this court requires any
intervention to be accomplished only after notice served
on all parties affected thereby. Rule 24(c). cf. 28 USC
2403.
Our research has failed to disclose a case in which
any Federal Court has ever permitted a party to in
tervene as a plaintiff at the appellate level. To the
contrary are the cases of Smith v. American Asiatic
Underwriters, 134 F. 2d 233, from the 9th Circuit, Wen-
borne-Karpen Drier Co. v. Cutler Dry Kiln Co., 292 F.
861, from the 2nd Circuit, and Holland v. Board of Pub
lic Instruction, 258 F. 2d 730, from the 5th Circuit.
d.
The Court of Appeals Usurped the Jurisdiction
and Functions of the District Court in These Pro
ceedings.
Title 28, USC, §1291, grants to the Court of Appeals
the only possible basis for jurisdiction of any of these
actions, and this statute (A. 4) specifies that this jur-
19
isdiction is entirely appellate. The appeal in Meredith
v. Fair was long ago heard and decided by the Court
of Appeals. Its mandate had been returned to the Dis
trict Court and, prior to the institution of any of the
proceedings here complained of, that court had entered
its Permanent Injunction in full conformity with the
mandate of the Court of Appeals. Never at any time
was it shown that the District Court was, because of
the condition of its docket or for any other reason, un
able to promptly take action to enforce the Court of
Appeals mandates or its own orders issued pursuant
thereto. It was not shown and, indeed, it could not
be shown that the District Court was corrupt or un
willing to obey the mandates of the Court of Appeals.
The District Court was simply ignored, yet it was the
only court possessed with jurisdiction of the cause. In
deed the District Court is the only court in the Federal
Jurisdiction System, other than this Honorable Supreme
Court, which is possessed of any constitutional or statu
tory jurisdiction of a suit by the United States against
a sovereign, cf. 28 USC, §1345, 1391(b) & 1404(a) (A .5 );
U. S. Constitution, Article III, §2, Clause 2. (A. 1).
Every one of the judgments and orders entered by the
Court of Appeals, if valid at all, should have been en
tered, in the accepted, usual and statutory course of
judicial proceedings, only by the District Court which
was possessed of original jurisdiction.
We respectfully direct the court’s attention to the
remarks of the concurring Court of Appeals Judges
that the handling of this matter by the District Court
after their order of October 19, 1962 “ should tend
to restore normalcy in Mississippi and wrould comport
with good judicial administration under the circum
20
stances” . (A. 54). cf. Phillips v. U. S., 312 U. S. 246,
85 L. Ed. 800, 61 S. Ct. 480.
The District Court was possessed of all powers which
were claimed by the Court of Appeals. It had venue of
the original action. In addition, its rules contemplate
the conduct of fact finding litigation. On the contrary
we call to the Court’s attention that under the doctrine
of inclusio unius est exclusio alterius the Court of Ap
peals has not adopted and has rejected the Federal Rules
of Civil Procedure (with certain exceptions, none of
which are pertinent here). Rules of the Fifth Circuit
Rule 10, cf. Rule 8.
The Legislature of the State of Mississippi was con
vened in special session during most of these proceed
ings, which involved both the Governor and the Lt.
Governor, who is the President of the Senate. Yet, at
many stages during these new proceedings which were
originated against them in the appellate court, process
was issued to them, returnable hundreds of miles away
in another state. The annals of jurisprudence of this
country disclose no precedent, let alone an accepted and
usual course for the District Court proceedings which
were here instituted and conducted in a court possessing
only limited appellate jurisdiction. Indeed, the absence
of any appropriate rules in the Court of Appeals gov
erning these proceedings should be most indicative of
the complete novelty involved here. As the best argu
ment indicating the vital importance of “ playing by
the rules” we respectfully direct the Court’s attention
to the following excerpts from the dissenting opinion in
the case of Boman v. Birmingham Transit Company 292
F. 2d 4.
“ <# * * Since we must rest our decision on the
Constitution alone, we must set aside predilections on
21
social policy and adhere to the settled rules which
restrict the exercise of our power to judicial review
•—remembering that the only restraint upon this power
is our own sense of self-restraint’ .1
‘ ‘ The author2 then illustrates his point by supposing
that two baseball teams were tied in the last inning
of the World Series and the umpire is morally con
vinced that the Yankees ought to win. The Yankee
runner is tagged with the ball forty-five feet from
the home plate, and the umpire, acting on his under
standing of the precepts of natural law, rules that the
runner is safe at home. Those who bet on the Dodgers
are then confronted with the problem of whether the
moral law requires them to pay their bets. He closes
with this question, which he answers himself:
“ ‘ Does the decision of the umpire prevail over
the rules of the game? One of the rules of the game
is that both teams shall obey the decision of the um
pire; and the umpire has promised to stick to the
rule book.’ ”
Eegardless of how certain the Court of Appeals may
have been that they alone had the correct moral or
social concept of how the litigation then properly cogniz
able only by the District Court or this Court should be
decided, the rules which have governed legal procedures
since the establishment of the Federal Judicial System,
the rules which set them above District Courts, do not
unshackle them from the necessity of exercising their
review powers only according to the rules.
xThis quotation is from the dissent of Chief Justice Vinson in
Barrows v. Jackson, 1953, 346 U. S. 249, 269, 73 S. Ct. 1031, 97
L. Ed. 1586.”
2Ralph T. Catterall of the State Corporation Commission of Vir
ginia, Vol. 42, American Bar Journal No. 9, September, 1956, p. 833.
22
II.
THE ISSUANCE OF THE TEMPORARY RE
STRAINING ORDERS AND THE PRELIMI
NARY INJUNCTION ORDER AGAINST THE
STATE OF MISSISSIPPI VIOLATED THE
ELEVENTH AMENDMENT TO THE CONSTI
TUTION OF THE UNITED STATES AND WAS
CONTRARY TO THE HOLDING OF THIS
COURT IN THE CASE OF MISSOURI V. FISKE,
290 U. S. 18.
James H. Meredith originally brought suit against
the persons who composed the Board of Trustees of
Institutions of Higher Learning. This was not brought
or maintained as a suit against the State of Mississippi.
Under the strict provisions of the Eleventh Amendment
to the Constitution of the United States (A. 2), as
well as under the provisions of Title 42, USC, §1983,
(A. 7) (the basis for the asserted jurisdiction in the
original action) it could not have been entertained as
a suit directly or indirectly against the State of Mis
sissippi. By its plain, direct terms the Eleventh Amend
ment expressly prohibits the judicial power of the courts
of the United States from being extended to suits by
individuals against sovereign states. Section 1983 of
Title 42 only permits an action against a “ person” .
This does not include a state or governmental unit.
Monroe v. Pape 365 US 167, 5 L. Ed. 2d 492, 81 S. Ct. 473,
Egan v. Aurora 367 US 514, 5 L. Ed. 2d 741, 81 S. Ct. 684.
Stone v. Interstate Natural Gas Co. (CA 5) 103 F. 2d
544, affirmed 308 U. S. 522, 84 L. Ed. 442, 60 S. Ct. 292,
taught that even a suit against the Attorney General
of the State was not necessarily a suit against the state
itself and that litigation involving state officials did
not per se bind the State of Mississippi. In the case of
23
Louisiana Land & Exploration Co. v. State Mineral
Board (CA 5) 229 F. 2d 5, the Court of Appeals held that
the determination as to whether or not a particular suit
against a state agency amounted to a suit against the
state was to be decided by the law of the state and that
if the state courts decided that a suit against a state
agency was directed to it in its official capacity and
not to the members of the agency individually, the
Eleventh Amendment would prohibit the action. No
state court decision has ever been rendered as to whether
a suit against the state officials sued at any stage of the
proceedings here is in fact a constitutionally prohibited
suit.
In the case of Fitts v. McGhee, 172 U. S. 516, 43 L. Ed.
535, 19 8. Ct. 269 this court stated:
“ ‘ The very object and purpose of the eleventh
amendment were to prevent the indignity of subject
ing a state to the coercive process of judicial tribunals
at the instance of private parties. It was thought
to be neither becoming nor convenient that the several
states of the Union, invested with that large residuum
of sovereignty which had not been delegated to the
United States, should be summoned as defendants
to answer the complaints of private persons, whether
citizens of other states or aliens, or that the course
of their public policy and the administration of their
public affairs should be subject to, and controlled
by, the mandates of judicial tribunals without their
consent, and in favor of individual interests. To se
cure the manifest purposes of the constitutional ex
emption guaranteed by the eleventh amendment re
quires that it should be interpreted, not literally and
too narrowly, but fairly, and with such breadth and
largeness as effectually to accomplish the substance
24
of its purpose. In this spirit it must be held to cover,
not only suits brought against a state by name, but
those also against its officers, agents, and represen
tatives, where the state, though not named as such,
is, nevertheless, the only real party against which
alone in fact the relief is asked, and against which
the judgment or decree effectively operates * *
i C # * #
“ If these principles be applied in the present case,
there is no escape from the conclusion that, although
the state of Alabama was dismissed as a party de
fendant, this suit against its officers is really one
against the state. As a state can act only by its of
ficers, an order restraining those officers from taking
any steps, by means of judicial proceedings, in exe
cution of the statute of February 9, 1895, is one which
restrains the state itself, and the suit is consequently
as much against the state as if the state were named
as a party defendant on the record.”
Although the Eleventh Amendment does not by its
terms bar a citizen from suing his own state, this Hon
orable Court has squarely held that such a suit cannot
be maintained, in the absence of the consent of the
state, by one of its own citizens. Hans v. Louisiana, 134
U. S. 1, 33 L. Ed. 842, 10 S. Ct. 504.
This entire proceeding is contrary to the holding of
this court in Missouri v. Fiske, 290 U. S. 18, 78 L. Ed.
145, 54 S. Ct. 18. In that case an ancillary action was
started in a U. S. District Court. The State of Missouri
was made a party and an injunction was sought against
the state to stop the prosecution of a citation in a state
court, which prosecution, it was found, would interfere
with the in rem subject matter of the Federal Court
action. This court stated:
25
“ * * * The Eleventh Amendment is an explicit
limitation of the judicial power of the United States.
* * * However important that power, it cannot extend
into the forbidden sphere.1 Considerations of conveni
ence open no avenue of escape from the restriction.
The ‘ entire judicial power granted by the Constitution
does not embrace authority to entertain a suit brought
by private parties against a State without consent
given.’ Re New York, 256 U. S. 490, 497 * # *. Such
a suit cannot be entertained upon the ground that
the controversy arises under the Constitution or laws
of the United States. * * *
“ The ancillary and supplemental bill is brought
by the respondents directly against the State of Mis
souri. It is not a proceeding within the principle
that suit may be brought against state officers to
restrain an attempt to enforce an unconstitutional en
actment # * *. Here, respondents are proceeding
against the State itself to prevent the exercise of its
authority to maintain a suit in its oivn court.
1‘ The proceeding by ancillary and supplemental bill
to restrain the State from this exercise of authority
is unquestionably a ‘ suit’. * * * Expressly applying
to suits in equity as well as at law, the Amendment
necessarily embraces demands for the enforcement of
equitable rights and the prosecution of equitable reme
dies when these are asserted and prosecuted by an
individual against a state. This conception of the
Amendment has had abundant illustration. * # #
(Citations).
“ * * * This is not less a suit against the State be
cause the bill is ancillary and supplemental. The State
XA11 emphasis in quotations is supplied.
26
had not been a party to the litigation which resulted
in the decree upon which respondents rely. The State
has not come into the suit for the purpose of litigating
the rights asserted. Respondents are attempting to
subject the State, without its consent, to the court’s
process.
“ The question, then, is whether the purpose to pro
tect the jurisdiction of the Federal Court, and to main
tain its decree against the proceeding of the State
in the State Court, removes the suit from the appli
cation of the Eleventh Amendment. The exercise of
the judicial poiver cannot be protected by judicial
action which the Constitution specifically provides is
beyond the judicial power. Thus, when it appears that
a State is an indispensable party to enable a Federal
court to grant relief sought by private parties, and
the State has not consented to be sued, the court will
refuse to take jurisdiction. * * * And if a State, unless
it consents, cannot be brought into a suit by original
bill, to enable a Federal court to acquire jurisdiction,
no basis appears for the contention that a State in
the absence of consent may be sued by means of an
ancillary and supplemental bill in order to enforce a
decree.
“ The fact that a suit in a federal court is in rem,
or quasi in rem, furnishes no ground for the issue of
process against a non-consenting state. * * *.
L < # * *
“ * # * The contention that the question of owner
ship of the shares has been finally determined by
the Federal Court affords no ground for the con
clusion that the Federal Court may entertain a suit
against the State, without its consent, to prevent the
27
State from seeking to litigate that question in the
State Court.”
“ The decree of the Circuit Court of Appeals is re
versed and the cause is remanded to the District Court
with directions to dismiss the ancillary and supple
mental bill.”
The fact that this present assertion of ancillary jur
isdiction is made by a court of limited appellate juris
diction, as well as the fact that such relief is being
sought by a newcomer to the litigation, designated as
Amicus Curiae, cannot operate separately or together
to create a jurisdictional situation whereby the appel
lant, Meredith, would be enabled to do that which the
Eleventh Amendment forbids, to-wit: sue the State of
Mississippi without its consent.
Thus, in summary analysis, we find the Court of
Appeals granting an Amicus Curiae a Writ of Injunction
which the Court of first instance could not have entered
as either original or ancillary relief, on the basis that
what the Amicus really sought, by its motion to be de
signated as Amicus, was not the right to advise the
court as to the merits of the controversy but to assert
a new distinct, separate and independent cause of action
based upon new facts and requiring the presence, as
a party, of a sovereign state. Such a state of facts
cannot be made to accord with the express prohibition
of the Eleventh Amendment under the holding of this
court in Missouri v. Fiske, supra, or with any statutory
grant of jurisdiction by act of Congress.
Neither the State of Mississippi nor any of the other
new party ‘ ‘ defendants ’ ’ in the appellate court have had
their day in court. As to such new ‘ ‘ defendants ’ ’ the pro
ceedings were coram non judice, and they are in no way
bound thereby.
28
III.
NEITHER THE APPELLANT NOR THE
UNITED STATES MET THE BURDEN OP
PROVING THE FACTS ESSENTIAL TO ES
TABLISH SUCH JURISDICTION AS THEY
CLAIMED WAS VESTED IN THE COURT OP
APPEALS.
By its own name, “ Ancillary Jurisdiction” indicates
it must depend upon the prior presence of a case or
controversy before a court which asserts such jurisdic
tion. At the time that these “ ancillary” proceedings
took place in the Court of Appeals, there was no such
jurisdictional prior case then in that court to which ap
pendant or “ ancillary” jurisdiction could attach.
The Court of Appeals is possessed of appellate re
view jurisdiction only. It heard an appeal on the merits
from the District Court and on the basis of that appeal,
it reached a decision that the case should be reversed
and remanded with directions. This decision was im
plemented by the court’s mandate; and after the man
date was sent down the District Court fully complied
with the directions of the appellate court. If there is
an end to appellate review proceedings, this end was
fully reached before any “ ancillary” proceedings were
commenced.
The only possibility which existed for the assertion
of any residual jurisdiction was an injunction which, by
its own terms, was to last only “ pending such time as
the District Court has issued and enforced the orders
herein required and until such time as there has been
a full and actual compliance in good faith with each
and all of said orders by the actual admission of plain
tiff-appellant to, and the continued attendance thereat,
29
at the University, on the same basis as other students
who attend the University.”
This court has held that the burden of proving all
jurisdictional facts rests upon the party asserting that
the court has jurisdiction. McNutt v. General Motors
Acceptance Corp., 298 U. S. 178, 56 S. Ct. 780, 80 L. Ed.
1135. In fact, since more than a century ago in Turner
v. Bank of North America, 4 Dali. 8, 1 L. Ed. 718, this
court has adhered to the doctrine that courts of the
United States were presumed to be without jurisdiction
unless the contrary affirmatively appears from the rec
ord. No proof was offered to show that the conditions
upon which the court’s injunction was to remain out
standing had not, in fact, completely transpired.
Proof that parties other than those addressed in the
injunction might be involved in some questionable ac
tivities cannot suffice. An injunction cannot be issued
which is so broad as to make punishable the conduct
of persons who act independently of the parties to the
litigation and whose rights have not been adjudged ac
cording to law. Regal Knitwear Co. v. National Labor
Relations Board, 324 U. S. 9, 89 L. Ed. 661, 65 S. Ct. 478
Chase National Bank v. Norwalk, 291 U. S. 431, 78 L. Ed.
894, 54 S. Ct. 475; Alemite Mfg. Corp. v. Staff, 42 F. 2d
832, Scott v. Donald 165 U. S. 107, 41 L. Ed. 648, 17 S. Ct.
262.
It is patent that a court which has no jurisdiction
at all cannot exercise' “ ancillary” jurisdiction. The
record here makes it equally clear that the parties who
had the burden of proving jurisdiction failed to prove
that any conditions existed which would give life to
the only order which could vest a modicum of juris
diction in the Court of Appeals.
30
IV.
THE ACTIONS OF THE AMICUS CURIAE
CONSTITUTE AN ASSERTION BY IT OF IN
DIVIDUAL AND PRIVATE FOURTEENTH
AMENDMENT RIGHTS CONTRARY TO THE
DECISIONS OF THIS COURT IN SHELLEY v.
KRAEMER, 334 U. S. 1, AND HAGUE v. CIO,
307 U. S. 496.
No case has ever held that the Federal Government
acquired any rights under the Fourteenth Amendment
to the Constitution. In the case of Shelley v. Kraemer,
344 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 836, this court held
that the rights created by the due process and equal
protection clauses of the Fourteenth Amendment are
guaranteed to the individual, and the rights established
are personal rights.
In Hague v. CIO, 307 U. S. 496, 83 L. Ed. 1423, 59 S. Ct.
954 this court stated:
“ Natural persons, and they alone, are entitled to
the privileges and immunities which Section 1 of the
14th Amendment secures for citizens of the United
States.” cf. U. S. v. Alabama, 171 F. Supp. 720, 729,
(CA 5) 267 F. 2d 808.
Despite these authorities, an examination of the record
discloses that the United States, under its designation
of Amicus Curiae, not only has brought civil contempt
proceedings (which exist solely for the benefit of the
complainant and not for any public purpose, see XI,
infra) but also has sought and received an injunction
and restraining order—all as a part of a private law
suit by an individual person asserting Fourteenth
Amendment rights against other individual citizens. In
deed, the entire control and direction of this litigation
31
has been assumed by the amicus curiae to assert rights
which it has no power to assert, in a forum lacking
jurisdiction.
Y.
THE ACTIONS OF THE COURT OF APPEALS
IN CONDUCTING ENFORCEMENT PROCEED
INGS CONFLICTED WITH THE HOLDINGS OF
THE EIGHTH CIRCUIT IN THE CASES OF
DOWAGIAC MFC. CO. v. MINNESOTA-MOLINE
PLOW CO., 124 F. 735, and MEREDITH v. JOHN
DEERE PLOW CO., 244 F. 2d 9.
The enforcement of a final judgment or decree after
an appeal has been remanded to the court of original
jurisdiction is a function of that court. The proper
function of a Court of Appeals is to provide a calm,
deliberate and dispassionate forum for reviewing the
legality of that done in a trial court where decisions
are frequently made on the spur of the moment and
in the sometimes heat of trial proceedings.
The “ All Writs Statute” , 28 USC 1651, is not a catch-
all which creates any new type of appellate review
power. It only permits the issuance of writs by a Court
of Appeals in exceptional cases where such writs are
necessary to aid existing appellate jurisdiction. U. S.
v. Mayer, 235 U. S. 55, 59 L. Ed. 129, 35 S. Ct. 16; 36
C. J. S. 784; cf. Ex Parte Republic of Peru, 318 U. S. 578,
87 L. Ed. 1014, 63 S. Ct. 793. When an appeal is no
longer pending before a Court of Appeals, the right
to issue such writs is at an end. In the case of Omaha
Elictric Light & Power Co. v. Omaha, 216 F. 848, 855,
the Eighth Circuit stated:
‘ ‘ The jurisdiction of an appellate court differs radi
cally from that of a trial court. It exists solely for
32
the purpose of review. As soon as that is finished the
suit is remitted to the trial court.”
To the same effect are Wooten v. Botnar (CA 6) 266
F. 2d 27, and Mutual Life Insurance Co. of New York
v. Holly (CA 7), 135 F. 2d 675.
The enforcement of a final decree issued by a District
Court pursuant to the mandate of an appellate court is
subject to supervision and direction by Writ of Man
damus to that court or by way of a new appeal. Sibbald
v. U. 8., 37 U. S. 488, 12 Pet. 488, 9 L. Ed. 1167; City
National Bank v. Hunter, 152 U. S. 512, 38 L. Ed. 534,
14 S. Ct. 675; cf. U. 8. v. E. I. Du Pont de Nemours, 366
U. S. 316, 6 L. Ed. 2d 318, 81 S. Ct. 1243.
In the case of Ohio Oil Company v. Thompson, 120
F. 2d 831, the Eighth Circuit pointed out:
“ It is for the district court to which the mandate
(of the Supreme Court) is directed, to construe and
execute such mandate; and if that court (1) miscon
strues or (2) refuses to enforce it or (3) attempts
‘ to vary it ’, or (4) ‘ to intermeddle with it ’, it is for
the Supreme Court alone to construe and enforce its
own mandate.”
No one of these four conditions are present here.
The mandate of the Court of Appeals to the District
Court directed the entry of an injunction of broader
scope than that prayed for in the complaint. The in
junction order of the District Court clearly complies
with the directions of the mandate, a fact which has
never been questioned. The District Court has never re
fused to enforce the mandate of the Court of Appeals
or its own injunction, nor has it attempted to vary it
or intermeddle with it. The District Court in this case
33
continues to retain the actual and proper powers of
a District Court.
The proceedings here are directly contrary to the
holdings of the Eighth Circuit. In the case of Dowagiac
Mfg. Co. v. Minnesota-Moline Plow Co., 124 F. 735, the
opinion of the court, in pertinent part was as follows:
“ An examination of the affidavits discloses the
fact that the contempt charged in this case occurred
subsequent to the filing of the mandate of this court
in the United States Circuit Court. The proposition
to which Mr. Howard has addressed himself, to the
effect that every party in a proceeding is bound to
take notice of the order of the court, and obey it,
is undoubtedly sound; and, if there had been a vio
lation of the injunction which was practically ordered
by this court during the time antecedent to the re
mission of the mandate, the court would proceed to
punish for contempt, if it thought proper to do so.
But when the mandate of this Court was remitted to
the Circuit Court, the decree of that court was, in
effect, modified, as declared by the opinion of this
court; or, if not modified simply by the filing of
that mandate, it was in the power of that court, upon
motion of the successful party, to so change its decree
that it would read in accordance with the opinion
then handed to it by this court. I f that application
has not been made, it may still be made; and if there
has been a violation of that decree since the mandate
was remitted, we are unanimously of the opinion that
the jurisdiction to punish for that violation is not in
this court, but in the Circuit Court. For this reason,
the demurrer will be sustained, and the petition dis
missed.”
34
The United States Court of Appeals for the Eighth
Circuit in 1957, in the case of Meredith v. John Deere
Plow Co., 244 F. 2d 9, 10, cert. den. 355 U. S. 831, 2 L.
Ed. 2d 43, 78 S. Ct. 44, stated:
“ In an effort to put an end to appellant’s repeti
tive suits against it on the alleged contract, appellee
has moved for leave to file in this Court a petition
for a writ of injunction. No injunctive relief was
sought by way of counterclaim in the District Court,
nor has appellee otherwise undertaken to obtain from
that Court any such protection. No controlling reason
is apparent why, as against the normal prerogative
and function of the District Court, we should he asked
to entertain such a petition in original jurisdiction.
“ In addition, the elements of hearing that might
be involved in relation to the issuing of a writ, and
the incidents of enforcement that could become neces
sary from any granting of it are matters which a
single-judge court manifestly would be in a position
to deal with, from the standpoint of both parties,
more routinely, expeditiously, conveniently and eco
nomically than we.”
We respectfully submit that the appellate court’s
functions here were not only improper and a departure
from accepted and usual practice, but also created a
conflict between the circuits, as well as a conflict with
prior rulings of this court.
VI.
THE SHOW CAUSE CITATIONS ISSUED TO
GOVERNOR BARNETT AND LT. GOVERNOR
JOHNSON WHICH REQUIRED THEM TO AP
PEAR OUTSIDE OF THE STATE WITHIN
LESS THAN FORTY-EIGHT HOURS FROM
35
THE INSTANT OF ATTEMPTED SERVICE OF
SUCH CITATIONS DID NOT ACCORD CON
STITUTIONAL AND PROCEDURAL DUE
PROCESS TO THESE PARTIES.
The returns of the officers showing attempts made
to serve the citations in civil contempt against Governor
Barnett and Lt. Governor Johnson show that such “ at
tempts” were made less than forty-eight hours prior
to the return time of these citations (Govt. Ex. No. 3 &
Appellant’s Ex. No. 2, Hearing 9/28/62, p. 22, 57; Govt.
Ex. No. 3, Hearing 9/29/62). The citations themselves
show that they were returnable in New Orleans, Lou
isiana. The returns do not show personal service on
either respondent; but, assuming arguendo that they
had received personal service, the shortness of the time
interval would have constituted a lack of due process.
Roller v. Holly, 176 U. S. 398, 44 L. Ed. 520, 20 S. Ct. 410.
VII.
THE JUDICIAL BRANCH OF THE FEDERAL
GOVERNMENT CANNOT MANDATORILY EN
JOIN THE CHIEF EXECUTIVE OF A STATE
TO PERFORM FUTURE DISCRETIONARY
ACTS.
The acts of Governor Barnett were all done and per
formed in his official capacity as the Chief Executive
Officer of the State of Mississippi, charged with the
enforcement of its laws. Mississippi Constitution of
1890, Article V, §§116, 119 and 123. (A. 9). Indeed,
the Temporary Restraining Order and the Injunction
issued against him by the Court of Appeals require
nothing at the hands of Ross R. Barnett, an individual
person. The prohibitions contained in these injunctions
are not personal but official, and are directed against
36
him as the Governor of the State. Assuming arguendo
that the Constitution of the United States does not
prohibit the issuance of such a prohibitory injunction
and restraining order, properly framed, the Court must
still consider that the Court of Appeals did, in its con
tempt judgment (A. 38), go beyond any of the pro
hibitory terms of the restraining order or injunction
and mandatorily require the affirmative act of the Gov
ernor as to the issuance of specified and delineated
orders to peace officers of the state. In the contempt
judgment issued against Lt. Governor Johnson (A. 41),
he was required to issue similar orders at any time
he might be acting as Governor.
Neither the statutory law of the State of Mississippi
nor its Constitution vests in the Governor or the Lt.
Governor the authority or power to order local poliee
officials to perform, their peace-keeping activities in any
particular way. The only authority granted to the Gov
ernor to control such local officials involves the use
of the National Guard (which at the time of the is
suance of the Temporary Restraining Order had been
federalized), and then only after a breakdown in local
law enforcement. Mississippi Code of 1942, §§3975, 3978
and 8576 (A. 10), Mississippi Constitution §217 (A. 9).
Peace-keeping activities on the campus of the Uni
versity of Mississippi are, of course, vested in the local
sheriff and other peace officers and in the Board of
Trustees of Institutions of Higher Learning. Missis
sippi Code of 1942, §§6724(a) & (c), 6726.7; SB 1710
and §3 of HB 403, Regular Legislative Session of 1962.
(A. 12) Mississippi has no state police force. Its High
way Patrol is only what the name implies. It has no
general police powers off the highways of the state.
§8082(a) 1-3, and (b) (A. 14).
37
Aside From the Procedural Irregularities In the
Issuance by Courts of Mandatory Orders to the
Executive Department of a State, There is Involved
in Such a Procedure, the Gravest of Constitutional
Dangers and Conflicts Between the Executive and
the Judicial Power.
It would be impractical to detail here the multitude
of duties imposed on the Governor of Mississippi, but
among them is that of Commander in Chief of the
State Militia when not called into the service of the
Nation, He directs all executive business of the State;
he is the directing head of all executive departments
of the State Government and may require information
from them as to the status of their departments at
any time; he is required to see that the laws of the
state are faithfully executed; he may call the legislature
into extraordinary session when the circumstances re
quire; he is required to communicate to each regular
session of the legislature the condition of the State
and recommend the passage of such measures as he
may deem expedient. He is answerable to the people for
failure to perform his duties only by way of impeach
ment [§50, Constitution of Mississippi. (A. 9)].
To admit the power of the Federal Courts to arrest
a Governor and place him in prison or to mandate a
Governor to perform the will of such Courts in the
exercise of his official powers would be to make of a
Governor of a sovereign state only a puppet of the
Courts and install such Courts as the Governor.
If the Federal Courts have the power to assume
mandatory injunctive control of the official powers of
the Governor, by that same power they would be able
to assume the powers of the legislative branch and
38
prescribe by their mandate what laws the legislature
should or should not pass.
With the sovereign powers of a state so preempted
by the Judiciary, the people of such a State would
no longer be subject to the control of a “ Republican
Form of Government” , such as guaranteed by Article
4, Section 4, of the Federal Constitution. (A. 1) Such
encroachment on the sovereign powers of a State must
surely mark the end of the dual system of sovereignty,
federal and state, under which this nation was estab
lished.
With the sovereign power of the states usurped by
the Federal Government, there would be no need for
United States Senators and Representatives to rep
resent the people of a puppet state for such a state
would be nothing but a helpless dependency of the Fed
eral Government.
In addition to the constitutional questions involved,
there still remains the consideration of public policy.
Under our system of dual sovereignty of the States
and the United States, it would be unseemly for the
officials of one sovereignty to exercise any power in
such a way as to dominate and control the exercise of
discretionary powers by the other. Such exercise would
destroy the balance of equal sovereignty, prevent co-
operation in attainment of common objectives, and un
dermine the spirit of unity which has and should prevade
the Federal Union.
It is for these reasons, no doubt, that according to
the presently established law, the Chief Executive of
a State has been uniformly held to be immune from the
subpoena of any Court. Such principle of law is clearly
stated in 16 C.J.S., p. 382, §159:
39
“ It is well settled that public officials are not
bound to disclose state secrets or to submit public
papers to judicial scrutiny. Partly on this ground,
and partly because of the immunity of the executive
from judicial control on account of the tripartite
separation of powers, it seems now to be undisputed
that courts cannot compel the attendance of the chief
executive as a witness. The same doctrine has been
applied where the governor of a state refused to obey
a subpoena directed to him as an individual and re
quiring him to produce in court an engrossed copy of
a statute and deposition, and also where that officer
had been subpoenaed to appear before the grand jury
and give testimony concerning riots which were under
investigation.”
This rule has also been enunciated by the Courts of
at least twelve states, said decisions being styled as
follows:
Hawkins v. Governor, 1 Ark. 570; Bisbee v. Drew,
Gov., 17 Fla. 67; Low v. Towns, 8 Ga. 360; People
v. Bissell, 19 111. 229; People v. Yates, 40 111. 126;
State v. Warmoth, 22 La. Ann. 1; In re Den-nett, 32
Maine 508; Southerland- v. Governor, 29 Mich. 320;
Rice v. Governor, 19 Minn. 103; State v. Governor,
39 Mo. 388; Inquiries by Governor, 58 Mo. 369; State
v. Governor, 1 Dutch. (New Jersey) 331; Mauran
v. Smith, 8 E. I. 192; Turnpike Co. v. Brown, 8 Bax
ter (67 Tenn.) 490; Houston Railroad Co. v. Ran
dolph, 24 Texas 317.
In Donnelly v. Franklin D. Roosevelt, Governor, 259
N. Y. 356, the Supreme Court of New York considered
the exercise of judicial control over the then Governor
Eoosevelt:
40
“ While as a general practice arbitrary power has
no place in our system of government, judicial au
thority is clear and wTell established that in the func
tioning of the departments of government, executive,
legislative, and judicial, the Constitution has enume
rated the powers and defined the limitations of each.
One cannot encroach upon the other and have the
balance of powers preserved. The respondent, as
Governor of the State is immune from judicial control
in his performance of executive powers. A sphere
of duty has been established for the executive, and
within that orbit of power the exercise of his judg
ment and authority is immune from judicial encroach
ment.
“ Courts have no power over his person, and they
cannot commit him for a disobedience of judicial proc
ess. For errors, if any, of law or of fact in the pro
ceeding now pending before him, he is responsible,
not to the courts, but to the people, and to his own
conscience
In Vicksburg & Meridian R. R. Co. v. Robert Lowry,
Governor of Mississippi, 61 Miss. 102, 48 Am. Rep. 76,
the Supreme Court of Mississippi said:
“ The consideration that disobedience of the writ
may be followed by imprisonment until compliance,
is decisive against the propriety of its issuance against
the governor in any case. The chief executive power
of the State is vested in him. It is his duty to see
that the laws are faithfully executed. The power of
the State is at his command for this purpose. He
may in cases of emergency convene the legislature.
He has important functions as part of the law-making
power. It would be his duty to employ the power of
the State at his command to maintain the rightful
41
authority of the judiciary and enforce its judgments.
May that judiciary imprison him for refusal to obey
some order it may make to operate on him as the
chief executive of the State? Whence comes this as
cendancy of the judiciary over the executive? They
are coordinate departments, created alike by the con
stitution, declared to be distinct, and to be kept sep
arate as to the exercise of the powers confided to
each.”
See also High’s Extraordinary Legal Remedies, 3rd Ed.
p. 128.
We sincerely hope that this Court will not sound the
death knell of our constitutional form of government
by allowing the Federal Court system to take unto it
self the performance of the official duties of the Gov
ernor of a sovereign state by the mandatory injunction
process or by the threat of impeachment through physi
cal arrest. The foregoing authorities establish, wTe sub
mit, that the Judiciary neither has nor should exercise
such power.
VIII.
THE ISSUANCE OF THE PRELIMINARY IN
JUNCTION AND THE CONTEMPT JUDGE
MENTS BY THE COURT OF APPEALS RE
SULTED IN THE DECISION OF IMPORTANT
QUESTIONS OF FEDERAL LAW WHICH
HAVE NOT BEEN BUT SHOULD BE DECIDED
BY THIS COURT.
We respectfully submit that the true issue which
emerges from the numerous actions taken by this Court
and by the executive head of the Government of Mis
sissippi is an issue of proper procedure which is es
42
sentially based on the constitutional power of each of
the actors.
If an action of the executive (in his official capacity,
not his personal capacity) creates an intrusion upon
an individual right, the only proper procedural and
constitutional way to test the intrusion is an original
judicial challenge of the executive discretion which pro
duced the conflict, cf. The Three-Judge Court pro
ceedings in Strutwear Knitting Co. v. Olsen, 13 F. Supp.
384, and Sterling v. Constantin, 287 U. S. 378, 77 L. Ed.
375, 53 S. Ct. 190, where specific and exclusive juris
diction to prohibitively enjoin state action under 28
USC 2281 was exercised.
Since discretionary action by the executive arises
from the exercise of an equal constitutional authority
with the authority of the judicial process, such executive
action is not and cannot be a contempt of the judicial
process per se. An examination of the executive action
under threat of judicial contempt asserts a paramount
judicial authority which does not constitutionally exist.
The Federal Judiciary declared Meredith’s right to
attend the University. As to the school authorities who
were properly made parties to this cause, the matter
is res judicata. They had their day in court. Their
subsequent actions could, in a court having jurisdiction,
properly have been challenged as a contempt. However,
the independent discretion exercised by the chief ex
ecutive officer of the State was not an action of contempt
for any court’s decree. This is true even though such
decision amounted to a temporary interruption of the
rights Meredith secured as against the College Board.
This action of the executive did not raise an ancillary
or a collateral question in the Meredith case. It raised
43
a completely independent judicial issue calling for a judi
cial determination as to the correctness of the executive
decision of the State.
Meredith or the United States should have instituted
a judicial proceeding to determine the validity of that
action. They created the grave constitutional problems
here present when they persuaded the Court of Appeals
without notice or a hearing, to require the Governor
to answer injunctive and contempt processes of that
Court in this cause when his independent executive de
cision had never been judicially examined in a proper
proceeding.
The Court of Appeals repeatedly stated that as be
tween the College Board and Meredith time was of the
essence and the quintessence, yet the time necessary
for proper determination of the issues in that cause
covered more than fifteen months — time for lawyers
to gather facts, research and brief the legal questions
raised — time for deliberation and calm study and
reflection by the Courts. On the contrary, in the pro
ceedings involving the State of Mississippi and her
executive officers, the Court of Appeals was rushed
headlong past the most basic doctrines of constitutional
law in the haste of these parties to secure what was,
for the Department of Justice, apparently the quintes
sence of political expediency. Issues as grave as the
arrest of the Chief Executive of a Sovereign State,
whose actions questioned were the assertions of that
state herself, deserve a more deliberate legal approach.
If the Governor was legally wrong, surely there was
no conceivable harm of the magnitude which actually
resulted, which could have come from a proper judicial
determination of the rights of Mississippi and her gov
44
ernor — rights which even yet have never been prop
erly tested.
As sacred as the decisions of this Court may be in
fixing the rights of the parties to private litigation be
fore them, such decision can, under our constitutional
form of government, be no more sacred than the exe
cutive decisions entrusted by the people to their Gov
ernor. The Judicial, the Executive and the Legislative
branches of our government exist only to serve the
people, to do their bidding and protect their rights.
If, in an independent judicial proceeding, the decision
made by the executive is reviewed and found to be
incorrect, and if after such determination he should
persist, then the correct and constitutional remedy is
not by mandatory injunction or mandamus or other
affirmative writ which attempts to set the determination
of the judiciary above the determination of the executive
and which could lead to the exact equivalent of impeach
ment and removal from office. The correct procedure
is by way of prohibitory injunction for which such
executive cannot be imprisoned.
In the event of the Governor’s failure to abide by
its proper decision, the Court may also mandatorily
enjoin, not him, but, the agencies or forces through
which he may seek to accomplish his act of executive
discretion.
The Court can use physical force through the form
of its marshals. (In the instance of the Court of Ap
peals this would be the marshals of the Eastern District
of Louisiana or the district wherein it sat. 28 USC, §547,
713). This is the only force legally appropriate to en
force its decrees which are not laws. cf. 10 USC, § 332,
333, in the light of the repeal of 42 USC §1993, and “ En
45
forcement of Federal Court Decrees: a ‘Recurrence to
Fundamental Principles’ ” by A. J. Schweppe, ABA
Journal Yol. 44 page 113. These marshals may assem
ble a posse comitatus or other appropriate aid, and the
executive intrusion may be physically removed, but a
governor cannot be arrested and thus unconstitutionally
impeached.
The results may be substantially the same, to-wit:
the execution of the Court’s decree, but strict adherence
to proper legal procedure is vital to constitutional prin
ciples.
Although he was only a state court judge, our thoughts
cannot help but to recur to the words of Judge V. A.
Griffith in the case of State v. McPhail, 182 Miss. 360,
180 So. 387, wherein he pointed out:
“ . . . it is true that no writ of injunction or man
damus or other judicial remedial writ will run against
the Governor or any member of the Legislature, in
his official capacity; but whenever they, or any of
them, or any other officer acting or assuming to act
for the government, puts into action any agency
which comes into collision with the private personal
or private property rights of any person within the
jurisdiction of the state, such personal and property
rights of the citizen and their infringements are al
ways subject to inquiry and redress by the courts,
as against any unauthorized act by any officer of
the state, whatever his character and rank may be,
and all appropriate judicial process will be directed
to and against his agents or agencies.”
It is respectfully submitted that while the prohibitory
injunction as to the Governor was improper in the
present proceedings, the order with regard to contempt
46
thereof against him was completely improper in any
proceeding, for it not only conditionally required the
Governor’s arrest, but also included mandatory purge
requirements which were beyond the constitutional com
petence of any court. Neither the Constitution of the
United States nor the Constitution of the State of Mis
sissippi has declared any of the three branches of gov
ernment to be the supreme or controlling branch and no
power has been vested even in this Court to remove the
executive head of a state. That power has been lodged
by the people exclusively in the process of impeach
ment and nowhere else.
We respectfully submit that no graver constitutional
issue has ever faced this Court and, while it is more
than understandable that every court demands com
pliance with its decrees, it is less than constitutional
for that compliance to be obtained by the extralawful
use of armed forces or by the assertion of a supremacy
on the part of the Federal Judiciary, which we, with
the greatest possible deference, submit it does not
possess.
IX.
THE ISSUANCE OF THE TEMPORARY RE
STRAINING ORDERS AND THE PRELIMI
NARY INJUNCTION ORDER BY THE COURT
OF APPEALS RESULTED IN THE DECISION
OF IMPORTANT STATE QUESTIONS IN A
WAY THAT CONFLICTED WITH APPLICA
BLE STATE LAW.
This court has long been committed to the constitu
tional principle that state legislative actions (the equiva
lent of the actions of the executives of the state in
the discharge of their offices) should be interpreted by
the court of last resort of the state before they are
47
called into question by the Federal Judicial System.
Meridian v. Southern Bell Tel. & Tel. Co., 358 U. S. 639,
3 L. Ed. 2d 562, 79 S. Ct. 455; Louisiana Power & Light
Co. v. Thibodaux, 360 U. S. 25, 3 L. Ed. 2d 1058, 79 S. Ct.
1070; Harrison v. NAACP, 360 IT. S. 167, 3 L. Ed. 2d
1152, 79 S. Ct. 1025. Yet, in this case, the Court of
Appeals, and not a statutory three-judge court formed
under Title 28, §2281 (A. 6) dealt with Mississippi leg
islative and executive acts and enjoined their enforce
ment without any such prerequisite state court construc
tion.
The 10th Amendment to the Constitution of the Unit
ed States (A. 1) expressly reserved unto the State
of Mississippi the right to control, guide and direct
its institutions of higher learning. The Court of Ap
peals negated state enactments made pursuant to this
amendment, assertedly on the basis of prior constructions
by this Court of the 14th Amendment to the Constitu
tion of the United States, yet this Court has ruled that
in the field of constitutional construction stare decisis
is not to be strictly regarded. Glidden Co. v. Zdanok
------U. S . ------ , 8 L. Ed. 2d 671, 683, 82 S. Ct. 1459.
Not only is the sovereignty of the State of Mississippi
at stake in seeking the correction of this action, but
indeed the sovereignty of all of the other 49 states
composing our Union is likewise at issue. The line of
demarkation between state and federal sovereignty
should be meticulously regarded, for its disregard would
be vitally unconstitutional. Texas v. White, 74 U. S. 700,
19 L. Ed. 227, 237; cf. S. Carolina v. U. S., 199 U. S.
437, 50 L. Ed. 261, 26 S. Ct. 110; New York v. United
States, 326 U. S. 572, 90 L. Ed. 326; 64 S. Ct. 1286;
U. S. v. Detroit, 355 U. S. 466, 474, 2 L. Ed. 2d 424, 78
S. Ct. 474.
48
X.
THE PRELIMINARY INJUNCTION WAS SO
BROAD, VAGUE, GENERAL AND INDEFINITE
AS TO BE IMPROVIDENT AND IMPROPER.
Paragraph 4 of the ordering part of the Preliminary
Injunction enjoins the parties thereto from:
“ Interferring with or obstructing by any means
or in any manner the performance of obligations or
the enjoyment of rights under this court’s order of
July 28, 1962 and the order of the U. S. District Court
for the Southern District of Mississippi entered Sep
tember 13, 1962 in this action.”
Although there is substantial question as to the
breadth of some of the other paragraphs of the order,
we respectfully submit that this Paragraph 4 goes so
far beyond the bounds of the exactitude and specificity
required of injunctions as to constitute a clearly er
roneous action on the part of the court.
In the rules prescribed by this court for injunctions
issued by District Courts [Rule 65(d), Federal Rules of
Civil Procedure] every order granting an injunction is
required to be specific in its terms and to describe in
reasonable detail, and not by reference to the complaint
or other document, the act or acts sought to be restrain
ed.
This Paragraph 4 is not limited in any way as to
what may be enjoined. I f Meredith should commit a
crime against the laws of the State of Mississippi and
openly acknowledge his guilt thereof, would an officer
of the State be in contempt of Court for arresting or
detaining Mm? If Meredith should fail his college work,
would a Professor instructing a course in which he has
49
enrolled be required to pass him to avoid contempt? If
the laundry at the University doesn’t promptly return
his clothing correctly laundered, are they interferring
with or obstructing his right to attend school? Perhaps
these suggestions may be considered far-fetched, yet
under the strict wording of Paragraph 4 each of them
could constitute a contempt of the court’s order (and
this would be without regard to the wilfulness or in
tention of the actor to commit contempt, insofar as a
charge of civil contempt might be concerned).
An act as solemn and as forceful as an injunction
deserves more meticulous detail as to what precisely is
encompassed. Compare the statute struck down as over-
ly-vague in Herndon v. Lowry, 301 U. S. 242, 81 L. Ed.
1066, 57 S. Ct. 732.
XI.
THE CIVIL CONTEMPT PROCEEDINGS AND
ORDERS BY THE COURT OF APPEALS WERE
IMPROPER.
a.
The United States Should Not Have Been Per
mitted to Intervene In a Private Law Suit to In
voke Court Proceedings In Civil Contempt.
Civil contempt proceedings are exclusively remedial
and are designed only to produce compliance for the
benefit of the complainant. Gompers v. Bucks Stove &
Range Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492.
The order granting to the United States leave to in
tervene here is almost identical with the order of the
District Court in Bush v. Orleans Parish School Board,
191 F. Supp. 871; and the Court there pointed out that
it was definitely the function of such an Amicus to
“ vindicate the authority of the court.”
50
Vindication of the court’s authority is a public pur
pose, and is not and cannot be made to be an object of
civil contempt. When the court permitted the Govern
ment to institute civil contempt proceedings, it acted
contrary to the remedial purpose of civil contempt. It
should also be noted that at no time during these pro
ceedings was the complaining party unable or unwilling
to promptly institute proceedings to secure the enforce
ment of the court’s order for his own purposes. We
submit that the civil contempt proceedings by the Gov
ernment were not only improper but also unnecessary.
b.
A Contempt Judgment Cannot Impose Both Fine
and Imprisonment For a Single Course of Action
Alleged to Constitute Civil Contempt.
In Estes v. Potter (CA 5) 183 F. 2d 865, cert. den. 340
U. S. 920, 95 L. Ed. 664, 71 S. Ct. 356, the Court of
Appeals for the Fifth Circuit was faced with a purely
civil contempt matter and pointed out that §401 of
Title 18, USC (A. 2), governed civil contempt and
would not permit the punishment of civil contempt by
both fine and imprisonment for the same offense. This
same reasoning was followed in an excellent and scholar
ly opinion by the U. S. District Court in Montana in
the case of U. S. v. Montgomery, 155 F. Supp. 633.
Although §401 is a part of the criminal code, it has
been clearly accepted by the Court of Appeals for the
Fifth Circuit as applicable to the power of the Court
on civil as well as criminal contempt.
The correctness of this rule is indicated by a com
parison with the criminal contempt punishments de
fined in §402 of the same title (A. 2), which permit
51
the imposition of a fine np to $1,000.00 or imprisonment
np to 6 months or both in cases of criminal contempt
where the act done is also a criminal offense. This
question of the coverage of §401 was alluded to by Mr.
Justice Douglas in Penfield Co. v. Securities & Exchange
Commission, 330 U. S. 585, 91 L. Ed. 1117, 67 S. Ct. 918,
although the opinion gave no answer to the question
posed since it did not bear directly upon the point then
in issue. If §401 does not relate to civil as well as
criminal contempts then the Congress has put a premium
or extra protection on the commission of criminal con
tempt even if the criminal act is also a violation of a
state or federal criminal statute. The legislative history
of Section 401 does not indicate any intent to differenti
ate between civil and criminal contempt. The statute
was intended to cover all contempt proceedings. 7 Cong.
Deb. 21 st Cong. 2d Sess., Cols. 560-561. See also 37
Harvard Law Review 1028.
We respectfully submit that the orders of the Court
of Appeals imposing the civil contempt punishment of
both fine and imprisonment for a single course of con
duct (A. 38) are in excess of the court’s powers in
civil contempt and are therefore erroneous.
c.
No Final and Unremittable Fine Other Than a
Compensatory Fine Payable to the Complaining
Party May Be Assessed in a Civil Contempt Judg
ment.
We realize that the cases of Doyle v. London Guaran
ty & Accident Ins. Co., 204 U. S. 599, 51 L. Ed. 641, 27
S. Ct. 313, and U. S. v. United Mine Workers, 330 U. S.
258, 91 L. Ed. 884, 67 S. Ct. 677, are contrary to this
proposition. Nevertheless, we believe that it is improper
52
for such, a fine to be assessed in civil contempt and
would respectfully show unto the court the following
reasoning in support of our position.
In the case of Cliett v. Hammonds (CA 5) 305 F. 2d
565, the court was treating with the imposition of a
contingent jail sentence as a civil contempt punishment.
Speaking through Judge Brown at Page 569, the court
used this language:
“ Thus, with respect to the very element of the jail
sentence itself, a specific time (30 days) was allowed
in which she could purge herself. Had she done so
within that period, the confinement was expressly re
mitted entirely. Thus far the objective of the judg
ment was to coerce the recalcitrant party into com
pliance with the Court’s decrees. That is the mark
of civil contempt. Coca-Cola Co. v. Feulner, S. D.
Tex., 1934, 7 F. Supp. 364. The sanction imposed by
the judgment is commonly referred to as remedial.
But after the expiration of that 30-day period without
compliance, the 90-day jail sentence automatically be
came unconditional in execution and duration. No pro
vision was made for release from imprisonment once
the 90-day confinement commenced. This was unre
lated to contemporary compliance with the Court’s
decree.” (Emphasis added).
Precisely the same process of reasoning is fully ap
plicable to an unremittable but conditional fine, for
after the expiration of the four-day and three-day per
iods which Governor Barnett and Lieutenant Governor
Johnson, respectively, were given to bring about com
pliance, the imposition of daily fines was absolute and
unconditional both as to collection and remission. No
provision was made for the remittitur of any such fine
at any time or by any action. In the words of Judge
53
Brown, “ This was unrelated to contemporary compli
ance with the Court’s decree.”
d.
A Civil Contempt Fine Cannot Be Imposed In The
Absence of a Showing of Damages By the Party to
Whom the Fine is Payable.
Petitioners respectfully submit that a civil contempt
fine can not be paid to the United States in any pro
ceeding wherein the United States is not a party-com
plainant in the proceeding. In Parker v. U. S. (CA 1),
153 P. 2d 66, 163 A.L.E. 379, the First Circuit stated:
“ In a civil contempt proceeding a punitive fine
cannot be imposed on the respondent, and where fine
is imposed, it must not exceed the actual loss to the
complainant caused by the respondent’s violation of
the decree in the main cause.”
Nowhere in the record of these proceedings did the
United States or the complainant even make an attempt
to make proof of any pecuniary loss or damage suffered
because of the disobedience (if any there was) of an
order or decree of the court made for his or its benefit.
In Gompers v. Bucks Stove & Range Co., supra, this
court said (221 U. S. 451) :
“ But, as we have been shown, this was a proceeding
in equity for civil contempt, where the only remedial
relief possible was a fine, payable to the complaint.”
See also McCornb v. Jacksonville Paper Co. 336 U. S.
187, 93 L. Ed. 599, 69 S. Ct. 497. To the same effect,
requiring proof of damages, are the cases of Yanish v.
Barber (CA 9) 232 F. 2d 939, 944; United States v. Onan
(CA 8) 190 F. 2d 1, Cert. den. 342 U. S. 869, 96 L. Ed. 654,
72 S. Ct. 112; and Boylan v. Detrio (CA 5) 187 F. 2d 375.
54
See also the District Court cases of Champion Spark
Plug Co. v. Reich, 98 F. Supp. 242, and Bahee-Tenda
Corp. v. Scharco Manufacturing Co., 156 F. Supp. 582.
In the case of Norstrom v. Wahl (CA 7), 41 F. 2d
910, the Court imposed a fine of $1,000.00 upon the
defendant in a contempt proceeding ordering $500.00
thereof paid to the United States and $500.00 paid to
the complaining party. On a review, the Court of Ap
peals, at page 912, stated:
“ It is important to classify the proceeding here —
whether for civil or criminal contempt, or both —
since the order for payment to the United States of
part of the fine imposed can he supported only in a
proceeding for criminal contempt, and for payment
of part to the plaintiff only in one for a civil con
tempt. ’ ’
In holding a contempt order to be one of criminal
contempt, this court in Nye v. U. S., 313 U. S. 33, 85
L. Ed. 1172, 61 S. Ct. 810, stated:
“ The order imposes unconditional fines payable to
the United States. It awards no relief to a private
suitor.”
cf. McCrone v. U. S., 307 U. S. 61, 83 L. Ed. 1108, 59 S. Ct.
685, where this court said (307 U. S. 64) :
“ While particular acts do not always readily lend
themselves to classification as civil or criminal con
tempts, a contempt is considered civil when the punish
ment is wholly remedial, serves only the purposes of
the complainant, and is not intended as a deterrent to
offenses against the public.”
55
Our research discloses no case in which a fine payable
to the United States of America has been imposed in
a civil contempt action in which the United States was
not the party-complainant. The imposition of such a
fine in private litigation is contrary to the rationale of
all decided cases and to the purposes of civil contempt.
We respectfully submit that the action of the United
States Court of Appeals in this regard was erroneous
and should be reversed.
e.
An Order Adjudging Civil Contempt Cannot Im
pose Purge Terms Which Broaden the Scope of the
Injunction On Which the Contempt Citation Was
Based.
Conceding for the sake of this argument only that
the Temporary Restraining Orders entered against Gov
ernor Barnett and Lieutenant Governor Johnson had
some validity, and conceding again for the sake of
argument only that any actions were done which amount
ed to contempt of such orders, still and nevertheless
the contempt orders themselves contained invalid and
extra-legal purge terms which improperly went beyond
the terms of the Temporary Restraining Orders on
which such contempt orders were supposedly based. The
restraining orders were prohibitory in their terms and
they enjoined the doing of certain enumerated acts re
lating to the attendance of Meredith at the University
of Mississippi.
The purge requirements of the judgments of civil
contempt were mandatory. They did not stop at re
56
quiring compliance with the restraining order but went
further and mandated these executive officials to issue
future orders to officers under their jurisdiction and
command to perform mandatory acts which were ac
tually in excess of the statutory authority of the Gov
ernor and the Lieutenant Governor, and which were
not in any way encompassed within the original temp
orary restraining order.
This court made the error of such purge requirements
plain in Terminal Railroad Assn, of St. Louis, et al v.
United States of America, et al, 226 U. S. 17, 69 L. Ed.
150, 45 S. Ct. 5 where it stated:
“ In contempt proceedings for its enforcement, a
decree will not be expanded by implication or intend
ment beyond the meaning of its terms when read in
the light of the issues and the purpose for which the
suit was brought; and the facts found must constitute
a plain violation of the decree. (Authorities cited).”
This case has been followed in several of the Circuits,
e. g. Star Bedding Co. v. Englander Co., (CA 8) 239 F.
2d 537. See also Cyclopedia of Federal Procedure, 3rd
Edition, Vol. 15, Contempt, §87.23.
f.
The Civil Contempt Judgments Against the Gover
nor and the Lieutenant Governor Are Now Moot
and Should Be Dismissed.
In III above, we have attempted to demonstrate
that the last vestige of possible jurisdiction of the
Court of Appeals expired with the terms of its own
57
injunction order on which it based its ancillary jurisdic
tional claim. Assuming arguendo that this was not so,
at the time that the Temporary Restraining Order is
sued or the time that the Preliminary Injunction issued,
we nevertheless submit that as of the date of this Petition
for Certiorari that this entire matter as to civil contempt
by the Governor or the Lieutenant Governor is moot.
As stated above, civil contempt serves only a remedial
purpose, and when that which the original controversy
sought to accomplish comes to pass, civil contempt be
comes moot. Meredith was admitted to the University
on October 1, 1962. Since that date he has been con
tinuously enrolled as a student at the University and
has been attending such classes as he cared to attend
since that time. No activity of the Governor or the
Lieutenant Governor has been shown to have inter
fered with or obstructed this attendance in any way.
The matter is now moot as to civil contempt on any
possible basis and the so called Judgments of Civil Con
tempt now pending against these executive officers
should be dismissed. Gompers v. Buck Stove & Range Co.,
supra, Leman v. Krentier-Arnold Hinge Last Co., 284
U. S. 448, 76 L. Ed. 389, 52 S. Ct. 238. ef. Brownlow v.
Schwartz, 261 U. S. 216, 67 L. Ed. 620, 43 S. Ct. 263.
CONCLUSION
Petitioners pray that a Writ of Certiorari issue to
review the judgments and orders of the U. S. Court
of Appeals for the Fifth Circuit and that upon the
granting of such writ that each and all of the orders
involved be set aside and held for naught and that this
matter be remanded to the U. S. District Court, South
ern District of Mississippi for the entry of such orders
or for the conduct of such further proceedings as this
court may deem proper in the premises.
Respectfully submitted,
THE STATE OF MISSISSIPPI, et al,
Petitioners,
BY: JOE T. PATTERSON,
Attorney General of the
State of Mississippi
JOHN C. SATTERFIELD
THOMAS H. WATKINS
MALCOLM B. MONTGOMERY
GARNER W. GREEN
PETER M. STOCKETT
Special Assistant Attorneys
General of the State of
Mississippi
New Capitol Building
Jackson, Mississippi
Special Assistant Attorney
General of the State of
Mississippi
P. 0. Box 1046
Jackson, Mississippi
Counsel for Petitioners
CHARLES CLARK,
CHARLES CLARK
59
CERTIFICATE OF SERVICE
I, CHARLES CLARK, one of the attorneys for peti
tioners herein and a member of the bar of the Supreme
Court of the United States, hereby certify that on the date
shown below I served the foregoing PETITION FOR
WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
on James H. Meredith, Respondent, by mailing true
copies thereof to: Constance B. Motley, Esq., 10 Co
lumbus Circle, New York 19, New York, airmail postage
prepaid; to R. Jess Brown, Esq., 1105% Washington
Street, Vicksburg, Mississippi, by first class mail
postage prepaid (the distance being less than 500 miles),
the attorneys of record for said respondent; and on
the United States, Amicus Curiae, by mailing true copies
thereof to : Burke Marshall, Esq., Assistant Attorney
General; St. John Barrett, Esq.; and John Doar, Esq.,
Attorneys, Department of Justice, Washington, D. C.,
airmail postage prepaid, the attorneys of record for
said Amicus Curiae.
DATED this day of December, 1962.
CHARLES CLARK
Attorney for Petitioners
Address: P. O. Box 1046
Jackson, Mississippi
ai
INDEX TO APPENDIX:
Federal Rules of Civil Procedure
Pule 4 (f) __________________________________ A 8
Rule 24 (a), (b) & (e) ______________________ A 8
Mississippi Code of 1942
Section 3975 ________________________________ A 10
3978 ________________________________ A 12
6724 ________________________________ A 12
Section 6726.7 ______________________________ A 13
Section 8082 _________________________________ A 14
Section 8576 ________________________________ A 15
Regular Legislative Session of 1962
Mississippi Laws
House Bill No. 403 ___________________________ A 16
Senate Bill No. 1710 _________________________ A 17
Mississippi Constitution of 1890
Article 4, Section 50__________________________ A 9
Article 5, Section 116 ______________________ A 9
Section 119________________________ A 10
Section 123 ______________________ A 10
Article 9, Section 217 ______________________ A 10
United States Code
Title 18, Section 401 _______________________ A 2
Section 402_________________________ A 2
Title 28, Section 547 (a) & (b) _____________ A 3
Section 547 (c) ____________________ A 4
Section 713 (d) ____________________ A 4
Page
aii
Section 1254 _______________________ A 4
Section 1291 ______________________ A 4
Section 1345 ______________________ A 5
Section 1391 (b) _________ A 5
Section 1404 (a) ___________________ A 5
Section 2071 ______________________ A 5
Section 2101 ______________________ A 5
Section 2281 ______________________ A 6
Section 2403 ______________________ A 6
Title 42, Section 1983 ______________________ A 6
United States Constitution
Article III Sec. 2 Clause 2 ___________________ A 1
Article IV Section 4 ________________________ A 1
Amendment Y ______________________________ A 1
Amendment X ______________________________ A 1
Amendment XI _____________________________ A 2
Rules of U. S. Court of Appeals for the
Fifth Circuit
Rule 8 _____________________________________ A 7
Rule 9 ______________________________________ A 7
Rule 10 ____________________________________ A 7
ORDERS OF THE U. S. COURT OF APPEALS
FOR THE FIFTH CIRCUIT
ORDER DESIGNATING UNITED STATES
OF AMERICA AS AMICUS _______________ A 18
ORDER RESTRAINING ENFORCEMENT
OF SB 1501, etc. ____________________________ A 19
Page
am
ORDER REQUIRING CHARLES DICKSON
PAIR, ET AL TO SHOW CAUSE WHY
THEY SHOULD NOT BE HELD IN CIVIL
CONTEMPT (ON MOTION OF AMICUS
CURIAE) __________________________________ A 21
ORDER REQUIRING TRUSTEES TO
SHOW CAUSE WHY THEY SHOULD NOT
BE HELD IN CIVIL CONTEMPT
(ON MOTION OF APPELLEE) ___________ A 23
ORDER REQUIRING BOARD OF TRUS
TEES TO TAKE CERTAIN ACTION S_____ A 24
TEMPORARY RESTRAINING ORDER (ON
MOTION OF AMICUS CURIAE) ____________ A 26
ORDER MAKING GOVERNOR BARNETT
A PARTY __________________________________ A 30
TEMPORARY RESTRAINING ORDER (ON
MOTION OF APPELLANT) ________________ A 31
ORDER REQUIRING ROSS R. BARNETT
TO SHOW CAUSE WHY HE SHOULD NOT
BE HELD IN CIVIL CONTEMPT (ON
MOTION OF AMICUS CURIAE) ___________ A 33
ORDER REQUIRING GOVERNOR
BARNETT TO SHOW CAUSE WHY HE
SHOULD NOT BE HELD IN CIVIL
CONTEMPT (ON MOTION OF
APPELLANT) ______________________________ A 35
ORDER REQUIRING PAUL B. JOHNSON,
JR. TO SHOW CAUSE WHY HE SHOULD
NOT BE HELD IN CIVIL CONTEMPT (ON
MOTION OF AMICUS CURIAE) ___________ A 36
Page
aiv
FINDINGS OF FACT AND CONCLUSIONS
OF LAW AND JUDGMENT OF CIVIL
CONTEMPT ________________________________ A 38
FINDINGS OF FACT, CONCLUSIONS OF
LAW AND JUDGMENT OF CIVIL
CONTEMPT AGAINST
PAUL B. JOHNSON, JR. __________________ A 41
ORDER DISMISSING CONTEMPT
CITATION AGAINST TRUSTEES _________ A 45
ORDER CONTINUING HEARING ON
MOTION FOR PRELIMINARY
INJUNCTION ______________________________ A 46
ORDER AND JUDGMENT ON THE
MOTION OF THE STATE OF MISSISSIPPI
TO DISSOLVE THE TEMPORARY
RESTRAINING ORDER ___________________ A 46
ORDER OF THE U. 8. DISTRICT COURT
FOR THE SOUTHERN DISTRICT
OF MISSISSIPPI
ORDER GRANTING PERMANENT
INJUNCTION _____________________________ A 56
EXCERPT OF MINUTES OF BOARD OF
TRUSTEES OF STATE INSTITUTIONS
OF HIGHER LEARNING
September 25, 1962 __________________________ A 59
Page
A P P E N D I X
The Constitution of the United States
Article III, §2, Clause 2:
In all Cases affecting Ambassadors, other public Mini
sters and Consuls, and those in which a State shall be
Party, the Supreme Court shall have original Jurisdic
tion. In all the other Cases before mentioned, the Su
preme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
Article IV, §4:
The United States shall guarantee to every state in
this union a republican form of government, and shall
protect each of them against invasion and on application
of the legislature, or of the executive (when the legisla
ture cannot be convened) against domestic violence.
Amendment V :
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due pro
cess of law; nor shall private property be taken for
public use, without just compensation.
Amendment X :
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
A2
Amendment X I :
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.
United States Code
Title 18:
§401. A court of the United States shall have power to
punish by fine or imprisonment, at its discretion, such
contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so
near thereto as to obstruct the administration of
justice;
(2) Misbehavior of any of its officers in their official
transactions;
(3) Disobedience or resistance to its lawful writ, pro
cess, order, rule, decree, or command. June 25,
1948, c. 645, 62 Stat. 701.
§402. Contempts constituting crimes.
Any person, corporation or association willfully dis
obeying any lawful writ, process, order, rule, decree, or
command of any district court of the United States or
any court of the District of Columbia, by doing any act
or thing therein, or thereby forbidden, if the act or thing
so done be of such character as to constitute also a crim
inal offense under any statute of the United States or
under the laws of any State in which the act was com
mitted, shall be prosecuted for such contempt as pro
vided in section 3691 of this title and shall be punished
by fine or imprisonment, or both.
A3
Sucli fine shall be paid to the United States or to the
complainant or other party injured by the act constitut
ing the contempt, or may, where more than one is so
damaged, be divided or apportioned among them as the
court may direct, but in no case shall the fine to be paid
to the United States exceed, in case the accused is a
natural person, the sum of $1,000, nor shall such im
prisonment exceed the term of six months.
This section shall not be construed to relate to con
tempts committed in the presence of the court, or so
near thereto as to obstruct the administration of justice,
nor to contempts committed in disobedience of any law
ful writ, process, order, rule, decree, or command entered
in any suit or action brought or prosecuted in the name
of, or on behalf of, the United States, but the same, and
all other cases of contempt not specifically embraced in
this section may be punished in conformity to the pre
vailing usages at law. June 25, 1948, c. 645, 62 Stat. 701,
amended May 24, 1949, c. 139, §8(c), 63 Stat. 90.
Title 28:
§547. Powers and duties generally; supervision by At
torney General.
(a) The United States marshal of each district shall
be the marshal of the district court and of the court of
appeals when sitting in his district, and of the Customs
Court holding sessions in his district elsewhere than in
the Southern and Eastern Districts of New York, and
may, in the discretion of the respective courts, be re
quired to attend any session of court,
(b) He shall execute all lawful writs, process and
orders issued under authority of the United States, and
command all necessary assistance to execute his duties.
A4
(c) The Attorney General shall supervise and direct
marshals in the performance of public duties and account
ing for public moneys. Each marshal shall report his
official proceedings, receipts and disbursements and the
condition of his office as the Attorney General directs.
§713. Criers, bailiffs and messengers.
(d) The United States marshal of the district in which
a court of appeals is sitting or in which a circuit judge is
present in chambers, may, with the approval of the court
or judge, employ necessary bailiffs. Such bailiffs shall
attend the court, preserve order, and perform such other
necessary duties as the court, judge or marshal may
direct. They shall receive the same compensation as
bailiffs employed for the district courts. June 25, 1948,
c. 646, 62 Stat. 920, as amended May 24, 1949, c. 139,
§75, 63 Stat. 100.
§1254. Courts of appeals; certiorari; appeal; certified
questions.
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of
any party to any civil or criminal case, before or after
rendition of judgment or decree.
§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, the United States District Court for the
District of the Canal Zone, the District Court of Guam,
and the District Court of the Virgin Islands, except
where a direct review may be had in the Supreme Court.
As amended Oct. 31, 1951, c. 655, §48, 65 Stat. 726; July
7, 1958, Pub. L. 85-508, §12(e), 72 Stat. 348.
A;5
§1345. United States as plaintiff.
Except as otherwise provided by act of congress, the
district courts shall have original jurisdiction of all civil
actions, suits or proceedings commenced by the United
States, or by any agency or officer thereof expressly
authorized to sue by act of congress.
§1391. Venue generally.
(b) A civil action wherein jurisdiction is not founded
solely on diversity of citizenship may be brought only
in the judicial district where all defendants reside, ex
cept as otherwise provided by law.
§1404. Change of venue.
(a) For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any
civil action to any other district or division where it
might have been brought.
§2071. Rule-making power generally.
The Supreme Court and all courts established by Act
of Congress may from time to time prescribe rules for
the conduct of their business. Such rules shall be con
sistent with Acts of Congress and rules of practice and
procedure prescribed by the Supreme Court. June 25,
1948, c. 646, 62 Stat. 961; May 24, 1949, c. 139, §102, 63
Stat. 104.
§2101. Supreme Court; time for appeal or certiorari;
docketing; stay.
(c) Any other appeal or any writ of certiorari in
tended to bring any judgment or decree in a civil action,
suit or proceeding before the Supreme Court for review
shall be taken or applied for within ninety days after
the entry of such judgment or decree. A justice of the
A6
Supreme Court, for good cause shown, may extend the
time for applying for a writ of certiorari for a period
not exceeding sixty days.
§2281. Injunction against enforcement of State statute;
three-judge court required.
An interlocutory or permanent injunction restraining
the enforcement, operation or execution of any State
statute by restraining the action of any officer of such
State in the enforcement or execution of such statute or
of an order made by an administrative board or commis
sion acting under State statutes, shall not be granted
by any district court or judge thereof upon the ground
of the unconstitutionality of such statute unless the ap
plication therefor is heard and determined by a district
court of three judges under section 2284 of this title.
June 25, 1948, c. 646, 62 Stat. 968.
§2403. Intervention by United States; constitutional
question.
In any action, suit or proceeding in a court of the
United States to which the United States or any agency,
officer or employee thereof is not a party, wherein the
constitutionality of any Act of Congress affecting the
public interest is drawn in question, the court shall
certify such fact to the Attorney General, and shall per
mit the United States to intervene for presentation of
evidence, if evidence is otherwise admissible in the case,
and for argument on the question of constitutionality.
The United States shall, subject to the applicable pro
visions of law, have all the rights of a party and be
subject to all liabilities of a party as to court costs to
the extent necessary for a proper presentation of the
facts and law relating to the question of constitution
ality. June 25, 1948, c. 646, 62 Stat. 971.
A7
Title 42 :
§1983. Civil action for deprivation of rights.
Every person who, under color of any statute, ordi
nance, regulation, custom, or usage, of any State or Ter
ritory, subjects, or causes to be subjected, any citizen
of the United States or other person within the juris
diction thereof to the deprivation of any rights, privi
leges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for re
dress.
Rules of the
U. 8. Court of Appeals
For the Fifth Circuit.
Rule 8. Practice
Where not fixed by statute or rule the practice shall
be that heretofore customarily followed in this court.
Rule 9. Process
All process of this court shall be in the name of the
President of the United States, and shall be in like form
and tested in the same manner as process of the Supreme
Court.
Rule 10. Appeals in Civil Actions
1. Federal Rules of Civil Procedure, adopted by the
Supreme Court pursuant to Act of June 19, 1934, as
amended Oct. 1, 1947, Nos. 46, 50, 51, 73, 74, 75, and 76,
are adopted as rules of this court in cases to which they
apply.
A8
Federal Rules of Civil Procedure
Rule 4. Process
(f) Territorial Limits of Effective Service. All pro
cess other than a subpoena may be served anywhere
within the territorial limits of the state in which the
district court is held and, when a statute of the United
States so provides, beyond the territorial limits of that
state. A subpoena may be served within the territorial
limits provided in Rule 45.
Rule 24. Intervention
(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an action:
(1) when a statute of the United States confers an un
conditional right to intervene; or (2) when the repre
sentation of the applicant’s interest by existing parties
is or may be inadequate and the applicant is or may be
bound by a judgment in the actions; or (3) when the
applicant is so situated as to be adversely affected by a
distribution or other disposition of property which is in
the custody or subject to the control or disposition of
the court or an officer thereof. As amended Dec. 27,
1946, eff. March 19, 1948.
(b) Permissive Intervention. Upon timely application
anyone may be permitted to intervene in an action:
(1) when a statute of the United States confers a con
ditional right to intervene; or (2) when an applicant’s
claim or defense and the main action have a question of
law or fact in common. When a party to an action relies
for ground of claim or defense upon any statute or
executive order administered by a federal or state gov
ernmental officer or agency or upon any regulation,
order, requirement, or agreement issued or made pur
A9
suant to the statute or executive order, the officer or
agency upon timely application may be permitted to
intervene in the action. In exercising its discretion the
court shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties. As amended Dec. 27, 1946, eff. March
19, 1948.
(c) Procedure. A person desiring to intervene shall
serve a motion to intervene upon all parties affected
thereby. The motion shall state the grounds therefor and
shall be accompanied by a pleading setting forth the
claim or defense for which intervention is sought. The
same procedure shall be followed when a statute of the
United States gives a right to intervene. When the con
stitutionality of an act of Congress affecting the public
interest is drawn in question in any action to which the
United States or an officer, agency, or employee thereof
is not a party, the court shall notify the Attorney Gen
eral of the United States as provided in Title 28, USC,
§2403. As amended Dec. 29, 1948, eff. Oct. 20, 1949.
Mississippi Constitution of 1890
Articled: Legislative Department
§50. The Governor and all other civil officers of this
state, shall be liable to impeachment for treason, bribery,
or any high crime or misdemeanor in office.
Article 5: Executive
§116. The chief executive power of this state shall be
vested in a governor, who shall hold his office for four
years, and who shall be ineligible as his immediate suc
cessor in office.
§119. The governor shall be commander-in-chief of the
army and navy of the state, and of the militia, except
when they shall be called into the service of the United
States.
§123. The governor shall see that the laws are faithfully
executed.
Article 9: Militia
§217. The governor shall be commander-in-chief of the
militia, except when it is called into the service of the
United States, and shall have power to call forth the
militia to execute the laws, repel invasion and to sup
press riots and insurrections.
Mississippi Code of 1942
§3975. Powers generally.
In addition to the powers conferred and duties im
posed on the governor by the constitution and by the
laws as elsewhere provided, he shall have the powers
and perform the duties following, viz:
(a) He is the supreme executive officer of the state.
(b) He is the commander-in-chief of the militia of
the state, and may call out the militia to execute
the laws, to suppress insurrections or riots, and
to repel invasions.
(c) He shall see that the laws are faithfully executed.
(d) He is to supervise the official conduct of all ex
ecutive and ministerial officers.
(e) He is to see that all offices are filled and the
duties thereof performed, or, in default thereof,
A ll
apply such remedy as the law allows; and if the
remedy be imperfect he shall acquaint the legis
lature therewith at its next session.
(f) He shall make appointments and fill vacancies
as prescribed by law.
(g) Whenever any suit or legal proceeding is pending
which affects the title of the state to any prop
erty, or which may result in any claim against the
state, he may direct the attorney general to ap
pear on behalf of the state and protect its interest.
(h) He may require the attorney general, or disrtiet
attorney of any district, to inquire into the af
fairs or management of any corporation existing
under the laws of this state, or doing business in
this state under the laws thereof.
(i) He may require the attorney general to aid any
district attorney in the discharge of his duties.
(j) He may offer rewards, not exceeding two hun
dred dollars, for escaped insane persons who are
dangerous, and such other rewards as are author
ized by law.
(k) He may require any officer or board to make
special reports to him upon demand in writing.
(1) He shall transact all necessary business with
state officers, shall require them to be present at
their respective offices at all reasonable business
hours, and may require information, in writing,
from any such officer relating to the duties of
his office.
(m) When deemed advisable, upon proceedings for
the arrest of fugitives from justice in this state
A12
from other states or countries, he may commis
sion a special officer to arrest such fugitive in
any part of the state.
(n) He may bring any proper suit affecting the gen
eral public interests in his own name for the
State of Mississippi, if after first requesting the
proper officers so to do, the said officer shall
refuse or neglect to do the same.
§3978. Business with the United States government.
The governor shall transact all the business of the
state, civil and military, with the United States govern
ment, or with any other state or territory, except in
cases otherwise specially provided by law.
§6724. Powers and duties of the hoard.
(a) The board of trustees of state institutions of
higher learning shall succeed to and continue to exer
cise control of all records, books, papers, equipment, and
supplies, and all lands, buildings, and other real and
personal property now or hereafter belonging to or as
signed to the use and benefit of the statutory board of
trustees now supervising and controlling the institutions
of higher learning heretofore named in this act and shall
have and exercise control of the use, distribution and
disbursement of all funds, appropriations and taxes,
now and hereafter in possession, levied and collected,
received, or appropriated for the use, benefit, support,
and maintenance or capital outlay expenditures of the
institutions of higher learning, including the authoriza
tion of employees to sign vouchers for the disbursement
of funds for the various institutions, except where other
wise specifically provided by law.
A13
(Section (b) was amended by HB 403, Laws of 1962
see infra)
(c) The trustees shall exercise all the powers and
prerogatives conferred upon them under the laws estab
lishing and providing for the operation of the several
institutions herein specified; they shall adopt such by
laws and regulations from time to time as they deem
expedient for the proper supervision and control of the
several institutions of higher learning, in so far as such
by-laws and regulations are not repugnant to the con
stitution and laws, and not inconsistent with the object
for which these institutions were established; they shall
have power and authority to prescribe rules and regula
tions for policing the campuses and all buildings of the
respective institutions, to authorize the arrest of all
persons violating on any campus any criminal law of
the state, and to have such law violators turned over to
the civil authorities.
§6726.7. Traffic regulations for campus and streets —
enforcement ■— penalty for violation.
1. The Board of Trustees of State Institutions of
Higher Learning is hereby authorized and empowered
to enact traffic rules and regulations for the control,
direction, parking and general regulation of traffic and
automobiles on the campus and streets of any state insti-
tuion of higher learning under the supervision of such
board.
2. The traffic officers duly appointed by the presi
dent of any state institution of higher learning, or any
peace officer or highway patrolman of this state, are
vested with the powers and authority to perform all
duties incident to enforcing such rules and regulations,
including the arrest of violators.
A14
3. Violation of any rules or regulations promulgated
hereunder shall constitute a misdemeanor, and any per
son charged with such violation in the Justice of the
Peace Court of the district in which violation occurred,
and any person convicted of a violation of any such rule
or regulation may be punished by a fine of not more
than one hundred dollars ($100.00), or by imprisonment
not exceeding thirty days, or by both such fine and im
prisonment.
4. Any rules and regulations promulgated hereunder
shall become effective only after notice of the enactment
of same has been published in three consecutive weekly
issues of the college newspaper and in a newspaper pub
lished and having general circulation in the County or
municipality where the institution to which same pertain
is located, and such notice shall state where the full text
of such rules and regulations may be found on file. And
in addition, such rules and regulations shall be posted on
five bulletin boards at each such institution for a period
of four weeks after their promulgation.
§8082. Powers and duties of patrol.
(a) The powers and duties of the highway safety
patrol shall be, in addition to all others prescribed by
law, as follows:
(1) To enforce all of the traffic laws, rules and regu
lations of the state of Mississippi upon all high
ways of the state highway system and the rights-
of-way of such highways; provided, however, that
if any person commits an offense upon the state
highway system and be pursued by a member of
the highway safety patrol, such patrolman may
pursue and apprehend such offender upon any of
A15
the highways or public roads of this state, or to
any other place to which such offender may flee.
(2) To enforce all rules and regulations of the com
missioner promulgated pursuant to legal author
ity.
(3) When so directed by the governor, to enforce any
of the laws of this state upon any of the highways
or public roads thereof.
(b) The patrolmen of the highway safety patrol shall
not have the power, and shall never be used or ordered,
to perform in the duties or functions properly devolving
upon the organized militia of the state; nor shall the
patrol ever be used in any strike, walkout, lockout, or
other labor controversy or dispute; nor shall they ever
displace or act as deputy, or exercise the authority, of
the peace officers of this state. All fines collected under
the authority of this act, or any other laws enforced by
the highway safety patrol, shall be paid by the officer
collecting same into the county treasury, unless it be
otherwise provided by law. Patrolmen shall have no
interest in any costs in the prosecution of any case
through any court; nor shall any patrolman receive any
fee as a witness in any court upon arrests made by such
patrolmen, and where charges have been preferred
against alleged violators, shall be approved by the regu
larly constituted peace officers in the manner and method
provided by law.
§8576. National Guard—how ordered out.
When the state is threatened with invasion, insurrec
tion, flood, or other catastrophe, or when there exists a
riot, mob, unlawful assembly, breach of the peace or
resistance to the execution of the laws of the state, or
A16
imminent danger thereof, and if in the opinion of the
governor, the civil authorities are unable to repel or
suppress the same, or if the sheriff or judge of the
circuit court of any county, call upon the governor for
the aid of the troops, it shall be the duty of the governor
to order out the Mississippi National Guard, or such
part thereof as he may deem necessary for the purpose.
Provided, that if the troops be ordered into any county
in the aid of civil authorities at the request of the sheriff
or the judge of the circuit court of said county, the gov
ernor shall be the sole judge of the number of troops to
be ordered out on such service, and that the cost of such
service shall be borne by the state.
House Bill 403
Regular Legislative Session of 1962
Section 3.
That Section 8, chapter 262, laws of 1944, as amended
by Section 1, chapter 291, laws of 1960, appearing in
section 6724, Mississippi Code of 1942, be amended to
read as follows:
Section 8. The board shall have general supervision
of the affairs of all the institutions of higher learning;
the departments and the schools; the power in their dis
cretion to determine who shall be privileged to enter, to
remain in, or to graduate therefrom; the conduct of
libraries and laboratories; the care of dormitoi'ies, build
ings, and grounds; the business methods and arrange
ment of accounts and records; the organization of the
administrative plan of each institution; and all other
matters incident to the proper functioning of the insti
tutions. The board shall have the authority to establish
minimum standards of achievement as a prerequisite for
entrance into any of the institutions under its jurisdic
A17
tion, which standards need not be uniform between the
various institutions and may be based upon such criteria
as the board may establish.
Senate Bill 1710
Regular Legislative Session of 1962
Section 1. Section 6706, Mississippi Code of 1942, as
amended by Section 1, Chapter 315, Laws of 1946, is
amended to read as follows:
6706. Police of university and college grounds. Any
act, which, if committed within the limits of a city, town
or village, or in any public place, would be a violation
of the general laws of this state, shall be criminal and
punishable if done on the campus, grounds or roads of
any of the state institutions of higher learning;* and
the peace officers duly appointed by the board of trustees
of state institutions of higher learning are vested with
the powers and subjected to the duties of a constable for
the purpose of preventing and punishing all violations
of law on university or college grounds, and for preserv
ing order and decorum thereon.
(*This section formerly related to the University of
Mississippi alone.)
A18
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 19475
JAMES H. MEREDITH___________________ Appellant
vs.
CHARLES DICKSON PAIR, et a l,_________ Appellees
ORDER DESIGNATING UNITED STATES
OF AMERICA AS AMICUS CURIAE
It appearing from the application of the United States,
filed this day, that the interest of the United States in
the due administration of justice and the integrity of
the processes of its courts should be represented in
these proceedings,
IT IS ORDERED that the United States be desig
nated and authorized to appear and participate as ami
cus curiae in all proceedings in this action before this
Court and by reason of the mandates and orders of this
Court of July 27, 28, 1962, and subsequently thereto, also
before the District Court for the Southern District of
Mississippi to accord each court the benefit of its views
and recommendations, with the right to submit plead
ings, evidence, arguments and briefs and to initiate such
further proceedings, including proceedings for injunctive
relief and proceedings for contempt of court, as may be
appropriate in order to maintain and preserve the due
administration of justice and the integrity of the judicial
processes of the United States.
A19
The marshal is directed to serve a copy of this order
upon each of the parties to this action through their
attorneys.
September 18, 1962
/s / JOHN E. BROWN
Circuit Judge
/s / JOHN MINOR WISDOM
Circuit Judge
/s / GRIFFIN B. BELL
Circuit Judge
O R D E R
This matter is now before this Court on Petitions for
Orders supplementing this Court’s Order of July 28,
1962, to (1) restrain the enforcement of S.B. 1501 en
acted by the State of Mississippi on September 20, 1962;
(2) restrain any compliance with or enforcement of the
injunction issued by the Chancery Court of Jones
County, Mississippi, dated September 19, 1962, which
purports to restrain the petitioners and others from tak
ing any steps to enroll James Meredith as a student in
the University of Mississippi; (3) restrain the arrest of
James Meredith on a conviction had in the Justice of the
Peace Court in Jackson, Mississippi, on September 20,
1962, or any other person, including federal officials, for
the purpose of interfering with the enrollment of James
Meredith to the University of Mississippi pursuant to
this Court’s order.
It appearing that S.B. 1501; the aforesaid injunction
issued by the State Court and the conviction of James
Meredith each constitutes an interference with and ob
struction of this Court’s injunction of July 28, 1962.
A20
Subject to the further orders of this Court, IT IS
ORDERED that the appellees-respondents, their agents,
employees and persons acting in concert with them or
persons having actual notice of this order, including law
enforcement and public officials in Mississippi, State,
County and Municipal, are enjoined and restrained from
(1) enforcing or taking any steps whatever to enforce
the provisions of S.B. 1501 against James Meredith, or
any other persons, including federal officials in con
nection with the admission and continued attendance at
the University of Mississippi of James Meredith.
(2) taking any steps to effectuate the conviction and
sentence on September 20, 1962, in the Justice of the
Peace Court in Jackson, Mississippi, of James Meredith
for false voter registration, including arresting him or
causing him to be arrested; or arresting him or any
other persons including federal officials or taking or
refraining from taking any other action which has the
purpose or effect of interfering with the enrollment of
James Meredith as a student in the University of Mis
sissippi or his continued attendance at the University.
(3) taking or refraining from taking any action to
comply with or to enforce the injunction issued by the
Chancery Court of Jones County, Mississippi, on Sep
tember 19, 1962, in the case of A. L. Meadors, et al, vs.
James Meredith, et al, or any other acts which would
have the purpose or effect of interfering with the enroll
ment and continued attendance of James Meredith as a
student at the University of Mississippi.
(4) This order is not intended to limit the authority
of the District Court to proceed with respect to the mat
ters referred to in paragraphs (1) and (2) of this order.
A21
ORDERED this the 20th day of September 1962.
/ s / JOHN R. BROWN
U. S. CIRCUIT JUDGE
/s / JOHN MINOR WISDOM
U. S. CIRCUIT JUDGE
/s / GRIFFIN B. BELL
U. S. CIRCUIT JUDGE
ORDER REQUIRING CHARLES DICKSON FAIR,
THOMAS JEFFERSON TUBE, ROBERT BRUCE
SMITH, II, HARRY GORDON CARPENTER, TAL
LY D. RIDDELL, JAMES NAPOLEON LIPS
COMB, DR. VERNER SMITH HOLMES, S. R.
EVANS, WILLIAM ORLANDO STONE, MAL
COLM METTE ROBERTS, IRA LAMAR MOR
GAN, EDGAR RAY IZARD, and LEON LOWERY,
to show CAUSE WHY THEY SHOULD NOT BE
HELD IN CIVIL CONTEMPT.
This Court having entered an order on July 28, 1962,
requiring Charles Dickson Fair, Thomas Jefferson Tubb,
Robert Bruce Smith, II, Harry Gordon Carpenter, Tally
D. Riddell, James Napoleon Lipscomb, Dr. Verner Smith
Holmes, S. R. Evans, William Orlando Stone, Malcolm
Mette Roberts, Ira Lamar Morgan, Edgar Ray Izard,
and Leon Lowery to admit the plaintiff, James H. Mere
dith, to the University of Mississippi, under his applica
tions for admission theretofore filed, prohibiting them
from any act of discrimination relating to his admission,
and requiring them to promptly evaluate and approve
his credits without discrimination and on a reasonable
basis in keeping with the standards applicable to trans
fers to the University, and
It appearing from the application of the United States,
amicus curiae, filed this day that each of the defendants
A22
above named lias failed and refused to comply with the
terms of this Court’s order of July 28, 1962, and are
presently persisting in such failure and refusal,
IT IS ORDERED that Charles Dickson Fair, Thomas
Jefferson Tubb, Robert Bruce Smith, II, Harry Gordon
Carpenter, Tally D. Riddell, James Napoleon Lipscomb,
Dr. Verner Smith Holmes, S. B. Evans, William Or
lando Stone, Malcolm Mette Roberts, Ira Lamar Morgan,
Edgar Ray Izard, and Leon Lowery appear personally
before this Court on September 24, 1962, at 11:00 a.m.
o ’clock in the Courtroom of the United States Court of
Appeals for the Fifth Circuit in New Orleans, Louisiana,
to show cause, if any they have, why they should not be
held in civil contempt.
The Court being advised that the District Court for
the Southern District of Mississippi has ordered Robert
Byron Ellis, James Davis Williams, and Arthur Beverly
Lewis to show cause why they should not be held in con
tempt of an order entered by that Court on September
13, 1962, that their acts and conduct alleged to constitute
the contempt are the same as those alleged by the United
States in its application to this Court, and that a hearing
on the alleged contempt is to be held in the District Court
today, the application of the United States as to Robert
Byron Ellis, James Davis Williams, and Arthur Beverly
Lewis is DENIED.
Entered at Hattiesburg, Mississippi, this 21st day of
September, 1962.
/ s / JOHN R. BROWN
Circuit Judge
/s / JOHN MINOR WISDOM
Circuit Judge
/ s / GRIFFIN B. BELL
Circuit Judge
A23
O R D E R
Appellant lias moved this Court for an order directing
each of the appellees to show cause why they should not
be adjudged in contempt of this Court’s order of July
28, 1962. On consideration of that motion, presented to
this Court on this the 22nd day of September 1962, it is
now,
ORDERED that the appellees, Charles Dickson Fair,
President of the Board of Trustees of State Institutions
of Higher Learning of the State of Mississippi, Louis
ville, Mississippi; Euclid Ray Jobe, Executive Secretary
of the Board of Trustees of State Institutions of Higher
Learning of the State of Mississippi, Jackson, Missis
sippi; Edgar Ray Izard, Hazlehurst, Mississippi; Leon
Lowrey, Olive Branch, Mississippi; Ira Lamar Morgan,
Oxford, Mississippi; Malcolm Mette Roberts, Hatties
burg, Mississippi; William Orlando Stone, Jackson, Mis
sissippi; S. R. Evans, Greenwood, Mississippi; Verner
Smith Holmes, McComb, Mississippi; James Napoleon
Lipscomb, Macon, Mississippi; Tally D. Riddell, Quit-
man, Mississippi; Harry Gordon Carpenter, Rolling
Fork, Mississippi; Robert Bruce Smith, II, Ripley, Mis
sissippi and Thomas Jefferson Tubb, West Point, Mis
sissippi, Members of the Board of Trustees of State In
stitutions of Higher Learning; James Davis Williams,
Chancellor of the University of Mississippi, Oxford, Mis
sissippi; Arthur Beverly Lewis, Dean of the College of
Liberal Arts of the University of Mississippi, Oxford,
Mississippi, and Robert Byron Ellis, Registrar of the
University of Mississippi, Oxford, Mississippi, be, and
they hereby are, required to show cause, if they have
any, before this Court in the City of New Orleans, Old
Post Office Building, on the 24th day of September 1962
at 11 0 ’Clock,___A.M. in the forenoon of that day why
A24
they should not be adjudged in contempt of this court’s
order of July 28, 1962.
/ s / JOHN R. BROWN, (JMW)
United States Circuit Judge
/ s / JOHN MINOR WISDOM
United States Circuit Judge
/ s / GRIFFIN B. BELL, (JMW)
United States Circuit Judge
Signed September 22, 1962
ORDER REQUIRING BOARD OF TRUSTEES
TO TAKE CERTAIN ACTIONS
BY THE COURT (en banc)
This cause coming on to be heard on this date the
Court proceeded to hear the testimony and to receive
the evidence offered by the parties to this proceeding
and to hear argument of counsel, whereupon the Presi
dent of the Board of Trustees of Higher Learning an
nounced in open Court on behalf of himself and twelve
Members of the Board that the Board was now ready and
willing to fully perform all things ordered and directed
by the former orders of this Court and Board Member,
Tally B. Riddell, Esquire, through his counsel, announced
that he would comply with the Court’s orders as soon as
he was physically able to do so ; and the Registrar of the
University of Mississippi having announced in open
Court that he would be available in Jackson, Mississippi
not later than 1 :00 P. M. on September 25, 1962, for the
purpose of registering and admitting as a student of the
University of Mississippi James H. Meredith in accord
ance with the orders of this Court, and all of said parties
having requested the Court to inform them of the things
A25
to be done and the action to be performed in compliance
with the orders of the Court, it is therefore ORDERED:
That the respondents shall fully and completely com
ply with all of the terms of the order of this Court dated
July 28, 1962, including, but not limited to, the following:
(a) Revoke and rescind the action of the Board taken
on September 4, 1962, relieving certain named Univer
sity Officials of authority as to the registration and ad
mission of appellant, James H. Meredith, and taking the
said responsibilities and authority unto themselves as a
Board of Trustees.
(b) Revoke and rescind the action of the Board taken
on September 20, 1962, appointing Ross R. Barnett, the
Governor of the State of Mississippi, as the agent of the
Board to act upon all matters pertaining to the registra
tion and admission of James H. Meredith.
(c) Prepare and thereafter without delay send to all
employees on the campus of the University notification
that the orders of this Court are to be complied with in
connection with the registration, admission and attend
ance of James H. Meredith as a student in the Univer
sity.
(d) Instruct James Davis Williams, Chancellor, Ar
thur Beverly Lewis, Dean of the College of Liberal Arts,
and Robert Byron Ellis, Registrar of the University, to
register and receive James H. Meredith for actual ad
mission to, and continued attendance thereafter at, the
University in accordance with the order of this Court of
July 28, 1962.
(e) Registrar, Ellis, shall be available at Jackson,
Mississippi at the office of the defendant, Board of
Trustees, from 1:00 P. M. to 4:00 P. M., September 25,
A26
1962 for the purpose of the registration of the said
James H. Meredith and his actual admission to, and the
continued attendance thereafter at, the University on
the same basis as other students; and if the said James
H. Meredith does not appear during said hours the said
Registrar shall continue to be available at his office at
the University of Mississippi during usual business hours
for the purpose of effecting such registration, admission
and attendance.
Each respondent is directed to notify this Court either
directly or through Charles Clarke, Esquire, not later
than 4:00 P. M., September 25, 1962, as to the actions he
has taken to comply with the foregoing order.
ENTER:
Dated: September 24, 1962.
TEMPORARY RESTRAINING ORDER
This Court having entered its order in this action on
July 28, 1962, and the District Court for the Southern
District of Mississippi having entered a similar order on
September 13, 1962, pursuant to the mandate of this
Court, requiring the defendant officials of the Univer
sity of Mississippi and the defendant members of the
Board of Trustees of the Institutions of Higher Learn
ing of the State of Mississippi to enroll James Howard
Meredith as a student in the University of Mississippi,
and
It appearing from the verified petition of the United
States, Amicus Curiae herein, that the State of Missis
sippi, Ross R. Barnett, Governor of Mississippi, Joe T.
Patterson, Attorney General of Mississippi, T. B. Bird
song, Commissioner of Public Safety of Mississippi,
Paul G. Alexander, District Attorney of Hinds County,
A27
William R. Lamb, District Attorney of Lafayette County,
J. Robert Gilfoy, Sheriff of Hinds County, J. W. Ford,
Sheriff of Lafayette County, William D. Rayfield, Chief
of Police of the City of Jackson, James D. Jones, Chief
of Police of the City of Oxford, Walton Smith, Constable
of the City of Oxford, the classes consisting of all district
attorneys in Mississippi, the classes consisting of the
sheriffs of all counties in Mississippi, the classes con
sisting of all chiefs of police in Mississippi, and the
classes consisting of all constables and town officials in
Mississippi, threaten to implement and enforce, unless
restrained by order of this Court, the provisions of a
Resolution of Interposition adopted by the Mississippi
Legislature, the provisions of Section 4065.3 of the Mis
sissippi Code, and a Proclamation of Ross R. Barnett
invoking the doctrine of interposition with respect to the
enforcement of the orders of this Court in this case; that
Paul G. Alexander has instituted two criminal prosecu
tions against James Howard Meredith on account of the
efforts of James Howard Meredith to enroll in the Uni
versity of Mississippi pursuant to the orders of this
Court; that A. L. Meador, Sr., and the class of persons
he represents, on September 19, 1962, instituted in the
Chancery Court of the Second Judicial District of Jones
County, Mississippi, a civil action against James How
ard Meredith to prevent him from attending the Uni
versity of Mississippi; that on September 20, 1962,
James Howard Meredith, while seeking to enroll at the
University of Mississippi in Oxford, Mississippi, pur
suant to the orders of this Court, was served with a writ
of injunction issued by the Chancery Court of Lafayette
County, Mississippi, at the instance of Ross R. Barnett,
enjoining James Howard Meredith from applying to or
attending the University of Mississippi; that on Septem
A28
ber 20, 1962 the State of Mississippi enacted Senate Bill
1501, the effect of which is to punish James Howard
Meredith should he seek enrollment in the University of
Mississippi; that the effect of the conduct of the defend
ants herein named in implementing the policy of the
State of Mississippi as proclaimed by Boss B. Barnett
will necessarily be to prevent the carrying out of the
orders of this Court and of the District Court for the
Southern District of Mississippi; and that the acts and
conduct of the defendants named in the petition will
cause immediate and irreparable injury to the United
States consisting of the impairment of the integrity of
its judicial processes, the obstruction of the due admini
stration of justice, and the deprivation of rights under
the Constitution and laws of the United States, all before
notice can be served and a hearing had,
IT IS OBDEBED that the State of Mississippi, Boss
B. Barnett, Joe T. Patterson, T. B. Birdsong, Paul G.
Alexander, William B. Lamb, J. Bobert Gilfoy, J. W.
Ford, William D. Bayfield, James D. Jones, Walton
Smith, the class consisting of all district attorneys in
Mississippi, the class consisting of the sheriffs of all
counties in Mississippi, the class consisting of all chiefs
of police in Mississippi, and the class consisting of all
constables and town marshals in Mississippi, their
agents, employees, officers, successors, and all persons
in active concert or participation with them, be tempor
arily restrained from:
1. Arresting, attempting to arrest, prosecuting or in
stituting any prosecution against James Howard Mere
dith under any statute, ordinance, rule or regulation
whatever, on account of his attending, or seeking to at
tend, the University of Mississippi;
A29
2. Instituting or proceeding further in any civil action
against James Howard Meredith or any other persons
on account of James Howard Meredith’s enrolling or
seeking to enroll, or attending the University of Missis
sippi ;
3. Injuring, harassing, threatening or intimidating
James Howard Meredith in any other way or by any
other means on account of his attending or seeking to
attend the University of Mississippi;
4. Interfering with or obstructing by any means or in
any manner the performance of obligations or the enjoy
ment or rights under this Court’s order of July 28, 1962
and the order of the United States District Court for the
Southern District of Mississippi entered September 13,
1962, in this action, and
5. Interfering with or obstructing, by force, threat,
arrest or otherwise, any officer or agent of the United
States in the performance of duties in connection with
the enforcement of, and the prevention of obstruction
to, the orders entered by this Court and the District
Court for the Southern District of Mississippi relating
to the enrollment and attendance of James Howard
Meredith at the University of Mississippi; or arresting,
prosecuting or punishing such officer or agent on ac
count of his performing or seeking to perform such duty.
IT IS FURTHER ORDERED that Paul G. Alexander
and J. Robert Gilfoy be temporarily restrained from
proceeding further, serving or enforcing any process or
judgment, or arresting James Howard Meredith in con
nection with the criminal actions against him in the
Justice of the Peace Court of Hinds County, Mississippi.
IT IS FURTHER ORDERED that A. L. Meador, Sr.,
be temporarily restrained from taking any further action
A30
or seeking to enforce any judgment entered in the case
of A. L. Meador, Sr. v. James Meredith, et al.
IT IS FURTHER ORDERED that Ross R. Barnett
be temporarily restrained from enforcing or seeking to
enforce against James Howard Meredith, any process
or judgment in the case of State of Mississippi, Ex Rel
Ross Barnett, Governor vs. James II. Meredith.
/%/ ELBERT P. TUTTLE
Circuit Judge
/ s / RICHARD T. RIVES
Circuit Judge
/ s / JOHN MINOR WISDOM
Circuit Judge
Signed this 25th day of
September, 1962, at 8 :30 A.M.
O R D E R
Upon the application of appellant which is appended
hereto: It is hereby ordered and decreed that Ross R.
Barnett, Governor of the State of Mississippi is added
as party defendant in this cause in this court.
Service upon the Attorney General of Mississippi
shall constitute service of all of the original parties-
defendants.
Service upon the Governor and the Attorney General
of Mississippi shall be made by the United States Mar
shal.
/ s / ELBERT P. TUTTLE
/ s / RICHARD T. RIVES
/ s / JOHN MINOR WISDOM
United States Circuit Judges
Signed September 25, 1962
A31
TEMPORARY RESTRAINING ORDER
Upon the application of appellant herein, appended
hereto, and made a part hereof, which specifies the irre
parable injury to the appellant, Ross R. Barnett, Gov
ernor of the State of Mississippi, and J. R. Gilfoy,
Sheriff of Hinds County, Mississippi are hereby re
strained and enjoined from taking any actions or doing
any act calculated to or which does interfere with the
admission, registration, or attendance of appellant at
the University of Mississippi.
1. Said Governor and Sheriff are hereby specifically
enjoined from taking any action to enforce or serve the
injunction obtained by the Governor on September 20,
1962 in the Chancery Court of Hinds County, Missis
sippi, First Judicial District, against registration and
attendance of appellant at the University of Mississippi.
2. Said Governor and Sheriff are specifically enjoined
from taking any action to enforce any other injunction
obtained in the State Courts of Mississippi against
appellant, his agents and attorneys, the University of
Mississippi, or any of its officials, or employees, which
has the effect of interfering with the registration, en
rollment, or continued attendance of appellant at the
University of Mississippi.
3. Said Governor and all other officials, agents, or
employees of the State of Mississippi are specifically
enjoined from making application for any future injunc
tions in the state courts of Mississippi, or any other
courts, directed against the appellant, his agents and
attorneys, or officials and employees of the University
of Mississippi, which are designed to impede and ob
struct the registration and attendance of appellant at
the University of Mississippi.
A32
4. Said Governor also is enjoined from ordering the
state police of Mississippi or any state officials, or em
ployees, or other persons, to arrest, obstruct, or other
wise interfere with the freedom of movement of appel
lant.
It is further Ordered that:
1. Governor Ross R. Barnett appear before this Court
in the City of New Orleans, Old Post Office Building, on
October 5, 1962, at 10 O ’Clock,___A.M. and show cause
why he should not be made a party in this case and why
a preliminary injunction should not issue.
2. This temporary restraining order shall apply to the
Governor, his agents, attorneys and any other persons
acting in concert and participation with him or who
shall have actual notice of this order.
3. Service of this order shall be made upon the Gov
ernor and service of this order upon the Attorney Gen
eral of the State of Mississippi shall constitute service
upon the parties to this case and all other officials, em
ployees, or agents of the State of Mississippi. A copy
of this order shall also be served on Thomas Watkins,
attorney for the Governor in the Hinds County injunc
tion action of September 20, 1962 referred to herein.
Service upon the Governor, the Attorney General and
Thomas Watkins shall be made by the United States
Marshal.
There is insufficient time to give notice and to have
a hearing before the issuance of this order. Unless this
order is issued without notice and hearing at this time,
appellant will not be admitted to the University of Mis
A33
sissippi as directed by the orders of this Court resulting
in further irreparable injury to him.
/ s / ELBERT P. TUTTLE
/ s / RICHARD T. RIVES
/ s / JOHN MINOR WISDOM
United States Circuit Judges
Signed 8 :30 a.m.
September 25, 1962
ORDER REQUIRING ROSS R. BARNETT
TO SHOW CAUSE WHY HE SHOULD NOT
BE HELD IN CIVIL CONTEMPT
This Court having entered an order on July 28, 1962,
and the District Court for the Southern District of Mis
sissippi having entered an order pursuant to the mandate
of this Court on September 13, 1962, requiring officials
of the University of Mississippi and the members of the
Board of Trustees of Institutions of Higher Learning of
the State of Mississippi to register and admit James H.
Meredith as a student in the University of Mississippi,
and
This Court having, on September 24, 1962, instructed
Robert B. Ellis, Registrar of the University of Missis
sippi, James Davis Williams, Chancellor of the Univer
sity, Arthur Beverly Lewis, Dean of the College of Lib
eral Arts of the University, and the defendant members
of the Board of Trustees of Institutions of Higher Learn
ing, what action they were required to take in order to
comply with the order of this Court, and having particu
larly directed Robert B. Ellis to be available at Jackson,
Mississippi at the office of the Board of Trustees of
Institutions of Higher Learning from 1 :00 p.m. to 6 :00
p.m. on September 25, 1962 for the purpose of the regis
A34
tration of James H. Meredith and his actual admission
to the University on the same basis as other students,
and this Court having entered a temporary restraining
order at 8 :30 a.m. this day restraining Eoss E. Barnett
from interfering with or obstructing by any means or
in any manner the performance of obligations or the
enjoyment of rights under this Court’s order of July 28,
1962, and the order of the United States District Court
for the Southern District of Mississippi of September
13, 1962, and
It appearing from the verified application of the
United States, amicus curiae herein, that on the after
noon of this day Eoss E. Barnett, having been served
with a copy of the temporary restraining order referred
to above and having actual knowledge of the terms of
that order, deliberately prevented James H. Meredith
from entering the office of the Board of Trustees in
Jackson, Mississippi at a time when James H. Meredith
was seeking to appear before Eobert B. Ellis in order to
register as a student in the University, and that by such
conduct Eoss E. Barnett did wilfully interfere with and
obstruct James H. Meredith in the enjoyment of his
rights under this Court’s order of July 28, 1962 and did
wilfully interfere with and obstruct Eobert B. Ellis in
the performance of his obligations under this Court’s
order of July 28, 1962, all in violation of the terms of the
temporary restraining order entered by the Court this
day,
IT IS OEDEEED that Eoss E. Barnett appear person
ally before this Court on September 28th, 1962 at 10
o ’clock a.m. in the court room of the United States Court
of Appeals for the Fifth Circuit, at 600 Camp Street,
New Orleans, Louisiana, to show cause, if any he has,
A35
why lie should not be held in civil contempt of the tem
porary restraining order entered by the Court this day.
The Marshal is directed to serve a copy of this order
upon Ross R. Barnett, forthwith.
Signed this September 25th, 1962, at 8:20 o ’clock p.m.
/ s / RICHARD T. RIVES
Circuit Judge
/ s / JOHN MINOR WISDOM
Circuit Judge
/ s / WALTER P. HE WIN
Circuit Judge
O R D E R
Appellant has moved this Court for an order directing
Ross R. Barnett, Governor of Mississippi, to show cause
why he should not be adjudged in contempt of orders
issued by this Court in this action. On consideration of
that motion, presented to this Court on the 26th day of
September, it is nowT Ordered:
1. That Governor Ross R. Barnett be, and is, required
to show cause, if he has any, before this Court in the
City of New Orleans, Old Post Office Building, on the
28th day of September 1962 at 10 A.M., why he should
not be adjudged in contempt of the orders issued by this
Court.
2. Service of this order is to be made by United States
Marshal.
/ s / ELBERT P. TUTTLE
United States Circuit Judge
/ s / JOHN R. BROWN
United States Circuit Judge
/ s / JOHN MINOR WISDOM
United States Circuit Judge
Signed September 26, 1962
A36
ORDER REQUIRING PAUL B. JOHNSON, JR.
TO SHOW CAUSE WHY HE SHOULD NOT BE
HELD IN CIVIL CONTEMPT
This Court having entered an order on July 28, 1962,
and the District Court for the Southern District of Mis
sissippi having entered an order pursuant to the man
date of this Court on September 13, 1962, requiring
officials of the University of Mississippi and the mem
bers of the Board of Trustees of Institutions of Higher
Learning of the State of Mississippi to register and
admit James H. Meredith as a student in the University
of Mississippi, and
This Court having entered a temporary restraining
order on September 25, 1962, restraining the State of
Mississippi, Ross R. Barnett, their agents, employees,
officers and successors, together with all persons in
active concert and participation with them, from inter
fering with or obstructing by any means or in any man
ner the performance of obligations or the enjoyment of
rights under this Court’s order of July 28, 1962 and
the order of the United States District Court for the
Southern District of Mississippi of September 13, 1962,
and
It appearing from the verified application of the
United States, amicus curiae herein, that Paul B. John
son, Jr. is an officer and agent of the State of Missis
sippi; that on September 26, 1962, after receiving actual
and constructive notice of the terms of this Court’s tem
porary restraining order of September 25, 1962, and
while acting in concert and active participation with
Ross R. Barnett, he prevented James H. Meredith from
entering the campus of the University of Mississippi in
Oxford, Mississippi, and did thereby prevent James H.
Meredith from enrolling in and attending the Univer
A37
sity, all for the purpose of interfering with and obstruct
ing James H. Meredith in the enjoyment of rights, and
preventing and obstructing the officials of the Univer
sity and the Board of Trustees of Institutions of Higher
Learning from performing obligations under this Court’s
order of July 28,1962, and the order of the United States
District Court for the Southern District of Mississippi
of September 13, 1962,
IT IS ORDERED that Paul B. Johnson, Jr. appear
personally before this Court on September 29, 1962, at
10 o ’clock a.m. in the court room of the United States
Court of Appeals for the Fifth Circuit at 600 Camp
Street, New Orleans, Louisiana, to show cause, if any
he has, why he should not be held in civil contempt of
the temporary restraining order issued by this Court
on September 25, 1962.
The Marshal is directed to serve a copy of this order
upon Paul B. Johnson, Jr. forthwith.
Signed this September 26, 1962, at 5 o ’clock p.m.
/ s / RICHARD T. RIVES
Circuit Judge
/ s / JOHN R. BROWN
Circuit Judge
/ s / JOHN MINOR WISDOM
Circuit Judge
A38
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND JUDGMENT OF CIVIL CONTEMPT.
Before TUTTLE, Chief Judge, and HUTCHESON,
RIVES, JONES, BROWN, WISDOM, GEWIN and
BELL, Circuit Judges.
This Court having on September 25, 1962 issued orders
requiring Ross R. Barnett to appear before this Court
today at 10:00 A. M., to show cause, if any he has, why
he should not be held in civil contempt of the temporary
restraining orders entered in this action on September
25, 1962, and Ross R. Barnett having been given notice
of the orders to show cause, and it having been regularly
called on the calendar for hearing at 10:00 A. M. this
day, and Ross R. Barnett having failed to appear or
respond in person or by counsel, and having failed to
deny the factual statements contained in the verified
application of the United States, and of the appellant
and
The Court having heard and received evidence on be
half of the United States and of the appellant, and hav
ing deliberated and considered the legal issues involved,
now renders its Findings of Fact and Conclusions of
Law and Judgment as follows:
FINDINGS OF FACT
1. Since this Court entered its order of July 28, 1962,
and the District Court for the Southern District of Mis
sissippi entered its order on September 13, 1962, requir
ing the admission of James H. Meredith to the Univer
sity of Mississippi, Ross R. Barnett, as Governor of the
State of Mississippi, has issued a series of proclama
tions calling upon all officials of the state to prevent
and obstruct the carrying out of the Court’s orders with
respect to the admission of James H. Meredith to the
University. Two of these proclamations were issued by
A39
Boss R. Barnett on September 24, and September 25,
1962.
2. On September 25, 1962, this Court entered its tem
porary restraining orders restraining Boss B. Barnett
from interfering with or obstructing in any manner or
by any means the enjoyment of rights or the perform
ance of obligations under this Court’s order of July 28,
1962 and the order of the District Court of September
13, 1962.
3. At approximately 4 :30 P. M. on September 25, 1962,
Ross B. Barnett, having full knowledge of the existence
and terms of this Court’s temporary restraining orders,
went to the office of the Board of Trustees of Institu
tions of Higher Learning in Jackson, Mississippi at a
time when James H. Meredith was due to appear at the
office and be enrolled as a student in the University of
Mississippi, pursuant to the order of this Court. When
James H. Meredith arrived at the office and sought to
enter for the purpose of enrolling, Boss B. Barnett
deliberately prevented him from entering and told him
that his application for enrollment was denied by Ross
B. Barnett.
4. On September 26, 1962, James H. Meredith sought
to enter the campus of the University of Mississippi in
Oxford, Mississippi. He was prevented from entering
by Paul B. Johnson, Jr., Lieutenant Governor of the
State of Mississippi, acting pursuant to the instructions
and under the authorization of Ross R. Barnett.
5. The conduct of Ross B. Barnett in preventing
James H. Meredith from enrolling as a student in the
University of Mississippi has been with the deliberate
and announced purpose of preventing compliance with
the orders of this and other federal courts.
A40
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the person of Loss
E. Barnett.
2. Eoss E. Barnett is in contempt of the temporary
restraining orders entered by this Court on September
25, 1962.
JUDGMENT OF CIVIL CONTEMPT
Upon the foregoing findings of fact and conclusions
of law:
IT IS OEDEEED, ADJUDGED AND DECEEED
THAT:
Eoss E. Barnett is in civil contempt of the temporary
restraining orders of this Court entered September 25,
1962; that such contempt is continuing; and that Eoss
E. Barnett shall be committed to and remain in the
custody of the Attorney General of the United States and
shall pay a fine to the United States of $10,000. per day
unless on or before Tuesday, October 2nd, 1962 at 11:00
a. m. he shows to this Court that he is fully complying
with the terms of the restraining orders, and that he
has notified all law enforcement officers and all other
officers under his jurisdiction or command:
(a) To cease forthwith all resistance to and inter
ference with the orders of this Court and the District
Court for the Southern District of Mississippi;
(b) To maintain law and order at and around the
University and to cooperate with the officers and
agents of this Court and of the United States in the
execution of the orders of this Court and of the Dis
trict Court for the Southern District of Mississippi to
the end that James H. Meredith be permitted to regis
A41
ter and remain as a student at the University of Mis
sissippi under the same conditions as apply to all other
students.
Nothing herein shall prevent a later assertion of a
charge of criminal contempt against Respondent.
Jurisdiction is hereby reserved for such other and
further orders as may be appropriate.
Judges Jones, Gewin and Bell dissent from that por
tion of the judgment imposing a fine upon the Bespond
ent.
Signed September 28, 1962
FINDING OF FACT, CONCLUSIONS OF LAW
AND JUDGMENT OF CIVIL CONTEMPT
AGAINST PAUL B. JOHNSON, JR.
Before RIVES, BROWN and WISDOM, Circuit Judges.
This Court having entered an order on September 26,
1962, requiring Paul B. Johnson, Jr. to appear before
this Court today at 10:00 A. M. to show cause, if any
he has, why he should not be held in civil contempt of
the temporary restraining order entered in this action
upon application of the United States on September 25,
1962, and Paul B. Johnson, Jr., having been given notice
of the order to show cause and it having been regularly
called on the calendar for hearing at 10:00 A. M. this
day, and Paul B. Johnson, Jr. having failed to appear
or respond, in person or by counsel, and having failed
to deny the factual statements contained in the verified
application of the United States, and
The Court having heard and received evidence on be
half of the United States and having deliberated and
considered the legal issues involved, now renders its
A42
findings of fact, conclusions of law and judgment as
follows:
FINDINGS OF FACT
1. On September 25, 1962 this Court entered its tem
porary restraining order upon application of the United
States, amicus curiae herein, restraining the State of
Mississippi, Ross R. Barnett, their agents, employees,
officers and successors, together with all persons in
active concert or participation with them, from inter
fering with or obstructing in any manner or by any
means the enjoyment of rights or the performance of
obligations under this Court’s order of July 28, 1962 and
the order of the District Court of September 13, 1962.
2. The temporary restraining order of September 25,
1962 was served upon the State of Mississippi through
its designated agent Joe T. Patterson, the Attorney Gen
eral of the State of Mississippi, on September 25, 1962
and was served on Ross R. Barnett on September 25,
1962.
3. On September 26, 1962, Paul B. Johnson, Jr., acting
as an officer and agent of the State of Mississippi and as
an agent of and in active concert and participation with
Ross R. Barnett, prevented James II. Meredith from
entering the campus of the University of Mississippi at
Oxford, Mississippi at a time when James H. Meredith
was seeking to so enter for the purpose of enrolling as
a student in the University pursuant to the orders of
this Court of July 28, 1962 and the order of the District
Court of September 13, 1962.
The conduct of Paul B. Johnson, Jr., in preventing
James H. Meredith from entering the campus of the
University of Mississippi and from enrolling as a stu
A43
dent in the University was with the deliberate and an
nounced purpose of preventing compliance with the
orders of this and other federal courts.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the person of Paul
B. Johnson, Jr.
2. Paul B. Johnson, Jr. is in contempt of the tempor
ary restraining order of September 25, 1962.
JUDGMENT OF CIVIL CONTEMPT
Upon the foregoing findings of fact and conclusions
of law,
IT IS ORDERED, ADJUDGED AND DECREED
that:
Paul B. Johnson, Jr. is in civil contempt of the tem
porary restraining order of this Court entered on Sep
tember 25, 1962 upon application of the United States,
amicus curiae; that such contempt is continuing, and
that Paul B. Johnson, Jr. shall pay a fine to the United
States of $5,000.00 per day, unless on or before October
2, 1962 at 11:00 a. m. he shows to this Court that from
and after the time of the issuance of this order he has
been, and is, in full compliance with the terms of the
restraining order, that he intends to do so in the future
and that he will, during any periods of time that he is
acting for or on behalf of, or in the name, place or stead
of, or with the authority or power of, or as Governor of
the State of Mississippi, notify all law enforcement offi
cers and all other officers under his jurisdiction or
command:
(a) To cease forthwith all resistance to and inter
ference with the orders of this Court and the District
Court for the Southern District of Mississippi;
A44
(b) To maintain law and order at and around the
University and to cooperate with the officers and
agents of this Court and of the United States in the
execution of the orders of this Court and of the Dis
trict Court for the Southern District of Mississippi
to the end that James H. Meredith shall be permitted
to register and remain as a student at the University
of Mississippi under the same conditions as apply to
all other students.
In the event that Paul B. Johnson, Jr. while acting for,
or on behalf of, or in the name, place or stead of, or with
the authority or power of, or as Governor of the State
of Mississippi fails at any time to take the steps set
forth in sub-paragraphs (a) and (b) he shall, on a find
ing of such fact by the Court, be committed to the cus
tody of the Attorney General and shall pay a fine to
the United States of $10,000 per day, such daily fine
and imprisonment to continue during such period as he
fails to purge himself of such contempt.
Nothing herein shall prevent a later assertion of a
charge of criminal contempt against Respondent.
Jurisdiction is hereby reserved for such other and
further orders as may be appropriate.
September 29, 1962
/ s / RICHARD T. RIVES
/s / JOHN R. BROWN
/s / JOHN MINOR WISDOM
Circuit Judges
A45
O R D E R
Before TUTTLE, Chief Judge, HUTCHESON, RIVES,
JONES, BROWN, WISDOM, GEWIN, and BELL, Cir
cuit Judges, en banc.
BY THE COURT:
From the testimony heard on the 24th day of Septem
ber, 1962, and from the reports of this Court made pur
suant to its order of that date, it appears to the satis
faction of the Court:
1. That John Davis Williams, Chancellor, Arthur
Beverly Lewis, Dean of the College of Liberal Arts,
Robert Byron Ellis, Registrar of the University and
E. R. Jobe, Executive Secretary of the Board of Trustees
of Higher Learning have at no time been, and are not
in civil contempt of any judgment or order of this Court.
2. That on September 24th, 1962, the President and
all members of the Board of Trustees of Higher Learn
ing, including board member Tally D. Riddell, Esq.,
through his counsel, announced in open Court that they
would thereafter perform all things ordered and directed
by — and would comply with this Court’s orders, and
that each of them has since said date acted in compliance
with this Court’s orders.
It is now, therefore, Ordered and Adjudged:
A. That John Davis Williams, Chancellor, Arthur
Beverly Lewis, Dean of the College of Liberal Arts,
Robert Byron Ellis, Registrar of the University, and
E. R. Jobe, Executive Secretary of the Board of Trustees
of Higher Learning, have not been and are not guilty
of civil contempt of this Court.
B. That the Court does not enter a judgment of civil
contempt insofar as the President or any of the members
A46
of the Board of Trustees of Higher Learning, are con
cerned and does vacate and dismiss the citation for civil
contempt as to the President and each of the members
of the Board of Trustees of Higher Learning.
Signed October 2, 1962
O R D E R
Before TUTTLE, Chief Judge, HUTCHESON, RIVES,
JONES, BROWN, WISDOM, GEWIN, and BELL, Cir
cuit Judges, en banc.
BY THE COURT:
The matter of the entry of further orders as to civil
contempt insofar as concerns Governor Ross R. Barnett
or Lieutenant Governor Paul B. Johnson, Jr., the motion
for preliminary injunction and all other motions or mat
ters in this cause are set for hearing in the courtroom
at New Orleans, Louisiana at 11:00 o ’clock A.M. on
Friday, October 12, 1962.
The restraining order heretofore issued by this Court
shall remain in full force and effect until such time.
Signed October 2, 1962
ORDER AND JUDGMENT ON THE MOTION
OF THE STATE OF MISSISSIPPI TO DIS
SOLVE THE TEMPORARY RESTRAINING OR
DER OF SEPTEMBER 25, 1962, TO DISMISS
THE CONTEMPT PROCEEDINGS AGAINST
ROSS R. BARNETT and PAUL B. JOHNSON,
JR., and ORDER AND JUDGMENT ON MO
TION OF APPELLANT and UNITED STATES
OF AMERICA, AMICUS CURIAE, PETITION
ER, FOR PRELIMINARY INJUNCTION.
This matter came on for hearing on October 12, 1962,
pursuant to an order to show cause why a preliminary
injunction should not be granted against the named
A47
Respondents, and on a motion subsequently filed by the
State of Mississippi to dissolve the temporary restrain
ing order entered by this Court on September 25, 1962,
and to dismiss the pending contempt proceedings which
had resulted in a judgment of this Court finding
respondent, Ross R. Barnett, guilty of civil contempt.
The United States, Amicus Curiae, by designation of
the Court, as petitioner herein, named all of the respond
ents whose names are included in the caption of this
order. The appellant named some but not all of the said
respondents but did not name the State of Mississippi
as a party.
Petitioners introduced oral testimony and documentary
evidence which fully sustained the allegations of the
petition. Respondents all appeared by counsel. Neither
the State of Mississippi nor any other respondent made
any factual showing in an effort to contradict the alle
gations of fact or the testimony tendered on behalf of
petitioners supporting said allegations. The respond
ents contend that these petitions for injunction, as well
as the petitions for temporary restraining order against
the parties herein named undertook to make additional
parties in an equity cause on appeal. As to which none
of said parties had had an opportunity to contest the
judgment of the trial court or the judgment of this
Court which resulted in the injunction of July 28, 1962.
Those judgments required the defendants in the original
complaint, the administrative officials and the Board of
Trustees of the University of Mississippi to admit James
H. Meredith as a student and to permit his continued
attendance as a student on the same basis as all other
students.
The posture of this case at the time these motions for
preliminary injunction and the accompanying motions
A48
for temporary restraining order were filed, is that this
Court had issued its injunction, above referred to, pro
hibiting the officials of the University and the Trustees
of the State Institutions of Higher Learning of the State
of Mississippi from interfering with the admission of
James H. Meredith and his continuance as a student in
the University of Mississippi, and also prohibiting cer
tain of the defendants now before the Court from fur
ther prosecuting criminal proceedings against the said
Meredith; whereupon, it was alleged in the petition of
the United States, the State of Mississippi, through its
official state policy, pursuant to actions of its Legisla
ture, and through the actions of its Governor by procla
mation, and all of the other respondents, were then
engaged in actively frustrating the execution of this
Court’s injunction against the officials of the University.
These proceedings, therefore, are purely ancillary to
the original lawsuit, and this Court has ample power to
proceed against any party, including the State of Mis
sissippi, which is shown to be engaged in a wilful, inten
tional effort to frustrate this Court’s injunction.
The motion to dissolve the restraining order and the
motion to dismiss the contempt proceedings by the
Respondents are, therefore, DENIED.
The ruling just stated equally disposes of the conten
tion made by the respondents that this Court is now
powerless to issue the preliminary injunction. We,
therefore, hold that the Court has the power to issue this
injunction against the persons not previously named as
defendants in the main suit to prevent their active inter
ference with this Court’s prior injunctions.
The evidence adduced before this Court, neither at
tacked by respondents nor contended by them to be
A49
legally insufficient to warrant the granting of the relief
sought, establishes the following facts:
The State of Mississippi, Eoss B. Barnett, Governor
of Mississippi, Joe T. Patterson, Attorney General of
Mississippi, T. B. Birdsong, Commissioner of Public
Safety of Mississippi, Paul G. Alexander, District At
torney of Hinds County, William E. Lamb, District
Attorney of Lafayette County, J. Eobert Gilfoy, Sheriff
of Hinds County, J. W. Ford, Sheriff of Lafayette
County, William D. Bayfield, Chief of Police of the City
of Jackson, James D. Jones, Chief of Police of the City
of Oxford, Walton Smith, Constable of the City of Ox
ford, threaten to implement and enforce, unless re
strained by order of this Court, the provisions of a Beso-
lution of Interposition adopted by the Mississippi Legis
lature, the provisions of Section 4065.3 of the Mississippi
Code, and a Proclamation of Boss B. Barnett invoking
the doctrine of interposition with respect to the enforce
ment of the orders of this Court in this case; that Paul
G. Alexander has instituted two criminal prosecutions
against James Howard Meredith on account of the ef
forts of James Howard Meredith to enroll in the Uni
versity of Mississippi pursuant to the orders of this
Court. On September 28, 1962, James H. Meredith was
tried in absentia by the Justice of the Peace of Hinds
County, Mississippi, and convicted on the charge by
Paul Alexander that Meredith had falsely secured regis
tration as a voter of Hinds County, when he was in fact
a resident of Attala County, and for which he was
assessed a penalty of imprisonment for one year and a
fine of $300. On September 20, 1962 James Howard
Meredith, while seeking to enroll at the University of
Mississippi in Oxford, Mississippi, pursuant to the orders
of this Court, was served with a writ of injunction issued
A50
by the Chancery Court of Lafayette County, Mississippi,
at the instance of Ross R, Barnett, enjoining James
Howard Meredith from applying to or attending the
University of Mississippi, and to which Meredith and
his attorneys are required to show cause on the 4th day
of November, 1962, why this injunction should not be
made permanent. On September 20, 1962, Ross R. Barn
ett, the Governor of the State of Mississippi secured an
injunction in the Chancery Court of Hinds County
against Meredith and his attorneys enjoining them from
proceeding to secure the registration, admission and
continued attendance of Meredith as a student at the
University of Mississippi to which Meredith has been
ordered to show cause on the fourth Monday in October,
1962, why the injunction should not continue. Likewise
on September 20, 1962, on application of Ross R. Barnett,
Governor of the State of Mississippi, the Chancery
Court of Hinds County issued an injunction against the
Board of Trustees of the State Institutions of Higher
Learning enjoining it from admitting Meredith to the
University of Mississippi. On September 20, 1962, the
State of Mississippi enacted Senate Bill 1501, the effect
of which is to punish James Howard Meredith should
he seek enrollment in the University of Mississippi;
that on October 3 and 5, 1962, respectively, the House
and Senate of the Mississippi Legislature adopted House
Concurrent Resolution No. 18, calling for the redress of
grievances, including the removal of Meredith from the
University, removal of all Federal Marshals and troops;
that on September 28, 1962, House Bill #2, Laws of
Mississippi, 1962, Extraordinary Session, was enacted,
providing that all acts, words and conduct performed
by any state officer in keeping Mississippi Institutions
of Higher Learning segregated are adopted as the Acts
A51
of the sovereign state of Mississippi and not the acts of
such individuals; that the effect of the conduct of the
defendants herein named in implementing the policy of
the State of Mississippi as proclaimed by Ross R.
Barnett will necessarily be to prevent the carrying out
of the orders of this Court and of the District Court for
the Southern District of Mississippi; and that the acts
and conduct of the defendants named in the petition will
cause immediate and irreparable injury to the appellant
Meredith and to the United States consisting of the im
pairment of the integrity of its judicial processes, the
obstruction of the due administration of justice, and the
deprivation of rights under the Constitution and laws of
the United States unless prevented by an order of the
Court,
IT IS NOW THEREFORE ORDERED that the
State of Mississippi, Ross R. Barnett, Joe T. Patterson,
T. B. Birdsong, Paul G. Alexander, William R. Lamb,
J. Robert Gilfoy, J. W. Ford, William D. Rayfield,
James D. Jones, Walton Smith, their agents, employees,
officers, successors, and all persons in active concert or
participation with them who shall receive actual notice
of this injunction by personal service or otherwise, be
enjoined until the further order of this Court from:
1. Arresting, attempting to arrest, prosecuting or
instituting any prosecution against James Howard Mere
dith under any statute, ordinance, rule or regulation
whatever, on account of his attending, or seeking to at
tend, the University of Mississippi; without limiting the
generality of the foregoing, this shall include:
(a) Proceeding to arrest the appellant pursuant to
the conviction of appellant on September 20, 1962, in
the case of State of Mississippi v. Meredith, Case No.
A52
15-242, filed May 28, 1962, in the Justice of the Peace
Court, Fifth Supervisors District of Hinds County,
Mississippi, and from taking any action to enforce the
judgment of conviction against the appellant in this
case.
(b) Proceeding with the prosecution of appellant in
State of Mississippi v. Meredith, Case No. 16-307,
filed September 14, 1962, charging appellant with a
felony and alleging that he falsely secured his regis
tration as a voter in Hinds County.
(c) Commencing any other prosecutions or taking
any action or doing any act to further prosecute the
appellant for allegedly securing his registration as a
voter in Hinds County.
2. Instituting or proceeding further in any civil action
against James Howard Meredith or any other persons
on account of James Howard Meredith’s enrolling or
seeking to enroll or attending the University of Missis
sippi; without limiting the generality of the foregoing
this includes:
(a) Taking any action or doing any act to enforce
or serve the injunction order obtained on the 20th day
of September, 1962, in the Chancery Court of Hinds
County, Mississippi, by the Governor of the State of
Mississippi, Ross R. Barnett, against the appellant
and his attorneys in the case of State of Mississippi,
ex rel, Ross Barnett v. Meredith, Complaint No.
62,000 filed September 20, 1962.
(b) Taking any action or doing any act to enforce
or serve the injunction order obtained by the Governor
of the State of Mississippi in the Chancery Court of
Lafayette County, Mississippi, against the appellant
and his attorneys in the case of State of Mississippi,
A53
ex rel. Ross R. Barnett v. Meredith, Complaint No.
A-654, filed September 20, 1962.
(c) Taking any action or doing any act to serve or
enforce the injunction issued against the appellee
Board of Trustees of State Institutions of Higher
Learning by the Chancery Court of Hinds County on
September 20, 1962, upon the application of Ross R.
Barnett, Governor of the State of Mississippi.
(d) Taking any action or doing any act to secure
any further or additional state court injunctions
against the appellant, his attorneys, the Board of
Trustees of State Institutions of Higher Learning, or
any official of the University of Mississippi which are
designed to or which have the effect of interfering
with the continued attendance of appellant as a stu
dent at the University of Mississippi.
3. Injuring, harassing, threatening or intimidating
James Howard Meredith in any other way or by any
other means on account of his attending or seeking to
attend the University of Mississippi;
4. Interfering with or obstructing by any means or
in any manner the performance of obligations or the
enjoyment of rights under this Court’s order of July
28, 1962, and the order of the United States District
Court for the Southern District of Mississippi entered
September 13, 1962, in this action, and
5. Interfering with or obstructing, by force, threat,
arrest or otherwise, any officer or agent of the United
States in the performance of duties in connection with
the enforcement of, and the prevention of obstruction
to, the orders entered by this Court and the District
Court for the Southern District of Mississippi relating
A54
to the enrollment and attendance of James Howard
Meredith at the University of Mississippi; or arresting,
prosecuting or punishing such officer or agent on account
of his performing or seeking to perform such duty.
DATED: October 19th, 1962.
/ s / ELBERT P. TUTTLE
Chief Judge, United States
Court of Appeals, Fifth
Circuit
/ s / RICHABD T. RIVES
United States Circuit Judge
/s / WARREN L. JONES
United States Circuit Judge
/ s / JOHN R. BROWN
United States Circuit Judge
/ s / JOHN MINOR WISDOM
United States Circuit Judge
CIRCUIT JUDGES GEWIN and BELL concurring in
part and dissenting in part:
With all deference to our brothers, and realizing that
it involves for each of us a matter of judgment, we would
make our injunction the mandate of this court and for
ward it to the United States District Court for the
Southern District of Mississippi, there to be made the
judgment of that court, and to be supervised and en
forced along with our injunction of July 28, 1962 which
was entered by that court on September 13, 1962 pur
suant to our mandate. Our appellate jurisdiction would
continue but the remand should tend to restore normalcy
in Mississippi, and would comport with good judicial
administration under the circumstances.
A 55
Of course, we should retain the contempt proceedings
now pending against Governor Barnett and Lieutenant
Governor Johnson for final disposition hut such reten
tion in no way militates against remand. The Governor
and Lieutenant Governor must yield in order to purge
themselves of contempt. They must yield also to pre
serve the integrity of the judicial process, the Federal
Constitution and their oaths of office pursuant thereto:
“ . . . and all executive Officers, both of the United
States and of the several States, shall be bound by
Oath or Affirmation to support this Constitution; . . . ”
Article 6, Clause 3.
Upon their yielding, the enforcement of all other out
standing orders in this matter would and should be the
duty of the District Court.
We have serious doubts, from a procedural and sub
stantive point of view, as to the joinder of the State of
Mississippi as a party. We would dissolve the tempor
ary restraining order as to the State of Mississippi and
would not include the State of Mississippi in the prelimi
nary injunction. U. S. Const. Art. I ll, §2, par. 2 and the
11th Amendment.
We concur in the order of the majority save in this
respect.
/ s / WALTER P. GEWIN
United States Circuit Judge
/s / GRIFFIN B. BELL
United States Circuit Judge
A56
IN THE UNITED STATES DISTRICT COURT
FOR THE JACKSON DIVISION OF THE
SOUTHERN DISTRICT OF MISSISSIPPI
JAMES HOWARD MEREDITH, On Behalf of
Himself And Others Similarly Situated
V. No. 3130
CHARLES DICKSON FAIR, President of the
Board of Trustees of the State Institutions of
Higher Learning, ET AL
ORDER GRANTING PERMANENT
INJUNCTION
This matter is now before this Court by virtue of the
Mandate of the United States Court of Appeals for the
Fifth Circuit and the Mandate of Mr. Justice Black of
September 10, 1962 setting aside all stays granted by
Judge Ben F. Cameron and putting into effect the man
dates of the Court of Appeals for the Fifth Circuit
enjoining the Trustees and officials of the University of
Mississippi from taking any steps to prevent enforce
ment of the mandates of the Court of Appeals for the
Fifth Circuit, and this Court having now considered the
mandates of the Court of Appeals for the Fifth Circuit
of July 17, 1962, July 27, 1962 and its final order of
August 4, 1962, and this Court having considered the
mandate of July 17, 1962 wherein the Court of Appeals
reversed the judgment of the District Court with direc
tions to this Court to issue an injunction as prayed for
in the complaint and by its mandate of July 27, 1962
ordered that the judgment of that Court issued as and
for the mandate on July 17, 1962, be recalled and amend
ed by making explicit the meaning that was implicit as
expressed in its opinion dated June 25, 1962 and order
ing that this Court “ forthwith grant all relief prayed
A57
for by the plaintiff and to issue forthwith a permanent
injunction against each and all of the defendants-appel-
lees, their servants, agents, employees, successors and
assigns, and all persons acting in concert with them, as
well as any and all persons having knowledge of the
decree, enjoining and compelling each and all of them
to admit the plaintiff-appellant, James H. Meredith, to
the University of Mississippi under his applications
heretofore filed, which are declared by us to be continu
ing applications. Such injunction shall in terms prevent
and prohibit said defendants-appellees, or any of the
classes of persons referred to from excluding the plain
tiff-appellant from admission to continued attendance
at the University of Mississippi.”
And by its mandate of August 4, 1962 the Court of
Appeals reaffirmed its orders of July 17, 1962 and July
27, 1962 in the following language: “ All of our orders
of July 17, July 27 and this date, therefore continue in
full force and effect and require full and immediate
obedience and compliance.”
Now, therefore, it is here ordered, adjudged and de
creed that the plaintiff, James Howard Meredith, be
and he is hereby granted all the relief that is prayed
for by him in his complaint and that the defendants,
Charles Dickson Fair, President of the Board of Trustees
of State Institutions of Higher Learning of the State of
Mississippi, Louisville, Mississippi; Euclid Ray Jobe,
Executive Secretary of the Board of Trustees of State
Institutions of Higher Learning of the State of Missis
sippi, Jackson, Mississippi; Edgar Ray Izard, Hazle-
hurst, Mississippi; Leon Lowrey, Olive Branch, Missis
sippi; Ira Lamar Morgan, Oxford, Mississippi; Malcolm
Mette Roberts, Hattiesburg, Mississippi; William Or
lando Stone, Jackson, Mississippi; S. R. Evans, Green
A58
wood, Mississippi; Vemer Smith Holmes, McComb, Mis
sissippi; James Napoleon Lipscomb, Macon, Mississippi;
Tally D. Riddell, Quitman, Mississippi; Harry Gordon
Carpenter, Rolling Pork, Mississippi; Robert Bruce
Smith, II, Ripley, Mississippi and Thomas Jefferson
Tubb, West Point, Mississippi, Members of the Board of
Trustees of State Institutions of Higher Learning;
James Davis Williams, Chancellor of the University of
Mississippi, Oxford, Mississippi; Arthur Beverly Lewis,
Dean of the College of Liberal Arts of the University of
Mississippi, Oxford, Mississippi, and Robert Byron Ellis,
Registrar of the University of Mississippi, Oxford, Mis
sissippi, and each of them, their agents, servants, em
ployees, successors, attorneys and all persons in active
concert and participation with them be and they hereby
are permanently restrained and enjoined from:
(1) Refusing to admit plaintiff, James Howard Mere
dith immediately to the University of Mississippi and
that they shall each of them be, and they are hereby
required to admit him to the University of Mississippi
upon the same terms and conditions as applicable to
white students;
(2) From interfering in any manner with the right of
plaintiff, James Howard Meredith to matriculate in, or
attend the University of Mississippi;
(3) From taking any action or doing any act or being
guilty of any conduct which will impair, frustrate or
defeat his right to enter the University of Mississippi;
(4) Refusing to admit the plaintiff, James Howard
Meredith to the University of Mississippi upon his ap
plications heretofore filed, all of which are continuing
applications.
A59
It is further ordered that said defendants, or any of
the classes of persons referred to, are prohibited and
enjoined from excluding the said James Howard Mere
dith from admission to continued attendance at the Uni
versity of Mississippi.
It is further ordered that the defendants, their ser
vants, agents, employees, successors and assigns, and all
persons acting in concert with them, are enjoined to
admit the plaintiff, James Howard Meredith to the Uni
versity of Mississippi upon his applications heretofore
filed and they are enjoined from excluding the said
James Howard Meredith from admission to continued
attendance at the University of Mississippi or discrimi
nating against him in any way whatsoever because of
his race.
It is further ordered that a copy of this order and
injunction be served by the United States Marshal on
each of the defendants herein.
ORDERED, this the 13th day of September, 1962.
/ s / S. C. MIZE
United States District Judge
EXCERPT OF MINUTES OF BOARD OF
TRUSTEES OF STATE INSTITUTIONS
OF HIGHER LEARNING
September 25, 1962
Authority Given Governor Barnett
“ M. M. Roberts moved that the Board invest Honor
able Ross R. Barnett, the Governor of the State of Mis
sissippi, with the full power, authority, right and discre
tion of this Board to act upon all matters pertaining to
or concerned with the registration or non-registration,
A60
admission or non-admission and/or attendance or non-
attendance of James H. Meredith at the University of
Mississippi and that a certified copy of this Resolution
together with copies of the conflicting injunctions of
Honorable S. C. Mize dated September 13, 1962 and
Chancellor L. B. Porter dated September 19, 1962 pre
viously served upon the members of this Board, be fur
nished to the Governor in his capacity as the Chief
Executive Officer of this State, the representative of
this Board, and the repository of its full rights, power,
authority and discretion for such course of action as the
Governor shall deem legal, fit and proper in the premises.
This motion was seconded by Leon Lowrey.
A motion was offered to substitute some person other
than the Governor in the foregoing motion. This motion
was defeated.
A discussion was held as to the voting. A motion was
made that a secret vote be taken. A substitute motion
called for the preparation of separate ballots for voting.
This was accepted and the motion was carried.
It was announced that Mr. E. Ray Izard was absent-
attending the funeral of his sister, and that Mr. Tally
D. Riddell was absent being confined in the University
Hospital.
Upon vote which was taken by secret ballot, the results
were as follows:
9 yes
1 nay
1 abstention
Thereupon the Chairman of the Board declared the
motion carried.”