Georgia v. Rachel Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1964

N O -.

STATE OF GEORGIA,
Petitioner

v.

THOMAS RACHEL, et al.,
Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH  CIRCUIT

Judicial Building 
Atlanta, Georgia 30303

Fulton County 
Courthouse

Atlanta, Georgia 30303

E u g en e  C ook  
Attorney General of the 
State of Georgia
A l b e r t  S id n ey  J o hnson  
Deputy Assistant Attorney 
General, State of Georgia
L ew is R . S l a t o n , J r . 
Solicitor General 
Atlanta Judicial Circuit
J. R o b e r t  Spa rks 
Assistant Solicitor General 
Atlanta Judicial Circuit

Counsel for Petitioner



I N D E X
Page

Petition for Writ of Certiorari _____________ »______ 1

Opinions Below _________________________________  2

Jurisdiction ____________________________________  2

Questions Presented ______________    3

Constitutional Provisions and Statutes Involved______ 6

Statement of the Case _____ _____________________  7

Summary of Argum ent___________________________ 10

Reasons for Granting the Writ_____________________ 13

I. The Notice of Appeal of the Remand Order 
was not Timely Filed, and Petitioner’s 
Timely Motion to Dismiss Appeal Should
have Been G ranted____________ ___________ 13

II. The Petition for Removal does not Set Out 
any Valid Ground for R em oval_______ _____16

III. Assuming Arguendo that Remand to the 
District Court for an Evidentiary Hearing 
was Proper, the Directions Given the Lower 
Court were Clearly Erroneous _____________ 24

Conclusion _____________________________________ 28

Appendices____________________________ Ap. 1-Ap. 44

A. Order of Remand of the District Court_____Ap. 1

B. Order of Court of Appeals Staying the Order
of Remand ____________________________ Ap. 7

C. Opinion of Court of Appeals Reversing the
District C o u rt__________________________ Ap. 9

i



INDEX (Continued)

D. Opinion — Order of Court of Appeals Deny­
ing Rehearing__________________________ Ap. 29

E. Constitutional Provisions and Statutes
Involved __________________   Ap. 31

F. Judgment of Court of Appeals entered pursu­
ant to opinion Reversing District Court____Ap. 42

G. Order of Court of Appeals Staying
Mandate ______________________________ Ap. 44

Certificate of Service _________________________ Ap. 45

CITA TIO N S

C ases

Arkansas v. Howard, D.C. E.D. Ark., 1963,
218 F. Supp. 626 __________ ___________________19

Berman v. United States, 1964, 378 U. S. 530_______ 16

Birmingham v. Croskey, D.C. N.D. Ala., 1963,
217 F. Supp. 947 ______________________________23

Bolton v. State, 220 Ga. 632_______________________ 11, 27

City of Clarksdale, Miss. v. Gertge, D.C.
N.D. Miss., 1964, 237 F. Supp. 213______________ 22

Gibson v. Mississippi, 1896, 162 U. S. 565__________ 19
Griffin v. Maryland, 1964, 378 U. S. 130____________ 25

Hamm v. City of Rock Hill, S. C., 1964,
379 U. S. 306 _________________________________ 5

Hill v. Pennsylvania, D.C. W.D. Pa., 1960,
183 F. Supp. 126______________________________ 19

Page

ii



Hull v. Jackson County Circuit Court,
6 Cir., 1943, 138 F. 2d 820______________________19

Kentucky v. Powers, 1906, 201 U, S. 1_____________ 19

Maryland v. Soper, Judge, (No. 1), 1925,
270 U. S. 9 _______ !___________________________22

Murray v. Louisiana, 1896, 163 U. S. 101__________ 19

Neal v. Delaware, 1880, 103 U. S. 370____ ________ 19

North Carolina v. Jackson, D.C. M.D. N. C., 1955,
135 F. Supp. 682 ______________________________ 19

Nye v. United States, 1941, 313 U. S. 28___________ 13

Peterson v. City of Greenville, S. G., 1963,
373 U. S. 244 ________________ ________________ 25

Shuttlesworth v. City of Birmingham, Ala., 1963,
373 U. S. 262 ____________________ ____________ 25

Smith v. Mississippi, 1896, 162 U. S. 592___________ 19

Snypp v. Ohio, 6 Cir., 1934, 70 F. 2d 535, 
cert. den. 293 U. S. 563_________________________19

Texas v. Doris, D.C. S.D. Texas, 1938,
165 F. Supp. 738 _________ __ -_________________19

Thompson v. City of Louisville, 1962,
362 U. S. 199_______________ ___ _____________ 25

United States v. Robinson, 1960, 361 U. S. 220--------16

Virginia v. Rives, 1879, 100 U. S. 313----- -----------

Williams v. Mississippi, 1898, 170 U. S. 213-----------

INDEX (Continued)
Page

iii

..18

T9



C O N STITU TIO N  AND STA TU T ES

C o n stitu tio n  o f t h e  U n it ed  St a t e s :

First Amendment _________________________ Ap. 31

Fourteenth Amendment ___________________ Ap. 31

St a t u t e s  and  R u l e s :

Act of 1866, Sec. 3 (14 Stat. 27, 28)____________ Ap. 36

Act of 1875, Sec. 5 (18 Stat. 472)______________ Ap. 35

Act of 1887, Secs. 2 & 5 (24, Stat. 553, 555)____Ap. 35

Act of February 24, 1933,
(c. 119, 49 Stat. 904) _________________________14

Act of June 25, 1948, c. 645, (62 Stat. 683)____Ap. 41

Ga. Code Annotated, 26-3005__________________ Ap. 40

Revised Statutes, Title XIII, the Judiciary,
Sec. 641 ________________________________ Ap. 37

Rule 37 (a) (2), Title 18, U. S. C _____________ Ap. 38

Rule 54 (a) (1) (b) (1), Title 18, U. S. C___ Ap. 40

Section 3731, Title 18, U. S. C___________________ 13

Section 3732, Title 18, U. S. C .______________ Ap. 41

Section 1404, Title 18, U. S. C__________________ 13
Civil Rights Act of 1964, Sec. 201, 203_________ Ap. 41

Section 71, Former Title 28, U. S. C.
(Judicial Code, Sec. 28 )____________________ Ap. 33

Section 74, Former Title 28, U. S. C.
(Judicial Code, Sec. 31) _________________ Ap. 33

INDEX (Continued)
Page

iv



Section 76, Former Title 28, U. S. C.
(Judicial Code, Sec. 33) _________________ JAp. 34

Section 1443, Title 28, U. S. C_______________ Ap. 31

Section 1446 (a ), (c), (d ), Title 28, U. S. C— Ap. 32

Section 1447 (c ), (d ), Title 28, U. S. C________ Ap. 32

INDEX (Continued)
Page

v



IN THE

Supreme Court of the United States
OCTOBER TERM, 1964

NO.

STATE OF GEORGIA,

v.
Petitioner

THOMAS RACHEL, el ah,
Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The State of Georgia, Petitioner herein, respectfully 
prays that a Writ of Certiorari issue to review the 
judgment of the United States Court of Appeals for the 
Fifth Circuit entered in the above-entitled case on March 
5, 1965, rehearing denied on April 19, 1965, reversing 
the judgment of the United States District Court for the 
Northern District of Georgia, dated February 18, 1964, 
in which the District Court remanded to Fulton Supe­
rior Court twenty State of Georgia criminal prosecutions 
which had theretofore been removed to said District 
Court under the purported authority of the Civil Rights

1



2

Acts (28 U.S.C. 1443). The judgment sought to be re­
viewed reversed the remand order of the District Court 
in a divided opinion, two judges dissenting in part and 
concurring in part, and remanded the criminal prosecu­
tions to the District Court with directions. A rehearing 
was denied by the same divided opinion of the same 
three judges of the Fifth Circuit panel which entered 
the judgment of March 5, 1965.

OPINIONS BELOW
The pertinent opinions of Courts below which affect 

the issues sought to be reviewed are as follows:

The opinion of the District Court dated February 18, 
1964 is not reported, and appears in Appendix A, infra, 
Pages 1-6. An order of the Court of Appeals dated March 
12, 1964, staying the remand order of the District Court, 
one judge dissenting, is not reported, and appears in 
Appendix B, infra, Pages 7-8. The opinion of the Court 
of Appeals dated March 5, 1965, two judges dissenting 
in part and concurring in part, is reported at 342 F. 2d 
336, and appears in Appendix C, infra, Pages 9-28. The 
per curiam opinion of the Court of Appeals, one judge 
dissenting and another judge dissenting in part and con­
curring in part, dated April 19, 1965, denying a rehear­
ing is not reported at this time, and appears in Appendix 
D, infra, Pages 29-30.

JURISDICTION
The opinion of the Fifth Circuit Court of Appeals was 

entered on March 5, 1965 (Appendix C, infra, Pages 
9-28) and the judgment was entered on March 5, 1965 
(Appendix F, infra, Page 42) . The opinion-order of 
the Court of Appeals denying a rehearing was entered



on April 19, 1965 (Appendix D, infra, Pages 29-30). 
A 30-day Stay of Mandate was granted by the Court 
of Appeals on April 27, 1965 (App. G, Page 44) . The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254 (1).

QUESTIONS PRESEN TED
I. W hether a Notice o f Appeal from  an  order o f 

rem and o f the D istrict Court entered in  twenty State 
Court crim inal prosecutions theretofore rem oved to 
said D istrict Court under the purported  authority o f  
2 8  U.S.C. 1443  is timely, where said Notice o f Appeal 
was not filed within ten days from  the entry o f said  
rem and order, as required by R ule 3 7  ( a ) ( 2 ) ,  Fed. 
R. Crim. P.

Other subsidiary questions fairly comprised within 
Question I are:

(a) Did the majority of the Court of Appeals err in 
holding that the ten day time limit for filing a notice 
of appeal prescribed by Rule 37 (a) (2), Fed. R. Crim. 
P., has no application to this case because, as held by 
the majority of the Court, that Rule applies only to 
criminal appeals after verdict, or finding of guilt, or plea 
of guilty?

(b) Is not Rule 37 (a) (2) specifically made appli­
cable to an appeal of a remand order entered in a re­
moved criminal case by the provision of Rule 54 (b) (1), 
Fed. R. Crim. P. that the Criminal Rules apply to crim­
inal prosecutions removed to the United States District 
Courts from state courts and govern all procedure after 
removal, except dismissal?

(c) Did the Court of Appeals have jurisdiction to



4

entertain the appeal where the Notice of Appeal of the 
order of remand was filed sixteen days after the entry 
of the remand order, and should not Petitioner’s timely 
Motion to Dismiss Appeal on the grounds that the Notice 
of Appeal was not timely filed have been granted?

II. Assuming arguendo that Question I is decided 
adversely to Petitioner and the merits o f the judgment 
of the Court of Appeals is reached, the following 
question is presented: Whether the Petition for Re­
moval, which does not allege that any Georgia statute 
is unconstitutional and does not specifically allege a 
denial o f the equal rights o f the Respondents by vir­
tue of the State statute under which they were being 
prosecuted in the State Court, sets forth a valid ground 
for removal under Section 1443, Title 28, U.S.C.

Other subsidiary questions fairly comprised within 
Question II are:

(a) Did the Court of Appeals err in holding that a 
Petition for Removal need contain only the “bare bones 
allegation of the existence of a right” ; that the instant 
Petition for Removal did in fact allege the denial of 
protected rights by State legislation; and that the Peti­
tion for Removal adequately alleged that the Respond­
ents suffered a denial of equal rights by virtue of the 
statute under which they were being prosecuted in the 
State Court?

(b) Whether the Respondents are entitled to a hear­
ing in a federal forum for the purpose of proving a de­
nial of their rights under a law providing for their equal 
rights because of State legislation, under the meager alle­
gations of the “notice-type” pleading in their Petition



5

for Removal, and whether the District Court erred in 
remanding said cases to the State Court upon considera­
tion of the allegations of the Petition for Removal alone, 
without ordering an evidentiary hearing.

III. Whether the majority of the Court of Appeals 
erred in reversing the remand order of the District 
Court and remanding the cases to said District Court 
with directions to hold a hearing, and in further hold­
ing that, if, upon such a hearing, it is established 
that the removal of the Respondents from  the various 
places of public accommodation was done for racial 
reasons, it would become the duty of the District 
Court to order a dismissal of the prosecutions with­
out further proceedings, under the holding of Hamm 
v. City of Rock Hill, 1964, 379 U. S. 306, 85 S. Ct. 
384.

Other subsidiary questions fairly comprised within 
Question III are:

(a) Did the aforesaid directions by the majority of the 
Court of Appeals to the District Court misconstrue and 
expand the doctrine of Hamm, supra, to mean that all 
criminal prosecutions arising from removal of persons for 
racial reasons from places of public accommodation must 
be abated, without regard to any possible evidence as to 
the peaceful or nonpeaceful conduct of the particular 
Respondents involved, and did the aforesaid directions 
unduly limit the discretion of the District Court in de­
ciding whether the Hamm decision was controlling or 
was distinguishable on other grounds based on the pos­
sible evidence adduced at the hearing?

(b) Did the majority of the Court of Appeals err in



6

remanding the case to the District Court with the direc­
tions aforesaid, without requiring the removing Re­
spondents to prove in the hearing that the teachings of 
Hamm would not be applied fairly to them by the 
Georgia Courts if the prosecutions were remanded to the 
State courts?

(c) Did the majority of the Court of Appeals err in 
failing to affirm the District Court’s order of remand, 
thus allowing the Courts of Georgia to apply the doctrine 
of the Hamm  decision, rendered subsequent to the re­
moval of these cases, to these prosecutions?

CONSTITUTIONAL PROVISIONS AND 
STA TU TES INVOLVED

The First and Fourteenth Amendments to the Consti­
tution of the United States of America are involved.

The statutes involved are the following:

(1) Sections 1443 (1) (2) ; 1446 (a ), (c0 . (d) ; and
1447 (c) and (d ), Title 28, U. S. C. (62! Stat.
938, 1948; 63 Stat. 102, 1949) .

(2) Former Sections 71, 74, 76, former Title 28,
U. S. C. (March 3, 1911, 36 Stat. 1094, 1096,
1097).

(3) Act of 1866 (14 Stat. 27, 28) .
(4) Act of 1875 (18 Stat. 470, 472).

(5) Act of 1887 (24 Stat. 553, 555) .
(6) Georgia Code Annotated, 26-3005 (Ga. Laws

1960, pages 142 and 143).

(7) Rules 37 (a) (2), 54 (a) (b) (1) and 45 (a) ,
Title 18, U. S. C.

(8) Rule 73 (a ), Title 28, U. S. C.



7

(9) Revised Statutes, Title XIII, the Judiciary, 
Sec. 641.

(10) Civil Rights Act of 1964, Secs. 201 (b) (2) 
and 203.

(11) Act of June 25, 1948, codifying and enacting 
Title 18, U. S. Code c. 645, 62 Stat., 683, 
page 845.

The constitutional provisions and statutes involved 
being somewhat lengthy, their pertinent text is set out 
in Appendix E for Petitioner, as authorized by Rule 
23 (1) (d) of this Court, Pages 31-41.

STATEM ENT OF THE CASE,
On August 2, 1963, a Grand Jury of Fulton Superior 

Court, Atlanta, Georgia, indicted Thomas Rachel and 
19 other defendants in separate indictments for viola­
tions of Georgia Laws, 1960, pages 142 and 143, a misr 
demeanor. This statute is codified as 26-3005, Georgia 
Code Annotated (App. E, Page 40) .

The misdemeanor with which Thomas Rachel was 
charged was his failure and refusal, on June 17, 1963, 
to leave the premises of another, to-wit, Lebco, Inc., 
doing business under the name of Lebs on Luckie Street 
after having been requested to leave said premises by 
the person in charge.

The indictments returned against the other 19 de­
fendants, who are now Respondents herein, involved 
here contained identical allegations to the Rachel indict­
ment with the exception that in some instances the 
misdemeanor was alleged to have been committed on 
another date and at a different restaurant in Fulton 
County, Georgia.



8

On February 17, 1964, the Respondent Rachel and 
the 19 other Respondents filed a Petition for Removal 
in the United States District Court for the Northern 
District of Georgia, under the purported authority of 
Sections 1443 (1) (2) and 1446, Title 28, U. S. C.
(R. 2-9)

Briefly stated, the removal petition alleged that the 
State of Georgia by statute was perpetuating customs 
and serving members of the Negro race in places of 
public accommodation on a racially discriminatory basis, 
and on terms and conditions not imposed on the white 
race. They further alleged that they were being prose­
cuted for acts done under color of authority derived 
from the Constitution and laws of the United States, 
and for refusing to do an act inconsistent therewith. 
(R. 2-9)

The next day after filing of the removal petition, i.e., 
on February 18, 1964, United States District Judge Boyd 
Sloan issued an opinion and order remanding said cases 
to Fulton Superior Court, stating in part, “ the petition 
for removal to this Court does not allege facts sufficient 
to justify the removal which has been effected.” (R. 10- 
15; App. A, Pages 1-6.)

On March 5, 1964, the Respondents filed a Notice of 
Appeal from the order of remand to the Fifth Circuit 
Court of Appeals, (R. 16)

The Respondents filed with the Fifth Circuit Court
of Appeals a Motion for Stay Pending Appeal, on March 
12, 1964.

On March 12, 1964, a hearing was held before a three 
Judge panel of the Fifth Circuit Court of Appeals on



9

the motion for stay of the remand order of the District 
Court. Petitioner, the State of Georgia, filed a Motion 
to Dismiss Appeal on two grounds. (1) that the remand 
order of the District Court was not reviewable on appeal 
or otherwise, and (2) the Notice of Appeal was not 
timely filed, having been filed more than ten days from 
the date of the remand order. (R. 26-30)

After an oral hearing, the majority of the Fifth Circuit 
Court of Appeals by a 2 - 1 division granted the stay. 
District Judge G. Harrold Carswell, Northern District 
of Florida, dissented, saying, “ I would, therefore, grant 
appellee’s motion to dismiss,” (App. B, Pages 7-8)

Thereafter, after extensive oral argument before the 
Court of Appeals, said Court on March 5, 1965, entered 
an opinion by a divided three-judge Court reversing the 
judgment of the District Court, and remanding the case 
to the lower Court with instructions to hold a hearing 
and to dismiss the prosecutions, if it is established that 
the removal of the Respondents from the various places 
of public accommodation was done for racial reasons. 
(R. 42-61; App. C, Pages 9-28) Two Judges dissented 
in part and concurred in part.

A timely Petition for Rehearing En Banc was filed by 
the State of Georgia, Petitioner (R. 63-78) and was 
denied in a per curiam opinion of the Court of Appeals 
entered on April 19, 1965, with one Judge dissenting 
and another Judge dissenting in part and concurring 
in part (R. 79-80; App. D, Pages 29-30) . A 30-day Stay 
of Mandate was granted by the Court of Appeals on 
April 27, 1965 on application of Petitioner pending 
submission of this Petition for Writ of Certiorari. (Ap­
pendix G, Page 44)



10

The jurisdiction of the Court of first instance, the 
United States District Court for the Northern District 
of Georgia, was invoked by the removing Respondents 
under the purported authority of Sections 1443 and 
1446 (c) (d ), Title 28, U.S.C. (R. 6, 7)

SUMMARY OF ARGUMENT
Only three very basic and important reasons for grant­

ing the Writ are urged by Petitioner. First, the Court 
of Appeals had no jurisdiction to consider the appeal, 
inasmuch as the Notice of Appeal of the order of remand 
was filed six days too late. The majority of the Court 
of Appeals has held, in the first opinion known to coun­
sel for Petitioner since the 1948 enactment of Title 18, 
U.S.C., that the ten-day time limit of Rule 37 (a) (2), 
Fed. R. Crim. P. for filing a notice of appeal from an 
order in a criminal case applies only to criminal appeals 
after verdict, or finding of guilt, or plea of guilty. This 
novel construction of one of the basic Criminal Rules 
originally promulgated by this. Honorable Court and 
subsequently incorporated by reference in an Act of 
Congress in 1948, alone would warrant the granting of 
the Writ. One Judge of the panel dissented on this 
ground alone both in the opinion on the merits and on 
the petition for rehearing. This construction of the Rule 
was never urged by the Respondents in their briefs or 
argument before the Court of Appeals.

Secondly, the Petition for Removal completely fails, 
according to all federal judicial precedent, to set out a 
valid ground for removing State prosecutions to a federal 
district court for trial. Petitioner urges that there is no 
requirement for a hearing of the allegations of the re­
moval petition and that removability must stand or fall



11

upon the allegations of the petition. All federal case 
precedent, including that of this Honorable Court, sup­
port this position, and Petitioner strongly maintains that 
no error was committed by the District Court in re­
manding the cases without an evidentiary hearing.

Finally, even if Petitioner’s first two grounds are 
decided adversely to us, the Writ should be granted 
because the majority of the Court of Appeals has directed 
the District Court to look for only one criteria on the 
hearing, and to dismiss the State Court prosecutions if 
that single element is found from the evidence. That 
element is, of course, the finding that racial reasons 
were the cause of the removal of the Rachel, et al, de­
fendants from the various restaurants. This virtual man­
date to the District Court unduly limits his judicial dis­
cretion in considering whether or not the prosecutions 
are in fact controlled by Hamm, supra. Many distinguish­
ing factors might be raised by the evidence on such a 
hearing. Were the defendants peaceable and non-violent 
in their demonstrations? Were the restaurants places of 
public accomodation coming under the purview of the 
Civil Rights Act of 1964? Under the directions of the 
Court of Appeals, the District Court could consider 
none of these factors, if the racial factor alone were 
found.

Further, the Court of Appeals by its remand to the 
District Court with directions ignores the fact that the 
Supreme Court of Georgia has recognized and followed 
the Hamm decision and has abated five similar State 
Court prosecutions. Bolton, et al v. State of Georgia, 
220 Ga. 632, decided February 8, 1965. The Hamm case 
had not been decided when these (Rachel, et al) prose­



12

cutions were pending in the Georgia Courts, and the 
Georgia Courts have not had an opportunity to consider 
these cases in connection with the Hamm doctrine. They 
should be afforded that opportunity, as pointed out by 
Circuit Judge Bell in his partial dissent (R. 60, App. C., 
Page 27) . The action of the majority of the Court of 
Appeals amounts to a finding that the Courts of Georgia 
will not apply Hamm  fairly to these Respondents before 
such courts have even been given the opportunity to 
do so. This casual treatment of the Georgia Courts in­
volves jeopardy to our dual system of courts, state and 
federal, as pointed out by Circuit judge Bell. Petitioner 
feels that, if these cases are remanded to the District 
Court for a hearing, contrary to Petitioner’s other 
grounds, at the very least these Respondents should be 
required to prove that the Georgia Courts will not treat 
them fairly, in the light of Hamm. If they cannot prove 
this, the cases should be remanded to the State Courts. 
The District Court should not have its hands tied by the 
erroneous directions of the majority of the Court of 
Appeals, in limiting the hearing to one issue only.

Counsel for Petitioner are not concerned in this peti­
tion with the merits of the State Court prosecutions 
against these Respondents, and as to the eventual out­
come of same if they are remanded to the State Courts. 
We are deeply concerned with the grave and highly im­
portant constitutional question of whether a federal 
appellate court should accept jurisdiction over State 
Court criminal prosecutions and virtually order dismissal 
of the actions, without ever giving the State Courts 
a chance to reconsider the cases in the light of the latest 
decision from this Honorable Court. Particularly is this 
so in view of the Bolton decision by the highest Court



13

of Georgia, which proves conclusively that Georgia 
Courts are following the decisions of the United States 
Supreme Court in racial controversies.

For the foregoing reasons, Petitioner respectfully in­
sists that the Petition for Writ of Certiorari to the 
Fifth Circuit Court of Appeals should be granted.

REASONS FO R GRANTING TH E W RIT
I. The Notice o f Appeal o f the Rem and Order 

was not tim ely filed, and Petitioner’ s timely Motion 
to D ism iss Appeal should have been granted.

The majority of the Court of Appeals, with Judge 
Whitehurst dissenting, held that Rule 37 (a) (2) applies 
only to criminal appeals “after verdict, or finding of 
guilt . . . or plea of guilty,” citing Nye v. United States, 
1941, 313 U. S. 28, 43-44. Therefore, the Court held 
that the notice of appeal was timely, even though filed 
sixteen days after entry of the remand order. Petitioner 
respectfully maintains that this was erroneous.

( a )  Rule 3 7  (a )  ( 2 )  controls the time lim it fo r  
filing a notice o f appeal in a crim inal case both before  
and after verdict.

The language of Rule 37 (a) (2), which is. a single 
paragraph, clearly refutes the reasoning of the Court 
of Appeals. The last sentence allows 30 days for an ap­
peal by the government when authorized by statute. The 
government may appeal before verdict in criminal cases 
(1) an order suppressing evidence in a narcotics case. 
(18 U.S.C. 1404) and (2) a decision dismissing an 
indictment or sustaining a motion in bar, where the 
defendant has not been put in jeopardy. (18 U.S.C. 3731.)



14

Only in rare instances where a judgment of conviction has 
been arrested based on invalidity or construction of the 
statute can the government appeal after verdict in a crimi- 
inal case. If Rule 37 (a) (2) applies only to “after verdict” 
judgments and orders, why does the last sentence of that 
Rule deal with the government’s “ before verdict” ap­
peals? The ruling of the Court of Appeals makes the last 
sentence of that Rule a complete nullity. It splits a 
single paragraph into two parts — the first dealing with 
“after verdict” appeals by defendants and the latter pre­
scribing a different time limit for both “before” and 
“after” verdict appeals by the government. This is a 
far-fetched construction of the Rule, and one which was 
never urged even by the Respondents before the Court 
of Appeals.

The Nye case, supra, is not controlling. It was decided 
in 1941, and was not a criminal case, but an adjudication 
of criminal contempt arising out of a civil case. The 
main thrust of the decision was that “ the categories of 
cases embraced in the rules cannot be expanded by inter­
pretation to include this type of case.” 313 U. S. at Page 
45. In Nye, the Court was interpreting Rule III, effec­
tive September 1, 1934 (292 U. S. 661) under the “after 
verdict” enabling Act of February 24, 1933, (c. 119, 49 
Stat. 904, as amended) . Since that time, the Old Rule 
III has been superseded by Rule 37, prepared by the 
Advisory Committee of this Court which also prepared 
Rules 1-31, 40-60. This Court by order dated February 
6, 1946, directed that all the Rules (1 through 60) be 
consecutively numbered, indexed, and given their title. 
327 U. S. 827. It is inconceivable that the Advisory Com­
mittee would have left Rules 32-39 applicable only to 
“after verdict” judgments while balance of the Rules



15

applied to both “before” and “after” verdict judgments, 
or that this Court in promulgating all of the Rules in 
the same order intended any such result.

Finally, the Court of Appeals based its ruling in large 
part on the assertion that Rule 37 (a) (2) had never
been presented to Congress. The Court of Appeals over­
looked the fact that when Congress enacted the Act of 
June 25, 1948, (c. 645, 62 Stat. 683) entitled “An Act 
to Revise, Codify, and Enact into Positive Law Title 18 
of the United States Code” on page 845 of that statute, 
under Section 3732, Rule 37 (a) is incorporated by refer­
ence. (See Appendix E, Page 41.)

Finally, we point out that the Court of Appeals, while 
holding that Rule 37 (a) (2) was not applicable, failed 
to state in its opinion what other Rule or statute would 
control the time limit for a notice of appeal in the instant 
case. Certainly we cannot go to the Federal Rules of 
Civil Procedure for an answer, because this is not a 
civil case.

(b )  R ule 54 , ( a )  ( 1 ) ,  (b )  ( 1 ) ,  Fed. R. Grim. P. 
specifically m akes Rule 3 7  (a )  ( 2 )  applicable to the 
instant ease.

The first sentence of Rule 54 (a) (1) makes “ these 
rules” applicable to all criminal proceedings in the United 
States District Courts. Rule 54 (b) (1) specifically pro­
vides that “ these rules” apply to criminal prosecutions 
removed to U. S. district courts from state courts and 
“govern all procedure after removal” except dismissal. 
(Appendix E, Page 40.) The phrase “govern all pro­
cedure after removal” must certainly include appeal of 
remand orders. No remand order can issue until after



16

a case is removed from state to federal court. Rule 54 
was promulgated by this Court on the same day as Rule 
37, as previously pointed out. Therefore, counsel for 
Petitioner insist that to hold that Rule 37 does not apply 
to an appeal of a remand order in a criminal case flies 
into the teeth of Rule 54, both generally and specifically. 
Rule 54 in its broad application applies the Criminal 
Rules to all criminal proceedings in district courts and 
then in precise language applies the Rules to this exact 
type of case.

(c) For the foregoing reasons, the Court of Appeals 
erred in holding this appeal to be timely. A notice of 
appeal in a criminal case not filed within the ten-day 
time limit prescribed by Rule 37 (a) (2) confers no juris­
diction upon the Court of Appeals, United States v. 
Robinson, 1960, 361 IJ. S. 220; Berman v. United States, 
1964, 378 U. S. 530. Therefore, Petitioner’s timely Mo­
tion to Dismiss Appeal should have been granted.

II. The Petition for Removal does not set out any 
valid ground for removal.

(a )  There is nothing in the Petition for Removal 
to warrant the exercise of Federal jurisdiction.

Petitioner respectfully maintains that the Petition for 
Removal is completely devoid of any valid ground for 
removal of these criminal prosecutions from State to Fed­
eral court. What it does not contain is more important 
than the skimpy allegations set forth. The Petition for 
Removal (R. 2-7) does not allege (1) that any statute 
or law of the State of Georgia is unconstitutional (2) 
that any civil right, or the enforcement thereof, of 
Respondents is destroyed by any statute of the State of



17

Georgia or by its Constitution (3) that any statute of 
the State of Georgia, or its Constitution creates an in­
ability on the part of Respondents to enforce in the 
Courts of Georgia their equal civil rights under the 
United States Constitution.

Furthermore, there is a complete failure in the Peti­
tion for Removal to set out sufficient facts to support a 
removal. Only bare allegations are made that certain 
Respondents sought service, food, entertainment and 
comfort in certain restaurants and hotels in Atlanta, 
Georgia, and were arrested pursuant to Georgia Code 
Annotated 26-3005. Then appears a mere conclusionary 
allegation that these arrests were effected for the sole 
purpose of perpetuating customs and usages of the City 
of Atlanta with respect to serving and seating Negroes, 
and white persons accompanying Negroes, in places of 
public accommodation upon a racially discriminatory 
basis. They allege, in a pure conclusion, that they cannot 
enforce their rights in the Georgia courts, but do not 
allege a single fact showing why they cannot do so. They 
do not specify one single Georgia law which prevents 
enforcement of their rights in the State courts. More­
over, they do not allege that any judge, law enforcement 
officer, prosecuting attorney, or other officer of the State 
of Georgia has in any way violated any of their civil 
rights, or prevented them from asserting any of such 
rights. In other words, there is no allegation of improper 
conduct by any State official. Even if such allegations 
were contained in the Petition for Removal, many fed­
eral decisions hold that such allegations would not justify 
removal. This woefully inadequate removal petition was 
everything that the District Court had before him when 
he considered, on his own motion as it was his duty



18

to do, the question of whether a cause for removal was 
shown.

Petitioner will discuss briefly just a few of the con­
trolling cases which illustrate beyond the shadow of a 
doubt that this case is not removable under any possible 
construction of the Petition for Removal.

In Virginia v. Rives, 1879, 100 U. S. 313, where two 
Negroes removed their pending State trial for murder 
to federal court, and the State of Virginia filed a petition 
for mandamus to the United States Supreme Court to 
force the remand of said cases, Justice Strong said, in 
part, for the Court, in granting the petition for man­
damus:

. . But in the absence of constitutional or legisla­
tive impediments he cannot swear before his case 
comes to trial that his enjoyment of all his civil rights 
is denied to him. When he has only an apprehension 
that such rights will be withheld from him when his 
case shall come to trial, he cannot affirm that they are 
actually denied, or that he cannot enforce them. Yet 
such an affirmation is essential to his right to remove 
his case. By the express requirement of the statute his 
petition must set forth the facts upon which he bases 
his claim to have his case removed, and not merely 
his belief that he cannot enforce his rights at a sub­
sequent stage of the proceedings. The statute was not, 
therefore, intended as a corrective of errors or 
wrongs committed by judicial tribunals in the ad­
ministration of the law at the trial.” (Emphasis 
added)

Virginia v. Rives, supra, holds categorically that a case 
is not removable under the civil rights acts (the prede­
cessor of 28 U.S.C. 1443) unless a State Constitution or 
Statute on its face denies the removing defendant his



19

federal constitutional rights. In other words, there must 
be discriminatory state legislation depriving him of those 
rights before he can remove the case. Since that time, 
federal courts have followed that rule without deviation 
or modification. To list just a few, Appellee cites Ken­
tucky v. Powers, 1906, 201 U. S. 1; Williams v. Missis­
sippi, 1898, 170 U. S. 213; Murray v. Louisiana, 1896, 
163 U. S. 101; Gibson v. Mississippi, 1896, 162 U. S. 565; 
Smith v. Mississippi, 1896, 162 U. S. 592; H ullv. Jackson 
County Circuit Court, 6 Cir., 1943, 138 F. 2d 820; Snypp 
v. Ohio, 6 Cir. 1934, 70 F. 2d 535, cert. den. 293 U. S. 
563; Arkansas v. Howard, D.C. E.D. Ark., 1963, 218 F. 
Supp. 626; North Carolina v. Jackson, D.C. M.D. N.C., 
1955, 135 F. Supp. 682; Hill v. Pennsylvania, D.C. W.D. 
Pa., 1960, 183 F. Supp. 126; Texas v. Doris, D.C. S.D. 
Texas, 1938, 165 F. Supp. 738; and Neal v. Delaware, 
1880, 103 U. S. 370. Each of the foregoing was a criminal 
case, and removal was sought in each under the civil 
rights acts.

The Kentucky v. Powers case, supra, appears to be the 
last Supreme Court ruling on exactly what grounds will 
authorize a removal under color of the civil rights acts, 
and it has been followed in every instance by the lower 
federal courts in the cases previously cited in this section 
of this Petition. In Powers, supra, the Supreme Court 
said, (201 U. S. at page 30) :

“The question as to the scope of section 64,1 of 
the Revised Statutes again rose in the subsequent 
cases of Neal v. Delaware, 103 U. S. 370, 386; Bush 
v. Kentucky, 107 U. S. 110, 116; Gibson v. Missis­
sippi, 162 U. S. 565, 581, 584, and Charley Smith v. 
Mississippi, 162 U. S. 592, 600. In each of these cases 
it was distinctly adjudged, in harmony with previous



20

cases, that the words in section 641 — ‘who is denied 
or cannot enforce in the judicial tribunals of the 
State, or in the part of the State where such suit or 
prosecution is pending, any right secured to him 
by any law providing for the equal civil rights of 
citizens of the United States, or of all persons within 
the jurisdiction of the United States’ —- did not give 
the right of removal, unless the constitution or the 
laws of the State in which the criminal prosecution 
was pending denied or prevented the enforcement 
in the judicial tribunals of such State of the equal 
rights of the accused as secured by any law of the 
United States. Those cases, as did the prior ones, 
expressly held that there was no right of removal 
under section 641, where the alleged discrimination 
against the accused, in respect of his equal rights, 
was due to the illegal or corrupt acts of administra­
tive officers, unauthorized by the constitution or laws 
of the State, as interpreted by its highest court. For 
wrongs of that character the remedy, it was held, is 
in the state court, and ultimately in the power of 
this court, upon writ of error, to protect any right 
secured or granted to an accused by the Constitution 
or laws of the United States, and which has been 
denied to him in the highest court of the State in 
which the decision, in respect of that right, could 
be had.”

Petitioner maintains that the Powers case still controls 
the federal case law on this question of removability, 
and that it has not been altered, modified, or watered- 
down by any subsequent decision of the Supreme Court, 
or any inferior federal court.

Thus, Petitioner has clearly shown that according to 
prevailing federal case law discriminatory state legislation 
which interferes with a constitutional right of defense 
by the defendant must exist before a case is removable



21

under the civil rights acts. The Respondents’ Petition 
for Removal does not allege this. The only statute they 
mention is Georgia Code Annotated, 26-3005, which 
simply makes it unlawful for any person who is on the 
premises of another to refuse and fail to leave said premi- 
ises when requested to do so by the owner or other person 
in charge of said premises. There is nothing discrimi­
natory about that statute, and nothing which in any 
manner deprives a defendant of any right of defense. 
The statute on its face has application to many situations 
other than racial ones. It authorizes prosecution of the 
drunken visitor in one’s home, the person behaving in a 
disorderly manner in one’s church, or the disreputably 
dressed, boisterous customer in a store, who refuses to 
leave when requested. If the gist of Respondents’ com­
plaint is that 26-3005 is being unconstitutionally applied, 
then they have no grounds for removal. Their remedy 
is to defend themselves through the State courts and 
then seek review by certiorari in the United States Su­
preme Court.

The Court of Appeals in their opinion impliedly rec­
ognize the lack of sufficient allegations in the removal 
petition. The majority refers to “ the bare bones allega­
tion of the existence of a right,” and to “liberality of 
pleadings under the (Civil) rules.” Circuit Judge Bell 
refers in his partially concurring and partially dissenting 
opinion to the removal petition as “notice type plead­
ings.” In fact, the whole Court agreed to send the case 
back to the District Court to allow Respondents to prove 
the allegations of the removal petition, or as Judge Bell 
stated “ to determine just what appellants do claim.” 
(R. 60, App. C, Page 27.)



22

Finally, we direct the Court’s attention to the very 
able, thorough and scholarly opinion of United States 
District Judge Clayton, Northern District of Mississippi, 
in City of Clarksdale, Miss. v. Gertge, 1964, 237 F. Supp. 
213, in which he remanded to the State courts a removed 
prosecution arising from racial incidents in which the 
removal petition was far more detailed as to alleged 
denial of federally protected rights in Mississippi courts 
than is the removal petition in the instant case. Judge 
Clayton concluded that removal was not justified under 
either sub-section (1) or (2), of Section 1443, Title 28, 
U.S.C. He did not hold a hearing, but rendered his 
opinion on briefs directed to the face of the pleadings. 
His opinion in that case is even more applicable to the 
instant case, where the removal petition is so much more 
inadequate.

(b )  The rem oval petition m ust stand or fa ll upon 
its allegations alone, and there is no requirem ent fo r  
a district court to hold an evidentiary hearing.

The Court of Appeals held that the district court 
should have held a hearing, to allow the Respondents 
to prove their allegations and remanded the case to the 
District Court for such a hearing. Petitioner maintains 
that this was error. We find no legal precedent for such 
action. Removal petitions are considered on their face, 
by the factual allegations.

In Maryland v. Soper, Judge, (No. 1) 1925, 270 U. S. 
9, the Supreme Court said:

“We think the averments of the amended petition 
in this case are not sufficiently informing and specific 
to make a case for removal under Sec. 33.” (at 
page 34)



23

“ These averments amount to little more than to 
say that the homicide on account of which they are 
charged with murder was at a time when they were 
engaged in performing their official duty . . .  (at 
page 35) ....................

“ . . . . But they (the removing defendants) should 
do more than this in order to satisfy the statute 
(Section 33, Judicial Code, formerly Section 643, 
Revised Statutes) . In order to justify so exceptional 
a procedure (removal of criminal cases to federal 
court) , the person seeking the benefit of it should 
be candid, specific, and positive in explaining his 
relation to the transaction growing out of which he 
has been indicted, and in showing that his relation 
to it was confined to his acts as an officer. As the 
defendants in their statement have not clearly ful­
filled this requirement, we must grant the writ of 
mandamus directing the District Judge to remand 
the indictment and prosecution. Should the District 
Judge deem it proper to allow another amendment 
to the petition for removal, by which the averments 
necessary to bring the case within Sec. 33 are sup­
plied, he will be at liberty to do so. Otherwise the 
prosecution is to be remanded as upon a peremptory 
writ.” (Italics and explanatory words in parenthesis 
added.)

Petitioner thus maintains that the removability of a 
case depends on the allegations of the removal petition 
itself. For example, in Birmingham v. Croskey, D.C. 
N.D. Ala., 1963, 217 F. Supp. 947, the Courts’ opinion 
does not mention any evidentiary hearing, and reads in 
brief portions as follows (217 F. Supp. 950-51) :

“As will become readily apparent, the foregoing 
allegations (of the removal petition) are insufficient 
to justify the removal of the case to this Court 
(at page'950) and “Considered in the light of the



24

aforementioned authority, the petition for removal 
to this Court does not allege facts sufficient to justify 
the removal that has been granted” (at the bottom 
of page 950 and top of page 951).

In other cases where remand was ordered, the follow­
ing excerpts illustrate our point:

“ The petition is probably insufficient also for the 
reasons, etc.” (North Carolina v. Jackson, supra at 
page 683) ; “Otherwise stated, even if the material 
factual allegations of the petition are accepted at 
face value, the Court is not convinced, etc.” (.Arkan­
sas v. Howard, supra, at page 633.)

Appellee could quote similar language from many 
other cases, showing that the allegations of the removal 
petitions are the only matters considered by federal dis­
trict courts, and that evidentiary hearings are not re­
quired or even indicated, but we feel it is unnecessary.

If District Courts are required to hold prolonged 
and detailed hearings every time an inadequate removal 
petition is filed, the work load of such Courts will be 
greatly increased. Such petitions should be, and have 
been in the past, considered strictly in the light of the 
facts alleged therein. Therefore, the District Court prop­
erly remanded the case without a hearing.

III. Assuming arguendo that remand to the District 
Court for an evidentiary hearing was proper, the 
directions given the lower court were clearly erro­
neous.

The majority of the Court of Appeals directed the 
lower court to dismiss the prosecutions, if upon the 
hearing it appeared that racial reasons were the cause 
of Respondents’ removal from the various restaurants.



25

No discretion whatever was left to the District Court 
by these directions, except to make a finding of fact as 
to that one issue.

(a )  The aforesaid directions to the lower court 
unduly limited the judicial discretion of that Court 
in applying the evidence to the doctrine of Hamm 
v. City of Rock Hill.

As Circuit judge Bell points out (App. C, Page 26; 
R. 59) , such a holding is tantamount to applying Hamm 
in all its sweep against trespass statutes, retroactively to 
the State of Georgia, and is in effect a holding that Georgia 
has applied and will continue to apply its trespass statute 
contrary to the teachings of this Honorable Court in 
Hamm, even though Hamm had not been decided when 
the cases were in the State Courts, and even though those 
State Courts have not had an opportunity to deal with 
these cases in the light of Hamm.

This holding assumes that any trespass prosecution 
growing out of racial causes is automatically abated by 
Hamm. Hamm does not hold this. It is strictly limited 
to peaceful and non-violent attempts to exercise a right 
to be served in places of public accommodation, without 
regard to race, color or creed. A number of recent Su­
preme Court decisions have also stressed the peaceful 
and non-violent actions of defendants prosecuted in va­
rious types of “sit-in” demonstrations. These cases are 
Thompson v. City of Louisville, 1962, 362 U. S. 199; 
Shuttlesworth v. City of Birmingham, Ala., 1963, 373 
U. S. 262; Peterson v. City of Greenville, S. C., 1963, 
373 U. S. 244; and Griffin v. Maryland, 1964, 378 U. S. 
130. If the evidence should show violence or vandalism



26

on the part of Respondents, Hamm would not be 
applicable.

Another issue which might arise from the evidence 
in a hearing is whether or not any one of the restaurants 
involved is in fact a place of public accommodation 
within the meaning of the Civil Rights Act of 1964. The 
District Court should be allowed to determine these 
matters upon the evidence, and not be restricted to one 
issue as he is at present under the majority decision of 
the Court of Appeals.

(b ) The District Court’ s remand order should have 
been affirmed, and the criminal prosecutions returned 
to Fulton Superior Court, thus allowing the Courts 
of Georgia to consider the cases in the light of the 
Hamm decision.

Counsel for Petitioner respectfully submit that the 
Court of Appeals has gone one step further than this 
Honorable Court has ever done, in returning the cases 
to the District Court with directions to dismiss same if 
one specific finding, i.e., racial causes for the arrests 
of Respondents, is made. This wrests jurisdiction of the 
cases from the Georgia Courts without giving them a 
chance to apply the latest ruling of this Honorable 
Court. And there is not a single allegation in the Petition 
for Removal which indicates that the Respondents will 
not be treated completely fairly in the Georgia Courts, 
in the light of Hamm. Counsel for Petitioner agree with 
Circuit Judge Bell’s opinion that Respondents should 
be required to show that Georgia Courts will not apply 
Hamm fairly to them. If they fail to do this, the cases 
should be remanded to the State courts.



27

Any possible conjecture that Georgia Courts will not 
fairly apply the doctrine of Hamm to any and all defend­
ants similarly situated to these Respondents should have 
been laid to rest in the case of Bolton v. State, 1965, 220 
Ga. 632. The Negro defendants in Bolton, supra, were 
convicted for violation of the same anti-trespass law 
involved in the instant case, for sitting dowTn in, and 
refusing to leave a public eating place in Athens, Geor­
gia, after having been refused service. The Supreme 
Court of Georgia, in reversing the convictions, said in 
part, in a unanimous opinion:

“ . . . So applying the rules of Sec. 201 (b) (2),
(c) of the Civil Rights Act of 1964 to the facts of 

this case, we find and hold that this public eating 
place offers to serve interstate travelers and under 
the majority holding of the Supreme Court of the 
United States in Hamm v. City of Rock Hill (South 
Carolina), and Lupper v. State of Arkansas, 379 
U. S. 306 (13 L.E. 2d 300), both of which were 
decided in one opinion on December 14, 1964, these 
convictions must be vacated and the prosecutions 
dismissed, notwithstanding the offense charged 
against each of these defendants was committed and 
convictions therefor were obtained prior to the pas­
sage of the Civil Rights Act of 1964. In those two 
cases the majority held that the Civil Rights Act of 
1964 forbids discrimination in specified places of pub­
lic accommodation and removes peaceful attempts to 
be served on an equal basis from the category of 
punishable activities. While those majority holdings 
do not accord with our conception of the meaning 
and purpose of the provisions of the Constitution 
of this State and the Constitution of the United 
States which prohibit the enactment of ex post facto 
or retroactive laws (Code Sec. 1-128, 2-302), we are, 
under our oaths, nevertheless required to follow 
them and we will therefore do so in these cases; and



28

being so required, we therefore hold that these 
pending convictions are abated by the 1964 Civil 
Rights Act and it is ordered that the sentences im­
posed on each of these defendants be vacated and 
that the charge against each defendant be dismissed.” 
(Italics added)

Counsel for Petitioner most respectfully insist that the 
Georgia Courts should be afforded an equal opportunity 
to rule on these cases, unless Respondents can show that 
their equal rights will be denied them in the Georgia 
Courts.

CONCLUSION
As stated in our summary of argument, counsel for 

Petitioner are not concerned in this case with the future 
of these cases if they are remanded to State courts. The 
issue of whether these cases are removable to federal 
courts and whether the appeal was timely are the only 
questions presented. We feel they are of sufficient im­
portance to warrant the issuance of the Writ of Certio­
rari. To our knowledge, this is the first time the issue of 
removability of criminal prosecutions from State to fed­
eral court in light of the Civil Rights Act of 1964 has 
been presented to this Court. It is an important question 
of federal law which has not been, but should be, decided 
by this Honorable Court. The unusual construction by 
the Court of Appeals of one of the jurisdictional Rules 
of Criminal Procedure promulgated by this Court, (Rule 
37 (a) (2)) is important enough alone to warrant the 
issuance of the Writ.

Finally, there has been a wide disparity of views of 
Federal Judges during the course of this case in the 
lower federal courts. The District Judge remanded the 
cases. One Judge dissented from the Order staying the



29

remand order. Two Judges dissented in part and con­
curred in part in both the opinion of the Fifth Circuit 
Court of Appeals on the merits, and in the opinion of 
that Court denying a rehearing. This Court should re­
solve these conflicting views with finality.

For the foregoing reasons, Petitioner respectfully urges 
this Court to grant the Petition for Writ of Certiorari 
and review the judgment of the Fifth Circuit Court of 
Appeals.

Respectfully submitted,

Judicial Building 
Atlanta, Georgia 30303

(&------------------------------
*  *  E u g en e  C ook

Attorney General of the
State of Georgia

Al b e r t  S idney  J ohnson  
Deputy Assistant Attorney 
General, State of Georgia

Fulton County 
Courthouse

Atlanta, Georgia 30303

ew is R . S la to n , J r . 
Solicitor General 
Atlanta Judicial Circuit

J .  R o ber t  S parks 
Assistant Solicitor General 
Atlanta Judicial Circuit



APPENDIX



APPENDIX A

APPENDIX A —  ORDER OF REMAND

(Filed in Clerk's Office February 18, 1964, B. G. Nash, 
Clerk. By: Mary Roper, Deputy Clerk.)

IN T H E U N ITED  STA TES D ISTR IC T  CO U RT 
N O RTH ERN  D IST R IC T  OF GEORGIA 

A TLA N TA  DIVISION

NO. 23,869

T h e  St a t e  o f G eorgia  

v.

T hom as R a c h e l , J erry  W a l k e r , L arry  C raw ford  
F o x , D e b b ie  A m is , W il l ie  P a u l  B e r r ie n , J r ., L ynn  
P f u h l , M ic h a e l  Sa y e r , J u lia n  M. Sa m st e in , R a lph  
M. M o o re , R o na ld  F r a n k lin  T u r n er , C a r l  C. A r n o ld , 
J a m es  F. T h o m pso n , A r c h er  C o lu m b u s  B l a c k , C a rl  
V in c e n t  H i l l , J e a n e t t e  Sto ckto n  H u m e , J a m es 
A rth u r  C h e r r y , R u sse ll  C. C a m p b e l l , A l l e n  R . 
E llio tt ’, A nn a  J o W ea v er , and  C h a r les  E dward W e l l s

CRIM INAL

In a petition for removal verified by counsel, filed 
in this Court on February 17, 1964, by the above named 
defendants, the petitioners allege:

That they are presently at liberty on bail on a charge 
of having violated Title 26, Georgia Code Annotated, 
§ 3005; that they were arrested by members of the Police 
Department of the City of Atlanta and that “ their

1



2

arrests were effected for the sole purpose of aiding, abet­
ting, and perpetuating customs, and usages which have 
deep historical and psychological roots in the mores and 
attitudes which exist in the City of Atlanta with respect 
to serving and seating members of the Negro race in 
such places of public accommodation and convenience 
upon a racially discriminatory basis and upon terms and 
conditions not imposed upon members of the so-called 
white or Caucasian race. Members of the so-called white 
or Caucasian race are similarly treated and discriminated 
against when accompanied by members of the Negro 
race.”

It is alleged that petitioner, William Paul Berrien, Jr., 
was arrested ‘when he sought lodging, food, service, 
entertainment and comfort at the H & G Corporation 
d /b /a  Henry Grady Hotel” which is alleged to be a 
hotel facility open to the general public, built on real 
estate owned by the State of Georgia, but leased to said 
corporation. It is alleged that the other petitioners were 
arrested at specified privately owned restaurants and 
cafeterias in the City of Atlanta, all of the arrests being 
on specified dates in 1963 and it being alleged that all 
of petitioners were indicted by the July-August, 1963, 
Grand Jury of Fulton County, Georgia, for violation 
of said statute; that the cases are presently pending in 
the Superior Court of Fulton County, Georgia, and are 
set to be heard during the week of February 17 to Feb­
ruary 22, 1964, “ the first case to be called for trial at 
9:30 A.M. on February 17, 1964.”

Petitioners allege that this Court has jurisdiction to 
hear and try the charges presently pending against them 
by virtue of 28 United States Code Annotated § 1443



3

(1) (2) ; That removal is sought to protect rights guar­
anteed to petitioners under the due process and equal 
protection clauses of the Fourteenth Amendment to the 
Constitution of the United States and to protect the right 
of free speech, association, and assembly guaranteed by 
the First Amendment to the Constitution of the United 
States; that “petitioners are prosecuted for acts done un­
der color of authority from the constitution and laws 
of the United States and for refraining to do an act which 
was, and is, inconsistent with the Constitution and Laws 
of the United States;” that they are denied and/or can­
not enforce in the courts of the State of Georgia the 
specified rights claimed under the Constitution and laws 
of the United States, “ in that, among other things, the 
State of Georgia by statute, custom, usage, and practice 
maintains a policy of racial discrimination.” Petitioners 
pray for removal of said criminal proceedings from the 
state court to this court for trial and “ that said prose­
cutions stand so removed as provided for in Title 28, 
United States Code Annotated, Sec. 1446(c) and (d) .”

The criminal statute under which these movant de­
fendants are indicted is <$ 26-3005 of the Georgia Code, 
which reads, as follows:

“ Refusal to leave premises of another when or­
dered to do so by owner or person in charge, — It 
shall be unlawful for any person, who is on the 
premises of another, to refuse and fail to leave said 
premises when requested to do so by the owner or 
any person in charge of said premises or the agent 
or employee of such owner or such person in charge. 
Any person violating the provisions of this section 
shall be guilty of a misdemeanor and upon convic­
tion thereof shall be punished as for a misde­
meanor.”



4

The defendants do not here contend that this statute 
is unconstitutional. The Supreme Court of Georgia has 
recently held that this statute does not violate the due 
process clause of the federal constitution. 1

It is the duty of the district court to examine on its 
own motion the question of whether a case removed to 
it should be remanded to the state court without waiting 
for a motion to remand. 1 2-

The removal statute — § 1443, Title 28, U. S. C. — is 
to be strictly construed. 3-

A criminal prosecution or a civil cause under this 
statute [28 U. S. C., $ 1443] because of a civil right or 
the enforcement of such right must arise out of the 
destruction of such right by the Constitution or statu­
tory laws of the State wherein the action is pending. 
The statute does not justify federal interference where 
a party is deprived of any civil right by reason of dis­
crimination or illegal acts of individuals or judicial or 
administrative officers. If the alleged wrongs are per­
mitted by officers or individuals the remedy is the pros­
ecution of the case to the highest court of the State and 
then to the Supreme Court of the United States as the 
laws of the United States authorize. The statute contem­
plates that during the trial of a particular case, the state 
court will respect and enforce the right of the defendant

1. Clark v. State of Georgia (28971), Supreme Court of Georgia 
— Case No. 22,323, decided Jan. 30. 1964.

2. In Re MacNeil Bros. Co. (CCA Mass. 1958) 259 F. 2d 386; 
Westark Production Credit Ass’n v. Fidelity Sc Deposit Co., 
(D.C. W.D. Ark. 1951) 100 F. Supp. 52, 56; Rand v. State 

of Arkansas (D.C. W.D. Ark. 1961) 191 F. Supp. 20; Title 28, 
§ 1447 (c), U. S, C,

3. Shamrock Oil Corp. v. Sheets, 313 U. S. 100; City of Birming­
ham, Ala. v. Croskey, 217 F. Supp. 947.



5

to the equal protection of the laws of the State or the 
constitutional laws of the United States. 4-

The duty to enforce and protect every right granted 
and secured by the United States Constitution rests 
equally upon State and Federal Courts. 5-

Considered in the light of the aforementioned au­
thority, the petition for removal to this Court does not 
allege facts sufficient to justify the removal that has been 
effected.

Since the case was improperly removed to this Court, 
it is the duty of this Court to remand the same to the 
Superior Court of Fulton County, Georgia, [§ 1447 (c) 
Title 28, U. S. C.] and the defendants named in the 
above styled case are hereby required to report without 
delay to the Superior Court of Fulton County, Georgia, 
and there attend from day to day thereafter as may be 
ordered by said Superior Court.

It is therefore ORDERED, ADJUDGED and DE­
CREED that the above styled case is hereby remanded

4. Hull v. Jackson County Circuit Court, (CCA Mich. 1943)
138 F. 2d 820; Rand v. State of Arkansas, supra, note 1;
City of Birmingham, Ala. v. Croskey, supra, note 2; People
of State of California v. Lamson, 12 F. Supp. 813; 2 Cyc. of
TTp/j Prncpfliirp Spc % ft9

5. Gibson v. State’ of Mississippi, 162 U. S. 565, 40 L. Ed. 1075;
Ex Parte Royall, 117 U. S. 241, 248, 29 L. Ed. 868 at p. 870;
Synpp v. State of Ohio, 70 F. 2d 535.



6

to the Superior Court of Fulton County, Atlanta, 
Georgia.

This the 18th day of February, 1964.

B oyd S lo a n

United States District Judge

(Filed in Clerk’s Office and a True Copy Certified, This 
February 19, 1964, B. G. Nash, Clerk. By Dalton K. 
Kirkpatrick, Deputy Clerk.)



APPENDIX B

Appeal from  the United S tates District Court 
for the Northern D istrict of Georgia

Filed: M arch 12, 1964

In The United States Court Of Appeals 
For The Fifth  Circuit

Thom as Rachel, et al,
Appellants, 

versus No. 21,354

The States of Georgria
Appellee.

Before TU TTLE, Chief Judge, WISDOM, Circuit 
Judge, and CARSW ELL, District Judge.

P E R  CURIAM:

This Court having heretofore, in the case  of Con­
gress of R acia l Equality v. City of Clinton, Louisiana, 
granted a stay  of the order of rem and returning the 
said  case  to the state  courts of Louisiana, pending 
an appeal from  such order of rem and on the m erits, 
we conclude that consistent with that order a stay  
should be granted to the appellants here.

The question of the appealability of an order of re­
mand is presented in the C.O.R.E, ca se  which will be 
promptly heard by this Court. We conclude that the 
effectiveness of the order of the District Court, dated  
February  18, 1964, rem anding these cases to the Su­

7



8

perior Court of Fulton County should be delayed pend­
ing a  determination of the appeal on the m erits.

It is, therefore, O RD ERED  that the said order of 
February  18, 1964, be and the sam e is hereby stayed 
pending final disposition of this appeal on the m erits 
or the earlier order of this Court.

This 12th day of March, 1964.

(Signed) E L B E R T  P. TU TTLE 
E L B E R T  P. TUTTLE 
United S tates Circuit Judge

(Signed) JOHN MINOR WISDOM 
JOHN MINOR WISDOM 
United States Circuit Judge

CARSW ELL, District Judge, D ISSENTING:

Orders of rem and are not appealable under the af­
firm ative language of the statute, nor have the courts 
before this held them so to be. The nature of the 
sufficient cause to disturb this universally applied rule. I

I would, therefore, grant appellee’s motion to dis­
m iss this appeal.



APPENDIX C

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 1 3 5 4

THOMAS RACHEL, ET AL,
Appellants,

versus

STATE OF GEORGIA,
Appellee.

Appeal from the United States District Court for the 
Northern District of Georgia,

(March 5, 1965.)

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and 
WHITEHURST, District Judge.

TUTTLE, Chief Judge: This is an appeal by the named 
appellant and 19 other persons charged with the violation 
of Georgia’s so-called anti-trespass statute, Title 26 Georgia 
Code Annotated, Section 3005, from an order entered by 
the district court without a hearing remanding the cases 
for trial to the state court after they had been removed

9



10
R achel, et al. v. S ta te  of G eorgia

by a petition for removal filed pursuant to Title 28 
U.S.C.A. §1443(1) and (2) (the Civil Rights Removal 
Sections). Having held, in the case of Congress of Racial 
Equality, et al. v. Town of Clinton, Parish of East Fe­
liciana, 5 Cir., 1964, . . . .  F. 2d . .. ., that the enactment 
of the Civil Rights Act of 1964 resolved the question 
of appealability of remand orders as to cases removed to 
the Federal District Courts under Section 1443, supra,1 
we turn directly to the merits of the appeal.2

Prior to the enactment of Section 901 of the Civil Rights 
Act of 1964, Title 28 U.S.C.A. §1447(b) on its face seemed 
to prohibit an appeal from an order of remand. It provided: 
“an order remanding a case to the state court from which 
it was removed is not reviewable on appeal or otherwise.” 
Notwithstanding the provisions of that statute, however, a 
substantial question had been raised in the CORE case, 
supra, and in this case when this Court originally granted 
a stay of the remand order pending appeal whether the 
express provisions of 1447(b) applied to Civil Rights cases. 
We discussed this issue in the CORE case. This discussion 
need not be repeated by reason of the fact we have now 
determined that whether or not remand orders in such cases 
were appealable before the passage of the Civil Rights Act, 
the adoption of that Act by Congress forecloses the issue 
in favor of appealability.

The appellee’s contention that this appeal is untimely 
has no merit. The notice of appeal was filed sixteen calendar 
days after the order appealed from, and it could only be 
considered untimely if the ten-day time limit of Fed. R. 
Crim. P. 37(a)(2) were applicable. It is absolutely clear, 
however, that Rule 37 has no application here.

The Supreme Court promulgated Rules 32 through 39, 
without submitting them to Congress, under the authority 
of the Criminal Appeals Rules Act. Act of Feb. 24, 1933, 
c. 119, 49 Stat. 904, as amended, 18 U.S.C. § 3772. The only 
power given under that Act was to prescribe rules of pro­
cedure “with respect to any or all proceedings after verdict, 
or finding of guilt by the court if a jury has been waived, 
or plea of guilty . . . . ” (Emphasis added.) When it
adopted the predecessor to Rule 37(a)(2), see 292 U.S. 661, 
662, and when it promulgated that Rule in its present form, 
see 327 U.S. 825, the Supreme Court made it explicit that 
the Rule was meant to apply only to criminal appeals “after 
verdict, or finding of guilt . . .  or plea of guilty.”

The question whether the predecessor to Rule 37(a)(2) 
applied to a criminal appeal prior to verdict—in that case 
an appeal from an adjudication of criminal contempt—was



11
R ach el, et al. v. S ta te  of G eorgia

The question to be resolved on the merits of the appeal 
is whether the petition for removal in this case adequately
stated a basis for removal under the indicated section of 
the removal statutes. Title 28 U.S.C.A. §1443, provides 
as follows:

“ §1443. Civil rights cases 
Any of the following civil actions or criminal 

prosecutions, commenced in a State court may be 
removed by the defendant to the district court of
the United States for the district and division em­
bracing the place where it is pending:

(1) Against any person who is denied or can­
not enforce in the courts of such State a right 
under any law providing for the equal civil rights 
of citizens of the United States, or of all persons 
within the jurisdiction thereof;

(2) For any act under color of authority de­
rived from any law providing for equal rights, or

squarely decided in Nye v. United States, 1941, 313 U.S. 28, 
43-44. Rejecting the argument that the Criminal Rules dp- 
plied to all cases that could be categorized as “criminal”, the 
Court held that the history and the language of the order 
promulgating the Rule required that it be applied only “with 
respect to any or all proceedings after verdict in criminal 
cases.” (Emphasis added.)

In 1940, Congress authorized the Supreme Court to pre­
scribe rules of procedure in criminal proceedings “prior to 
and including verdict.” Act of June 29, 1940, c. 445, 54 
Stat. 688, as amended, 18 U.S.C. § 3771. Rules 1-31 and 
40-60 were promulgated under the authority of this Act. It 
is clear that Rule 37(a)(2) can find no authority in this 
statute. Not only was it expressly prescribed under the 
“after verdict” enabling act, see 327 U.S. 825, but, as au­
thorized in that act, it was never submitted to Congress. 
Under the “prior to verdict” enabling act, no rule could 
become effective unless submitted to Congress for its ac­
quiescence. Only Rules 1-31 and 40-60 were so submitted. 
See 327 U.S. 824; Dession, The New Federal Rules of 
Criminal Procedure: II, 56 Yale L.J. 197, 230 (1947).



12
R achel, et al. v. S ta te  of G eorgia

for refusing to do any act on the ground that it 
would be inconsistent with such law.”

The meaning of this statute, passed in a package with 
the first post-bellum Civil Rights Act, Act of April 9, 1866, 
14 Stat. 27, has been the subject of debate since its pas­
sage. It was originally construed to cover cases in which 
the defendant alleged his inability to obtain a fair trial 
due to such informal impediments as local prejudice. 
State v. Dunlap, 1871, 65 N.C. 491; see also Ex parte 
Wells, 3 Woods 128, quoted in Kentucky v. Powers, 1906, 
201 U.S. 1, 27 (Bradley, J., on circuit).

Later, the view was taken that only formal impediments, 
stemming from State legislation, could give rise to such 
deprivations of equal civil rights as would allow a defend­
ant to invoke federal jurisdiction by removal. Kentucky 
v. Powers, 1906, 201 U.S. 1. As this latter view was the 
latest Supreme Court pronouncement directly on the 
matter, the district court in the present case felt bound 
by it. In remanding the case to the State court, the dis­
trict court states that “A criminal prosecution or a civil 
case under this statute [28 U.S.C.A. §1443] because of a 
civil right or the enforcement of such right must arise 
out of the destruction of such right by the Constitution 
or statutory laws of the State wherein the action is pend­
ing.”

In delineating the scope of the civil rights removal 
statute for the first time, the Supreme Court placed great 
stress on the necessity that the denial of protected rights 
be made to appear in advance of trial, Virginia v. Rives,



13
R achel, et al. v. S ta te  of G eorgia

1879, 100 U.S. 313. By way of illustration, the Court in­
dicated that denials of equal rights at the hands of court 
officials, occurring during trial, could not be cured by 
removal but that such denials under state legislation could 
be safeguarded against in this manner. It has been argued 
that, under a realistic appraisal of the facts in a given 
case, the Supreme Court today would recognize the right 
to removal under §1443(1) even where no legislative 
denial of rights is shown. See Krieger, “Local Prejudice 
and Removal of Criminal Cases From State to Federal 
Courts,” 19 St. John’s L. Rev. 43 (1944); Note, “Local 
Prejudice in Criminal Cases,” 54 Harv. L. Rev. 679, 685-86 
(1941). Such a recognition by the Court thus would re­
emphasize the putative essence of Virginia v. Rives—that 
the denial of equal rights must be susceptible of demon­
stration before trial—and minimize the illustrative lan­
guage in that case dealing with state legislation.

We have been asked by the appellants to anticipate 
such an interpretation of §1443 by the Supreme Court; 
however, there is no reason for us to reach that question 
in this case. This is so for two reasons. First, the peti­
tion in this case did allege the denial of protected rights 
by State legislation. Secondly, the passage of the Civil 
Rights Act of 1964 and its interpretation in Hamm v.
City of Rock Hill, 1964, . . . .  U.S........., provide a different,
and narrower, ground on which this case may be disposed 
of.

After alleging the specific facts respecting the arrests 
of each of the 20 persons, including allegations that each 
of them was, when arrested, seeking food or accommoda­



tions at a restaurant or hotel, the petitioners alleged that 
each of their acts had been followed by special Grand 
Jury presentments charging them with violating the 
named section of the Georgia Code, and that the said 
presentments were pending in the Superior Court of 
Fulton County and were to be heard within a few days 
if not transferred. They then alleged the following:

“ (3) By virtue of Title 28, United States Code 
Annotated, Section 1443(1) and (2), this Court 
has jurisdiction to hear and try the charges now 
pending against the petitioners. Removal is sought 
to protect the rights guaranteed to petitioners 
under the due process and equal protection 
clauses of Section 1, Fourteenth Amendment of 
the Constitution of the United States and to pro­
tect the right of free speech, association, and as­
sembly guaranteed by the First Amendment of 
the Constitution of the United States.

“Moreover, petitioners are being prosecuted for 
acts done under color of authority derived from 
the constitution and laws of the United States and 
for refusing to do an act which was, and is, 
inconsistent with the Constitution and Laws of 
the United States.

“ (4) The petitioners are denied and/or can­
not enforce in the Courts of the State of Georgia 
rights under the Constitution and Laws of the 
United States providing for the equal rights of 
citizens of the United States and all persons with­
in the jurisdiction thereof, in that, among other 
things, the State of Georgia by statute, custom,

14
R achel, et al. v. S ta te  of G eorgia



15
R achel, et al. v. S ta te  of G eorgia

usage, and practice supports and maintains a 
policy of racial discrimination.” (Emphasis 
added).

The district court apparently decided that, since the 
removal petition did not expressly allege that Section 
26-3005 was unconstitutional on its face, the petition 
failed to allege adequately that “the destruction of” the 
right to equal protection granted by the United States 
Constitution was caused by “statutory laws of the State” 
of Georgia. The allegation contained in paragraph 4 of 
the petition for removal, quoted above, that petitioners 
were denied their rights under the constitution and laws 
of the United States because the State of Georgia “by 
statute . . . supports and maintains a policy of racial 
discrimination,” however, clearly asserts the precise 
ground for removal that the trial court said was re­
quired. This would not be so, of course, if a petition 
for removal, unlike other pleadings under the Federal 
Rules of Civil Procedure, must contain something more 
than the bare bones allegation of the existence of a right. 
As to this matter, we have no doubt that the rules of 
notice pleading apply with as much vigor to petitions for 
removal as they do to other pleadings, which, according 
to Rule 8(f) of the Federal Rules of Civil Procedure, 
“shall be so construed as to do substantial justice.” The 
statute requires that the petition for removal contain 
“a short and plain statement of the facts which entitle 
him or them to removal.” 28 U.S.C.A. §1446. The 
Supreme Court has held that the removal must be ef­
fected by the filing of “a verified petition setting forth, 
agreeably to the ordinary rules of pleading, the particular



16
R achel, et al. v. S ta te  of G eorgia

facts, not already appearing, out of which the right 
arises.” Chesapeake & Ohio Railway Co. v. Cockrell, 
1914, 232 U.S. 146, 151. It is plain, therefore, that the 
petition is to be construed “agreeably to the ordinary 
Rules of pleading” since in fact the petition for removal 
is the basis for the federal court’s jurisdiction and it is 
a pleading of the facts necessary to vest jurisdiction in 
the federal court.

In Allman v. Hanley, 5 Cir., 1962, 302 F. 2d 559, 562, 
this Court said:

“The absence of detailed grounds setting forth 
basis for removal is not fatal to defendants’ right 
to remove. We think that the allegation that 
petitioners were officers acting under color of 
office in the employment of the United States 
was sufficient. Title 28, United States Code, Sec­
tion 1446(a) requires only a short, plain state­
ment of facts entitling a defendant to removal.”

This is in line with this Court’s construction of the 
Federal Rules of Civil Procedure relating to the liberality 
of pleadings under the rules. If a petition for removal 
states sufficient in the way of allegations to support proof 
of adequate grounds for removal, it is to be treated in 
the same manner as a complaint in federal court. As to 
such a pleading, this Court has frequently reiterated what 
we said in Des Isles v. Evans, 5 Cir., 1952, 200 F. 2d 614, 
615, in quoting Moore’s Federal Practice:

“The courts have ruled time and again that a 
motion to dismiss for failure to state a claim



17
R achel, et al. v. S ta te  of G eorgia

should not be granted unless it appears to a 
certainty that the plaintiff would be entitled to 
no relief under any state of facts which could be 
proved in support of his claim.”

In that case we also quoted from an opinion by this 
Court in De Loach v. Crowley’s Inc., 5 Cir., 1942, 128 
F. 2d 378, 380:

“Under the Rules of Civil Procedure a case 
consists not in the pleadings, but the evidence, 
for which the pleadings furnish the basis. Cases 
are generally to be tried on the proofs rather than 
the pleadings.”

We conclude, therefore, that this petition for removal 
adequately alleged that the appellants suffered a denial 
of equal civil rights by virtue of the statute under which 
they were being prosecuted in the State court. Unless 
there is patently no substance in this allegation, a good 
claim for removal under §1443(1) has been stated. That 
the allegation does not lack substance may be seen from 
a consideration of the Civil Rights Act of 1964, as con­
strued by the Supreme Court.

Statutes of South Carolina and Arkansas, substantially 
the same as the Georgia statute involved here, were be­
fore the Supreme Court in Hamm v. City of Rock Hill, 
supra. Having upheld the constitutionality of Title II 
(Public Accommodations) of the Civil Rights Act of 1964 
both as respects businesses serving interstate travelers 
and businesses of a more local nature a substantial part of 
whose products have moved in commerce, Heart of



18
R achel, et al. v. S ta te  of G eorgia

Atlanta Motel, Inc. v. United States, 1964, . . . .  U. S .........;
Katzenbach v. McClung, 1964, . . . .  U.S......... , the Court
in Hamm held that prosecutions under State anti-trespass 
statutes may not stand if the denial of service or the 
request for removal from the premises was based upon 
an intent to discriminate against the arrested persons on 
account of race. The Court ruled that “The Civil Rights 
Act of 1964 forbids discrimination in places of public 
accommodation and removes peaceful attempts to be 
served on an equal basis from the category of punishable 
activities. Although the conduct in the present cases 
occurred prior to enactment of the Act, the still pending 
convictions are abated by its passage.” The Court further 
said:

“In short, now that the Congress has exercised 
its constitutional power in enacting the Civil 
Rights Act of 1964 and has declared that the 
public policy of our country is to prohibit dis­
crimination in public accommodations as therein 
defined, there is no public interest to be served in 
the further prosecution of the petitioners. And 
in accordance with the long established rule of 
our cases they must be abated and the judgment 
in each is therefore vacated and the charges are 
ordered dismissed.”

In the removal petitions in the cases pending before this 
Court, it is explicitly alleged that the arrests of appel­
lants “were effected for the sole purpose of aiding, abet­
ting, and perpetuating customs, and usages which have 
deep historical and psychological roots in the mores and



19
R achel, et al. v. S ta te  of G eorgia

attitudes which exist within the City of Atlanta with 
respect to serving and seating members of the Negro race 
in such places of public accommodation and convenience 
upon a racially discriminatory basis and upon terms and 
conditions not imposed upon members of the so-called 
white or Caucasian race. Members of the so-called white 
or Caucasian race are similarly treated and discriminated 
against when accompanied by members of the Negro 
race.” These are allegations of fact, which if true, place 
these prosecutions by the State of Georgia squarely with­
in the principle announced by the Supreme Court in 
Hamm v. City of Rock Hill.

In its opinion, the Supreme Court pointed out that no 
State may now prosecute Negroes who were charged with 
having refused to leave premises in accordance with the 
provisions of the Georgia statute where the request to 
leave was based upon a policy of racial discrimination. 
The Court pointed out that Section 203 of the Act pro­
vides:

“No person shall (a) withhold, deny or attempt 
to withhold or deny, or deprive or attempt to 
deprive, any person of any right or privilege 
secured by Section 201 or 202, or (b) intimidate, 
threaten or coerce any person with the purpose 
of interfering with any right or privilege secured 
by Section 201 or 202, or (c) punish or attempt 
to punish any person for exercising or attempting 
to exercise any right or privilege secured by 
Section 201 or 202.” (Emphasis in Supreme Court 
opinion).



20
R ach el, et al. v. S ta te  of G eorgia

The Court said, “On its face, this language prohibits 
prosecution of any person for seeking service in a 
covered establishment because of his race or color.” The 
Court then proceeded to apply this prohibition to pending 
as well as prospective prosecutions. If therefore, the 
arrests and prosecutions of the appellants “were effected 
for the sole purpose of aiding, abetting and perpetuating 
customs . . . with respect to serving and seating mem­
bers of the Negro race” in the respective restaurants 
“upon a racially discriminatory basis,” as alleged, then 
under the holding of the Supreme Court these prosecu­
tions will have to be abated.

Because of the Civil Rights Act of 1964, Title II, and 
its recent interpretation by the Supreme Court, we hold 
that the allegations of these petitions are sufficient to 
invoke federal jurisdiction under 28 U.S.C.A. §1443(1). 
That statute provides, as it has provided since its enact­
ment in 1866, a federal forum in civil actions and criminal 
prosecutions to vindicate, in certain circumstances, rights 
“under any law providing for the equal civil rights of 
citizens of the United States.” When the removal statute 
was originally enacted, the “law providing for . . . equal 
civil rights” most clearly contemplated was found in 
sections 1977 and 1978 of the Revised Statutes, Strauder 
v. West Virginia, 1879, 100 U.S. 303, 311. These sections 
formed part of the 1866 Civil Rights Act along with the 
removal provisions. In upholding the constitutionality 
of the removal statute, the Supreme Court made it clear 
that that act was merely one legitimate way for Congress 
to ensure the effectiveness of the substantive provisions 
of the civil rights laws. Strauder v. West Virginia, supra,



21
R achel, et al. v. S ta te  of G eorgia

at 310-12. The Court said, “A right or an immunity, 
whether enacted by the Constitution or only guaranteed 
by it, even without any express delegation of power, may 
be protected by Congress. . . . And one very efficient 
and appropriate mode of extending such protection and 
securing to a party the enjoyment of the right or im­
munity, is a law providing for the removal of his case 
from a State court, in which the right is denied by the 
State law, into a Federal court, where it will be upheld. 
This is an ordinary mode of protecting rights and im­
munities conferred by the Federal Constitution and laws. 
Sec. 641 [now §1443(1)] is such a provision.” See also 
Virginia v. Rives, 1879, 100 U. S. 313, 318.

From its inception, then, the civil rights removal 
statute has been, as its language plainly contemplates, an 
adjunct to the substantive civil rights statutes enacted by 
Congress. The history of the several codifications and 
recodifications of sections 1977 and 1978, of the several 
amendments and enlargements upon these seminal civil 
rights laws, and of the parallel codifications and recodifi­
cations of the removal statute which is presently 28 
U.S.C.A. §1443(1) amply supports this view of the tenor 
of the statutory language. (The history of these pro­
visions is easily traceable through annotations in U.S.C.A.). 
It can not be doubted that §1443(1) is today an adjunct 
of the Civil Rights Act of 1964. See New York v. Galami- 
son, 2nd Cir, 1965, . . . F. 2d . . . ,  33 U. S. Law Week 2389”. 
Particularly is this so in light of the references to the 
provision of a federal forum on removal for the pro­
tection of substantive civil rights in the act itself, Title 
IX, §901, and in its legislative history. See House Judici­



22
R achel, et al. v. S ta te  of G eorgia

ary Committee Report reprinted in BNA, The Civil 
Rights Act of 1964, pp. 286-87; remarks of Senator Dodd, 
110 Cong. Rec. 6739 (daily ed. April 6, 1964).

Congress, while carving out rights and immunities in 
the area of civil rights, has provided a jurisdictional basis 
for efficiently and appropriately protecting those rights 
and immunities in a federal forum. The provision of 
this protective forum is not limited by the States’ obliga­
tion, under the Supremacy Clause, to protect federally 
guaranteed civil rights as zealously as would a federal 
court. That there is such an obligation on State tribunals 
is true, and vital, but it is irrelevant here. Theoretically, 
there is no need for any federal jurisdiction at all—except 
that of the Supreme Court—because State courts 
are required to protect federally created rights. Never­
theless, the power of Congress to provide a federal forum 
also to protect such rights is undoubted. Such power 
was exercised in enacting §1443(1).

The federally guaranteed right and immunity here perti­
nent were elucidated by the Supreme Court in Hamm v. 
City of Rock Hill, supra, as follows:

“ [T]he language of §203(c) supports a conclusion 
that non-forcible attempts to gain admittance or 
remain in establishments covered by the Act, are 
immunized from prosecution, for the statute 
speaks of exercising or attempting to exercise a 
‘right or privilege’ secured by its earlier pro­
visions. The availability of the Act as a defense 
against punishment is not limited solely to those



23
R achel, et al. v. S ta te  of G eorgia

who pursue the statutory remedies. The legis­
lative history specifically notes that the Act 
would be a defense to criminal trespass, breach of 
the peace and similar prosecutions.”

Under the allegations of the petitions in the present case, 
these appellants have been denied, because of State legis­
lation, “a right under . . .  [a] law providing for the 
equal civil rights of citizens of the United States.” They 
are entitled to a federal forum as provided for in 28 
U.S.C.A. Sec. 1443(1) in which to prove these allegations. 
If the allegations are proved, then the federal court 
acquires jurisdiction for all purposes. Under normal 
circumstances the state prosecutions would then proceed 
in the federal court. Here, however, the finding of the 
jurisdictional fact immediately brings the Hamm case into 
play. The same fact determination requires dismissal 
rather than further prosecution in the District Court.*

Upon remand, therefore, the trial court should give 
appellants an opportunity to prove the allegations in the 
removal petition as to the purpose for the arrests and 
prosecutions, and in the event it is established that the 
removal of the appellants from the various places of public 
accommodation was done for racial reasons, then under 
authority of the Hamm case it would become the duty of 
the district court to order a dismissal of the prosecutions 
without further proceedings.

Concluding, as we do, that the petition for removal 
alleges sufficient grounds showing a denial of the civil

3 In light of the view we have taken of this case, it is
unnecessary to review the appellants’ contention that they 
are also entitled to removal under 28 U.S.C.A. §1443(2).



24
R achel, et al. v. S ta te  of G eorgia

rights of the appellants in the state courts by reason of 
the State statute, it follows that the order of remand was 
in error and it must be reversed and the case remanded 
to the district court for further proceedings not incon­
sistent with this opinion.

REVERSED AND REMANDED.

BELL, Circuit Judge, concurring in part and dissenting 
in part:

I regret that I cannot concur altogether in the opinion 
of the majority. The reasoning preliminary to the holding 
therein seems to embrace the following steps. We begin 
with the jurisdictional base, i.e., the removal statute. 
28 USCA, § 1443(1). Next, the case of Kentucky v. 
Powers, 1906, 201 U.S. 1, is cited for authority that the 
removal statute is limited to those situations where a 
state law gives rise to the deprivation of equal civil rights 
by reason of which a defendant seeks to invoke federal 
jurisdiction. Then the removal petition itself is con­
strued, and the conclusion reached that appellants do 
indeed assert that they were being denied their equal 
civil rights in the state court because of a Georgia statute. 
The fact that the statute is nowhere specified is met by 
applying the philosophy of federal notice type pleading 
to the bare allegation of the removal petition, to the end 
of assuming that the petition referred to Georgia Code 
26-3005, the anti-trespass statute.1 It is also assumed that

1 It shall be unlawful for any person, who is on the premises 
of another, to refuse and fail to leave said premises 
when requested to do so by the owner or any person in 
charge of said premises or the agent or employee of such 
owner or such person in charge. Any person violating



25
R achel, et al. v. S ta te  of G eorgia

appellants will claim on hearing that the statute is either 
unconstitutional on its face or as applied by the state court 
to appellants. The unconstitutionality in application may 
be claimed on the holding of the Supreme Court in Hamm 
v. City of Rock Hill, 1964, . . .  .U.S. . . . . ,  . . . .  S.Ct.
13 L.Ed.2d 300, in its retroactive application of the Civil 
Rights Act of 1964 for reason of national policy to the 
socalled sit-in cases. That case protects persons engaged 
in peaceable sit-ins in restaurants covered by the Act from 
prosecution.

Thus, the majority concludes that the removal petition 
may fairly be read as alleging a valid claim for removal 
under 28 USCA, § 1443(1). And up to this point, I am in 
agreement with the majority. That is, I agree that the 
removal petition may now be read to allege that appel­
lants are unable to enforce in the Georgia courts the right, 
conferred by the Civil Rights Act of 1964 as construed by 
Hamm v. City of Rock Hill, to be free from prosecution 
under state trespass statutes for peaceful sit-in demon­
strations. The fact is that appellants were being prose­
cuted under such a statute, viz., Ga. Code § 26-3005. 
Therefore I also agree that the District Court erred in 
remanding to the state court without a hearing. How­
ever, I wish to disassociate myself from that part of the 
holding as to how these cases are to be treated on remand 
to the District Court.

We should reverse and remand for a hearing on the 
question of jurisdiction. But, the majority states, and

the provisions of this section shall be guilty of a mis­
demeanor and upon conviction thereof shall be punished 
as for a misdemeanor. (Ga. Laws 1960, p. 142)



26
R achel, et al. v. S ta te  of G eorgia

this is where I disagree, that upon remand the trial court 
should give appellants the opportunity to prove their 
allegations as to the purpose of the arrests and prosecu­
tions, and in the event the refusal of service in places 
of public accommodation was for racial reasons, then 
under the authority of the Hamm case it would become 
the duty of the District Court to dismiss the prosecutions. 
If this is all that remains for consideration on remand, 
the holding of the majority is tantamount to applying 
Hamm v. Rock Hill in all its sweep against trespass stat­
utes, retroactively to the State of Georgia. It is, in 
effect, a holding that Georgia has applied and will con­
tinue to apply its trespass statute contrary to the teach­
ings of the Supreme Court in Hamm, even though 
Hamm had not been decided when the cases were in the 
state courts and even though the state courts have not 
had an opportunity to deal with these cases in the light 
of Hamm. In dispensing with the requirement that 
appellants prove on remand that the Georgia courts will 
not accord them their rights under the Hamm decision, 
the theory of the majority must be that Hamm has tainted 
these prosecutions ah initio, and hence jurisdiction in the 
federal court has been established retroactively by the 
very fact that the prosecutions were ever commenced. 
This casual treatment of the Georgia courts is a striking 
departure from my concept of Federalism and from the 
duty which I think comity imposes upon us with regard 
to that system.

The fact is that the Supreme Court had never, before 
and absent Hamm and the 1964 Civil Rights Act, held 
the use of state trespass statutes under the circumstances



27
R achel, et al. v. S ta te  of G eorgia

here presented to be unconstitutional. This was one of 
the problems that the Civil Rights Act sought to obviate. 
See the following cases where the question was pre-
termitted: Griffin v. Maryland, 1964, ........ U.S............,
84 S.Ct. 1770, 12 L.Ed.2d 754; Barr v. Columbia, 1964,
. . . .  U.S........., 84 S.Ct. 1734, 12 L.Ed.2d 766; Robinson v.
Florida, 1964, . . . .  U.S........., 84 S.Ct. 1693, 12 L.Ed.2d 771;
Bell v. Maryland, 1964, . . . .  U.S......... , 84 S.Ct. 1814, 12
L.Ed.2d 822; and Bouie v. Columbia, 1964, . . . .  U.S......... ,
84 S.Ct. 1697, 12 L.Ed.2d 894. We recognized this fact in 
Poole v. Barnett, 5 Cir., 1964, 336 F.2d 267. It is now un­
doubtedly true that the 1964 Civil Rights Act and the 
Hamm decision have placed a gloss on state trespass 
statutes so that they may not be applied against those 
peaceably seeking service in restaurants covered by the 
Act, or against those whose prosecutions for such activity 
were pending at the time of the passage of the Act. How­
ever, in view of this gloss being of a supervening nature, 
I would give the Georgia court from whence these cases 
were removed a chance to apply the Hamm doctrine un­
less appellants can demonstrate on remand to the District 
Court that the Georgia court would not fairly accord them 
their rights under Hamm.

Thus, on remand the District Court should first de­
termine just what appellants do claim under the present 
allegations of their notice type pleading. If they contend 
that the statute is unconstitutional in its application to 
them by the state, by virtue of the Hamm case or other­
wise, then the question will arise whether the state in fact 
seeks to apply the statute in an unconstitutional manner. 
If it appears, and the burden would be on appellants to



28
R achel, et al. v. S ta te  of G eorgia

show this, that the state will apply the statute contrary 
to the teachings of Hamm, the District Court should deny 
remand and retain the cases for disposition; otherwise, 
the cases should be remanded.

I doubt that appellants can point to any right that would 
be jeopardized by remand to the state court. The Supreme 
Court of Georgia has already applied Hamm to a group 
of sit-in convictions with the result of abating the con­
viction and ordering the cases dismissed. Bolton, et al. 
v. State of Georgia, No. 22,810, decided February 8, 1965. 
Such jeopardy as may be involved is jeopardy to our dual 
system of courts, federal and state. And a federal court 
should not lightly intrude into a sphere of activity left to 
state and local government under the Constitution: the 
maintenance of local order. Because the decision of the 
majority goes to the point of vesting jurisdiction in the 
federal court retroactively, a step further than the Su­
preme Court went in Hamm, I respectfully dissent.

WHITEHURST, District Judge, concurring in part and 
dissenting in part:

I concur in Judge Tuttle’s opinion on the merits. How­
ever, the Notice of Appeal having been filed six days 
later than permitted under Rule 37(a)(2) of the Rules 
of Criminal Procedure, I would dismiss the appeal.

Adm. Office, U. S. Courts—E. S. Upton Printing Co., N. O., La.



APPENDIX D

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 1 3 5 4

THOMAS RACHEL, ET AL,
Appellants,

versus

STATE OF GEORGIA,
Appellee.

Appeal from the United States District Court for the 
Northern District of Georgia.

(April 19, 1965.)

ON PETITION FOR REHEARING.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and 
WHITEHURST, District Judge.

PER CURIAM: It is ORDERED that the petition for
rehearing filed in the above styled and numbered cause 
be, and the same is, hereby DENIED.

29



30
R achel, et a l. v. S ta te  o f G eorgia

BELL, Circuit Judge, concurring in part and dissenting 
in part:

I would grant the petition for rehearing to the extent 
noted in my dissent to the original opinion and for that 
purpose I dissent from the denial of the petition for re­
hearing; otherwise I concur.

WHITEHURST, District Judge, dissenting:
I would grant the petition for rehearing for the reason 

that the Appellate Court has no jurisdiction by virtue of 
Rule 37(a)(2) of the F.R.C.P.

PER CURIAM: It appearing that each of the members 
of the Court adheres to his views originally expressed in 
the several opinions heretofore filed, the petition for re­
hearing is DENIED.

Adra. Office, U. S. Courts—E. S. Upton Printing Co., N. O., La.



APPENDIX E

PER T IN EN T  PARTS OF CO N STITU TIO N A L
PROVISIONS AND STA TU TES INVOLVED

AMENDMENT I, CO N STITU TIO N  OF TH E 
UNITED STA TES

“Congress shall make no law respecting an establish­
ment of religion, or prohibiting the free exercise there­
of; or abridging the freedom of speech, or of the press; 
or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances.”

AMENDMENT XIV, CO N STITU TIO N  OF TH E 
UNITED STA TES

“Section 1. . . . No State shall make or enforce any 
law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State deprive 
any person of life, liberty, or property, without due 
process of law; nor deny to any person within its juris­
diction the equal protection of the laws.”

SECTION 1443, T IT L E  28, U. S. C.

“Section 1443. Civil rights cases
“Any of the following civil actions or criminal pros­

ecutions, commenced in a State court may be removed 
by the defendant to the district court of the United 
States for the district and division embracing the place 
wherein it is pending:

“ (1) Against any person who is denied or cannot 
enforce in the courts of such State a right under any 
law providing for the equal civil rights of citizens of 
the United States, or of all persons within the juris­
diction thereof;

31



32

“ (2) For any act under color of authority derived from 
any law providing for equal rights, or for refusing to do 
any act on the ground that it would be inconsistent with 
such law. June 25, 1948, c. 646, 62 Stat. 938.) ”

SECTIO N 1446 (a ) , (c ), (d ), T IT L E  28, U. S. C.

“Section 1446. Procedure for removal

“ (a) A defendant or defendants desiring to remove 
any civil action or criminal prosecution from a State 
court shall file in the district court of the United States 
for the district and division within which such action 
is pending a verified petition containing a short and 
plain statement of the facts which entitle him or them 
to removal together with a copy of all process, pleadings 
and orders served upon him or them in such action.

“ (c) The petition for removal of a criminal prosecu­
tion may be filed at any time before trial.

“ (d) Each petition for removal of a civil action or 
proceeding, except a petition in behalf of the United 
States, shall be accompanied by a bond with good and 
sufficient surety conditioned that the defendant or de­
fendants will pay all costs and disbursements incurred 
by reason of the removal proceedings should it be de­
termined that the case was not removable or was im­
properly removed.”

SECTION 1447 (c ), (d ), T IT L E  28, U. S. C.

"Section 1447. Procedure after removal generally

“ (c) If at any time before final judgment it appears



33

that the case was removed improvidently and without 
jurisdiction, the district court shall remand the case, 
and may order the payment of just costs. A certified copy 
of the order of remand shall be mailed by its clerk to 
the clerk of the State court. The State court may there­
upon proceed with such case.

“ (d) An order remanding a case to the State court 
from which it was removed is not reviewable on appeal 
or otherwise. June 25, 1948, c. 646, 62 Stat. 939, amended 
May 24, 1949, c. 139, Section 84, 63 Stat. 102.) ”

SECTION 71, FORM ER T IT L E  28, U. S. C. 
(JUDICIAL CODE, SEC. 28)

. . . . Whenever any cause shall be removed from 
any State court into any district court of the United 
States, and the district court shall decide that the cause 
was improperly removed, and order the same to be re­
manded to the State court from whence it came, such 
remand shall be immediately carried into execution, and 
no appeal from the decision of the district court so 
remanding such cause shall be allowed......................”

SECTION 74, FORMER T IT L E  28, U. S. C. 
(JUDICIAL CODE, SEC. 31)

“When any civil suit or criminal prosecution is com­
menced in any State court, for any cause whatsoever, 
against any person who is denied or cannot enforce in 
the judicial tribunals of the State, or in the part of the 
State where such suit or prosecution is pending, any 
right secured to him by any law providing for the equal 
civil rights of citizens of the United States, or of all per­
sons within the jurisdiction of the United States, or 
against any officer, civil or military, or other person,



34

for any arrest or imprisonment or other trespasses or 
wrongs made or committed by virtue of or under color 
of authority derived from any law providing for equal 
rights as aforesaid, or for refusing to do any act on the 
ground that it would be inconsistent with such law, such 
suit or prosecution may, upon the petition of such de­
fendant, filed in said State court at any time before the 
trial or final hearing of the cause, stating the facts and 
verified by oath, be removed for trial into the next dis­
trict court to be held in the district where it is pending. 
Upon the filing of such petition all further proceedings 
in the State courts shall cease, and shall not be resumed 
except as hereinafter provided.

SECTION 76, FORM ER T IT L E  28, U. S. C. 
(JU D ICIA L CODE, SEC. 33)

"When any civil suit or criminal prosecution is com­
menced in any court of a State against any officer ap­
pointed under or acting by authority of any revenue 
law of the United States, or against any person acting 
under or by authority of any such officer, on account 
of any act done under color of his office or of any such 
law, or on account of any right, title, or authority 
claimed by such officer or other person under any such
la w ,...............the said suit or prosecution may at any
time before the trial or final hearing thereof be removed 
for trial into the district court next to be holden in 
the district where the same is pending upon the petition
of such defendant to said district court..............................;
and thereupon it shall be the duty of the State court to 
stay all further proceedings in the cause, and the suit 
or prosecution, . . .



35

ACT OF 1887, SECS. 2 AND 5 
(24 STA T. 553, 555)

“Section 2................... Whenever any cause shall be
removed from any State court into any circuit court of 
the United States, and the circuit court shall decide that 
the cause was improperly removed, and order the same 
to be remanded to the State court from whence it came, 
such remand shall be immediately carried into execu­
tion, and no appeal or writ of error from the decision 
of the circuit court so remanding such cause shall be 
allowed.”

“Section 5. That nothing in this act shall be held, 
deemed, or construed to repeal or affect any jurisdiction 
or right mentioned either in sections 641, or in 642, or 
in 643, or in 722, or in title 24 of the Revised Statutes 
of the United States, or mentioned in section 8 of the 
act of Congress of which this act is an amendment, or 
in the act of Congress approved March 1, 1875, entitled 
‘An act to protect all citizens in their civil or legal 
rights.’ ”

ACT OF 1875, SEC. 5 (18 STA T. 472)

“Section 5. That if, in any suit commenced in a circuit 
court or removed from a State court to a circuit court 
of the United States, it shall appear to the satisfaction 
of said circuit court, at any time after such suit has been 
brought or removed thereto, that such suit does not 
really and substantially involve a dispute or controversy 
properly within the jurisdiction of said circuit court,
.............. .. the said circuit court shall proceed no further
therein, but shall dismiss the suit or remand it to the 
court from which it was removed as justice may require,



36

and shall make such order as to costs as shall be just; 
but the order of said circuit court dismissing or remand­
ing said cause to the State Court shall be reviewable by 
the Supreme Court on writ of error or appeal, as the 
case may be.”

A CT OF 1866, SEC. 3 (14 STA T. 27, 28)

“An Act to protect all persons in the United States 
in their Civil Rights, and furnish the means of their 
vindication.

“Section 3. And be it further enacted, That the district 
courts of the United States, within their respective dis­
tricts, shall have, exclusively of the courts of the several 
States, cognizance of all crimes and offenses committed 
against the provisions of this act, and also, concurrently 
with the circuit courts of the United States, of all causes, 
civil and criminal, affecting persons who are denied or 
cannot enforce in the courts or judicial tribunals of the 
State or locality where they may be any of the right 
secured to them by the first section of this act; and if 
any suit or prosecution, civil or criminal, has been or 
shall be commenced in any State court, against any such 
person, for any cause whatsoever, or against any officer, 
civil or military, or other person, for any arrest or im­
prisonment, trespasses, or wrongs done or committed by 
virtue or under color of authority derived from this 
act or the act establishing a Bureau for the relief of 
Freedmen and Refugees, and all acts amendatory thereof, 
or for refusing to do any act upon the ground that it 
would be inconsistent with this act, such defendant shall 
have the right to remove such cause for trial to the 
proper district or circuit court in the manner prescribed 
by the ‘Act relating to habeas corpus and regulating



37

judicial proceedings in certain cases,’ approved March 
three, eighteen hundred and sixty three, and all acts 
amendatory thereof.................”

REVISED STA TU TES, T IT L E  XIII,
TH E JUDICIARY, SEC. 641

“When any civil suit or criminal prosecution is com­
menced in any State court, for any cause whatsoever, 
against any person who is denied or cannot enforce in 
the judicial tribunals of the State, or in the part of the 
State where such suit or prosecution is pending, any 
right secured to him by any law providing for the equal 
civ il rights of citizens of the United States, or of all per­
sons within the jurisdiction of the United States, or against 
any officer, civil or military, or other person, for any 
arrest or imprisonment or other trespasses or wrongs, 
made or committed by virtue of or under color of au­
thority derived from any law providing for equal rights 
as aforesaid; or for refusing to do any act on the ground 
that it would be inconsistent with such law, such suit 
or prosecution, may, upon the petition of such defendant, 
Hied in said State court, at any time before the trial or 
final hearing of the cause, stating the facts and verified 
by oath, be removed for trial into the next circuit court 
to be held in the district where it is pending. Upon the 
filing of such petition all further proceeding in the State 
courts shall cease, and shall not be resumed except as
hereinafter provided.........................But if, without such
refusal or neglect of said clerk to furnish such copies 
and proof thereof, the petitioner for removal fails to file 
copies in the circuit court as herein provided, a certifi­
cate, under the seal of the circuit court, stating such 
failure, shall be given, and upon the production thereof



38

in said State court, the cause shall proceed therein as 
if no petition for a removal had been filed.” (Note: No 
mention made here of remand orders, except upon fail­
ure to file copies of proceedings in circuit court, or of 
the right to appeal a remand order.)

R U L E  37 (a) (2), T IT L E  18, U. S. C.
“ Rule 37. Taking Appeal; and Petition for Writ of 

Certiorari
“ ( a ) .................
“ ( 1 ) ......................
“ (2) Time for Taking Appeal. An appeal by a de­

fendant may be taken within 10 days after entry of the 
judgment or order appealed from, but if a motion for a 
new trial or in arrest of judgment has been made within 
the 10-day period an appeal from a judgment of con­
viction may be taken within 10 days after entry of the 
order denying the motion. When a court after trial 
imposes sentence upon a defendant not represented by 
counsel, the defendant shall be advised of his right to 
appeal and if he so requests, the clerk shall prepare and 
file forthwith a notice of appeal on behalf of the de­
fendant. An appeal by the government when authorized 
by statute may be taken within 30 days after entry of 
the judgment or order appealed from.”



39

RU LE 45 (a) , T IT L E  18, U. S. C.

“ Rule 45. Time

“ (a) Computation. In computing any period of time 
the day of the act or event after which the designated 
period of time begins to run is not to be included. The 
last day of the period so computed is to be included, 
unless it is a Sunday or legal holiday, in which event 
the period runs until the end of the next day which is 
neither a Sunday nor a holiday. When a period of time 
prescribed or allowed is less than 7 days, intermediate 
Sundays and holidays shall be excluded in the compu­
tation. A half holiday shall be considered as other days 
and not as a holiday.”

RU LE 73 (a ), T IT L E  28, U. S. C.

“ Rule 73. Appeal to a Court of Appeals

“ (a) When and How Taken. When an appeal is 
permitted by law from a district court to a court of 
appeals the time within such an appeal may be taken 
shall be 30 days from the entry of the judgment appealed 
from unless a shorter time is provided by law, except 
that in any action in which the United States or an 
officer or agency thereof is a party the time as to all 
parties shall be 60 days from such entry,....................... ”



40

GEORGIA CODE ANNO TATED, 26-3005

“ 26-3005. Refusal to leave premises of another when 
ordered to do so by owner or person in charge, — It 
shall be unlawful for any person, who is on the premises 
of another, to refuse and fail to leave said premises when 
requested to do so by the owner or any person in charge 
of said premises or the agent or employee of such owner 
or such person in charge. Any person violating the pro­
visions of this section shall be guilty of a misdemeanor 
and upon conviction thereof shall be punished as for a 
misdemeanor. (Acts 1960, p. 142.) ”

R U L E  54 (a) (1), (b) (1), T IT L E  18, U. S. C.

'‘R U L E  54. Application and Exception.
“ (a) Courts and Commissioners.

“ (1) Courts. These rules apply to all criminal pro­
ceedings in the United States D istrict Courts, 
which include the D istrict Court for the 
Territory of Alaska, the D istrict Court of 
Guam  and the D istrict Court of the Virgin 
Islands; in the United States Courts of 
A ppeals; and in the Supreme Court of the 
United S tates . . . .”

“ (b) Proceedings.
“ (1) Rem oved Proceedings. These rules apply to 

criminal prosecutions removed to the United  
States district courts from state courts and 
govern all procedure after removal, except 
that dismissal by the attorney for the pros­
ecution shall be governed by state law .”



41

A C T  O F JU N E  25, 1948, c. 645, 62 Stat. 683, p. 845

“ Section 3732. Taking of Appeal— Notice—Time 
(Rule) See Fed. Rules of Grim. Procedure, Rule 
37 (a ).”

C IV IL  R IG H T S  A C T OF 1964

§ 201 :

“ (b) Each of the following establishments which 
serves the public is a place of public accommodation 
within the meaning of this title if its operations affect 
commerce . . .

>lc *  *  *  *  *  T T

“ (2) any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility principally 
engaged in selling food for consumption on the prem­
ises, including, but not. limited to, any such facility  
located on the premises of any retail establishment . . .

“ (c) The operations of an establishment affect 
commerce within the meaning of this title if . . . it 
serves or offers to serve interstate travelers . .

§203:
“ No person shall (a) withhold, deny, or attem pt to 

withhold or deny, or deprive or attem pt to deprive, 
any person of any right or privilege secured by section 
201 or 202, or (b) intimidate, threaten, or coerce, or 
attem pt to intimidate, threaten, or coerce any person 
with the purpose of interfering with any right or pri­
vilege secured by section 201 or 202, or (c) punish or 
attem pt to punish any person for exercising or attem pt­
ing to exercise any right or privilege secured by section 
201 or 202.”



APPENDIX F

luttpd States Court of Apprala
FOR THE FIFTH  CIRCUIT

October Term , 1964

No. 21354

D. C. Docket No. 23,869 

T h o m a s R a c h e l , et al.,

versus

S t a t e  o f  G e o r g ia ,

Appellants,

Appellee.

Appeal from the United States D istrict Court for 
the Northern D istrict of Georgia.

Before T U T T L E , Chief Judge, B E L L , Circuit 
Judge, and W H IT E H U R ST , D istrict Judge.

J U D G M E N T
This cause came on to be heard on the transcript of 

the record from the United States D istrict Court for 
the Northern D istrict of Georgia, and was argued by 
counsel;

ON C O N SID E R A T IO N  W H E R E O F, It  is now here 
ordered and adjudged by this Court that the judgment 
of the said D istrict Court in this cause be, and the same 
is hereby, reversed; and that this cause be, and it is 
hereby remanded to the said D istrict Court for further 
proceedings not inconsistent with the opinion of this 
C ourt;

42



43

It is further ordered and adjudged that the appellee, 
State of Georgia, be condemned to pay the costs of this 
cause in this Court for which execution m ay be issued 
out of the said D istrict Court.

“ B E L L , Circuit Judge, concurring in part and dis­
senting in p art”

“ W H IT E H U R ST , D istrict Judge, concurring in part 
and dissenting in part”

M arch 5, 1965
Issued as M andate:



APPENDIX G

UmtF& i ’tatPB (Emtrt nf Appeals
FO R TH E FIFTH  CIRCUIT

No. 21354

T h o m a s R a c h e l , et a l ,
Appellants,

versus
T h e  S t a t e  o f  G e o r g ia ,

Appellee.

ON C O N SID E R A T IO N  OF T H E  A P P L IC A T IO N  
of the appellee in the above numbered and entitled 
cause for a stay  of the m andate of this court therein, 
to enable appellee to apply for and to obtain a writ of 
certiorari from the Supreme Court of the United 
States, IT  IS  O R D E R E D  that the issue of the mandate 
of this court in said cause be and the same is stayed for 
a period of thirty days; the stay  to continue in force 
until the final disposition of the case by the Supreme 
Court, provided that within thirty days from the date 
of this order there shall be hied with the clerk of this 
court the certificate of the clerk of the Supreme Court 
that certiorari petition and record have been filed. It 
is further ordered that the clerk shall issue the m andate 
upon the filing of a copy of an order of the Supreme 
Court denying the writ, or upon the expiration of 
thirty days from the date of this order, unless the 
above-mentioned certificate shall be hied with the 
clerk of this court within that time.

D O N E  A T  N EW  O R L E A N S, LA., this 27th day of 
April, 1965.

/ s /  E l b e r t  P. T u t t l e  
Chief Judge.

(O R IG IN A L  F IL E D  A P R IL  27, 1965)
44



45

CERTIFICATE OF SERVICE

G e o r g ia , F u l t o n  C o u n t y

I, J .  Robert Sparks, of counsel for the State of 
Georgia, Petitioner, certify that I have this day served 
copies of the foregoing Petition for Writ of Certiorari, 
and Appendices, upon Respondents, by depositing in 
the United States Post Office in Atlanta, Georgia two 
copies of same in an envelope addressed to Donald L. 
Hollowell and Howard Moore, Jr ., Esquires, Attorneys 
at Law, 859j/2 Hunter Street, N. W., Atlanta, Georgia 
30314, and two copies of same in an envelope addressed 
to Jack  Greenberg, Esquire, Attorney at Law, 10 
Columbus Circle, New York, New York 10019, counsel 
of record for Respondents, with sufficient first class 
postage affixed thereto, plus air mail postage for Mr. 
Greenberg’s cqpies.

This day of M ay, 1965.

J .  R ob
A ssistant Solicitor General 
A tlanta Judicial Circuit