PEOPLE OF the STATE OF NEW YORK, Appellee. v. Milton A. GALAMISON et al., Appellants.
Nos. 156-165, Dockets 29166-29175.
United States Court of Appeals Second Circuit.
Argued Oct. 2, 1964. Decided Jan. 26, 1965. Certiorari Denied April 26, 1965.
342 F.2d 255 | 85 S.Ct. 1342
Harvey B. Ehrlich, New York City (Frank D. O‘Connor, Dist. Atty., Queens County, New York, Louis J. Lefkowitz, Atty. Gen., State of New York, Mortimer Sattler, Asst. Atty. Gen., of counsel), Frank S. Hogan, Dist. Atty., New York County (Richard H. Kuh, John A. K. Bradley, Asst. Dist. Attys., of counsel), and Isidore Dollinger, Dist. Atty., Bronx County (Irving Anolik, Asst. Dist. Atty., of counsel), for appellee.
Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
FRIENDLY, Circuit Judge.
We have here appeals concerning some sixty persons from orders of the District Courts for the Eastern and Southern Districts of New York, remanding to the New York courts criminal proceedings sought to be removed pursuant to
In the light of the rule, established before the prohibition of direct review, that an order of remand was not a final judgment subject to appeal under what is now
Galamison and nearly fifty other appellants were named as defendants in prosecutions in Queens County, New York, for various acts which disrupted highway and subway traffic to the New York World‘s Fair in order to publicize their grievances over what Galamison‘s removal petition characterizes as “the denial of equal protection of the laws to Negroes in the City, State and Nation with reference to housing, education, employment, police action and other areas of local and national life too numerous to mention.” Two appellants were arrested in Bronx County after passing out leaflets at a public school urging a protest against lack of integration. Eight more were being prosecuted in New York County for staging a sit-in at City Hall in the course of a protest on the same subject. All filed petitions removing the criminal cases against them to the federal courts.3 The state having moved to remand, Judge Rosling in the Eastern
At the argument before us, counsel for the appellants expressly disclaimed reliance on the first clause of § 1443, and staked the cases entirely on the second. The district attorneys asked us to disregard informalities in the removal petitions and dispose of appellants’ claim under § 1443(2) on the merits—a proposal which appellants applauded. Reading the petitions in the spirit which the State has invited and in the light of appellants’ thorough briefs, we construe them as asserting that appellants’ acts of protest and resistance were “under color of authority” of one or more of three “law[s] providing for equal rights“—the guarantees of free speech and petition embodied in the due process clause of the Fourteenth Amendment, the equal protection clause of that Amendment, and statutory protection of rights conferred by the Constitution, notably
We pause at this point for a word concerning our dissenting brother‘s position that the petitions are so defective that we ought simply to vacate all the orders of remand and have everyone start over again. While the petitions may not have been drawn with the expertness desired and might well have been insufficient properly to raise the question of removal under § 1443(1), there is not and never has been any such difficulty in discerning what is here at issue as the dissent suggests. The Queens County cases concern widely publicized mass demonstrations in public places—the streets and the subway. The New York County cases concern demonstrations in City Hall. No one asserts that Negroes in New York City are subjected to unequal treatment in any of these places or that the demonstrations were intended to remove discrimination there; the protests were directed at alleged unequal treatment generally “in the City, State and Nation.” This leaves the cases from Bronx County. We shall assume that the school at which these two appellants were distributing leaflets was in their view a segregated one; on the other hand, there is not a word in the petitions, nor has there been the slightest suggestion from counsel, that the appellants were or had children in that school.
It would indeed be pleasant if we could conscientiously avoid decision here. The interpretative problems are difficult, due to the age of the statute, the lack of decisions thereunder and the mangling which it has undergone; it is unfortunate that, in subjecting remands under § 1443 to review, the draftsmen of the Civil Rights
We turn initially to the history of the statute. Section 1443 stems from § 3 of the first Civil Rights Act, 14 Stat. 27 (1866), quite obviously enacted under the power conferred by the recently adopted Thirteenth Amendment and prior to the adoption of the Fourteenth. Section 1 of the Act declared that, with exceptions not here relevant, “all persons born in the United States * * * of every race and color, without regard to any previous condition of slavery or involuntary servitude * * * shall have the same right * * * to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other * * *” Section 2 made it a crime for any person “under color of any law, statute, ordinance, regulation, or custom” to deprive any person of any right secured by the Act. There follows the removal provision, § 3, the first sentence of which we quote in the margin.5
The first important change of language in the removal section came in the Revised Statutes of 1875 and 1878, the former of which constituted “positive law.”6 In codifying the laws these revisions distributed what had become the considerable bundle of provisions concerning civil rights among four titles. Title XXIV, entitled “Civil Rights,” included the former § 1 of the Civil Rights Act of 1866, divided into two sections, 1977 and 1978, which have been carried forward as
“When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, or against any officer, civil or military, or other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending.”
Section 641 was carried forward into § 31 of the Judicial Code of 1911, 36 Stat. 1096, without any real change. In contrast, the 1948 codification greatly altered
I.
This history assists us in disposing of the State‘s first argument in support of remand, namely, that the two clauses of § 1443 must be read together and the conditions of both satisfied. The argument derives from the action of the 1948 Reviser in eliminating the venerable words “any officer, civil or military, or other person” and also the “or” which had always separated the two clauses, thus leaving clause (2) without any referent and arguably linking it to clause (1). But the State‘s textual argument is overborne by a multitude of other considerations. Until 1948 the two clauses were grammatically parallel and were always separated by an “or“; and the 1948 Congress could not have meant that an officer seeking to avail himself of the second clause, which often would have afforded his sole basis for removal, would also have to meet the tests of the first. An intention on the part of the 1948 Congress to collapse two independent grounds of removal, recognized for three-quarters of a century, into a single one, more limited than either, ought not be assumed unless compelled by the language or supported by legislative history. But there is no such history and the linguistic difficulties in reading the two clauses as alternatives are more grammatical than semantic—it is not really hard to see that Congress was driving at two things rather than at one; indeed, the difficulties in such a reading are rather less formidable than those entailed in an attempt to read the second clause as limiting the first. The general scheme of the jurisdiction sections of the Judicial Code is that numbered clauses are alternatives, see, e.g., §§ 1332(a), 1333, 1343, 1442(a). We treat the omission of a referent in § 1443(2) as an unwise attempt by the Reviser to achieve compactness; what referent should be supplied is a different question, discussed in Section III below.
II.
We deal next with the State‘s argument that appellants’ acts went beyond the proper bounds of the freedom of speech and petition that the Constitution guarantees. The short answer, when the argument is stated in this breadth, is that these are the very questions which, under appellants’ construction of § 1443(2), Congress meant to have decided in a federal trial; a defendant seeking removal under that section does not have to prove preliminarily that
III.
We thus reach a more serious contention, namely, that § 1443(2) covers only officers and those persons assisting them or acting in some way on behalf of government. To say that clause (2) contains no description of who may invoke it is not a sufficient answer; some referent must be supplied.
Appellants say that the original language of the Civil Rights Act, allowing “any officer * * * or other person” to remove, must also have permitted removal by persons not acting officially, that is, persons merely exercising certain civil rights. This juxtaposition of “officer” and “other person” was carried forward into every revision from Rev.Stat. § 641 onwards until 1948, and the 1948 revision surely did not mean to narrow removal. But, although ejusdem generis, relied on by the State to limit “or other person” to a quasi-official, is a dubious aid, see the opposing instances in Llewellyn, The Common Law Tradition: Deciding Appeals 526-27 (1960), there are extremely substantial arguments in support of the State‘s construction.
One begins with the troubling question why if “other person” in fact meant “any person,” Congress did not simply repeat in the second or “authority” clause of § 3 of the Act of 1866 and § 641 of the Revised Statutes, these words which it had already used in the first or “denial” clause. Next, since the first clause was directed only toward freedmen‘s rights, symmetry would suggest that the second clause concerned only acts of enforcement. “Arrest or imprisonment, trespasses, or wrongs,” were precisely the probable charges against enforcement officers and those assisting them; and a statute speaking of such acts “done or committed by virtue of or under color of authority derived from” specified laws reads far more readily on persons engaged in some sort of enforcement than on those whose rights were being enforced, as to whom words like “acts founded upon” would have been much more appropriate. The inclusion of “or other person” can readily be explained without going so far as appellants urge. In anticipation of massive local resistance Congress devoted §§ 4-10 of the Civil Rights Act of 1866 to provisions compelling and facilitating the arrest and prosecution of violators of § 2, the criminal sanction for § 1 rights. These sections authorized and required district attorneys to prosecute under § 2, fined marshals who declined to serve warrants, authorized federal commissioners to “appoint, in writing * * * any one or more suitable persons, from time to time” to serve warrants, empowered the persons so appointed “to summon and call to their aid the bystanders or posse comitatus of the proper county, or such portion of the * * * forces of the United States” as was needed, and made interference with warrant service a further federal crime. Although the “one or more suitable persons” might be deemed “officers,” the bystanders and the posse comitatus were not, and were surely among those covered by “other person.” The argument for a limited construction of “other person” in the “authority” clause is aided by the consideration that the 1866 Act conferred original jurisdiction only for the “denial” category. The freedmen would need that resource, whereas officers and persons acting under or in aid of them normally would not. Finally, the derivation of § 3 of the 1866 Act from § 5 of the Habeas Corpus Act of 1863, see fn. 5, argues against appellants’ broad construction. The “any other person” in the 1863 act was someone who had been deputized by the President or by Congress to do something, not a person asserting his own rights. It is rather logical to assume that Congress had the same kind of “person” in mind when it used the same phrase in
Appellants’ counterargument as to the meaning of the Reconstruction legislation rests largely on the basis that when Congress wanted to limit a removal provision to officers and persons acting under or in aid of them, it knew how to say so. The first such act, 3 Stat. 198 (1815), had referred to “any collector, naval officer, surveyor, inspector, or any other officer, civil or military, or any other person aiding or assisting, agreeable to the provisions of this act, or under colour thereof, for any thing done, or omitted to be done, as an officer of the customs, or for any thing done by virtue of this act or under colour thereof * * *”8 And the very Congress that adopted the Civil Rights Act of 1866 provided for removal of any civil or criminal action “against any officer of the United States, appointed under or acting by authority of [certain prior revenue acts] * * * 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 against any person holding property or estate by title derived from any such officer, concerning such property or estate, and affecting the validity of [the revenue laws] * * *” 14 Stat. 171.
Moreover, appellants contend that even if the State were right as to the meaning of the Reconstruction legislation, a broadening change was effected in 1948 since, the Reviser‘s surgery having left clause (2) without a referent, the “any person” of clause (1) is a readier source than the words in predecessor statutes. This argument gains support from the condensation of the historic “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,” language rather strongly suggesting enforcement activity, into the more neutral “for any act under color of authority derived from any law providing for equal rights.” Force is added by the simultaneous broadening of § 1442(a) (2) dealing with federal officers, which we have outlined above, a change which makes § 1443(2) largely redundant if it is confined to officers and persons acting under them.
Against this is the point that the 1948 Reviser gave no indication that § 1443 was being substantively changed; the Note to the section spoke only of changes in phraseology, and a Congress preoccupied with other matters doubtless took him at his word. The courts have had frequent occasion to become familiar with the penchant of the 1948 Reviser for making a “quite unnecessary change in phraseology, apparently motivated in part by a stylistic preference,” Gilmore & Black, The Law of Admiralty 35 (1957), without adequately considering the consequences arguably incident to the alteration and consequently without informing Congress of its possible effect. In the case of the “saving to suitors” clause,
While it has seemed worthwhile to set forth these arguments and counterarguments in detail, we find it unnecessary in this case to decide between them. For the appeals fail on other grounds although these are not unrelated to the point just discussed.
We next consider whether appellants’ claims under the equal protection clause of the Fourteenth Amendment and its statutory precursor,
We begin by returning to the text we must construe. We have agreed with appellants that § 1443(2) affords a ground for removal separate from § 1443 (1), and we are henceforth assuming, arguendo, that § 1443(2) is not limited to officers or persons acting at their instance or on their behalf. It is undisputed, as the textual history demonstrates, that the laws referred to in the two clauses are the same, despite the more abbreviated language of the second. Yet a person relying on “a right under any law providing for the equal civil rights of citizens of the United States” may remove only if he “is denied or cannot enforce” that right in the state courts, whereas a person whose act is “under color of authority derived from” such a law may remove without any such limitation. It necessarily follows that “under color of authority derived from” in § 1443(2) has a narrower meaning than “a right under” in § 1443(1), since otherwise, in almost all cases covered by the first clause, which clearly covers deprivations of substantive rights and not merely procedural inequalities, the requirement of showing denial or inability to enforce would be avoided by resort to the second.
We gain a valuable insight into the meaning of “color of authority” if we reflect on the cases at which § 1443(2) was primarily aimed and to which it indubitably applies—acts of officers or quasi-officers. The officer granted removal under § 3 of the Civil Rights Act of 1866 and its predecessor, § 5 of the Habeas Corpus Act of 1863, would not have been relying on a general constitutional guarantee but on a specific statute or order telling him to act. Cf. Hodgson v. Millward, 12 Fed.Cas. No. 6,568 (C.C.Pa.1863), approved in Braun v. Sauerwein, 77 U.S. (10 Wall.) 218, 224, 19 L.Ed. 895 (1869).9 A private person claiming the benefit of § 1443(2) can stand no better; he must point to some law that directs or encourages him to act in a certain manner, not merely to a generalized constitutional provision that will give him a defense or to an equally general statute that may impose civil or criminal liability on persons interfering with him.
Unwillingness to recognize this lies at the basis of our brother‘s dissent. It may be true enough that in common usage and understanding a person would be thought to have “color of authority“—although this is not exactly the ordinary discourse of laymen—to do any act which he can successfully defend or for interference with which he can recover damages or ask the government to prosecute. But the issue is not the usage and understanding of ordinary words but the meaning of technical words in the particular context in which Congress used them in the two clauses of § 3 of the Civil Rights Act of 1866 as this has been carried forward into
Our problem as to the equal protection clause and
Appellants do not urge that New York has administered its penal laws in a discriminatory manner, so that conduct which the statutes forbid on their face would nevertheless be tolerated if carried on by a different group or for a different cause, see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Fowler v. State of Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953), and they have made no suggestion that they wished to or properly could amend the petitions to assert this. Even if this had been plausibly asserted, it would still do some violence to the structure of § 1443, as we have analyzed this, to say that the equal protection clause or
It is wholly consistent with the scheme of the removal statute to say that generalized guarantees of equal rights do not afford color of authority under the second clause of § 1443. Such guarantees are within the first clause; even if the second clause should be held to include private citizens, it was drawn with primary reference to officers and persons acting at their instance; and we see no basis for the dissent‘s suggestion that our construction would frequently make it unavailable even to them.
V.
Appellants’ contentions based on statutes such as
VI.
We thus turn to appellants’ claims based on the prohibition, in the due process clause of the Fourteenth Amendment, of deprivation of “liberty,” including the freedom of speech and petition guaranteed by the First Amendment. We hold that quite apart from the question of “color of authority,” which would also require resolution in this context, the claims fail on the ground that these basic guarantees are not laws
It is clear that rights of this sort were not in the contemplation of the framers of § 3 of the Civil Rights Act of 1866. In that act, adopted prior to ratification of the Fourteenth Amendment, what has become § 1443(2) permitted removal only “for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act” and the Freedmen‘s Bureau Acts. None of these statutes has any provision remotely relating to the general protection of freedom of speech or petition against state infringement, and there would hardly have been constitutional basis for so providing. After the ratification of the Fourteenth Amendment, Congress left the cross-reference unchanged until the passage of the Revised Statutes of 1875, and it added no additional removal provisions here significant in the interval.12 But the Revised Statutes altered the cross-reference to “any law providing for equal [civil] rights.” The issue posed is whether it was thereby intended that a claim that an act, challenged by a civil suit or criminal prosecution in a state court as a disturbance of the peace, was protected by the constitutional guarantee of liberty, would satisfy the requirement of showing that the act was “made or committed by virtue of or under color of authority derived from” a “law providing for equal [civil] rights,” or that a similar claim with respect to any refusal to act so challenged was “on the ground that it would be inconsistent with such law.”13
It would be strange if what was represented to be a mere codification accomplished so great a substantive change. The issue is not whether the Reconstruction Congress would have been capable of so drastic an alteration in judicial jurisdiction. The point rather is that it would be a flight of fancy to attribute, on the basis of a readily explicable change in wording, such an undisclosed purpose to a Congress which was aiming only to “revise, simplify, codify, arrange, and consolidate” existing statutes, and was so intent on avoiding substantive alterations that it designated a lawyer for the purpose of eradicating any such changes made by the codifying commis-
This view that no significant change with respect to removal was intended is confirmed by the Revisers’ choice of the phrase best suited to convey the thought that only rights like those originally defined in § 1 of the Civil Rights Act of 1866 were to continue to constitute a basis therefor—“any law providing for equal rights.” The rights protected by § 1 of the Civil Rights Act of 1866 were not absolutes but relatives; they were rights to equality—the limit of Congressional power when the legislation had to be rested solely on the Thirteenth Amendment. Appellants say that since the rights of freedom of speech and of petition are guaranteed to all and not just to some, they also are “equal” civil rights. But this truism, which is the strength of the argument, is also its weakness. What is so obvious to appellants must have been just as obvious to Congress, and “equal” would thus have been surplusage. That the Reconstruction Congress knew how to speak more broadly is evidenced by § 1 of the Act of April 20, 1871, 17 Stat. 13, later Rev.Stat. § 1979, and now
If there is thus no reason for thinking that Congress intended any significant substantive change in the cross-reference of the removal statute when it made the revision of 1875, there is equally little reason for believing that it had that purpose in the revisions of 1911 or of 1948. Because of the Supreme Court‘s restrictive interpretation of what is now § 1443(1), see infra, and the prohibition of appellate review of orders of remand, the civil rights removal statute had been little used, and nothing suggests that the 1911 and 1948 Congresses were in any way concerned about this. We do not wish to be misunderstood as saying that the cross-reference today covers only those equal rights laws that existed in 1866. As Congress enacts new laws relating to equal rights, the cross-reference in § 1443 takes them in; unquestionably the Civil Rights Act of 1964 is a law providing for equal rights within the removal statute. But that is very different from saying that every civil right conferred on all is so included.
On this point we receive also the welcome aid of authority. One of the claims in Gibson v. State of Mississippi, 162 U.S. 565, 586, 16 S.Ct. 904, 908, 40 L.Ed. 1075 (1896), where removal had been
Our view that § 1443(2) applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights, is strengthened by the very different effects of the two constructions on federal-state relations. The former construction would mean, e. g.,—if the obstacle discussed in Section III of this opinion can be surmounted—that a freedman who was arrested for occupying property he had purchased
Such a construction would be altogether different from saying that the Congresses of 1875, of 1911, or of 1948 meant to authorize removal whenever a state suit or prosecution concerned what allegedly was an unconstitutional deprivation of the universal right to “liberty.” Even if there were basis for somehow limiting this to civil rights demonstrators, the burden cast on the federal courts would be formidable, as recent events have shown. But a claim of such deprivation would also exist in the case of a suit or prosecution for publishing an allegedly lewd or subversive book, for exhibiting an obscene moving picture, for a speech claimed to constitute an incitement to riot, for libel of a public official, for parading for a political cause without a permit, for violating a Sunday law, for refusing to obey a public health measure offensive to a religious belief, or in other cases too numerous to mention. Neither do we see any reasonable basis whereby, on appellants’ argument, only rights to liberty of the First Amendment type would afford basis for removal. Prosecutions for the practice of professions without a license, for the sale of articles alleged to be unconstitutionally banned, or for conduct which, it is claimed, the state has not prohibited with required specificity—all these and many more would come within the sweep of § 1443(2). Compare Hornsby v. Allen, 326 F.2d 605 (5 Cir. 1964), rehearing denied, 330 F.2d 55 (5 Cir. 1964). Although the unexpected character of such a wholesale transfer of jurisdiction from state to federal courts, the disruption of relationships incident to making the federal courts a major forum for state criminal trials, often at places remote from the scene of the crime, and the burden that would be placed on federal tribunals ill-equipped to shoulder new tasks of such magnitude, would not justify refusal to respond to a clear Congressional command, such considerations suggest the need for carefully attending to what Congress meant by § 1443(2) and its predecessors. Realizing the hindrance to interpretation resulting from the prohibition of direct review of remand orders since 1887, we think the presumption is still “powerful that such a far-reaching dislocating construction * * * was not uncovered by judges, lawyers or scholars for * * * years because it is not there.” Romero v. International Terminal Operating Co., supra, 358 U.S. at 370-371, 79 S.Ct. at 479.
In recognition of the disruptive character of such a construction, the dissent seems to suggest a principle limiting invocation of the due process clause as regards § 1443(2) to cases where a protest concerns an alleged denial of substantive equal protection. But the guarantee of liberty in the due process clause either is or is not a law providing for equal rights within the removal statute, and if it gives “color of authority” for one type of protest, it does so for all. The First Amendment as incorporated in the Fourteenth protects speech and petition regardless of subject-matter; protests about nuclear armament, or substandard wages, or the grant or denial of public aid to parochial schools, are protected to the same degree as protests over the racial composition of public schools.
Because of the extensive review of the historical development of the relevant legislation demanded by the importance and the novelty of the issues and in order
(1) We reject the State‘s contention that the “denial” and the “authority” clauses of the civil rights removal statute should be read as one; the statute permits removal in either of two distinct categories of cases, today as it has since 1866.
(2) We reject any view that the “authority” clause of the civil rights removal statute can be invoked only if the petitioner preliminarily demonstrates that the challenged conduct was within the federal law relied on, the very issue on which he seeks a federal trial—subject only to the caveat that particular conduct may have gone so far beyond any possible interpretation of the rights allegedly conferred as not to furnish a colorable basis for removal.
(3) We do not decide whether the “authority” clause is limited to officers and persons assisting them or acting in some way on behalf of government, or whether private citizens exercising equal rights, such as the beneficiaries of the equal rights statutes of the Reconstruction era and of certain provisions of the Civil Rights Act of 1964, may invoke the “authority” clause of the statute as well as the “denial” clause.
(4) When the removal statute speaks of “color of authority derived from” a law providing for equal rights, it refers to a situation where the lawmakers manifested an affirmative intention that a beneficiary of such a law should be able to do something and not merely to one where he may have a valid defense or be entitled to have civil or criminal liability imposed on those interfering with him.
(5) When the removal statute speaks of “any law providing for equal rights,” it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and
It should be made clear that the obstacles we perceive to applying § 1443(2) to removal by civil rights demonstrators would not be at all present in cases where an appropriate showing was made for the invocation of § 1443(1). An allegation that Negroes engaged in civil rights demonstrations were being punished in the state courts whereas white persons engaging in similar demonstrations for other causes were not, cf. Cox v. Louisiana, supra, or that Negro demonstrators were required to post high bail whereas whites were not, would constitute clear instances of denial to “any person” of the right, provided by
Although we fully recognize the merits of a case-by-case approach with respect to constitutional determinations, including any that may be relevant to these petitioners, we find this singularly unattractive as applied to the question where a suit should be tried—an issue which in the interests of both parties should be speedily determined without the necessity of lengthy preliminary hearings, on the very issues that will arise on the trial itself, by a court to which removal is sought. Removal under § 1443(2), unlike § 1443(1), does not depend on conditions in a particular state or as to a particular trial; it ought be possible for a court to lay down some general principles for its construction. Our dissenting brother is quite right in saying that we have not succeeded in furnishing a definition of “color of authority” that will automatically determine every case, and we plead guilty to having postponed the issue whether § 1443(2) may ever be invoked by persons other than officers or quasi-officers to a case where its decision is required. But at least we have taken the difficult road of deciding these cases as best we can, thereby giving indications that also ought be somewhat useful for the decision of others, rather than permitting these serious questions to rest in limbo while words which could not alter the result are added to the removal petitions, lengthy hearings are held in the district courts and the proceedings ultimately return here.
The orders of remand are affirmed.
KAUFMAN, Circuit Judge (concurring).
Judges do not live in ivory towers; they realize that their opinions are frequently misunderstood, misinterpreted and read otherwise than intended. Since this appeals raises extraordinarily delicate problems, which have been explored in Judge Friendly‘s able opinion, and so many of which may have an important impact in the civil rights area and on the administration of the federal courts, I deem it my responsibility to elucidate my reasons for concurring in today‘s decision.
Weighty problems in the sensitive area of federal-state relationships are involved in what the nation‘s press has recently termed “the rage to remove.” Time Magazine, Oct. 30, 1964, p. 88. On the one hand, the already overburdened lower federal courts should not be deluged with every state criminal case bearing any alleged connection to civil rights no matter how slight unless this is mandated. At the same time, we would be closing our eyes to the practical realities of the contemporary national scene if we did not recognize, along with Congress, that federal rights would have only paper meaning if state criminal prosecutions could never—whatever the circumstances—be removed to the federal courts.
Judges are not “forbidden to know as judges what [they] see as men.” Ho Ah Kow v. Nunan, 5 Sawy. 552, 560, Fed. Cas.No.6,546 (1879). The necessity for a federal forum is not confined to specified regions of the country. Guarantees of equality may be ignored on both sides of the Mason-Dixon line, compare Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), with
This makes it all the more important that we be unmistakably clear as to our present holding. But it does not require us to settle, once and for all time, every problem which might conceivably arise under an imprecise and inexpertly drafted section of a statute, almost 100 years old and never before applied in the manner the appellants urge. As appellate judges we have an obligation to lay down guidelines as clear as the circumstances permit for the federal district courts and to avoid an overly technical approach that will have meaning only for the cases before us. At the same time, I am mindful of Senator Dodd‘s recent recognition in the debates leading to passage of the 1964 Civil Rights Act that it is extremely difficult to specify with precision the kinds of cases which ought to be removable under Section 1443. 110 Cong.Rec. 6739-40 (daily ed. April 6, 1964). My decision to concur is made in the light of these competing considerations.
I agree with Judge Friendly that it is unnecessary to decide and that we have not decided whether subdivision (2) covers only officers and those persons assisting them or acting in some way in behalf of government. In this connection, it seems imperative that we, as well as Congress, recognize that federal intervention has all too often proved essential to safeguard federal rights from state emasculation, and that some state courts unfortunately have not been immune to the epidemic of prejudice and intolerance. Against such a background, the statutory right of removal in certain instances appears but another effort to provide a measure of federal protection for the rights of the Negro. We have not decided today whether for the private citizen that right exists only in a § 1443(1) situation, in which removal has been judicially confined to limited, and perhaps unduly restrictive, situations. See Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880); Com. of Kentucky v. Powers, 201 U.S. 1, 126 S.Ct. 387, 50 L.Ed. 633 (1906).
I also believe that subdivision (2) was intended to apply to state prosecutions for acts done under the color of authority of rights stated in terms of equality, but not to acts protected by the general constitutional guarantee of liberty. The statute, in short, is applicable where the persons seeking removal are being prosecuted for doing something which a specific federal law providing for equal rights gave them the impetus and authority to do. This would seem to mean, as Judge Friendly has articulated, that removal is available to persons arrested for acts connected with the self-enforcement of the right to full and equal enjoyment of the facilities of hotels, restaurants, theatres, and other public places. And the right to remove in such cases is of vital significance for it gives meaning to Congress’ enactments ensuring equal rights and its directions and authorizations, express or implied, that the beneficiaries should enjoy those rights free from restraint by the states; the federal courts, in those instances, will be available to make the rights viable.
Since the Bill of Rights and the Fourteenth Amendment were intended to safeguard the fundamental rights of individuals against governmental impairment, judges are sorely tempted, when the state‘s awesome powers must be weighed against the citizen‘s rights, to stretch the meaning of statutes in order to strike the balance in favor of the individual. But, Justice Cardozo reminded us in his typically poignant language, that a judge “is not a knight errant roaming at will in pursuit of his own idea of beauty or of goodness * * *
A caveat is in order here. I must emphasize that we are not saying the petitioners are forever barred from coming into the federal courts to protect their constitutional rights. Indeed, the contrary is true, for if convicted in the state courts, they may still seek review in the Supreme Court or invoke the time-honored writ of habeas corpus in a federal court to vindicate their federal rights. The Supreme Court‘s recent decision in Hamm v. City of Rock Hill, 85 S.Ct. 384 (1964), directly reviewing state court convictions, is striking proof of the cloak of federal protection afforded individuals in prosecutions by the states. The Court‘s holding that it is not a crime to attempt peacefully to secure equal treatment in a place of public accommodation indicates a willingness not only “to obliterate the effect of a distressing chapter of our history,” but also to give full meaning to the constitutional guarantee of equal treatment under the law for all citizens. See also Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).
Because the problem before us is so difficult, my brothers have discussed extensively whatever authorities they believe shed some light on its resolution. But, with this done, it is important to place in proper focus the sole question we face. By our decision today we are attempting to unravel the words of a statute, not constitutional rights, and to decide whether the petitioners in this case are entitled in the first instance to a federal trial of a state charge. I do not believe that they are for all available evidence which would help us resolve the meaning of this ambiguous statute points in the other direction.
If our reading of § 1443(2) in this difficult and uncertain area is too narrow, Congress is still available for enlargement or clarification of the statute, which all on this panel agree lacks clarity. If removal should be more freely available, legislative consideration and action can best bring about a fair accommodation of the competing interests. The function of weighing and appraising the host of factors involved, were we to adopt the novel argument urged upon us for removal of these cases under an amphibolic subdivision of such an antique and venerable statute, is “more appropriately for those who write the laws, rather than for those who interpret them.” United States v. Gilman, 347 U.S. 507, 513, 74 S.Ct. 695, 698, 98 L.Ed. 898 (1954). As Mr. Justice Frankfurter once perceptively noted, “where policy is expressed by the primary lawmaking agency in a democracy, that is by the legislature, judges must respect such expressions by adding to or substracting from the explicit terms which the lawmakers used no more than is called for by the shorthand nature of the language.” Westin, The Supreme Court: Views from Inside 83 (1961).1 Indeed, the suggestion in the dissenting opinion that the loose conglomeration of inartistic petitions disables us from giving guidance for future litigation, together with a candid recognition that formulation of a clear, all-encompassing standard is virtually impossible, indicates that it
With this exposition of my views, I concur in Judge FRIENDLY‘S thorough opinion.
MARSHALL, Circuit Judge (dissenting).
The vague and conclusory allegations in the ten removal petitions, covering almost sixty persons, involving many separate offenses for a variety of acts, some done on different days and different places, the willingness of the state to waive all objections to “formal” defects in the removal petitions in order to establish a “precedent“, and the presentation of all these removal petitions on appeal as one conglomerate have profoundly obscured the issue for our determination. Judge Friendly, with his usual scholarly excellence, has met the apparent insurmountable task of dealing with these appeals on this basis and he has attempted to delineate the general scope of
The importance of approaching these appeals on a case-by-case basis cannot be overestimated. A great array of charges, including assault third, disorderly conduct, maintaining a nuisance, resisting an officer, obstructing railway cars, unlawful intrusion, unlawful assembly, loitering at a school building and inducing truancy, are involved in this assortment of removal petitions, and yet the conglomerate presentation and disposition of these appeals tend to ignore the possibility that a difference in the specific conduct charged might make a difference under § 1443(2). For example, if the petitioners arrested and prosecuted for violating the truancy law had merely sought to induce parents not to send their children to a segregated school which denies the “equality of law” guaranteed by the Constitution, this, in my opinion, could be a case covered by § 1443(2), while, on the other hand, a charge of third degree assault might very well not be covered.
Moreover, even on the majority‘s view that the conduct involved in all these petitions can be reduced to protests against racial discrimination and segregation, some of the petitioners might well be entitled to removal under the majority‘s own interpretation of § 1443(2). I understand my brothers to suggest that under § 1443(2) removal might be available to individuals arrested and prosecuted for taking self-help measures to secure equal treatment guaranteed by federal laws providing for equal rights, and further that a peaceful protest might be considered such a self-help measure.1 The majority insists that this issue is not present in these appeals and that no words could be added to the removal petitions that would change their affirmance of all the remands. However, I am not so confident. Some of the petitioners, at least those charged with loitering at a school building and inducing truancy, might well have been doing nothing more than peacefully picketing a public school under the belief that it was a segregated public school maintained in violation of the Equal Protection Clause. Any doubts as to whether this is the alleged factual pattern should, in all fairness, be resolved by affording petitioners an opportunity to amend. For the removal petitions were drafted primarily with the first clause of § 1443 in mind and this is a case of first impression, involving a previously unexplored part of § 1443 and raising wholly unique and delicate issues. I refuse to rely on the fact that the protests were widely publicized and much less on the failure of appellants to fill in the supposed missing facts during oral argument or in their not-so-thorough briefs; this lapse could be readily explained by the fact that the majority‘s
My brothers’ desire to help the district courts in this circuit, the Supreme Court and even Congress by exposing the problems and stating what is “their proper solution under existing law” is indeed commendable. However, we have long learned that this desire can only be satisfied, at least for federal judges, through the decision of a particular case on the basis on a readily discernible set of facts. And, although I may be unduly skeptical, I have some serious doubts as to whether my brothers’ decision will provide any of their hoped-for “guidance.” Distinction is built upon distinction, and the clarifying foundation of a single factual pattern is lacking; and the obvious and frequent need to spell out what is not being decided today amply reveals the danger of abstract opinions.
I do not intend to pass judgment on these cases, either individually or collectively. Yet certain propositions in the majority opinion urgently require comment, even at the risk of joining the rather abstract discussion.
My disagreement with the majority‘s interpretation of § 1443(2) stems from its refusal to recognize any meaningful color of authority emanating from the Fourteenth Amendment.
The “color of authority” concept of § 1443(2) is not correctly described or defined. The majority suggests that in order for a law to provide “color of authority” to perform an act, it must do more than protect conduct by giving remedies to the offended party—it must be “an encouragement” or must “direct” the individual to act.
This seems to be a rather obvious departure from common usage and understanding. An individual acts under the “color of authority” of a law at least when his conduct is protected by that law, when interferences with that activity are unlawful and the subject of civil or criminal legal remedies. To say that “something more” than this protection is required is illusory, granted that we are talking about individuals acting in a non-official capacity. The most familiar legal technique for “encouraging” certain private activity is to make interferences with that activity unlawful. And one does not have to fully embrace Mr. Justice Holmes’ positivism, see The Path of the Law, 10 Harv.L.Rev. 457 (1897) to realize that usually or invariably unlawful conduct is the subject of civil or criminal sanctions, or, to look at it from the view of the “offended party” rather than the “bad man,” that unlawful conduct is the subject of civil or criminal remedies. The law not only protects conduct by making interferences with it unlawful, but also by providing legal remedies against such interferences.
The majority, while apparently conceding that this is the usual understanding of the words “color of authority,” insists that the “particular context” in which these words are used requires a much more restrictive interpretation. One alleged aspect of this context is that § 1443(2) “indubitably applies” to officers and quasi-officers. But I fail to appreciate the significance of this fact. Either the assumption underlying our analysis of the “color of authority” concept, to borrow a thought from the majority, “is or is not” that the section is also applicable to non-officers. The manner in which a private person acts under the authority of a law need not be the same as that of an officer. Furthermore, there is no reason for supposing that an officer acts under the “color of authority of any law providing for equal rights” only in the rather limited situation when there is a statute or order specifically directing him to do some particular act. Cf. Cunningham v. Neagle, 135 U.S. 1, 58-59, 10 S.Ct. 658, 666, 34 L.Ed. 55 (1890). The second alleged aspect of the “particular context” is that the first clause of § 1443 uses the phrase “a right under” rather than “under color of authority.” The majority concludes that “It necessarily follows that ‘under color of authority derived from’ in § 1443(2) has a narrower meaning than ‘a right under’ in § 1443 (1) * * *” It seems to me, how-
One aspect of the “particular context” seems to escape the majority, namely, that the “color of authority” referred to in § 1443(2) is to be derived from “any law providing for equal rights.” The words “color of authority” should not be read in isolation but rather as an integral part of the phrase “color of authority derived from any law providing for equal rights.” The majority readily admits that the Equal Protection Clause and all the civil rights statutes are laws providing for equal rights. Yet at the same time the words “color of authority” are so construed as to virtually preclude any of these laws from ever giving what is deemed to be the requisite kind of authority. In construing what the phrase “color of authority derived from any law providing for equal rights” means it would be fair to presume that the kind of authority required would be of the type generally provided by the laws providing for equal rights. For the most part, these laws do not explicitly and specifically “encourage” and “direct” people to do things in the stringent sense suggested by the majority. Instead they protect certain activity by declaring interferences with that activity unlawful and by providing civil and criminal remedies.2 To interpret the “color of authority” concept more stringently would virtually make § 1443(2) unavailable, even to officers, in the bulk of civil rights cases, the acknowledged province of that section.
On occasion the majority makes a generous reference to the Civil Rights Act of 1964 and the other civil rights statutes, and intimates that they might provide the “color of authority” for protests seeking to secure the equal rights guaranteed by these laws. I doubt whether this comports with the majority‘s stated definition of the “color of authority” concept, and, if it does, I must once again express my doubt as to whether the majority is being consistent in affirming the remand of all these cases. For example, appellants arrested for loitering at a school building and inducing truancy might well have been doing nothing more than peacefully picketing a segregated public school maintained in violation of the Equal Protection Clause.3 This
“It is clear that in many significant respects the statute [the Civil Rights Act of 1866] and the [Fourteenth] Amendment were expressions of the same general congressional policy. Indeed, as the legislative debates reveal, one of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land.”
See generally Frank & Munro, The Original Understanding of “Equal Protection of the Law,” 50 Colum.L.Rev. 131 (1950).
That the Equal Protection Clause provides for “equal rights” cannot be doubted and there is no reason why the word “law” in § 1443(2) should be confined to Congressional enactments, nor why only Congressional enactments could confer the type of “authority” required by § 1443(2). Such an artificial and unduly restrictive position has been rejected in other contexts, see, e. g., Cunningham v. Neagle, 135 U.S. 1, 10 S.Ct. 658 (1890), and it ignores the fact that there would be little reason for putting in a Congressional statute what was already provided for by a constitutional amendment. Obviously the reason Congress the equal protection of the laws to Negroes in the city, state and nation with reference to housing” and although such an allegation is vague, conclusory, and totally inadequate, conceivably these petitioners might claim, if they were even given an opportunity to do so, that they were protesting against racial discrimination in federally assisted housing that violated the President‘s order, Executive Order No. 11063, Nov. 21, 1962, 27 F.R. 11527, “Equal Opportunity in Housing“; and there seems to be some authority for the proposition that an executive order is within the ambit of the word “law” in the § 1443(2) phrase “any law providing for equal rights,” see Hodgson v. Millward, 12 Fed.Cas. No. 6, 285 (No. 6568) (C.C.E.D.Pa.1863) (see 3 Grant (Pa. 1863) 412, for the facts), approved in Braun v. Sauerwein, 10 Wall. 218, 224, 19 L.Ed. 895 (1869). Cf. also Hamm v. City of Rock Hill, 85 S.Ct. 384 (1964).
did not explicitly include within, for instance, the Civil Rights Act of 1964 a flat prohibition condemning segregated education is that it operated on the rather reasonable presumption (see Title IV, now
Some appellants seem to rely on a theory of self-help, and it seems important to state their argument in all its fullness, putting to one side any interest in determining whether it is tacitly acknowledged in the majority opinion. As the Supreme Court recently stressed in Hamm v. City of Rock Hill, 85 S.Ct. 384 (1964), some measures undertaken by private individuals to secure rights guaranteed by a law providing for equal rights may well come within the protection of that law and these individ-
Notes
Two factors must be considered in grappling with this problem. First, peaceful protest, speech and petition, is a form of self-help not unknown during the era of Reconstruction when § 1443(2) was forged, see, e. g., Aptheker, A Documentary History of the Negro People in the United States, 536-37 (1951); McPherson, The Negro‘s Civil War, 245-70 (1965). Secondly, this form of self-help—peaceful protest and demonstration—is tremendously important in our federal constitutional scheme. It is constitutionally protected, see Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). As Mr. Justice Harlan asserted in his concurrence in Garner v. State of Louisiana, 368 U.S. 157, 201-202, 82 S.Ct. 248, 271, 7 L.Ed.2d 207 (1961), in regard to a similar form of self-help, the peaceful sit-in,
“It, like speech, appeals to good sense and to ‘the power of reason as applied through public discussion,’ Whitney v. People of State of California, 274 U.S. 357, 375 [47 S.Ct. 641, 648, 71 L.Ed. 1095] (Brandeis, J., concurring), just as much as, if not more than, a public oration delivered from a soapbox at a street corner * * * If the act of displaying a red flag as a symbol of opposition to organized government is a liberty encompassed within free speech as protected by the Fourteenth Amendment, Stromberg v. People of State of California, supra [283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117] the act of sitting at a privately owned lunch counter with the consent of the owner, as a demonstration of opposition to enforced segregation, is surely within the same range of protections.”
See Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Fields v. South Carolina, 375 U.S. 44, 84 S.Ct. 149, 11 L.Ed.2d 107 (1963); Henry v. City of Rock Hill, 376 U.S. 776, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964).
This seems to be the relevance of the Due Process Clause to appellants’ arguments. It is not that the Due Process Clause, in isolation and of its own force, is a “law providing for equal rights,” under whose authority appellants allegedly acted, but rather that appellants sought to effectuate the mandates of the At one point the majority suggests that the “law” invoked by petitioners as the “law providing for equal rights” must provide the (color of) authority “for disregard of [state] laws providing for the equal punishment of disturbers of the peace.” But this is either to misread § 1443(2) or to misunderstand the position of some of the petitioners. Some seem to insist that they were doing nothing more than peacefully picketing, not in the least unlawful in New York; and they claim that they acted under the color of authority of federal laws providing for equal rights, all that is required by § 1443(2), not that they violated state laws under the color of authority of federal laws providing for equal rights.
I will say, however, that there seems to be little basis for the majority‘s fear that if any of the appellants who were peacefully protesting are entitled to removal under § 1443(2), then “whenever a state suit or prosecution concerned what allegedly was an unconstitutional deprivation of the universal right to ‘liberty‘” removal would be possible. A limiting principle could perhaps be found in the fact that the liberty involved in some of these removal petitions is the liberty to express dissatisfaction with the state‘s alleged denial of equal rights. The purpose and form of the exercise of liberty is not without significance, for, as seen in this light, the exercise of this liberty is merely another form of self-help to secure the rights guaranteed by the Equal Protection Clause or other federal laws providing for equal rights.
The majority‘s effort to resolve some of the basic questions raised in these appeals by reconstructing the intention of the Congress of 18755 is also troubling. The thrust of the argument is to show that the Due Process Clause is not a “law providing for equal rights” within the meaning of § 1443(2). Although I do not think that appellants’ argument need stand or fall on that proposition, I gather that the majority is prepared to turn the edge of its argument to meet any interpretation of § 1443(2) that would entitle any of the petitioners to removal under any set of facts they could reasonably allege. I therefore must insist that “this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute,” Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956). Legislative history may often shed light on the meaning of a statute, yet we have learned before that little authoritative information can be obtained from the legislative history of the civil rights legislation of the last century, see Brown v. Board of Education, 347 U.S. 483, 489, 74 S.Ct. 686, 688, 98 L.Ed. 873 (1954).
In attempting to reconstruct “the intention” of the 1875 Congress, the majority relies not on debates or reports or statements by the revisers or legislators, few of which were specifically addressed to what is now subdivision 2 of § 1443, but rather on the proposition that no such far-reaching result as would follow from allowing removal to some of these petitioners could have been intended. For the most part the proposition rests on the argument that the codifiers of 1875 were responsible for the phrase “under color of authority derived from any law providing for equal rights” and that “so great a substantive change” as would flow from allowing removal under § 1443 (2) could not have been intended to be accomplished by “what was represented to be a mere codification.” However, two points can be made; first, it is not at all clear that in the eyes of the 1875 legislators and revisers none of petitioners would have been entitled to removal un-
In support of the first point, appellants could make a strong argument that the 1875 revisers used the phrase “any law providing for equal rights” as a shorthand technique for referring to all the three previous civil rights acts, the Civil Rights Act of 1866,6 the Civil Rights Act of 1870 (sections 16 and 17 of which are now
The mere fact that § 1983 is “coextensive with the whole reach of the Constitution” does not preclude the possibility that it is a “law providing for equal rights,” and much less that it could not have been viewed as such by the 1875 legislators and revisers. The deprivation of constitutional rights stemming from racial discrimination are certainly proscribed, and remedies provided, by that law, and this seems to have been the primary concern of the legislators, see generally Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The more difficult question to resolve is whether § 1983 could also be viewed as “a law providing for equal rights” when the deprivation of constitutional rights does not stem from racial discrimination. This would create the further problem of deciding whether a law could be classified as a “law providing for equal rights” for all purposes, if in one primary sense it does provide for equal rights.
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication“; and the other remedial laws of the United States which are in their nature applicable in such cases.”
Appellants could argue that the language “other remedies provided in like cases in
* * * [the federal] courts, under the [1886] act” as well as “and the other remedial laws of the United States which are in their nature applicable in such cases” was a sufficient basis for the 1875 revisers and legislators to have believed or assumed (but see footnote 12 in the majority opinion arguing only that this assumption or belief might have been mistaken) that all of § 3, including the removal provisions, of the 1866 Act was already available to those claimed that they were being prosecuted for exercising the rights protected under § 1983; and that by using the phrase “any law providing for equal rights” they would also be referring to this law. This argument could be further strengthened by the fact that the second Civil Rights Act of 1870, which the majority recognizes as a “law providing for equal rights” within the meaning of § 1443 (2), incorporated the removal provisions by a similar summary reference to the Act of 1866;9 the revisers and legislators might have assumed that if such a reference could make the removal provisions of the 1866 Act available in connection with the rights protected by the 1870 Act, the same would be true for the 1871 Act. I do not pass judgment on this argument, but I have spelled it out only to reveal one of my many reasons for believing that any attempt to reconstruct the intention of the 1875 legislators, even if it is agreed that their primary purpose was codification, is likely only to yield uncertainty and indecisiveness.9
I would vacate the orders of remand, return the cases to the district courts, afford appellants an opportunity to amend their removal petitions, and have the district courts conduct full hearings on adequate pleadings to determine whether any of petitioners were being prosecuted for acts done under color of authority derived from any law providing for equal rights.
The BOARD OF EDUCATION OF the CITY OF NEW YORK, Appellee, v. CITY-WIDE COMMITTEE FOR the INTEGRATION OF SCHOOLS, an Unincorporated Association, et al., Appellants.
No. 403, Docket 29501.
United States Court of Appeals Second Circuit.
Argued Feb. 17, 1965. Decided Feb. 18, 1965. As Corrected Feb. 25, 1965.