Bruce Baines v. City of Danville, Virginia, Hildreth G. McGhee v. City of Danville, Virginia

357 F.2d 756, 1966 U.S. App. LEXIS 7450

Opinions

HAYNSWORTH, Chief Judge:

In Baines v. City of Danville, 4 Cir., 337 F.2d 579, we held, among other 'Things,"Th'at orders remanding to the state court 105 removed criminal cases were not reviewable on appeal or by mandamus.¹ In the interval between the preparation of the opinion and the entry of the final judgment, however, the Civil Rights Act of 1964 was enacted, providing in its Section 901 that 28 U.S.C.A. § 1447(d) be amended to authorize review, “by appeal or otherwise,” of remand orders in civiFrights cases removed under the provisions of 28 U.S.C.A. § 1443. Because of the intervention of the Civil Rights Act of 1964, we granted a petition for rehearing.²

I

We have no doubt that Section 901 of the Civil Rights Act of 1964 should be applied to appeals such as these which were still pending in this Court on the effective date of the act.³ And we agree with the Second Circuit⁴ that Section 901 should be construed as authorizing review through direct appeals rather than by mandamus only, despite the fact that remand orders may be interlocutory.

II

We turn then to the propriety of the remand orders.

The defendants were charged in the Corporation Court of the City of Dan-ville, Virginia, with violations of an injunction and temporary restraining order, which had issued in response to alleged violence and excesses during racial demonstrations in Danville. The general background sufficiently appears in our earlier opinion.⁵

The injunctive order proscribed participation in mob violence and rioting and incitement to such conduct. It prohibited other conduct such as carrying deadly weapons, assembling, and obstructing traffic, but all of such prohibitions, by the repeated use of the words “unlawful” and “unlawfully” were limited to conduct in violation of other statutes or ordinances.

Removal of each of the 105 cases was effected by one of two removal petitions, a number of the petitioners joining in one, while the remainder joined in the other. Except that one of the petitions contains allegations designed to show that a trial in the Corporation Court of Danville is likely to be unduly restrictive and unfair, the two petitions are substantially alike. In conclusionary terms they allege that the petitioners were being prosecuted for demonstrating in the streets of Danville in protest against customs and practices perpetuating racial segregation, that the injunctive order is unconstitutional for “making criminal” conduct which is constitutionally protected and that the injunction is in violation of their civil rights. Each petition also contains an allegation, paraphrasing 28 U.S.C.A. § 1443, that the petitioners are denied or cannot enforce in Virginia's courts rights under laws of the United States providing for equal rights and that they are being prosecuted for acts done under color of authority of such laws.

The relevant statute, as now codified in 28 U.S.C.A. § 1443, has been described as a “text of exquisite obscurity.”⁶ It reads:

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 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 jurisdiction thereof;

(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.

The statute is derived from the Civil Rights Act of 1866. The relevant language there is not so obscure, or its obscurity is not so exquisite as that of the present codification. That language is illumined by its immediate context in the Civil Rights Act of 1866, and by the context of that Act in its historical setting. Against that background, subsequent authoritative opinions of the Supreme Court are largely dispositive of the questions presented, and they are not properly subject to criticism as being ungenerous. Those Supreme Court decisions do not reflect the intention of the Thirty-ninth Congress, but the fact that they do not is the necessary consequence of a radical alteration of the congressional intention when the Congress prohibited post-trial removal of cases from state courts.

Ill

Initially, we should closely examine the Civil Rights Act of 1866,⁷ the antecedent of the present 28 U.S.C.A. § 1443.

Section 1 of that act declared that all native born people, except those subject to foreign powers and Indians, were citizens. It conferred upon the former slaves 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, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.⁸

Section 2 made it a crime for anyone acting under color of any state law, regulation or custom to subject any person to the deprivation of rights conferred upon him by Section 1.⁹

Section 3 is the removal section¹⁰ and is in the following language:

And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tri burials of the State or locality whore they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever, or against any officer, civil or military, or other person, for any arrest or imprisonment, 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 habe-as corpus and regulating judicial proceedings in certain cases,’ approved March three, eighteen hundred and sixty-three, and all acts amendatory thereof. * * *

Then followed Sections 4 through 10, which are the enforcement provisions. They illuminate the antecedents of the clause which is now 28 U.S.C.A. § 1443 (2). Section 4 provided that every district attorney, marshal, deputy marshal and United States commissioner and all agents of the Freedmen’s Bureau were charged with the enforcement of the act and authorized to arrest and institute proceedings against persons charged with its violation.¹¹ If the need should occur, the courts were authorized to increase the number of commissioners¹² for the purpose of arrest and examination of persons charged with violations of Section 2. In Section 5 the commissioners were authorized to appoint “one or more suitable persons” to serve warrants and other process and the persons so appointed were authorized to execute them. Moreover, any such suitable person appointed by a commissioner was authorized to call to his aid all bystanders or posse comitatus, and even the land and naval forces of the United States to assure compliance with this act.¹³

It thus appears that the statute contemplated that literally thousands of persons would be drawn into its enforcement and that some of them otherwise would have little or no appearance of official authority.

By Section 6 it was made a crime to wilfully hinder “any officer, or other person charged with the execution of any warrant or process * * * or any person or persons lawfully assisting him or them * * Section 7 gave to the person or persons authorized to execute process a fee of five dollars for each person arrested.¹⁴

The Civil Rights Act of 1866 was reenacted by Section 18 of the Civil Rights Act of 1870.¹⁵ In that act, after making provision for voting rights and their enforcement, Section 16 redeclared the rights conferred by Section 1 of the Civil Rights Act of 1866. The right of equality was extended as to taxes, licenses and other exactions as well as to punishments, pains and penalties. Also, discrimination in state charges upon immigrants was prohibited. So far as is relevant here, however, the rights conferred by Section 16 of the Civil Rights Act of 1870 are identical to those conferred by Section 1 of the Civil Rights Act of 1866.

Section 17 of the Civil Rights Act of 1870 is comparable to Section 2, the penal provision of the Civil Rights Act of 1866, and Section 18 provided that enforcement of Sections 16 and 17 of the act shall be in accordance with the Civil Rights Act of 1866, which was then reenacted by reference.¹⁶

In compiling the Revised Statutes of 1875, when the sections conferring substantive rights were transferred to other places, it became necessary to rephrase the removal provisions of Section 3 of the Civil Rights Act of 1866. They appear in Section 641 of the Revised Statutes, which was in the following language:

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. * * *

The language remained in substantially that form until the code revision of 1948 when it was changed to read as it now does. The 1948 Reviser made substantial changes in the language,¹⁷ all of which the Second Circuit has noticed with care in People of State of New York v. Galamison, 2 Cir., 342 F.2d 255. He disclaimed, however, any intention to alter its meaning and it seems appropriate to accept him at his word. In all of the material now appearing on the subject, there seems to be general agreement that the meaning of Section 1443 in its present form may be more reliably determined if attention is focused upon the language as it appeared in Section 3 of the Civil Rights Act of 1866 and Section 641 of the Revised Statutes of 1875.

Section 641 of the Revised Statutes of 1875 effected one significant change which requires our attention. It limited the right of removal to the pre-trial stage in the state court proceedings. Earlier, the Civil Rights Act of 1866 permitted post-judgment removal,¹⁸ and it was post-judgment removal which the Thirty-ninth Congress envisioned as the primary means of effectuation of the purposes of Section 3.¹⁹

There is one final item in the formal legislative history which may be noticed. When the Congress provided in Section 901 of the Civil Rights Act of 1964 for appellate review of orders remanding removed civil rights cases, its attention was drawn to the judicial construction of the “cannot enforce” portion of the removal statute. In the Senate ²⁰ and in the House,²¹ there were expressions of opinion that the Rives-Powers cases in the Supreme Court were too narrow and that the Supreme Court should or would relax their rule. Those expressions reflect no appreciation of the fact that the reason § 1443(1) was not as useful and available as the Thirty-ninth Congress may have intended was congressional prohibition of post-conviction removal and not judicial penuriousness in the effectuation of congressional intention. If a majority of the Congress in 1964 thought the Supreme Court had misinterpreted the predecessors of 28 U.S. C.A. § 1443, it did nothing about it, though attention had been clearly focused on the subject. Minority expressions of an expectation of judicial reconsideration of congressional intent is not the equivalent of congressional redefinition of its intention. The absence of the latter is significant.

IV

The contention that the cases are removable under 28 U.S.C.A. § 1443(1), the “cannot enforce” clause, is premised upon (1) allegations that they cannot expect a full and fair trial in the Corporation Court of Danville,²² (2) that they were engaged in conduct protected by the first amendment in protest against denial to them of rights which, in part at least, were protecte'd by the fourteenth amendment, and (3) that the injunction which they are charged with having violated is unconstitutional on its face or as applied. These contentions considered alternatively, as presented, or collectively cannot be sustained.

This requires us to determine (1) whether the statutory phrase “law providing for * * * equal civil rights” encompasses general first and fourteenth amendment rights, and (2) with what clarity removability must appear at the time the removal petition is filed.

It is readily apparent that the Civil Rights Act of 1866 was directed principally to the “Black Codes” and to those disabilities of slavery which had been firmly interwoven in the law of the Southern states. Those basic rights, the right to contract, to sue, to testify, to own property, to the protection of the law and its remedies, may have been inferentially conferred by the abolition of slavery, for their denial was its dependent, but they had not been widely or generally confirmed affirmatively. The Thirty-ninth Congress did that, but the Civil Rights Act’s removal section was limited to those “who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where there may be any of the rights secured to them by the first section of this act.” It was then plain, beyond question, that removal would be available only upon a showing of denial of one of the rights enumerated in Section 1 of that act.

As we have seen in the preceding section, its reenactment in 1870 did not, in any relevant respect, enlarge the class of rights the denial of which would warrant removal. This was two years after ratification of the fourteenth amendment, but the Civil Rights Act of 1870 limited removal, in this aspect of the case, to instances in which one of the rights enumerated in the statute was denied or could not be enforced in the state courts. These were not the broad due process and equal protection rights of the fourteenth amendment, and assuredly not the rights of the first amendment. The Statutes as they existed before the 1875 revision are susceptible to no other interpretation than that the rights, denial of which would warrant removal, are those rights specified in Section 1 of the Civil Rights Act of 1866 and Section 16 of the Civil Rights Act of 1870.

The difficulty arises out of the phrasing of Section 641 of the Revised Statutes of 1875. The revisers placed the substantive rights declared in Sections 1 and 16, respectively, of the Acts of 1866 and 1870, in Sections 1977 and 1978 of the Revised Statutes, separated from Section 641, the removal section. It thus became necessary to describe the rights in some other manner than by the words “rights secured to them by the first section of this act.” The revisers could, of course, have referred to “the rights secured by sections 1977 and 1978.” They chose instead the generic language, “any right secured to him by any law providing for the equal rights of the citizens of the United States, or of all persons within the jurisdiction of the United States * * This choice justifies the conclusion that the revisers intended Section 641 to be open-ended so that it would then include later acts couched in egalitarian terms, such as the Civil Rights Act of 1964. This is the view of the Second Circuit.²³

The suggestion that the general reference to rights secured by any law providing for equal civil rights includes those guaranteed by the Constitution would attribute to the revised statutes a radical expansion of the removal provision. Against this we have the general intention of the Congress that the codification should not work substantive change, and the fact that the postwar Congresses clearly indicated an intention to keep the removal sections more limited.

When the Civil Rights Act of 1870 was enacted, the fourteenth amendment had been ratified two years earlier. But, as we have noted, the Congress in 1870 clearly restricted the right of removal to instances in which the relatively narrow rights that the statute specified were denied. They did not broaden them to include denial of the other rights sweepingly guaranteed by that amendment. The omission is made more pointed by the act of April 20,1871.²⁴ Section 1 of that act created a civil remedy for deprivation under color of state law of any right, privilege or immunity secured by the Constitution.²⁵ In providing the civil remedy, there is a reference to the Civil Rights Act of 1866. In contrast to what had been done the year before in the Civil Rights Act of 1870, there was no reenactment of the removal provision to include within it those substantive rights granted in Section 1 of the Act of 1871. The choice appears deliberate.

The revisers of 1875 knew this, for in Section 1979 of the revised statutes, incorporating the provisions of Section 1 of the Act of 1871, now carried forward to 42 U.S.C.A. § 1983, the reference is to “the deprivation of any rights * * * secured by the Constitution and laws.” Clearly, there, the word “law” was not intended to include the Constitution. It was used in the same sense in the related Section 641.²⁶ That is a natural construction of the word, and the only one consistent with the general congressional purpose in 1875 not to work substantive change. There are substantially contemporaneous uses of the word in the same sense, as in the opinion in Strauder v. West Virginia, 100 U.S. 303, 304, 25 L.Ed. 664. The 1875 revisers, as shown by Section 1979, and Mr. Justice Strong in Strauder thought the “Constitution” above mere “laws” and employed the latter word in a sense exclusive of the former.

Nor can we find any reason to suppose that the revised statute was intended to expand the removal right in cases where the right denied was one secured by the Act of 1871 but not by the Acts of 1866 and 1870. The Congress had made a choice. The rights secured by the two earlier acts would support removal, if denied, while those secured by the Act of 1871 would not. There is no affirmative evidence anywhere that the Congress of 1875 intended to change this. The marginal references to the derivation of Section 641, otherwise complete, do not refer to the Act of 1871. The most reasonable explanation of the choice of language would appear to be that the revisers understood that the laws were not static and that the Congress in the future might enact additional legislation similar to the Civil Rights Acts of 1866 and 1870, with an intention to expand the removal rights. Their use of generic language in Section 641 would take care of that situation. It is reasonably susceptible to that construction without attributing to the revisers an intention to reverse the deliberate choice the Congress had so recently made.

We can discover nothing in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, in conflict with this construction. In answering the first question, whether exclusion of Negroes from the jury was a denial of Strauder’s constitutional rights,²⁷ the Court necessarily considered the terms of the fourteenth amendment. When it reached the second question, however, removability, the Court expressly stated of the phrase “law providing for * * * equal civil rights,” as used in Section 641, “This act plainly has reference to sects. 1977 and 1978. * * * ” ²⁸ It concluded that there was a right of removal under Section 641, because, “by the constitutional amendment and sect. 1977 of the Revised Statutes, he was entitled to immunity from discrimination (in jury selection)”.²⁹ That recognition of Sections 1977 and 1978 as the referents of Section 641 cannot be ignored.

We conclude therefore that to the extent that the petitioners claim defensively that their conduct was protected by the first amendment and that they were acting in aid of fourteenth amendment rights furnishes no basis for removal. Even if we could read the equal protection clause of the fourteenth amendment into the phrase “law providing for * * * equal civil rights” as used in § 641,³⁰ it would avail these defendants nothing in aid of their first amendment claim. The defense may be asserted in the state court and, if unsuccessful in the trial court, it may be considered by the Virginia Supreme Court of Appeals and, on certiorari, by the United States Supreme Court. And in the habeas corpus jurisdiction, the contention may ultimately be presented to the lower federal courts where the fairness of the state court’s resolution of factual issues involved in the application of the constitutional requirements, as well as its conception of those requirements, will be open to review.

Neither does the contention that the injunction is unconstitutional facially or as applied warrant removal. The injunction is not obviously facially unconstitutional as applied to actual rioters. The constitutional question, if it arises, would come out of its application. Of course, it would be unconstitutional if it became the basis of a conviction of a peaceful man whose conduct was within the protection of the first amendment. This cannot be known until the cases are tried. Who among the petitioners, if any of them, were rioters cannot be known until there has been a factual hearing in every case. This is not the sort of inquiry which ought to be required as an incident of determining removability. If removability does not readily appear without a factual inquiry tantamount to a trial on the merits, removal should not be allowed.³¹

It has been consistently held in the Supreme Court that the right of removal must appear in advance of trial. The right of removal cannot be predicated upon the supposition that during the course of the trial or the sentencing, a protected right would be denied or the defendant would find himself unable to enforce it.³²

These Supreme Court cases, most of them in the nineteenth century, reviewed state court refusals of removal, or were decided on a petition for mandamus. Until the present there have been no further cases in the Supreme Court because of the change in the practice to make removal effective without state court approval or acquiescence, coupled with the statutory prohibition of appeals from orders of remand. With the repeal of that provision prohibiting appeals, insofar as civil rights cases are concerned, it has become an active field of litigation and the Supreme Court soon may be expected to turn its attention to it. Most of the lower courts have consistently applied the rule pronounced in the Supreme Court cases and have held that the denial or inability must result from a state statute or a decision of the highest court of the state.³³

It is not a substantial extension of this rule, but an application of it, to hold that, if the facts are undisputed or the state’s allegations accepted as true, the case is removable if the Constitution would preclude any conviction. This is the conclusion of the Fifth Circuit in two recent cases.³⁴ Removability may appear with certainty from other circumstances. The principle thus far accepted is that remov-ability must appear with some certainty when removal is undertaken and be not dependent upon the resolution of factual differences that also will determine the question of guilt or innocence or upon debatable assumptions that state courts will ignore the paramount authority of the Constitution.

It is objected that the rule of the Supreme Court cases leaves little room for effective removal under 1443 (1). This is partially true,³⁵ but the rule’s insistence that removal may be had only when denial of the right appears with clarity and certainty is consistent with the original intention of the statute. The restriction comes not from judicial lack of sympathy with the congressional purpose but from congressional revocation of the right of post-judgment removal.

As we have seen in Section III of this opinion, the Civil Rights Act of 1866 permitted post-judgment as well as pretrial removal, and post-judgment removal was very much in the mind of Congress when considering the Civil Rights Act of 1866.

In his veto message, President Johnson had read the removal section very expansively, but that interpretation was disowned when the Congress was considering passage of the bill over the veto. Senator Trumbull,³⁶ the bill’s manager, made a speech in which he described the kind of showing of discrimination which was requisite for removal.³⁷ He said there would be no pretrial removal even in the face of a discriminatory state statute, for it should not be presumed in advance that the state court would apply a state statute which was in conflict with paramount federal law. If, in the state courts, the discriminatory statute was applied, then there would be a right of removal, post-judgment removal, for then the petitioner could show denial of his protected right. And if a freedman sought to enforce one of his protected rights in the state court, and it was denied him, then he could resort to the federal court. Removal would follow actual testing in each case.³⁸

The rule applied in the Supreme Court is thus a liberalization of the original intention of the Congress, for it indulges the assumption that a discriminatory state statute will be applied in the state court.³⁹ The rule’s insistence that the denial of the right be clearly shown, however, even though it goes to the extent of requiring an assumption that there will be no denial of the right in the absence of a discriminatory state statute, decision or something of that nature,⁴⁰ is thoroughly consistent with the original intention of the Civil Rights Act of 1866 and of its sponsors. Senator Trumbull was plainly of the opinion that the right to remove would not exist unless the impediment had some formal state sanction. Mr. Justice Bradley in 1874 expressed the same view in State of Texas v. Gaines, 23 Fed.Cas. p. 869, No. 13847, 2 Woods 342, in which it was held that local prejudice was not a ground for removal by a Negro charged with bigamy. When the Supreme Court was called upon in 1879 to interpret the statute, its reading was well anticipated and entirely consistent with the intention of the original act’s chief proponent.

The relative inutility of the statute is the necessary result of elimination of the right of post-judgment removal, not of judicial emasculation.

The scheme of the Thirty-ninth Congress had consistency. If removability clearly appeared before trial, the case could be removed then. If it did not and the trial was discriminatory and the state court’s judgment unfair, it could be removed after the judgment and retried in the United States Circuit Court. A short while later, however, it turned to other means to achieve its immediate objectives and a subsequent Congress repealed the most effective part of the removal provision of the Civil Rights Act of 1866.

The Civil Rights Act had been enacted over President Johnson’s veto on April 9, 1866. The Thirty-ninth Congress then turned to an expansion and extension of the Freedmen’s Bureau Bill. The Bill, finally enacted over President Johnson’s veto on July 16, 1866, provided in its Section 14⁴¹ that in each of the Southern states, until fully restored in its relations with the national government and fully represented in the Congress, Negroes should have equal rights defined in terms closely paralleling those of Section 1 of the Civil Rights Act. Those rights were made enforceable by Bureau agents with military authority and protection and in military tribunals.

There followed a succession of Reconstruction Acts. The first of those, finally enacted over the presidential veto on March 2, 1867,⁴² placed the Southern states under martial law. Civilian courts could function only if, and to the extent that, the military commander allowed them. In August 1867, General Sickles in his Order No. 10 suspended the operation of the federal courts in the Caro-linas as well as that of the courts of those two states.

It thus appears that in the nine years during which the removal rights as enacted in 1866 remained intact, they were largely superseded by more direct enforcement means under military authority. There was little opportunity for their exercise. They might have become both useful and available after the final termination of the Reconstruction period in 1876, but, as we have seen, they were radically restricted in 1875 by the elimination of the right of post-judgment removal

Under these circumstances, the judiciary cannot restore what the Congress struck from the statute or construe what remains to approximate the congressional intention before it struck the most important part of its earlier scheme. The Congress, of course, can act again. It can undo what it did in 1875; it can reduce the requirements for a showing of removability before trial, or it can leave matters as they are. The choice must be its, and the choice will inevitably involve many considerations of policy in the context of the present which are the exclusive province of the Congress.

Before acting definitively, and there certainly was no definitive congressional action in the minority suggestion in 1964 of judicial reconsideration of the Rives-Powers interpretation,⁴³ the Congress would certainly explore in depth a number of matters as to which, with its investigatory powers, it has far greater competence than the judiciary. These include an appraisal of the efficiency of the present scheme under which state courts are required to enforce federally guaranteed rights, with direct review of their interpretation and enforcement of such rights in the Supreme Court and with rights of collateral review in the habeas corpus jurisdiction of the federal courts where the adequacy and fairness of the state courts’ fact-finding processes are also open to review. When, and under what circumstances, pretrial removal is necessary or appropriate for the protection of federally guaranteed rights should be considered in the light of alternative procedures, troublesome problems of federalism, the capacity of the federal courts to discharge added responsibilities, and the means by which responsible state action may be most effectively encouraged. These are policy considerations for which judges may have some competence, but in no case in our adversary system can the courts explore them on a reviewable record with the competence and the thoroughness of the Congress.

There are subordinate questions which are much more appropriately for the Congress. If the removal jurisdiction is to be expanded and federal courts are to try offenses against state laws, cases not originally cognizable in the federal courts, what law is to govern, who is to prosecute, under what law is a convicted defendant to be sentenced and to whose institution is he to be committed — these are all questions to which there should be a congressional answer.

These are the very practical problems posed as long ago as Mr. Justice Field’s dissenting opinion in Virginia v. Rives. There have been no answers, for congressional revocation of the right of post-judgment removal has substantially avoided the necessity for them. If the removal right is now to be greatly enlarged, such questions must be answered. Aside from the fundamental and incontrovertible proposition that enlargement of congressional purpose must be by the Congress, underlying problems of the desirability of enlargement and the incidental practical problems ought to have careful congressional consideration before any change is made.

It is thus idle to speak of judicial implementation of the original, unmodified intention of the Thirty-ninth Congress. Who can say to what alternative that Congress would have resorted had it not made explicit provision for post-judgment removal? If it were known, however, it would be an irrelevance, for judges cannot ignore the major surgery wrought by subsequent Congresses. A court must take a statute in the form in which it was left by the last Congress that substantively reshaped it. Otherwise, it would arrogate to itself congressional authority.

A further word needs to be said about the contention that the petitioners cannot obtain a fair trial in the Corporation Court for the City of Danville. They do not suggest, of course, any unfairness in Virginia’s Supreme Court of Appeals, a Court which showed its courage and faithfulness to constitutional principles when, in Harrison v. Day, 200 Va. 439, 106 S.E.2d 636, it struck down Virginia’s massive resistance laws which had been enacted in an effort to avoid desegregation of its schools. It would appear that the requirement of a showing of inability to enforce protected rights in the courts would require us to view all of its courts vertically, and that even a successful showing of unfairness in the trial court would not be sufficient unless it were also shown that the appellate court was unfair, too, or that the unfairness of the trial court was not correctable on appeal or avoidable by a change of venue. In Com. of Virginia v. Rives, 100 U.S. 313, 322, 25 L.Ed. 667, for instance, the court appears to have looked at the state courts vertically, saying that if the anticipated wrong was done in the state trial court, it may be expected that “the error will be corrected in a superior court.” Moreover, Com. of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, supplies an emphatic answer. Powers, who had been the Republican candidate for the office of Secretary of State for Kentucky, had been charged with murder of the Democratic candidate for Governor. He had been thrice tried and thrice convicted, but each time his conviction had been reversed by the Kentucky Court of Appeals in four to three decisions. Powers charged that the machinery of the trial court was in the hands of Democrats, inflamed against him because of the killing, and that they had stacked the juries with Democrats, systematically excluding Republicans and Independents. On each appeal the Court of Appeals held that certain rulings of the trial court were unreviewable and those decisions became the law of the case binding upon the trial court at the fourth trial. Powers had also unsuccessfully sought to have introduced a pardon which had been given to him by the Republican Governor of the State, and that ruling had been affirmed and was binding as the law of the case upon the trial judge who was presiding at the fourth trial. If anyone was ever able .to show unfairness in advance of the trial, Powers was. Nevertheless, the Supreme Court held that the District Court should have remanded the case to the state courts, for corrupt or illegal acts would furnish a ground for removal only if done in accordance with a statute as construed by the highest state court. -In the absence of such a statute the only remedy was in the state courts, subject ultimately to review on certiorari by the Supreme Court of the United States.⁴⁴

Powers, of course, was able to make a much stronger showing than the petitioners here and the Powers decision requires the remand of their cases.⁴⁵

While Powers may seem hard, it is the kind of claim which ought not to be made the basis of removal. It would require the federal judge to try the state court. When the question is what the state court will do in the future, as it must be, it is usually incapable of any certain answer. It is the kind of inquiry which would be most disruptive of federal-state relations and the greatest hindrance to state court processes. If there is any element of unfairness in the trial subsequently to be conducted in the Corporation Court of Danville, it ought to be corrected by Virginia’s Supreme Court of Appeals, which readily recognizes its responsibilities.

Again, Professor Amsterdam appears to agree that this sort of claim ought not to be made the basis of removal.⁴⁶

The Court of Appeals for the Fifth Circuit has recently allowed removals under Section 1443(1) in situations in which it appeared that under no- circumstances could the state constitutionally convict the defendants.⁴⁷ When the state statute upon which the prosecution is founded is facially unconstitutional, or if the facts are so settled that it is clear that the state statute cannot be constitutionally applied to the defendants’ conduct, most of the difficulties are avoided. Thus in Rachel v. State of Georgia the prosecutions were for trespass in connection with sit-ins occurring before the Supreme Court’s decision in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, and in Cox v. State of Louisiana the effort to prosecute the defendant for attempting to do what the Supreme Court had already held he could not constitutionally be convicted of doing was obviously a fruitless and unconstitutional harassment. In such cases the only real problem is whether or not the petitioner is able to show that his rights will be denied or cannot be enforced in the state courts. But those cases furnish no basis for our reaching a conclusion of removability here.⁴⁸

V

The contention that removal may be had under the provisions of 28 U.S. C.A. § 1443(2) need not now detain us long. In comparable situations it has been consistently rejected in every case in which it has been advanced.⁴⁹

Relatively early in the history of this country, statutes were enacted giving federal officials the right to remove to the federal courts state proceedings instituted as a result of their official acts. In 1815 a statute⁵⁰ was enacted providing for removal of suits and prosecutions “against 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 * * * by virtue of this act, or under colour thereof.” This was a customs act, and, eighteen years later, South Carolina’s resistance to the tariff acts provoked another.⁵¹ It authorized removal of any “suit or prosecution * * * against any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under colour thereof, or for or on account of any right, authority, or title, set up or claimed by such officer, or other person under any such law of the United States * * There were other revenue acts with removal provisions, though they add nothing to the pattern established by the acts of 1815 and 1833. Federal officials charged with violations of state statutes in the exercise of their official duties under federal statutes were entitled to remove the case to the federal courts. So was one defending a title derived from such a customs or revenue officer under the act of 1833. The statutory language explicitly reached him.

It was against this background that the Civil Rights Act of 1866 was enacted. In its “color of authority” clause it authorized the removal of any proceeding against “any officer, civil or military, or other person, for any arrest or imprisonment, 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, * * Its reference to the Freedmen’s Bureau Act was appropriate, for, as we have noticed, the agents of the Freedmen’s Bureau were charged with the duty of enforcement of the Civil Rights Act. There was, however, no language comparable to that of the Revenue Act of 1833, giving removal rights to .occupants of “abandoned” or confiscated lands who resorted to self help to defend their possessions. Clearly, the “color of authority” provisions of the Civil Rights Act of 1866 were limited to officials engaged in its enforcement and to those other persons who assisted them. This is apparent not only from the omission of language of earlier statutes in aid of those claiming under official grants of estates but, more emphatically, in the concurrence of the language in the removal section and in the enforcement sections.

As we have observed earlier in Section III, the enforcement provisions of the Civil Rights Act of 1866 authorized the commissioners to appoint any number of “suitable persons” to assist those officers, and the “suitable persons” were authorized to serve warrants and make arrests. The “suitable persons” could call upon bystanders to assist them and even call out the military forces of the United States. In the enforcement sections those unofficial “suitable persons,” and those other civilians whom they were authorized to command, are consistently referred to as “other persons.” Those “other persons” authorized to make arrests in the name of the United States and to collect their fees of five dollars for each arrest are obviously the same “other persons” mentioned in Section 3. The suggested ambiguity in the reference in Section 3 to “other persons” vanishes with a look at the enforcement sections.

The enforcement provisions of the Civil Rights Act of 1866 have been carried into the 1948 Code. Commissioners are still authorized to appoint “suitable persons” to serve warrants and make arrests of persons charged with violating rights initially secured by the Civil Rights Act of 1866, and those suitable persons are still authorized to “call to their aid all bystanders or posse comi-tatus” and the land and naval forces of the United States or of the militia.⁵² Every such person is still entitled to the five dollar fee for each person he arrests.⁵³

The revisers of the 1948 Code enlarged 28 U.S.C.A. § 1442(a) (1) to include all officers engaged in law enforcement. That enlargement did not make Section 1443(2) tautological under the construction that we give to the latter section. It protects so many persons whose status as officers under Section 1442(a) (1) would be highly dubious, to say the least, that it could not reasonably have been deleted. While the 1948 revisers’ omissions and changes are subject to criticism,⁵⁴ it was stated that no change in meaning was intended, and we find none.

VI

Finally, the petitioners claim that they may remove under the “refusal” clause of 28 U.S.C.A. § 1443(2). They say they refused to desist from their demonstrations on the ground that it was protected conduct.

Though the First Amendment can hardly be said to command one to express whatever views he has, this provision of the statute is available only to state officers. The refusal language was added by amendment in the House with the explanation that it was intended to enable state officers who refused to enforce discriminatory state laws in conflict with Section 1 of the Civil Rights Act of 1866 and who were prosecuted in the state courts because of their refusal to enforce state law, to remove their proceedings to the federal court.⁵⁵

We conclude that these cases were properly remanded.

Affirmed.

Footnotes

1

. See -Section II of the opinion beginning at page 596.

2

. 337 F.2d at 602.

3

. See Congress of Racial Equality v. Town of Clinton, 5 Cir., 346 F.2d 911; Rachel v. State of Georgia, 5 Cir., 342 F.2d 336.

4

. People of State of New York v. Galami-son, 2 Cir., 342 F.2d 255.

5

. See particularly 337 F.2d 579, 583-585.

6

. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal And Habeas Corpus Jurisdiction To Abort State Court Trial, 113 U.Pa.L.Rev. 793, 843.

7

. Act of April 9, 1866, 14 Stat. 27.

8

. Now 42 U.S.C.A. §§ 1981-1982.

9

. Now 18 U.S.O.A. § 242.

10

. Now 28 U.S.C.A. § 1443(1), (2).

11

. Now 42 U.S.C.A. § 1987.

12

. Now 42 U.S.C.A. § 1989.

13

. Now 42 U.S.C.A. § 1989.

14

. Now 42 U.S.C.A. § 1991.

15

. Act of May 31, 1870, 16 Stat. 140.

16

. It would be supposed that ratification of the Fourteenth Amendment in 1868 would have validated §§ 1 and 3 of the Civil Rights Act of 1866. There is no room for questioning their constitutionality after their reenactment in 1870.

17

. To read as it now does, see Section II of this opinion.

18

. Section 3 of the Civil Rights Act of 1866 adopted the removal procedure of the Habeas Corpus Suspension Act of 1863. Section 5 of the Act of 1863, 12 Stat. 755, 756-757, made the specified eases removable by a petition filed by a defendant in the state court “at the time of entering his appearance in such court,” or “after final judgment” either party could remove the case to the Circuit Court by an “appeal” filed during the term in which the state court judgment was entered. Thereupon the Circuit Court was required, notwithstanding the state court judgment, to try the case de novo, as if originally brought there.

This right of post-judgment removal was specifically reconfirmed the next month after enactment of the Civil Rights Act. See the Act of May 11, 1866, 14 Stat. 46, amending the removal provisions of the Habeas Corpus Suspension Act of 1863, which supplied the procedure for removal under the Civil Rights Act of 1866.

19

. See, infra Section IV.

20

. 110 Cong.Rec. 6344 (Senator Kuchel), 6551 (Senator Humphrey) and 6739-40 (Senator Dodd).

21

. 110 Cong.Ree. 2770 (Representative Kastenmeir).

22

. A paraphrase of the statute appears in both petitions. Factual allegations are included in only one, but they are made the principal thrust of the briefs. They are based upon alleged events before and during the trial of two of their arrested fellows. We will treat such allegations as having been made by all of the petitioners.

23

. People of State of New York v. Galamison, 2 Cir., 342 P.2d 255; see also City of Chester v. Anderson, 3 Cir., 347 F.2d 823.

24

. 17 Stat. 13.

25

. Now 42 Ü.S.C.A. § 1983.

26

. Professor Amsterdam in his seholarly article written with such sympathy for demonstrators such as these petitioners expresses the same conclusion. Amsterdam, supra note 6, at 873. However, he would expand the removal provisions to include a denial of any right secured by what is now 42 U.S.C.A. § 1983.

27

. See the statement of the two questions, 100 U.S. at 305.

28

. See 100 U.S. page 311.

29

. See 100 U.S. page 312. In this extract there is a reference to the “constitutional amendment” as well as to Section 1977, but only because the statement came at the conclusion of the discussion of the" constitutionality of Section 641, itself. The Court was stating, in a conclusion-ary way, that there was a right of removal under Section 641 because the state denied a right protected by Section 1977, which, with Section 641, was a valid implementation of the fourteenth amendment.

30

. That is the stated position of the Second, Fifth and Ninth Circuits. See Peacock v. City of Greenwood, 5 Cir., 347 F.2d 679, 682; People of State of New York v. Galamison, 2 Cir., 342 F.2d 255, 265, 271; Steele v. Superior Court, 9 Cir., 164 F.2d 781.

31

. See infra, the ^type of showing which the Reconstruction Congress thought necessary for removal, pp. 766-767. Remov-ability here is predicated upon factual assertions of innocence which are controverted by the Commonwealth’s charges of guilt of offenses cognizable in the courts of the states.

32

. Com. of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633; Williams v. State of Mississipi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012; Murray v. State of Louisiana, 163 U.S. 101, 16 S.Ct. 990, 41 L.Ed. 87; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Bush v. Com. of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Com. of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664.

33

. See Steele v. Superior Court of California, 9 Cir., 164 F.2d 781; Hull v. Jackson County Circuit Court, 6 Cir., 138 F.2d 820; Maryland v. Kurek, D.Md., 233 F.Supp. 431; Anderson v. State of Tennessee, E.D.Tenn., 228 F.Supp. 207; Levitt & Sons, Inc. v. Prince George County Congress of Racial Equality, D. Md., 221 F.Supp. 541; State of Alabama ex rel. Flowers v. Robinson, N.D.Ala., 220 F.Supp. 293; State of Arkansas v. Howard, E.D.Ark., 218 F.Supp. 626; City of Birmingham v. Croskey, N.D.Ala., 217 F.Supp. 947; Van Newkirk v. District Attorney, E.D.N.Y., 213 F.Supp. 61; Petition of Hagewood, E.D.Mich., 200 F.Supp. 140; Rand v. Arkansas, W.D.Ark., 191 F.Supp. 20; Hill v. Com. of Pennsylvania, W.D.Pa., 183 F.Supp. 126; State of Louisiana v. Murphy, W.D.La., 173 F.Supp. 782; State of Texas v. Dorris, S.D.Tex., 165 F.Supp. 738; State of North Carolina v. Jackson, M.D.N.C., 135 F.Supp. 682; Bennett v. Roberts, W.D.N.Y., 31 F.Supp. 825; People of State of California v. Lamson, N.D.Cal., 12 F.Supp. 813; State of New Jersey v. Weinberger, D.N.J., 38 F.2d 298; White v. Keown, D.Mass., 261 F. 814; State of California v. Cheu Fan, N.D.Cal., 42 F. 865; State of Alabama v. Wolffe, M.D. Ala., 18 F. 836; People of State of New York v. Galamison, 2 Cir., 342 F.2d 255, 271 (dictum). But cf. Cox v. State of Louisiana, 5 Cir., 348 F.2d 750; Peacock v. City of Greenwood, 5 Cir., 347 F.2d 679; Rachel v. State of Georgia, 5 Cir., 342 F.2d 336.

34

. Cox v. Louisiana, supra note 33; Rachel v. Georgia, supra note 33.

35

. Rachel and Cow, cited in the preceding footnote are recent examples of the effectiveness of § 1443(1), but they are of no help to the removing defendants here, for the facts are far from settled.

36

. Senator Trumbull was the chairman of the Senate Committee on the Judiciary and one of the principal architects of the congressional plan, hotly debated with Lincoln and Johnson, for reconstruction of the seceding states. Later, after the Reconstruction Acts’ transfer of all judicial authority in the seceding states to military tribunals was threatened by the Supreme Court’s decision in Ex Parte Milligan, 71 U.S. 2, 18 L.Ed. 281, it was he who undertook the representation of the United States in McGar(lie's case. McCardle, a newspaperman, had been convicted in a military tribunal of sedition because of articles he had published in his newspaper. Attorney General Stanberry declined to appear for the United States because of his announced opinions that the Reconstruction Acts were unconstitutional. Senator Trumbull was called upon to fill the breach. He met the issue head on by objecting that the application below had been made in the Circuit Court rather than in the District Court. He lost. Ex parte McCar-dle, 73 U.S. 318, 18 L.Ed. 816, and the Supreme Court proceeded to hear the case on the merits.

Trumbull then succeeded in having the Congress pass an act depriving the Supreme Court of appellate jurisdiction in habeas corpus cases appealed from the Circuit Courts. Though the impeachment proceedings were then underway, Johnson promptly vetoed the measure. He thought the Supreme Court should decide such constitutional questions. As promptly, Congress overrode his veto, and the Supreme Court acquiesced. It held the limitation upon its jurisdiction within the power of Congress. Ex parte McCardle, 74 U.S. 506, 19 L.Ed. 264. Its opinion on the merits was never announced.

Anyone interested in knowing what then happened to MeCardle may consult Arthur John Keefe’s columns in the May and November, 1964 issues of the American Bar Association Journal, 50 A.B.A.J. 500, 1093. (There are other references, but those give the essentials).

37

. Cong. Globe, 39th Cong. 1st Sess. 1759 (April 4,1866).

38

. Aside from a grand look at the historical context and a penetrating exploration of the contest between the Congress and the White House which opened with Lincoln’s Reconstruction Proclamation of December 8, 1863, which was widened by the answering enactment of the Davis Bill and further defined by Lincoln’s proclamation of July 8, 1864 in explanation of his disapproval and which ended only with Grant’s inauguration, Senator Trumbull’s speech is the only really relevant legislative history evident at the time the Act was first passed or at the time the presidential veto was overridden. What Senator Trumbull said, insofar as here pertinent, was:

“ * * * [H] e is not necessarily discriminated against, because there may be a custom in the community discriminating against him, nor because a legislature may have passed a statute discriminating against him; that statute is of no validity if it comes in conflict with a statute of the United States; and it is not to be presumed that any judge of a State court would hold that a statute of a State discriminating against a person on account of color was valid when there was a statute of the United States with which it was in direct conflict, and the case would not therefore rise in which a party was discriminated against until it was tested, and then if the discrimination was held valid he would have a right to remove it to a Federal court — or, if undertaking to enforce his right in a State court he was denied that right, then he could go into the Federal court; but it by no means follows that every person would have a right in the first instance to go to the Federal court because there was on the statute-book of the State a law discriminating against him, the presumption being that the judge of the court when he came to act upon the case, would, in obedience to the paramount law of the United States, hold the State statute to be invalid.”

39

. Unless the statute predates the constitutional provision which invalidates it. Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567. This may have been the situation which Senator Trumbull had in mind.

40

, See the text, supra at footnote 34.

41

. 14 Stat. 173, 176-177.

42

. 14 Stat. 428.

43

. See the ultimate paragraph of Section HI, supra, for a discussion of this.

44

. Now, of course, Powers’ claims, to the extent founded on the federal constitution, would be reviewable in the lower federal courts on habeas corpus.

45

. Prior to 1875, when post-judgment removal was permissible, removal could be had after a trial if the judgment of the trial court was discriminatory or if there had been a denial of one of the protected rights. The judgment of the trial court was a sufficiently formal state sanction of the discrimination. Exhaustion of any right of direct appeal was not a prerequisite to removal. When that procedure is unavailable, however, when we are called upon in advance of trial to consider a claim of unfairness in the trial court, it is not unreasonable to look, as the Supreme Court did in Rives and Powers, at the whole state court system. If unfairness in the state trial court clearly appeared, it ought not warrant removal if readily avoidable by a motion for a change of venue or correctable on appeal. If a defendant is able to make with clarity and certainty a pretrial showing of unfairness in a state trial court, he should encounter no difficulty in establishing that unfairness after a trial.

46

. Amsterdam, supra note 6, at 857-59, 862-63, 911-12.

47

. Cox v. State of Louisiana, 5 Cir., 348 F.2d 750; Rachel v. State of Georgia, 5 Cir., 342 F.2d 336; cf. Peacock v. City of Greenwood, 5 Cir., 347 F.2d 679.

48

. Rachel and Cox are clearly distinguishable because of the absence in those cases of any factual dispute and the clear showing that the Constitution foreclosed a successful prosecution in the state court. The opinions in those cases elide the other- facet of the “cannot enforce” problem, however: the sufficiency of a pretrial showing that the state court will not enforce the clearly established right. See Neal v. State of Delaware, 100 U.S. 370, 26 L.Ed. 567. One month before Rachel, for instance, the Supreme Court of Georgia had held in Bolton v. State, 220 Ga. 632, 140 S.E.2d 866, that sentences imposed upon participants in “sit-ins” must be vacated. It recognized the paramount authority of Hamm v. City of Rock mil.

In that situation, as in Cox, since the constitutional immunity from prosecution was clearly apparent, it may have been appropriate to consider the harassing ef-feet of the pendency of the prosecution upon the defendants’ exercise of protected rights, though here, again, one may suppose that the prosecution might have been terminated more readily by a motion to dismiss in the state court than by the uncharted route of removal. Consideration of the effect of the pendency of the prosecution can be of no assistance, however, on the other branch of the problem when the facts are unsettled and removability cannot be determined until they are resolved.

49

. Though not always on precisely the same ground, see Peacock v. City of Greenwood, 5 Cir., 347 F.24 679; Board of Educ. v. City-Wide Comm. For the Integration of Schools, 2 Cir., 342 F.2d 284; People of State of New York v. Galamison, 2 Cir., 342 F.2d 255; City of Clarksdale v. Gertge, N.D.Miss., 237 F.Supp. 213; State of Arkansas v. Howard, E.D.Ark., 218 F.Supp. 626.

50

. Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198.

51

. Act of March 2, 1833, Ch. 57, § 3, 4 Stat. 633.

52

. 42 U.S.C.A. § 1989.

53

. 42 U.S.C.A. § 1991.

54

. See People of State of New York v. Galamison, 2 Cir., 342 F.2d 255.

55

. Cong. Globe, 39th Cong., 1st Session, 1366-67 (March 13, 1866), 1413 (March 15, 1866).