# United States v. John Q. Wood

> Court of Appeals for the Fifth Circuit · November 30, 1961 · 295 F.2d 772

URL: https://www.frixlaw.com/law-library/cases/9448223

## Case

- **Full name:** UNITED STATES of America, Appellant, v. John Q. WOOD Et Al., Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 30, 1961
- **Citations:** 295 F.2d 772
- **Precedential status:** Published
- **Opinion:** Dissent by Cameron
- **Judges:** Rives, Cameron, Brown
- **Cited by:** 116 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448223

## Opinion text

CAMERON, Circuit Judge
(dissenting).
I respectfully dissent from the majority opinion in this case. The exigencies of time 1 arising from the desirability of returning to State hands the enforcement of its laws make it impossible for me to set down, point by point, the reasons for my dissent. This opinion will, therefore, be confined to a detailed discussion of one or two points whose decision seem to me so glaringly wrong in the majority opinion and so distressingly destructive of the cooperative relationship which should exist between state and federal sovereign-ties.
I do not think that the order by the district court denying the motion for a temporary restraining order was appeal-able, and I do not, therefore, think that the case decided by the majority was properly before us. The majority admits that the question has never been decided by the Supreme Court or any Court of Appeals, but accepts the government’s argument that the denial of the temporary restraining order was a final decision because of the special circumstances existing in this ease.
Nor do I agree that the federal government, making this vicarious effort to protect Hardy from the criminal charges brought by the State of Mississippi against him, is immunized from the direct prohibitions of 28 U.S.C.A. § 2283 . The statute states categorically that “A court of the United States may not grant an injunction to stay proceedings in a State court” except in those instances carefully spelled out in the residue of the statute. What the government seeks to do here does not come within the purview of any of those exceptions, and the attenuated argument of the majority to the contrary is to me wholly unconvincing. Without pausing to follow this portion of the majority opinion further, I refer to- *786 the discussion of a like question which Judge Mize, United States District Judge, Southern District of Mississippi, so ably made in his decision in the case of the Application of Wyckoff, D.C.S.D.Miss., 196 F.Supp. 515 , 518 et seq. I further adopt the reasoning of that decision and the authorities there cited to supplement what is here written.
I cannot refrain from saying a word in defense of Mr. Chief Justice Stone’s landmark opinion on federal-state relationships in Douglas et al. v. City of Jeannette et al., 1943, 319 U.S. 157 , 63 S.Ct. 877 , 87 L.Ed. 1324 . The attitude of the majority would, it seems to me, if followed, deal a crippling blow to this most important aspect of those vital relationships which constitute the bedrock of the Constitution of the United States. The majority devotes nearly ten pages of its opinion to a discussion of “the strictures of Douglas v. [City of] Jeannette.” Its efforts to water down Jeannette and the manifold application of its teachings to the basic relationships of our dual sovereignty, conclude with a firm reliance upon the decision of this Court in Morrison v. Davis, 5 Cir., 1958, 252 F.2d 102, 103 , certiorari denied 356 U.S. 968 , 78 S.Ct. 1008 , 2 L.Ed.2d 1075 , wherein this Court said: “To the extent that this [Browder v. Gayle] is inconsistent with Douglas v. City of Jeannette, Pa., 319 U.S. 157 , 63 S.Ct. 877 , 87 L.Ed. 1324 , we must consider the earlier case modified.”
I think the position that Jeannette has been modified is wholly without authoritative support. Shepard’s Citations show that the case has been cited one hundred forty times and, until the majority opinion here, its binding force had been questioned only in Morrison v. Davis, supra. What has happened since Morrison v. Davis rejects totally, in my opinion, the conclusion that Jeannette has been modified.
Until the present, Morrison v. Davis had been cited only once by an appellate federal court. A month after its rendition, it was referred to without approval by the Sixth Circuit in its decision of Fuqua et al. v. United Steelworkers, etc., 6 Cir., 1958, 253 F.2d 594 , 598, in an opinion written by Judge (now Mr. Justice) Stewart, where it was said (at page 597):
“A thorough discussion of these standards and of the important policy considerations which underlie them is found in Douglas v. City of Jeannette, 1943, 319 U.S. 157 , 63 S.Ct. 877 , 87 L.Ed. 1324 . * * * “As there pointed out, federal courts of equity should conform to clearly defined Congressional policy, ‘ * * * by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent. * * *
“ ‘It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for Ms alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. * * * Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by [the Supreme] Court on federal grounds appropriately asserted. * * *' ” 2 [Emphasis added.]
As Judge Mize pointed out in his decision of In re Wyckoff, D.C., 196 F.Supp. 515 , 518 et seq., supra, it appears that *787 the Supreme Court itself has cited Jeannette three times since Morrison v. Davis. In Speiser v. Randall, 357 U.S. 513 , 78 S.Ct. 1332 , 2 L.Ed.2d 1460 , Jeannette was cited in a concurring opinion by Mr. Justice Black in support of a point different from that here under consideration. It was used to sustain another point by the majority opinion of the Supreme Court in Monroe v. Pape, 1961, 365 U.S. 167, 171 , 81 S.Ct. 473 , 5 L.Ed.2d 492 , and by the dissent-opinion of Mr. Justice Frankfurter, ib. at page 206 of 365 U.S., at page 492 of 81 S.Ct.
In Wilson v. Schnettler, 1961, 365 U.S. 381, 385 , 81 S.Ct. 632 , 5 L.Ed.2d 620 , Jeannette was cited with approval in the opinion of the court and also by the concurring opinion of Mr. Justice Stewart (at page 388 of 365 U.S., at page 637 of 81 S.Ct.). The court there affirmed the action of the Court of Appeals of the Seventh Circuit, 1960, 275 F.2d 932 , which had followed Jeannette as controlling authority. In that case, concurred in by all of the Justices save three, the Supreme Court paraphrases the language of Jeannette, adhering, as of February 27, 1961, to principles which the majority here reject (365 U.S. at page 385, 81 S. Ct. at page 635):
“There is still another cardinal reason why it was proper for the District Court to dismiss the complaint We live in the jurisdiction of two sovereignties. Each has its own system of courts to interpret and enforce its laws, although in common territory. These courts could not perform their respective functions without embarrassing conflicts un- . less rules were adopted to avoid them. Such rules have been adopted. One of them is that an accused ‘should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial.’ Ponzi v. Fessenden, 258 U.S. 254, 259 [ 42 S.Ct. 309 , 66 L.Ed. 607 ]. Another is that federal courts should not exercise their discretionary power 'to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is both clear and imminent * * *.’ Douglas v. City of Jeannette, supra, [319 U.S.] at [page] 163 [ 63 S.Ct. at page 881 ].” [Emphasis added.]
The language emphasized in the above quotation, as well as in the last quotation from Jeannette (in Fuqua, supra) is extremely hard for the Judges who are bent upon the exaltation of federal sovereignty, the debasement of state sovereignty, to accept.
In Pugach v. Dollinger, 277 F.2d 739 , the Court of Appeals for the Second Circuit affirmed the action of a district judge who had refused to grant injunctive relief against-a state criminal prosecution. The Court of Appeals based its affirmance on Jeannette. The Supreme Court affirmed in a per curiam opinion in Pugach v. Dollinger, 1961, 365 U.S. 458 , 81 S.Ct. 650 , 5 L.Ed.2d 678 , basing its affirmance, however, upon the authority of Schwartz v. State of Texas, 344 U.S. 199 , 73 S.Ct. 232 , 97 L.Ed. 231 , and Stefanelli v. Minard, 342 U.S. 117 , 72 S.Ct. 118 , 96 L.Ed. 138 , two decisions in the long line which have upheld without deviation the principles of Jeannette which the majority declines to follow here.
The majority opinion makes a detailed recital of actions by the public officials of the State of Mississippi and Walthall County, which depicts these officials as wholly unworthy of trust, although they had been elected to their positions by the people of their counties or districts. This detailed recital goes, in my opinion, beyond what was necessary to a decision of the legal points presented by this appeal. The “strictures” were based largely upon statements made by a person of palpable irresponsibility who had come from a distant point into the State of Mississippi to stir up distrust between the races.
In the public press (The Tylertown Times of September 7, 1961) the editor of a newspaper stated:
*788 “In our interview, Hardy expressed skepticism to me about the existence of God. He said ‘Why should I believe in a God that I can’t see?’ He told me he did not believe in service in the armed forces. ‘Why should I go to defend a lie ?’, he said.”
The same statement appears in a number of affidavits the originals of which are attached to the brief of appellees. Appellee’s brief states: “It was agreed at this time, [that is, when the application of appellant for injunction pending appeal was presented to Judge Rives] that the appellees may file and make parts of their briefs as part of the record any affidavits which they so desired.”
Appellee’s brief further showed that all of the original affidavits filed had been served on the appellant within the time fixed by Judge Rives at that hearing. As far as I am advised, the appellant has never moved to strike the affidavits, or taken any other step to take them out of the record. Such an attitude would appear to be requisite in view of the fact that the government had not given the county and state officers an opportunity to file affidavits prior to the hearing before the court below.
It is to me a saddening spectacle to witness the publishing of decisions such as that of the majority here, which can have no other effect than to cause the people of the southland to look upon federal functionaries pursuing the course here presented to us, as “alien intruders.” 3 I am constrained to repeat here words which I used in my recent dissenting opinion in Boman v. Birmingham Transit Co., 5 Cir., 292 F.2d 4 , 28-29:
“It is the universal conviction of the people of the [South] also that the judges who function in this circuit should render justice in individual cases against a background of, and as interpreters of, the ethos of the people whose servants they are. This is the genius of the judicial system established by Congress and as traditionally administered by those who select the judges — a process, incidentally, which all know follows normal political lines. The statutes creating the United States Courts of Appeal require that only citizens who are residents of the respective circuits at the time shall be eligible for appointment, and that they shall continue to reside in the circuit during their term of office ( 28 U.S.C.A. § 44 (c) ). For decades, in this circuit, judges have been selected so that each state in the circuit shall be fairly represented on the court.
“It is the firm conviction of the [people of the South] also that decisions such as this one, in cases brought by or on behalf of Negroes and involving the. equal protection clause of the Fourteenth Amendment, have not been in harmony with the spirit, thought and desires of the people, the vast majority of whom, in both races, know that their common problems can best be worked out if they are left alone to continue the unbroken improvement in relationships which has taken place in the last eight decades. They are keenly conscious of the fact that since the end of the tragic era following the War Between the States and in spite of the handicaps born of it, there has been a continuing growth in mutual understanding, respect and brotherhood between the members of the two races; and that the progress made by the Negroes in advancement educationally, socially, economically and in all other phases of their lives has exceeded that achieved by them anywhere else in any country at any time. That a breach in these relationships, achieved in the close and compassionate contacts which have taken place under such trying conditions should be permitted to occur is unthinkable to practically all of the people of good will of both races. *789 “The rank and file of Negroes, realizing the hardship under which they labor by reason of the head-start of several centuries enjoyed by white people, and proud of their race and its accomplishments, resent the efforts of the agitators who do not understand, to [throw into the courts matters of status and relationships which can best be worked out in the friendly atmosphere of close community contacts]. They feel, in common with their white neighbors, that the judges should perform their duties with a sympathetic understanding of the true facts; and further that such an understanding has been tragically lacking in many of the decisions of many of the Judges in the Fifth Circuit whose actions have gone so far to the other extreme that Time Magazine gave six of the Judges an enthusiastic write-up with photographs in its issue of December 5, 1960, page 14. The article, encircled in red for emphasis, was headed ‘Trail-Blazers on the Bench —South’s U. S. Judges Lead a Civil Rights Offensive.’ It stated that the Judges extolled constituted ‘an hon- or roll without precedent in United States legal annals’ and that they had ‘collectively * * * launched one of the great, orderly offensives of legal history.’ ”
This is not the time, in my opinion, ■for outsiders, unfamiliar with the intricate problems involved, to set neighbor against neighbor — to adopt a course which will ultimately lead to the destruction of the tolerance and understanding •so necessary to the continued advancement of the interests of both races. At a time when the daily press is filled with .stories of racial strife from every quarter of the globe, men of good will in this nation ought, in my judgment, to be thankful that the two races in the South have, for more than a half century, avoided such strife and have advanced together in a spirit of brotherhood with a speed -which those who take the trouble to learn ■the facts think is phenomenal. It is unthinkable that a handful of agitators, however sincere their motives may be, would be permitted to interrupt that advance and set the stage for another “Tragic Era.”
I respectfully dissent.
. An urgency springing from the self-imposed delay of the government in beginning this action. The prosecution was instituted against Hardy in the state courts of Walthall County, Mississippi on September 7, 1961. The United States chose not to file its complaint in the present action until September 20, 1961, when it prayed for an immediate restraining order. The court below required notice to the defendants and heard and denied the motion at 5:00 P.M. September 21, 1961. As stated in the majority opinion, its author was importuned in his home at 10:30 P.M. on September 21st, 1961, for a stay of the proceedings before us. The clerk of the District Court was required to rush the filing of the record and appellee was called upon to file a brief, all in the course of twelve days. The whole procedure was in keeping with the government’s practice of demanding, and most often receiving, special treatment.
. The quoted language is of interest also in connection with what was said in Morrison v. Davis (252 F.2d at page 103 ): “Moreover we think the trial court here properly held: ‘It is not the Court’s view that in our civilization it is necessary to have incidents requiring arrests to have the rights of people declared.’ ”
. The language is that of the Supreme Court in Hecht v. Bowles, 1944, 821 U.S. 821 , 329-330. 65 S.Ct. 587 , 88 L.Ed. 754 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448223. Public record. Not legal advice.