# Petition for a Writ of Certiorari — Gibson v. Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1424%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 376 U.S. 908 ## Text [i" | = “| OtheeSupreme Court, US d oe 7 FILED. ) og | DEC 11 196. . “JOHN F. DAVE, CLERK we - “ e # - » ed IN THE- .. | : Supreme Court aif the Wunited Prater Ocronen Team, 1463 @/ F NuGT () pS Tre Boake or Eprearion or ii Crry or BirMixncivaM, EY St. Petitioners, ee v. _Dwicite Arustrone, er an, Respondeits. : Lixpa Str. Grpson, Ev AL. Petitionors, CAROLYN. ELEANOR TLarris, et Ab., Respondesits, , : » % Ls WHESCE Roperts, Ev AL. Petitioners, ¥."" : \ ° e Raren STELL, ET. . Hespondcuts, » PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF-APPEALS - asa - FOR THE FIFTH. CIRCUIT - ‘ \ : “Gro. STEPHEN Leon ar 1750) K Street, NOW e? Washington 6. 1). ¢ . : To LSAKNI Or Counsel: - ie change Se rity bank Blade R. Carrer Pitras rrminghanm 3, Alabama ACHLARLES +. BLOCH : Connse! tar Petitioners J. WALTER COWART ; Rrevagro L. Tbikstipes . Roverr C. MAYNAR Press oF BYRON S Avamis. WastiINcron. DO ° . : e om ; Gantt y. Cldmson Agric Barve College . tina, 204 FF. Sup hs 416 (W.LD. So, ‘ar. “19625 a TT IS. ; 3 2 . . INDE? . . : z Page , (pound Mp Below [Ae Gh RARER EERS EV CRED ERE C OS CAO Oe eee OR ' i Be 29.0. 8°¢ £2 8 8 xy ee0ens37evese oe 7 @ = 2.0 4) 8.2 8.8 6.8 o Dhest ma? resented cube eeeeeu ecegcee eoeveces oc ge e's } Statut ‘s inv, SUE Co kas een Guan Gee uaed cos 4 ee Se NON Gk as bs kee c eo so be ek eee ) ud 55 Relied on For Nilowanee of Writ ........... 3 oe ae ee Oo) ae ee oe a oe we oe i oe ee aw’ “eC Vie ee Py oot ee fo oe me ae eT 14 TABLE OF AUTI LORITIES (CASES: Sree teee w+ 4 . a ae a ; a « ‘Aaron v.i\Cooper,.29¢ F. 2d 33 (8th Cir. 1958) ........ “=~ Aaron v.\Cooper, 261 F.2d 7 (Sth Cir. 1958)-........ 20 American Lead Peneil v.-Schneegass, les Fed. 725 Dr Oe 1) Sa ae aa SNamie weed ike aire ae ds. Bergen Drug v. Parke Davis Co.. 307 F..2 cz 422) Sosa ; " Me, MD ek Cas ’s De tree 16° _ Clune y . Hublisher~ Association of New York c ‘ity, 24 ane F. Su SEU LEA hy LOCO) Sse eet base iens ly * Cooper v. Naron, S98 US. 1 1. 8) Sa akch eae Rie stale vu # DeBeors Mynes y. United States. 325 US, 212 (4845). O°) Dennis v. United States, 541 ULS, ho4 td eee aN = “35 Dunn ve Ratail Clerks International Assoviation, 290 ge a EB WOT 7 4 I eae ne 4 — (Gireene v. Fair, OE! BL 2d 200-05th Cir. 163) ee: Hamilton Watel oe Henna Bate ‘o., P06 F.2d - ~ocememaenezamty * 9 6B Ce |.) ree ugk sie nieas enka ae Hess v. Woods, 185 BF. 2d 404 (oth ¢ 150) Terre er 21-2 ‘Joint. Anti-kpseist Retuwec 4 MRE . MeGirath, —. BREE Be IDOE oi vnc ca ee eae 245 ‘Tnore Lennon.166 CLS, Ads CIS9O7) 222... PPS ee ai och | Mack vo Gener! Motors Corp. 260 PF, 2d S86 (7th Cir, sche DAE EPSPS ire ee pa ir eS par ee 2 Meredith v. Fair. 305 EF. 2d EI ( oth Ci Ws Sie ck wes ee i .* ~ Index Continued ’ “4 eye Page: . Miami Beac ‘h Feder al S sav, & Loan Assoc. v. sane 256 F.2d 410 (Sth Cir, MAB) TT... 7, J5-4- Northern Securities: Conv. & inited States, 193-ULS. 198 ; (1904) See REE. CEE e er oe Oy PE Ee ry ne 24-° ‘Price v. Johnston, ret yi i (1948) a nese ree VW Shuttlesworth v. Birmingham Board’ of Education, 358 U.S. 101 (1958) .......... Ot whtita set ae py ¢ * Tanner’ Motor Livery, Ltd. v. Avis, Inc, 316 KF. 2d si (Mh Cire 1963) Deh IGaR Ch Res MOEN G eR URW we cat ay Xi Toledo. A.A. & N.M. Ry. Co. : Pennsylvania Co, 4 * Fed. 720 (N.D. Ohio 18613) Tete ere erie ee Toledo Seale Co. vy. Computing Seale Co., 261 Yr. S. 399: INS ee das SERGE ES EEE CREE AUER Rada eae we 6, 20 U nited States v. Adler's € ‘reamery, 107 F. 2d 987 (: 2d ats. SE Fires Ee ee Sheen ee Rea eke ws oak 17,18 United States v. Miieinae: 342 U.S. 205 (1952) ....... 1 United States v. Mor Kain, 346 U. S. ee (1) ess OD U nited States v. Wood, 295 F. 24 772 (Sth Cir. 1961) ..19-20 Warner Brosav. Gittone, L10- F.2d 292 (34 Cir. 1940}. .17 -. Westinghouse Electciec Corp. v. Free Sewing Machine ; “Co., 206 F; 2a BOG. (7th Cir. WS) Wt. ee can 18 ~Willheim v. Investors Diversified Services, Inc., 303 “Ee ee fe Ee, Se oo a cee oe ee 47, 8 Willheim v. Muteliason, 203. F. Supp. 418 (S.D.N.Y . fae SUEY onc awa is ee Riven aC eRe OS keane WV Winton Motor Carriage Co. v2 Curtis Publishing oo 196 Fed. GO (E.D.. Pa. 1912) Sees ceaegey ai vag 17 SratvtTes: «© 2 : yr oat = YS USC: sy rere eee ee ee 3 ee As RE ee Ed ee ee ca ns 12.18, 24 WS Ml UO ey ee ee 4,12, 18:9 7 BUSS Sie «SPN NER Sein Fae Naber ies a ae, 8 U.S.C: £1651- ::..... ont onns SERA ~AD.T 18, 23 ee Re OND cs ac ew be ake eee ren an eee . 98 Ce BAI06 2. 64. cece. Poets ae Ae ee REE a a i) so EAE GCA peters et ne Sea weuwauerecs ty _ MISCELLANEOUS: A‘L.R. 2d, vol. = D. 213, 2" eRe ECL TEE Ee wean e "Am. Jur... vol, RINE CEP ED con ole aes Pomeroy’ s hii onrseprele nee “(4th ed. 1919), vol. : 4, S$ ) 3375 Lait Pe ee ae hake cee euler ihrer JIS cw - *e INDEX TO APPENDIX’ OPINIONS OF 4 ‘orrts Brow Q Uxirep Srates Coure or APPEALS pe Firta Cincurr Ralph Stell ef-al. v. Savannali-( attain County Boaril of Education ot al. . 318 BF. 2d425 (1963) 2... ae | Birdie Mat Davis et-al. . Board of: School ¢ ‘yf oe sioner s, ga. oe dl: the ii ra YG3 ) eoveseeveesd fe wewvns = * i . Page Dwight Armstrong ¢t al. v. The Board of ‘Edtication ‘of ° thes City of Binhingh: im, Jefferson County, Ala- a ott bai, t- itl. bid ol # 3 Pr. eat | ood, (1S Me} ) Jf: sees sh eaee : - + arolyn Kleanor Harris et al. v.cLine Sua Gibson ¢t ‘ . : ‘ aoe Fs 4 vd 780 (P63 iceeen / DISTRIC neCOU RES al. and’ Glyvin County fers. of Education ct al... Qo 2 Ratph Stell et al. v. ‘ioe: (Chatham County Board - of Edticatton, TSC ) Southern | Pistrict’ of Fao Georgia, Savannah Mivi ision (1963) (unre porte aly Birdie Mae. Davis ops. r, Board of School Commis : sioner’s of Mole prelerin Alabama, ef al., JIE. Ti rsa 4 (LAB. Di Southern Ea, Alabama, - , ‘ ee Fe ieateede oe ‘ ( QOL BLLEA NOR Ij BRE f \.. Leesnandrat Lawrexce Roprivrs, we ac., Betelinaers : Heals Sew { Lei taniviihe i? 7 PETITION FOR WRIT OF CERTIORARI! TO ‘THE. NITED STATES COURT OF APPEALS: - FOR THE. FIFTH CIRCUIT Cn ? ° Aad os Ta it riirry”, : T hn f ig j ae Or tana §atatyy es , a A het te ‘ £ Sarre mn f ir f ‘ a “4 e oy ¢; 1Z 1 MOT Ls . t ? > to.which the respective respondents had failed to sus- tain their right in the trial court. Pétitioners,. con- tending that the form of sueh orders constitutes an. _ impermissible. dep: esses, pray the iso . ta the United * tue from normal appellate proc- lanve of a writ of certiorari directed States Court of Appeals for. the. Fifth Cireuit limited to the’ question of the formal validity of such orders as an allowable or proper exercise ,of appellate. — power, : 2 aes ts The prayer. is, made for joint consideration, of* all four’ eases under Reale 23(5) on the groumd thiat the four orders in question are substantially identical, present the same issue of law and may: eanstitute the® entire elass of such orders sinee vour petitioners know: of no similar, a by any other C ourt of “Appe: ls. ane | 5 . : OPINIONS BELOW The- -opinjons : of the Court of Appeals are printed in the appendix and have been reported as ‘follows: Stell vy. Savannah-Chatnam County Board of Eduea- School Commissioners of Mobile County, Ala,, 322 F. 2d 356 -( Fuly 9, 1963); Armstrong \. Board of Educa- 'In addition: to the three captioned eases, a motion to be per mitted to file an‘appliecation for reheariny limited to the form of the*order corcerned is filed herewith im ‘Board of School Commrs of Mobile, et al. v. Birdiv Mac Danis, ef al., Oot. Term. 1962. No 348, cert. “den. 375 U.S. 894 (Oct. 28. 1963). Phe inclusion of the Davis case is solely ‘tt have betvure the Court on a singte applica- tion, the four related cases in Which such appellate orders” have been issued. . : . > 5 “oe ° . ; ‘ * : : > inal mandatory injunction whieh has de facto-reversed the order, or Judgment ‘appealed from by awarding as - ‘against each of your petitionersgthe affirmative relief ‘tion, B18 F. 24 425 (May 24, 1963); Davis ¥. Board of — , ad a) srehe tion of City of Birmingham, Ala., 325 Fi 2d 333 (duly » 12, 1963); and Harris v, (ribsov and Glynn County > Board 6f Education, 322 Fe 2d 780. September 12, 1963). : : The opinions of the District Courts are not sought .. to be reviewed herein but“are included in the appendix for the Court’s reference. Two have been officially reported, Davis V. Board of School -€ ToOmMISSIONerS, 219 F, Supp. 42 (SeD. Ala. Jume 242-1965) qn Arm Ala., May 28,.1963). At the time of the issuahee of the order of the Fifth Cirenit in “Stell v. Sarannah- Chatham County Board of ‘Education, only the pre- Jiniinary- findings given -in the: appendix ad heen issued. The , District Court’s ‘deeision, as thereafter entered with ‘the Clerk, is reported at 990 FL Supp. 667:(S.D. Ga. 1963)... The denial of the application far id vapiece of certiorari in Davis’ is reported at 877 TS, 84 (Oh ~ tober 28219655). a es JURISDICTION - ee The review authority’ of this Court prior to the rendition of a judgment or deeree by a Courtot Aye peals is conferred by 25 U.S.C. § 1254119; and since each ease is now, so pending in that Court, this appli- eation comes within the time limited by 2s U.S. $2101 e). The datés of the issuance of the orders . . sought to be reviéwed are as given in, the preceding section; —° - Piet ie | “rr ~~ strong Vv. Board of Education, 220 F. Supp. 217° ( SV. 4 : ~~” QUESTION PRESENTED Does a Court of Appeals have power, pending its determination of an appeal on the merits, to issue an original mandatory injunction which | (a) reverses the apy reviled- from\grder: or judgment of the District-Court by granting the affirmative relief, prayed -by the Ydastecessful parties iu the trial court; (h) alters both the status quo. ante litem. and Fe | talus quo as of the time the appeal was taken; -and : (ey divects the trial court to sign and issue as its * own the interim reversal of its earlier‘order ? STATUTES INVOLVED _ s 28 U.S.C. $ 1282(a)(1), Iaterlocutory Decisions, (2) The courts of appeals sliall have jurisdiction of appeals frem: ‘1): Interloentory orders of the district courts - of the United Btates,.the United States Distract Court -for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereot- granting. continuing, modifving, refusing or dis-, solving ‘njunetions, or refusing to: dissolve or ¢nodify injunetions, except where a direct review mav be had in the Supreme Court :° (As am..Oct 31... 1951, 6545, § 49, 60 Stat. 726; July 7, 195s, Pub. L.85-508, § 12(e), 72 Stat. 548; Sept. 2.197 IS, Pub. 1, 85-919, 72 Stat. 1770) 28 U.S.C. § 165](a). Writs. The Supreme Court and all courts established Aet of Congress may issue all writs necessary or appropriate in aid of their respecti.e jurisdictions - oe and agreeable to the tsages and principles of law. (June 25, 1948, ¢. 646, 62 Stat. 944, amended May 24, 1949, 6. 180, § $0, 63 Stat. 102). 28 U.S.C. § 2106. Review: Determination. . “The Supreme Court or any other court of appel- late, jurisdiction may affirm, modify, vaeate, set aside “or reverse “any judiment, decree, or order of a court lawfully brought before it for review, and may remand’ the eguse and direct the eutry of Suci: uppropriate judgment, decree, ‘or order, or require such further proéeedings to be had as may he just under the cir, cumstances.”** (June 25, 1948, ¢. 646, 62 Sti ite. 963). : .STATEMENT. OF THE. CASES -A number of facts are VOOR to all cases. Each of the four is a school desegregation case Savannah and Brunswick, Georgia, and Birmingham and Mobile. Alpbama—brought as a suit-in equity“under 28-U S.C. 3/3)... The jurisdiction ef.the Distriet Courts has: ivoked under the “due process" and **equel pro- tection”? clauses of the Fourteenth Amendnie ut to the Constitution as implemented by the Civil Rights Act (42 U.S.C, § 1983). The respondents have had in ak case the same or associated counsel and have wasked | the same type of relief, resulting it subst; antial simi- larity in their pleadings and mrotions both in the Dis- triet Courts aid in the. Court of Appeals for the Fifth Circuit. ne oe hee In each trial court the respondents” pleadings have praved a permanent injunction directing Sone form« er plan of desegregation and responde nts have asked the same relief by way of preliminary Injimmetion. In each Case, the Distriet Court coneerned li: as Issued wa : +6 oy x . g o @ ~ 6° judgment: or order whicls respondents have appealed to the Court of Appeals as constituting a denial of the ‘injunetive relief so demanded. On taking each appeal, respondents have prayed an original appellate ‘interloc utory. .injunction for the, same affirmative relief as had been denied by the lower court. The ground stated by respondents has been. that the clear absence of legal merit in the rulings of | the District Courts makes any de Jay in granting them _ final relief. an irreparable injury. The Court of Ap-: peals oneach appeal has agreed with respondents and, acting on an accelerated basis’ without a record of a transcript of the proceedings below, has reversed the lower court by granting the application for appellate injunctive relief substantially as requested. Qn each appeal, the-Circeuit has issued its mandate in the form of an order to be signed and issued as that. of the Distriet Court from Pasig the earlier order not vet determined on appeal. had issued. [n somewhat greater detail, the ‘nature of the pro- ceedings and character of the orders issued by the trial. and appellate courts are here-given in the chrono- logical order of the cases. (a) Savannah-Chatham Board of Education, et al v. => Ralph Stell, et al. (Sth Cir. Ct. of App. No. 20557) . This action, was brought on behalf of: ne gro school . children in Savannah alleging injurv caused by sép- arate scheols and praying preliminary and permanent — injunctive relief requiring the defendant School Board: *From application through hearing to decision, Stell, 4 days: Dir, 8 days: Armstrong, 39 days; Gihson, 2 days. - 7 3 Although the Fifth Cireuit in the later Davis, Armstrong and Gihson opinions refers to Stcl/ as authority for the form of injune- tion in question, Judge Cameron identifies an unpublished order two days earlier as being the first. (App. pp. 60-4a) 7 of Savannah-C hath: mm County is submit a plan te re- organize the se shool system into what plaintiffs de- scribed as.a ‘tunitary nenracial systein’’. At the trial, proof was made on defeuse that -the plan proposed by respondents would. injure both the negro and® white school children in Savannah, *On the Court's Inquiry, respoude nts. refused to proffer any evidence in. rebuttal -6f this issue or-in support of the injury averments in their complaint, stating that the law so conclusively presumed such injury to their class that no ih ee eo to show other or différent injury in the Savann: ih ares could be considered by the trial court. | ~The District Court disagréed and, at respondents” request at the close of trial (May 13), immediately issued its preliminary judgment, denying the -prayer of the complaint, and giving respondents a right to re- open for further proot, ( App. fp. SPn-90e ) . Re 'sponde nts appe: ed and moved for a preliminary appeHate injunction on May 20, 1963, for the samte relief .denied below (Stcll Ree. 55). The Court. of . Appeals set this for he: ving on May 24 (7d. 80), heard it (id. 135), and on the same day, entered its order granting the requested injunetion (7d. 136) om the basis of the All Writs’ statute, 28 U.S.C. § 1691 (a) (App. p. lad. For its direction to the District Court to. enter the érder as its own the Court of Appeals ad- ditionally referred to this’ Court's ruling in) Toledo Seale Co.y. Computing Séale Co., 261 US. 309 (19255) (b) Board of School Commissioners of Mobile County. et al. v. Birdie Mae Davis, feral ( Sth Cir. Ct. of App. No. 20657) ‘The complaint i in this case was substantially similar to that in-Ste/] and respondents, in addition te praying a permanent injunction therefor, moved for a prelimi- -> ° “ . nary injunction requiring the submission within thirty days of a desegregation plan to Commence in Septem-- ber, 1965. The preliminary injunction in the form ‘prayed by plaintiffs was denied. on June 24. 1963, but 3 the Court directed the School Board to. submit such a plan to be. heard at the trial, which had. then been scheduled for November. “: On July 1, 1963, respondents moved the Court of Appeals for an injunction pending appeal *tand for other orders”. On the same day the Court orderedy ache aygigon July 8 (Davis Ree. p. 19) and granted re- spondents’ application on July 9 (id. Pp. 21-8). In its decision the Court said: sii “The ‘Al Writs’ statute, 28 U.S.CLA. § 1651 gives us the power to grant the relief songht by the plaintiffs. Stell « Savannah-Chatham County Boird of Education, Fifth Cirenit, 1963, — F. : 2d [No, 20557, May 24, 1963]. However, as — in that ease, we think jt is more apprepriate to frame thie injune ‘tion and direct by mandate that. Lals injunction be made the order of the District a Court. ( App. =. 9a ) Re On an application for rehearing, the or der Was, recalled | and reissued on July 18 to conform to “the form used ‘in the interval me the Court's decision in Armstrong. In the opinion of the dissenting Judge: = “Phe modification by the majority of their prior order in this cause e compounds error. (App: p. sh dL). oo% & & to , what thas been done is at the exper ise of the judjeial process. A Court.of Appeals should not sit as a-Distriet Court in chancery... without Facts before it to serve as a basis for the dee TEE, ’ yf * It was tried on the dates scheduled ang is now sub-judice. \ “ir a "9 a The All-Writs Statute. 2@U “S.C. § 1651, does not authorize this... more: constitutional rights *e will be Jost than ‘ained in the long run. by depar- ture from the procedures which have stood the test of time, and which area part of due process” of Jaw as we have her vetofore known it.”” (App. p. 1 a). A pa nt was 5 aise filed by Judge Canjeron after rejection of his recommendation for a cn bane hear- ing (Davis Ree. 41). A petition. for review by cer-- tiorari on the merits was filed and de nied by this Court on October 28) 1963 ; Board of Sehool € COMMISSIONS rs of Mobile County y, Davis, 375 UlS. 894. No ree “on- sideration of the merits diseussed in that applic ation Is requeste dl. the coneurrent motion served herewith heing intended to consider only the formal validity of the injunetive order of the Fifth Cirenit.. (c) Armstrong ¥. Board of Education of City of Birmingham. Ala. (Sth Cir. Ct. of App. No. 20595) ~ In this case, as jn the two eases prev jously detailed, the complaint sought a-mandatory injunetion requir- 9 ‘ing the School Board. ‘to_rearga nize thes Sthool sy yvstem along stated lines. A preliminary injunction for the sameé relief was made byt by stipylation was merged into the prayer for permane nt relief and. the case was tried of the merits. The Court found that the plain-. tiffs in the case had failed to make any effert to comply with the Alabama. Pupil Placeme nt. Act which this Court hi ad held constititional : Satire orth vy. Birm- inghani Board of Education, 358 U.S. 101 (1958). The District Court retained jurisdic dion te eee ar the plain- tiffs on gm contention that the manner of application te them of that statute was improper. GApp.p. 1082): On June 3, 1963, the Armstrong responde nuts moved f , ‘ . eee) the Court of Appeals to ixsiie an injunetion: pending pine Which would grant’ the’ relief denied) below. (Armstrong Ree. p. 1). This was heard on June 26 (id: 21) and the requested injuxietion was granted on “duly 12. Judge Gewin dLissen tye. (Ap pp. Wao. An application for rehearing ex banc was denied July 22, dudge Cameron tiling an additional dissenting opinion on July 30. , o- In its decision, the Cireuit Court, Rives, J., directed the issuance of am order by. the Distriet Court In line with the Lape .. dn Sell... (App. p. 29a and Tuttle, C. J.. concurring specially, stated that a definite ca should He required by an injunetion . pending the appeal of this ease on the merits in . ‘a. (court. See Stell... . Darts . oo App. p. Oda) Judge Gewin, in un exte nded dissent, stated : “Tt should be noted ‘quickly that thé- ma jority: opinion leaves little -to he. decided when the ease reaches this Conrt on the me nits, Under the gnise —— of injunction pending appeal’ that opinion sub- _ stantially decides the case and renders moot reins a ions Which could arise when the case reaches: _the Court for tinal decision after a review of the record . The action in this case is taken with- out anv pretense that the Court h: ix ti tken so mie “h as a hiirried ed; thee atzihe record.’ (App. pp. dR) Judge Gewin then discusse ed the questions - involved indssuing such an injunetion pending appeal and dis- tinguished the action taken in Sfel/ on the ground that the Court had there considered it) Was reviewing an Interlecutory ruling. (App. p. 4a) Judge’ C ameron also dissented saying: the deci ‘ision of this panel involves questions ne procedure w ‘hic h-have for some wee ks plagued “1 o VI and are. still plaguing tlie Court.. The Judges of _ the Court are sharply \livided on these questions and not only the lawydrs of the Circuit, but the ‘public generally, are \displaying open concern With respect to inconsistent positions which they conceive are being taken by the Court. ... “The procedure followed by the majority here is one Which, In-my. opinjon, is not sanctioned: by the law. The hearing Kyifore these three Judges. was net an appeal. Rather, it was what the Third | Cirenit has teryred something ‘in the-nature of am original proceedings ...) It was the substitution of a hearing on ‘injune ‘lon pe mding ay wpeal? for a a hearing on-appeal. Tjreoretically the appeatis still pending, but it is appardnt that there ix little or nothing more, to hear . and whie ht have attached themselves over the vears to the partic ular writ in question (Price v. Johnston, 334 US? 266, 282 (WAS LL Ge 3 ™ G* -* - ” - Thus, in. De Bee sel dbines 3 2 U nited States, 32 > U.S. 212 (1945), this Court wacated an injunetion isstied ~ under the statute, after reviewing the ‘‘course é6f de- cision, in-chancer y,”’ and finding that **No relief of this . shafacter has heen thought justified in the long history of equity jurisprudence.” (dy, 2235— (2) Principles of Equity , The puPpose of the writ of prelim *4nandatory PRT na fer common law’ was.'ty holly: preventive, _ prohibitory or protéctive,”’ with use being’ re- » stricted to situations where its effect would be to “restore the plaintiff to his. **forme or “original” position,- 4 Pomerog’s Equity Jurisprudence, §§ 1357, 1359 (ayy ed. 1919). Thus, where the object of ‘the writ is to maintat or restore the satus quo ante litend, - the power of, thegfederal. courts to issue aa yg bl mandatory InjuuetioOns is, clearly recognized. Iw. Lennon, 166 U.S. 548 (1897); Bergen Drag v. Pati e Davis Cos, 307 F.2d 725 (8rd Cir 21962). The preliminary mandatory injunction, like the pre- liminary prohibiicry injunction, has | traditipyally served “. keep the parties, while the suit goes/on, as. far as péssible in. the respective positions thes’ pied when the suit began’? (lamilton Watch Co. y e Benrus Watch Co., 206 F, 2d 738, 742 (2d Cir? 1953) ). . But its issuance can be justified only when lecessary to preserve ‘$x restere the stdtus quo pending final ‘determination of the merits of a litigation. 28 Am. Jur. *Tujunections” £15 ALR 2d 213, 234; Tatedo ALA. and NLM. Ry. Vv. Pennsylvania Co., 54 Fede 730 (ND. Ohio 1898 ; ! So firmly Mublisied is the equitable prine iple that — mandatory preliminary injunctive relief , will --be Ocell- ‘S17; Co. pressure which ttkes what ‘previously was elear seem doubtful. and before which even well-settled prin- ciples of Jaw will bend.” Mr. Justice Frankfurter. coneurring an Joint Anti- Fascist Refugee Committee V. Mebrrath, 341 US. 123. 149 (1951). recognized that where legal issues were ‘ineseapably entangled in political cortrovérsies ” and _ “touch the passions of the day.” it wes the duty of the Courts ‘to “dispose of a controversy within the . narrowest confines that intellectual ntegrity per- Northerit . ® =) 25 mits.” Ceneurring i Dennis x. United States, 341 US. 494, 528 (1951), he said: “UU yless we are to compromise qudietal -impar- Ke — snbject these defendants te the risk of “aly ioe judgment jnthieneed by the impregnating athiosphere 6f the tines. the constitutionality of their conviction must be determined by prineiplgs ist banc established in cases decided in mere tranquil A Ma, naeaid periods.” aden ‘ : o> ame -. This Court in DeBeors Mines NV. J onited Ntafes, 2h i’... 242, 222 | Woo, adhered te precedent in the face of strong pressure from the Government te tb erence the seepe of judicial authority: “This suit, as Wwe have said. is net te bee chistin- guished from any, other sit in equity. What. applies te it applies tecalf such.” + , ” * * “hae The powers exercised hy the Compt of Ajpypeals are sanited by statute, thev net known te equity, are het gr wliate review, eireumvent the established course « directly affect the integrity of the jua, stration of the eourt- and create conte : grtuitedd, ‘ts admin cirenits. Review by certiorar mhicntld fe ; prayed, ‘ Respectfully submitted, { 4 Gino, STEPHEN Lion vi Re DB. Bangs _ se fforug ys tor Res sprode nts Ot Counsel. ‘ . . R. Carrer PirrMas CHarces J. Broci, J. Warten Cowart Ricnarp Le Hinshrrne Ropert ©, MayNarp al prowess, thee t fret weer I --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1424%3A2. Public record. Not legal advice.