254 F.2d 555 (8th Cir. 1958), 15889, Jackson v. Kuhn

Docket Nº:15889.
Citation:254 F.2d 555
Party Name:Mrs. Margaret JACKSON, and Charlene Jackson and Sandra Jackson, minors, by Mrs. Margaret Jackson, their mother, natural guardian and next friend, Appellants, v. Colonel William A. KUHN, individually and as Commanding Officer of the 101st Airborne Infantry Regiment, United States Army; and Major General Edwin A. Walker, individually and as Commandin
Case Date:April 28, 1958
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 555

254 F.2d 555 (8th Cir. 1958)

Mrs. Margaret JACKSON, and Charlene Jackson and Sandra Jackson, minors, by Mrs. Margaret Jackson, their mother, natural guardian and next friend, Appellants,

v.

Colonel William A. KUHN, individually and as Commanding Officer of the 101st Airborne Infantry Regiment, United States Army; and Major General Edwin A. Walker, individually and as Commanding Officer of the Arkansas Military District of the United States Army, Appellees.

No. 15889.

United States Court of Appeals, Eighth Circuit.

April 28, 1958

Page 556

Kenneth Coffelt, Little Rock, Ark., for appellants.

Donald B. MacGuineas, Atty., Dept. of Justice, Washington, D.C. (George Cochran Doub, Asst. Atty. Gen., Osro Cobb, U.S. Atty., Washington, D.C., and Samuel D. Slade, Atty., Dept. of Justice, Washington, D.C., were with him on the brief), for appellees.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges,

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court dismissing, for want of jurisdiction, the complaint of the plaintiffs (appellants) in an action brought by them (1) to enjoin the defendants (appellees), United States Army Officers, 'from in any manner policing, occupying or interfering with the property or the students of Little Rock Central High School and the Little Rock Special School District, Little Rock, Arkansas, * * * and from interfering with the operation of said school in any manner whatsoever'; and (2) for a declaration that Sections 332, 333 and 334 of Title 10 U.S.C. (1952 Ed., Supp. IV), 70A Stat. 15-16, 1 from which the defendants' authority to police the school is derived, are unconstitutional. We previously denied a motion of the plaintiffs for a summary reversal of the order appealed from. 8 Cir., 249 F.2d 209.

The plaintiffs' complaint was filed on October 2, 1957. It alleges that Mrs. Margaret Jackson is 'a resident citizen, taxpayer and patron of the Little Rock Independent School District, embracing the attendance area of Little Rock Central High School, in Pulaski County, Arkansas'; that the school and school district are State institutions supported by State taxpayers; that the plaintiffs Charlene and Sandra Jackson are the minor children of the plaintiff Margaret Jackson and are students in the high school; that Margaret Jackson brings

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this action on behalf of her children and for the use and benefit of all those in said school district situated as are she and her children; that the defendants are officers of the United States Army, in command of the armed troops of the United States presently policing the high school, its grounds, property and students.

We quote the following allegations of the complaint:

'That respondents (defendants), under cloak of purported authority of executive order, wrongfully and without legal or constitutional basis, did, on or about the 24th day of September, 1957, lead and command armed combat forces of the United States Army into Little Rock, Pulaski County, Arkansas, and seize state and private property, namely Little Rock Central High School and adjacent properties thereto, and intimidate, mutilate, bayonet and bludgeon private citizens thereon; all of which were in violation of petitioners' (plaintiffs') rights under the federal and Arkansas State Constitutions, and endangered the lives and safety of the petitioners herein; that any such purported executive authority was without legal foundation or precedent and a nullity.

'The respondents, in policing and occupying the said properties of said school district and in policing the students in Little Rock Central High School, including the children of this petitioner, are violating the liberty and the personal and the property rights of the petitioners, and all others similarly situated, guaranteed to them under the United States Constitution. They are violating such rights for the following reasons:

'(1) There are no constitutional or valid statutory provisions authorizing such actions on the part of the respondents under the United States Constitution or federal statutory law.

'(2) Such actions of the respondents violate Section 4 of Article 4 of the federal constitution, and the petitioners' rights thereunder, in that respondents are committing such acts, as hereinabove set forth, without any invitation or request to do so, either from the Governor of the State of Arkansas or the General Assembly of the state of Arkansas, nor has such been requested or directed by any federal court.

'(3) The said acts of the respondents are in direct violation of the fundamental concept of the United States Constitution that there exist three separate and distinct departments of the federal government, towit:

'a. Executive.

'b. Judicial.

'c. Legislative.

'(4) Such actions of respondents violate Amendment No. 10 to the United States Constitution, and petitioners' rights thereunder.

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