Davis v. Board of School Com'rs of Mobile County, Ala., 20558.

Decision Date24 May 1963
Docket NumberNo. 20558.,20558.
Citation318 F.2d 63
PartiesBirdie Mae DAVIS et al., Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Vernon Z. Crawford, Mobile, Ala., Jack Greenberg, Constance Baker Motley, Derrick A. Bell, Jr., New York City, Clarence E. Moses, Mobile, Ala., for appellants.

Palmer Pillans, George F. Wood, A. L. Philips, Jr., Mobile, Ala., for appellees.

Before TUTTLE, Chief Judge, and RIVES and BELL, Circuit Judges.


This case is here on a petition for an order directing Honorable Daniel H. Thomas, United States District Judge for the Southern District of Alabama, to amend an order entered April 25, 1963, to show a motion on behalf of appellants for an immediate order requiring the School Commissioners to submit a plan of desegregation within thirty days and that this motion was denied by the court, or in the alternative, for an order directing a prompt determination of the motion of appellants for a preliminary injunction, now under submission in the District Court.

Appellants have filed a notice of appeal. Their petition is in the nature of an appeal from the denial of the injunction sought on the premise that a failure to rule amounts to denial, and is therefore appealable, citing United States v. Lynd, 5 Cir., 1962, 301 F.2d 818. The petition is also in the nature of an application for writ of mandamus, but is deficient in this respect in that it was not brought against the District Judge, nor was he accorded an opportunity to answer.

We test the petition on the basis of whether there has been an abuse of discretion on the part of the District Judge. The assertion is that there was an abuse because briefs were requested, and time allowed for the filing thereof, by the court at the time of taking the motion under submission. Appellants contend that the court should have ruled forthwith in view of the undisputed fact that the public schools in Mobile are segregated according to race.

We hold that there was no abuse of discretion, but with this caveat. The matter of the grant or denial of the motion for preliminary injunction, should, as in every case, be promptly determined. It is the duty of Judge Thomas to promptly rule on this motion for preliminary injunction.

It appears that the public schools of Mobile are in fact segregated according to race. This will not do under Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct....

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16 cases
  • Armstrong v. Board of Education of City of Birmingham, Ala.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 6, 1963
    ...becoming more sharply limited. Indeed, we so stated in an opinion theretofore rendered on May 24, 1963. Davis v. Board of School Commissioners of Mobile County, 5 Cir., 318 F.2d 63." Calhoun v. Latimer, 5 Cir., 321 F.2d In the light of the foregoing well-established principles of law, we go......
  • Brown v. Moore
    • United States
    • U.S. District Court — Southern District of Alabama
    • December 13, 1976
    ...3. M.E. No. 26,553, dated 1/28/70 4. M.E. No. 27,705, dated 9/14/70 11 M.E. No. 26,771, dated 3/16/70. 12 I. Davis v. Bd. of School Comm. of Mobile County, 318 F.2d 63 (1963) II. Davis, 322 F.2d 356 (1963), cert. den. 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123; reh. den. 376 U.S. 928, 84 S.......
  • Rapp v. Van Dusen, 14927
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 10, 1965
    ...for the application is extrinsic to the merits of a decision. Examples of this class of cases are Davis v. Board of School Commissioners of Mobile County, Ala., 318 F.2d 63 (5 Cir. 1963), where a judge was required to rule promptly on a motion for preliminary injunction; and Hall v. West, 3......
  • Overton v. City of Austin
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 3, 1984
    ... ... Davis, 1st Asst. City Atty., Austin, Tex., for other ... to vote in the City of Austin, Travis County, Texas," for the purpose of "challenging the ... Board of School Commissioners of Mobile County, ... ...
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