NAACP v. Thompson, 20619.

• Decision Date: 24 July 1963
• Docket Number: No. 20619.,20619.
• Citation: 321 F.2d 199
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al., Appellants, v. Allen THOMPSON, Mayor of the City of Jackson, Mississippi et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 199 (1963)

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE et al., Appellants, v. Allen THOMPSON, Mayor of the City of Jackson, Mississippi et al., Appellees.

No. 20619.

United States Court of Appeals Fifth Circuit.

July 24, 1963.

Derrick A. Bell, Jr., New York City, Jack H. Young, Jackson, Miss., William R. Ming, Jr., Chicago, Ill., Robert L. Carter, New York City, R. Jess Brown, Jackson, Miss., Jack Greenberg and Barbara A. Morris, New York City, for appellants.

E. W. Stennett and Thomas H. Watkins, Jackson, Miss., for appellees.

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

TUTTLE, Chief Judge.

This is a motion for an injunction pending appeal. Section 1292, 28 U.S. C.A. permits an appeal from an interlocutory order by a trial court "granting, continuing, modifying, refusing or dissolving injunctions * * *." Section 1651, 28 U.S.C.A., commonly known as the All-Writs statute, gives to Courts of Appeals the power to issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." We have heretofore held that an injunction pending appeal is such a writ. Stell v. Savannah-Chatham County Board of Education, 5 Cir., 318 F.2d 425. All parties here agree that as we stated in Greene v. Fair, 5 Cir., 314 F.2d 200, 202 "the relief sought here is extraordinary relief. It is granted only in exceptional cases."

The thrust of the motion here is that the trial court was required, as a matter of law, to issue a preliminary injunction forbidding the respondents, as officials of the city of Jackson, Mississippi, and officials of the state of Mississippi, from continuing to arrest a class of persons, consisting principally of Negroes, but including also some white persons working with them, from doing certain things within the city of Jackson, Mississippi, which movants characterized as "peacefully protesting the misuse of the power of the state of Mississippi by appellees to maintain and enforce racial segregation and discrimination in places of public accommodation, and in the use of public facilities in the city of Jackson, Mississippi," and which respondents characterized as "parading without a license," "breach of the peace," "obstructing traffic" and "restraint of trade by picketing."

The trial court had a hearing on June 10, 1963, during the course of which evidence was introduced in the form of affidavits, and by oral testimony. It appeared without dispute that hundreds of persons within the class sought to be represented by the appellants had been arrested within the city of Jackson during a period of some ten days prior to the filing of the complaint. It is also clear that if the affidavits and sworn petition of the appellants were to be accepted as true in all respects, both as to the facts alleged and as to the inferences which these affiants drew from these facts and the applicable laws, the trial court would have been justified in granting at least some of the relief sought. It is equally true, however, that by the sworn pleadings and affidavits and oral testimony on behalf of the respondents, substantially all of the facts were disputed. Also, the conclusions of the movants that the facts showed conduct by the appellants that was legal and by the respondents that was illegal under the circumstances were challenged by the respondents.

In these circumstances the Court, although requested to do so by the movants, declined to enter an order expressly granting or expressly denying the motion for preliminary injunction. The entire order is in the following language:

"ORDER

"THIS CAUSE having come for hearing before the Court on application of the plaintiffs for a temporary writ of injunction on Count No. 1 of the complaint by agreement of the parties, and the Court having heard all of the evidence adduced by the parties in support of their respective contentions and having received briefs from counsel thereon and having examined such authorities finds:

"(1) That this is not a three-judge court matter and that this Court has full jurisdiction of the parties and the subject matter;

"(2) That this case is extremely complicated and involves many intricate legal facets which will entail further intensive examination and study by the Court;

"(3) That the greater weight of the more credible and more convincing evidence in this case leads the Court to the conclusion that there is in truth and in fact no crisis at hand; and no necessity or urgency for any immediate action on such complicated questions, since the course of action with respect to the plaintiffs is completely under their control; and no loss or prejudice or embarrassment will be suffered by the plaintiffs in the interim pending the Court's further study of this case.

"It is, accordingly, ordered that this matter will be taken under advisement by the Court for study and later decision at the proper time.

"It is further the opinion of this Court that the injunction issued by the state court against the plaintiffs is not void, and should be respected by the parties and their attorneys until vacated or reversed, whether it be to the liking of such parties or not; and further inquiry will be made later by this Court on that question for a determination of the status of the parties in a Federal Court of equity before a decree is entered here.

"SO ORDERED, this June 11, A. D., 1963.

"UNITED STATES DISTRICT JUDGE"

This order was entered by the trial court on June 11. At that time the evidence had not been transcribed, and neither party had filed briefs with the trial court as an aid to it in determining whether the conduct which the movants characterized as peaceful picketing, peaceful demonstrating and lawfully congregating to...