xt7msb3wtd0h_48 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Sipuel v. Board of Regents, University of Oklahoma - no. 326, Fisher v. Hurst et al. - no. 325 text Sipuel v. Board of Regents, University of Oklahoma - no. 326, Fisher v. Hurst et al. - no. 325 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_187/Folder_5/Multipage5923.pdf 1947 1947 1947 section false xt7msb3wtd0h_48 xt7msb3wtd0h SUPREME COURT OF THE UNITED STATES

N0. 325, MiscELLANEOUs.—OCTOBER TERM, 1947.

Ada Lois Sipuel Fisher, Petitioner,
v.

The Honorable Thurman S. Hurst.
Chief Justice; The Honorable
Denver ll. Davison. Vice Chief
Justice; The Honorable Fletcher . / - .
Riley, lVayne TV. Bayless, Earl Mgwtfign REES)? ef’g;
\Velch, N. S. Corn, Ben Arnold, \Vrit of hianda—
Thomas L. Gibson, and John mus. Petition and
Luttrell, Assocmte Justices of Brief in Support
the Supreme Court of the State Thereof
of Oklahoma; The Honorable '
Justin Hinshaw, District Judge,
Cleveland County District Court
of Oklahoma and the Board of
Regents of the University of
Oklahoma.

 

[February 16, 1948.]
Per Curiam.

Petitioner moves for leave to file a petition for a writ
of mandamus to compel compliance with our mandate
issued in Sipuel v. Board of Regents, January 12, 1948.
We there said :

“The petitioner is entitled to secure legal educa-
tion afforded by a state institution. To this time,
it has been denied her although during the same
period many White applicants have been afforded
legal education by the State. The State must pro—
vide it for her in conformity with the equal—protection
clause of the Fourteenth Amendment and provide it
as soon as it does for applicants of any other group.
illissoari ea: rcl. Gaines v. Canada, 305 U. S. 337
(1938).”

 

 3‘25
2 FISHER v. HURST.

Petitioner states that on January 17. 1948, the Supreme
Court of Oklahoma rendered an opinion in which it was
said:

“Said Board of Regents is hereby directed, under
the authority conferred upon it by the provisions of
Art. 13—A, Constitution of the State of Oklahoma,
and Title 70 O. S. 1941, Secs. 1976, 1979, to afford
to plaintiff, and all others similarly situated, an op-
portunity to commence the study of law at a state
institution as soon as citizens of other groups are
afforded such opportunity, in conformity with the
equal protection clause of the Fourteenth Amend—
ment of the Federal Constitution and with the pro—
visions of the Constitution and statutes of this state
requiring segregation of the races in the schools of
this state. Art. 13, Sec. 3, Constitution of Okla—
homa; 70 O. S. 1941, Secs. 451—457.

“Reversed with directions to the trial court to take
such proceedings as may be necessary to fully carry
out the opinion of the Supreme Court of the United
States and this opinion. The mandate is ordered to
issue forthwith.”

It is further stated by petitioner that the District Court
of Cleveland County of Oklahoma entered an order on
January 22, 1948, as follows:

“IT IS, THEREFORE, ORDERED, ADJUDGED
AND DECREED BY THIS COURT that unless
and until the separate school of law for negroes,
which the Supreme Court of Oklahoma in effect di—
rected the Oklahoma State Regents for Higher Edu—
cation to establish

‘with advantages for education substantially equal
to the advantages aflorded to White students,’

is established and ready to function at the designated
time applicants of any other group may hereafter

 

 325
FISHER v. HURST. 3

apply for admission to the first—year class of the
School of Law of the University of Oklahoma, and
if the plaintiff herein makes timely and proper appli-
cation to enroll in said class, the defendants, Board
of Regents of the University of Oklahoma, et al, be,
and the same are hereby ordered and directed to
either:

(1) enroll plaintiff, if she is otherwise qualified,
in the first-year class of the School of Law of the
University of Oklahoma, in which school she will
be entitled to remain on the same scholastic basis
as other students thereof until such a separate law
school for negroes is established and ready to func—
tion, or

(2) not enroll any applicant of any group in said
class until said separate school is established and
ready to function.

“IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that if such a separate law school
is so established and ready to function, the defend-
ants, Board of Regents of the University of Okla-
homa, et al, be, and the same are hereby ordered
and directed to not enroll plaintiff in the first—year
class of the School of Law of the University of
Oklahoma.

“The cost of this case is taxed to defendants.

“This court retains jurisdiction of this cause to
hear and determine any question which may arise
concerning the application of and performance of
the duties prescribed by this order.”

The only question before us on this petition for a writ
of mandamus is whether or not our mandate has been
followed. It is clear that. the District Court of Cleveland
County did not depart from our mandate.

The petition for certiorari in Sipuel v. Board of Regents,
did not present the issue whether a state might not satisfy

 

 3'25
4 FISHER v. HCRST.

the equal protection clause of the Fourteenth Amendment
by establishing a separate law school for Negroes. On
submission, we were clear it was not an issue here. The
Oklahoma Supreme Court upheld the refusal to admit
petitioner on the ground that she had failed to demand
establishment of a separate school and admission to it.
On remand, the district court correctly understood our
decision to hold that the equal protection clause permits
no such defense.

Nothing which may have transpired since the orders
of the Oklahoma courts were issued is in the record before
us. nor could we consider it on this petition for writ of
mandamus if it were. The Oklahoma. District Court has
retained jurisdiction to hear and determine any question
arising under its order. Whether or not the order is fol—
lowed or disobeyed should be determined by it in the first
instance. The manner in which, or the method by which,
Oklahoma may have satisfied, or could satisfy the require—
ments of the mandate of this Court, as applied by the
District Court of Cleveland County in its order of Janu-
ary 22, 1948, is not before us.

Motion for leave to file petition for writ of mandamus
is denied.

MR. JUSTICE MURPHY is of the opinion that a hearing
should be had in order to determine whether the action
of the Oklahoma courts subsequent to the issuance of
this Court’s mandate constitutes an evasion of that
mandate.

 

 ‘2

SUPREME COURT OF THE UNITED STATES

No. 325, MISCELLANEous.—OCTOBER TERM, 1947.

Ada Lois Sipuel F isher, Petitioner,
v.

The Honorable Thurman S Hurst.
Chief Justice; The Honorable
Denver N. Davison, Vice Chief
Justice; The Honorable Fletcher 1 / - ,

Riley, Wayne W. Bayless. Earl 31%? Iiiltifigivefgfi
VVelch, N. S. Corn, Ben Arnold. \Vrit of lVIanda—
Thomas L, Gibson, and John mus Petition and
Luttrell, Associate Justices of Brief in Support
the Supreme Court of the State Thereof

of Oklahoma; The Honorable '
Justin Hinshaw, District Judge,
Cleveland County District Court
of Oklahoma and the Board of
Regents of the University of
Oklahoma.

 

[Februaryf, 1948.]

Per Curiam.

Petitioner moves for leave to file a petition for a writ
of mandamus to compel compliance with our mandate
issued in S‘ipuel V. Board of Regents, January 12, 1948.
We there said :

“The petitioner is entitled to secure legal educa—
tion afforded by a state institution. To this time,
it has been denied her although during the same
period many white applicants have been afforded
legal education by the State. The State must pro-
vide it for her in conformity with the equal—protection
clause of the Fourteenth Amendment and provide it
as soon as it does for applicants of any other group.
illissouri ex rel. Gaines v. Canada, 305 U. S. 337
(1938).”

 

 325
2 FISHER v. HURST.

Petitioner states that on January 17, 1948. the Supreme
Court of Oklahoma rendered an opinion in which it was
said:

“Said Board of Regents is hereby directed. under
the authority conferred upon it by the provisions of
Art. 137A, Constitution of the State of Oklahoma,
and Title 70 O. S1941, Secs. 1976, 1979, to afford
to plaintiff, and all others similarly situated, an op—
portunity to commence the study of law at a state
institution as soon as citizens of other groups are
afforded such opportunity in conformity with the
equal protection clause of the Fourteenth Amend—
ment of the Federal Constitution and with the pro—
visions of the Constitution and statutes of this state
requiring segregation of the races in the schools of
this state. Art. 13. Sec. 3 Constitution of Okla—
homa; 70 O. S. 1941. Sees. 451—457.

“Reversed with directions to the trial court to take
such proceedings as may be necessary to fully carry
out the opinion of the Supreme Court of the United
States and this opinion. The mandate is ordered to
issue forthwith.”

It is furthered stated by petitioner that the District
Court of Cleveland County of Oklahoma entered an order
on January 22, 1948. as follows:

“IT IS. THEREFORE, ORDERED, ADJUDGED
AND, DECREED BY THIS COURT that unless
and until the separate school of law for negroes,
which the Supreme Court of Oklahoma in effect di—
rected the Oklahoma State Regents for Higher Edu—
cation to establish

‘with advantages for education substantially equal
to the advantages afforded to white students,’

is established and ready to function at the designated
time applicants of any other group may hereafter

 

 325
FISHER v. HURST. 3

apply for admission to the first—year class of the
School of Law of the University of Oklahoma, and
if the plaintiff herein makes timely and proper appli—
cation to enroll in said class, the defendants, Board
of Regents of the University of Oklahoma, et al, be,
and the same are hereby ordered and directed to
either:

(1) enroll plaintiff, if she is otherwise qualified,
in the first-year class of the School of Law of the
University of Oklahoma, in which school she Will
be entitled to remain on the same scholastic basis
as other students thereof until such a separate law
school for negroes is established and ready to func-
tion, or

(2) not enroll any applicant of any group in said
class until said separate school is established and
ready to function.

”IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that if such a separate law school
is so established and ready to function, the defend—
ants, Board of Regents of the University of Okla.-
homa, et al, be, and the same are hereby ordered
and directed to not enroll plaintiff in the first—year
class of the School of Law of the University of
Oklahoma.

“The cost of this case is taxed to defendants.

“This court retains jurisdiction of this cause to
hear and determine any question which may arise
concerning the application of and performance of
the duties prescribed by this order.”

nly question before us on this petition for'a writ
of nmndan‘iirsigWhether or not our mandate has been
followed. It is clear‘that‘it has been followed.
The petition for certioraii'i'irr-Sipael V. Board of Re-
gents did not present the issue that a state might satisfy
the equal protection clause of the Fourteenth Amend- '-

 

 The only question before us on this petition for a writ
of mandamus is whether or not our mandate has been followed.
It is clear that the District Court of Cleveland County did
not depart from our mandate.

The petition for certiorari in Sipuel v. Board of Regents
did not present the issue whether a state might not satisfy
the equal protection clause of the Fourteenth Amendment by
establishing a separate law school for Negroes. On submission,
we were clear it was not an issue here. The Oklahoma Supreme
Court upheld the refusal to admit petitioner on the ground
that she had failed to demand establishment of a separate
school and admission to it. On remand, the district court
correctly understood our decision to hold that the equal protection
clause permits no such defense.

 

Nothing which may have transpired since the orders of the
Oklahoma courts were issued is in the record before us, nor could
we consider it on this petition for writ of mandamus if it were.
The Oklahoma District Court has retained jurisdiction to hear and
determine any question arising under its order. Whether or not
the order is followed or disobeyed should be determined by it
in the first instance. The manner in which, or the method by
which, Oklahoma may have satisfied, or could satisfy the require—
ments of the mandate of this Court, as applied by the District
Court of Cleveland County in its order of January 22, l9h8, is
not before us.

Motion for leave to file petition for writ of mandamus is
denied.

 

 CHANG
Fisher 1'. Hurst, stmffififsr

 

 

 

m. JUSTICE mm is or the opinion that a hosting
should be had in 01'er to dour-ins thothor the action
of ths Iklahm courts subsocment to the issuance of
this Court's mandate constitutes an evasion} of that

lands“.

W

 SUPREME COURT OF THE UNITED STATES

No. 325, Miscellaneous—October Term, 19h?
Ada Iois Sipuel Fisher, Petitioner

17.

Motion for Leave to File

The Honorable Thurman S. Hurst, Chief,
Justice; The Honorable Denver N. Davison,
Vice Chief Justice; The Honorable Fletcher
Riley, Wayne W. Bayless,‘ Earl Welch, N. S.
Corn, Ben Arnold, Thomas L. Gibson, and.
John luttrell, Associate Justices of the
Supreme Court of the State of Oklahoma;
The Honorable Justin Hinshaw, District Judge
Cleveland County District Court of Oklahoma
and the Board of Regents of the University
of Oklahoma. .

Petition for Writ of 5 _
Mandamus, Petition and
Brief in Support

Thereof .-

Per Curiam.

Petitioner moves for leave to file a petition for a writ of
mandamus to compel compliance with our mandate issued in m v. M
of Regents, January 12, 1948. We there said:

. "The petitioner is entitled to secure legal education
'afforded by a state institution. To this time, it has been
’ denied her although during the same period many white applicants
have been afforded legal education by the State. The State
must provide it for her in conformity with the equal-protection
clause of the Fourteenth Amendment and provide it as soon as
it does for applicants of any other group. Missouri ex rel.
Gaines v. Canada, 305 ms. 337 (1938)." ""‘_‘_"‘"'

Petitioner states that on January 17, 19148, the Supreme Court of Oklahoma .
rendered an opinion in which it was said:

"Said Board of Regents is hereby directed, under the
authority conferred upon it by the provisions of Art. 13—A,
Constitution of the State of Oklahoma, and Title 70 0. S.
19141, Secs. 1976, 1979, to afford to plaintiff, and all others
similarly situated, an opportunity to commence the study
of law at a state institution as soon as citizens of other
groups are afforded such opportunity, in conformity with
the equal protection clause of the Fourteenth Amendment
of the Federal Constitution and with the provisions of the
Constitution and statutes of this state requiring segregation
of the races in the schools of this state. Art. 13 Sec. 3,
Constitution of Oklahoma; 70 o. s. 19in, Secs. 151 57.

"Reversed with directions to the trial court to take such
proceedings asmay be necessary to fully carry out the opinion
of the Supreme Court of the United States and this opinion.
The mandate is ordered to issue forthwith."

 

 I . 325 Misc.
- 2 -

It is further stated by petitioner that the District Court of
Cleveland County of Oklahoma entered an order on January 22, l9h8, as follows:

"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THIS COURT
that unless and until the separate school of law for negroes,
which the Supreme Court of Oklahoma in effect directed the Oklahoma
State Regents for Higher Education to establish a

'with advantages for education substantially equal
to the advantages afforded to white students,‘

is established and ready to function at the designated time
applicants of any other group may hereafter apply for admission
to the first-year class of the School of Law of the University
of Oklahoma, and if the plaintiff herein makes timely and
proper application to enroll in said class, the defendants,
Board of Regents of the University of Oklahoma, et al, be,

and the same are hereby ordered and directed to either:

(1) enroll plaintiff, if she is otherwise qualified,
in the firstayear class of the School of Law of
the University of Oklahoma, in which school she
will be entitled to remain on the same scholastic
basis as other students thereof until such a
separate law school for negroes is established
and ready to function, or

(2) not enroll any applicant of any group in said class
until said separate school is established and ready
to function.

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if such
a separate law school is so established and ready to function,
the defendants, Board of Regents of the University of Oklahoma,
et a1, be, and the same are hereby ordered and directed to
not enroll plaintiff in the first~year class of the School of
Law of the University of Oklahoma.

"The cost of this case is taxed to defendants.

"This court retains jurisdiction of this cause to hear and
determine any question which may arise concerning the application
of and pe ormance of the duties prescribed by this ordei."

L..~I—T"r'~woe.-x- H .7 «vi—were.» w..-i, . e ,, v. . ,. , . . . . n a _ , L 3

question before us on this petition for int of mandamus

 

is whether or not our mandate has been followed. It is clear that it has
been followed. I V

The petition for_certiorari in Sipuel vs. Board of Regents did
not present the issue that a state might satisfy the equal protection
clause of the Fourteenth Amendment by establishing a separate law school
for Negroes. In oral argument, we understood.counsel for petitioner to
concede that it was not an issue in the case. The Oklahoma Supreme Court
upheld the refusal to admit petitioner on the ground that she had failed to
demand establishment of a separate school and admission to it. On remand,
the district court correctly understood our decision to hold that the
equal protection clause permits no such defense. A

Nothing which may have transpired since the orders of the Oklahoma
courts were issued is in the record before us, nor could we consider it
on this petition for writ of mandamus if it were. The Oklahoma District
Court has retained jurisdiction to hear and determine any question arising
under its order. Whether or not the order is followed or disobeyed should
be determined by it in the first instance.

Motion for leave to file writ of mandamus is denied.

¢mfillihiuiliuliillb

  

SUPREME COURT OF THE UNITED STATES

No. 325, Miscellaneous-October Term, 19h?

Ada Iois Sipuel Fisher, Petitioner
V.

The Honorable Thurman S. Hurst, Chief,
Justice; The Honorable Denver N. Davison,
Vice Chief Justice; The Honorable Fletcher
Riley, Rayne'W. Bayless, Earl welch, N. S.
Corn, Ben Arnold, Thomas L. Gibson, and
John Luttrell, Associate Justices of the
Supreme Court of the State of Oklahoma;

The Honorable Justin Hinshaw, District Judge
Cleveland County District Court of Oklahoma
and the Board of Regents of the University
of Oklahoma. ‘

Per Curiam.

Mbtion for Leave to File
Petition for'Writ of ,-
mandamus, Petition and
Brief in Support

Thereof ,

Petitioner moves for leave to file a petition for a writ of

mandamus to compel compliance with our mandate issued in Sipuel v. Board

of Regents, January 12, 19h8. We there said:

."The petitioner is entitled to secure legal education
-afforded by a state institution. To this time, it has been
denied her although during the same period many white applicants
have been afforded legal education by the State. The State
must provide it for her in conformity with the equal-protection
clause of the Fourteenth Amendment and provide it as soon as

it does for applicants of any other group.

Gaines v. Canada, 305 U.S. 337 (1938)."

Missouri ex rel.

petitioner states that on January 17, 19h8, the Supreme Court of Oklahoma '

rendered an opinion in which it was said:

"Said Board of Regents is hereby directed, under the
authority conferred upon it by the provisions of Art. lSnA,
Constitution of the State of Oklahoma, and Title 70 O. S.
l9h1, Secs. 1976, 1979, to afford to plaintiff, and all others
similarxy situated, an opportunity to commence the study
of law at a state institution as soon as citizens of other
groups are afforded such opportunity, in conformity with
the equal protection clause of the Fourteenth Amendment
of the Federal Constitution and with the provisions of the
Constitution and statutes of this state requiring segregation

of the races in the schools of this state.

Art.

13 Sec. 3’
Constitution of Oklahoma; 70 O. S. l9hl, Secs. h51—h57.

"Reversed with directions to the trial court to take such
proceedings as may be necessary to fully carry out the opinion
of the Supreme Court of the United States and this opinion.

The mandate is ordered to issue forthwith.”

 

 SUPREME COURT OF THE UNITED STATES

N0. 325,, Misc—OCTOBER TERM, 1947.

Ada Lois Sipuel Fisher, Petitioner, On Motion for Leave

v. to File Petition for

The Honorable Thurman S. Hurst, “Hit of Manda-
Chief Justice et al. mus.

[February —, 1948.]

MR. JUSTICE RL'TLEDGE. dissenting.

I am unable to join in the Court’s opinion or in its
disposition of the petition. In my judgment. neither the
action taken by the Supreme Court of Oklahoma nor
that of the District Court of Cleveland County. following
upon the decision and issuance of our mandate in N0.
369. Sipuel V. Board of Regents, decided January 12.
1948. is consistent with our opinion in that cause or
therefore with our mandate which issued forthwith.1

It» is possible under those orders for the state’s officials
to dispose of petitioner’s demand for a legal education
equal to that afforded to white students by establishing
overnight a separate law school for Negroes or to con-
tinue affording the present advantages to white students
while denying them to petitioner. The latter could be
done either by excluding all applicants for admission to
the first-year class of the state university law school after
the date of the order or, depending upon the meaning
of that order, by excluding such applicants and asking
all first—year students enrolled prior to that order’s date
to withdraw from school.

Neither of those provisions. in my opinion, would com—
ply with our mandate. It plainly meant, to me at any

1The mandate reversed the Oklahoma Supreme Court's judgment.
and remanded the cause to it "for proceedings not inconsistent with
this opinion."

 

 325—DISSENTING.
2 FISHER v. HITRST.

rate, that Oklahoma should end the discrimination prac-
ticed against petitioner at once. not at some later time,
near or remote. It also meant that this should be done,
if not by excluding all students, then by affording peti—
tioner the advantages of a legal education equal to those
afforded to white students. And in my comprehension
the equality required was equality in fact, not in legal
fiction.

Obviously no separate law school could be established
elsewhere overnight capable of giving petitioner a legal
education equal to that. afforded by the state’s long—
established and well—known state university law school.
Nor could the necessary time be taken to create such
facilities. while continuing to deny them to petitioner,
without. incurring the delay which would continue the
discrimination our mandate required to end at once.
Neither would the state comply with it by continuing
to deny the required legal education to petitioner while
affording it to any other student. as it could do by exclud—
ing only students in the first—year class.

Since the state courts orders allow the state authorities
at their election to pursue alternative courses, some of
which do not, comply with our mandate. I think those
orders inconsistent with it. Accordingly I dissent from
the Court‘s opinion and decision in this case.

 

  

 m dorm OP mm mm 8133!.
lo. 325. mec.-0oiobcr im, 7194'}. ,

richer v. m. ”On motion for Leave to File Petition. for writ- a; m

 

{February 9, 1943.}

or. Justice mucosa. “locating.

I am unable to Join in the comm opinion or in ite diopoeition . ‘
of the petition. In W 3W1: neither the notion takon by the 8mm ’ , , ,, ‘
om of 0mm nor that of the Bietriot Coin-t of cloning! m, ‘
tailoring upon the denied“ and bounce of ow mandate in 33min '

130.1% a: naming lo. .369; decided January 12, ion. ie cocci-tent with
our opinion in that com or therefore with our .wau which issued
fox-smith} ' '

It is possible mder thooo ms». for them slaw; ori'icial‘a te
dicpoce of petitioner's denim! for a legal eduention aqua]. to that eflorded
to unite students by eetebliehing overnight e eeperete 1m eohool tor Negro»
or to continue affording the prom“. mm» in min students nhilo
[dawns than to million». one letter could be done ailhwby winning
.11 applicants fcr «nil-ionic the finch-year clan of mi mu minn-
nitylnwlohooleflerthsdnteotthoorderor, depmdinglpoothouenin‘
of that are»; by minim can applicant. and asking all firm
condemn enrolled prior to that order'c date to withdraw iron sshoal. . ,

Neither of thou prod-ions, in w opinion, Could oomph with ~
mandate. ltplainlynaani, tonestanyrste,thnt0uehouelhofld '
end the discrimination” prastioed again“ petitioner at once, not at can
Inmate, nonrorrenote. Iteleoncentthetthicehouldbodonc, it
not by excluding all nodule. than by efferding petitioner me edvcn‘hegoe

1. the and“: reversed obs manhun- Sup-one ocui-t'a sodgnent and Mod
the ouuso so it 'for proceedinge not imciflent with thie” opinion.‘ ~

 

 . g of 41 legal situation canal to than afforded to white I'l'mfiflltlo Aral \
in my Win the oqmnty mull-0d m equality in fact, not in
logil notion. V g V

‘oodoum no ooporofi law school could be emu-hot oloowhoo-o
overnight capable of giving petitioner a logul citation equal to that
afforded by tbs state's lure-taunt“ and "ll-hem moo miversitj 1
1m ulnol. nor coon the moo-my mo 1:. moon crate m ’
facilitia, Ihile continua: to low than: to putitiomr,‘ tithe“ -
~ W tho dew union an wall oatmo the discrimination on-
anodes. room to and at on”. lhithor would tho moo cooply nth
it by W to any the 1'.un logol education t6 petitioner «m;
affording ittemothor condom,“ “it oomdobymluoingmly
Ituicutu in wow.“ clan. ‘ V ' '

811i» the state bout-ta" Mora allow the state authorities
so their game. to pun-mo alternativ- mun, mi of Moo do net
m:w1oo..oor moo, I max this mm Mum; am. it.
Loam 1 ail-out m- the comfs opinion and doom“; in om. nu;-

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18 Guild.

 Memo on No.325, Sip uel

Where the Supreme Court has entered a judgment in a case, and where the
lower court upon remand has departed in any respect from the judgment of this
court, the Supreme Court has held, in Gaines v. Ru , 148 U. S. 228, 243, that
it may issue a writ of mandamus to correct the error of the lower court. In
that case, this Court ruled that "although it mgght have been admissible to raise
the question by a new appeal to the proper court, yet in view of the delay to be
caused thereby, we do not consider that such remedy would have been, or would be,
fully adequate, or that a writ of mandamus is now improper." Accordingly, it issued
the writ of mandamus. While dais Court refused to issue the writ of mandamus in
the Blake; case several years later, it did so uni; because it ruled that in that
particular case the remedy b y writ of error was entirely adequate.

In the Ease at bar, the time factor is of course of the essence, and accor~
dingly it is obvious that petitioner's remedy by certiorari after further proceedings
in the state courts is by no means adequate, and accordingly that mandamus or other=
relief — if relief is merited — should be deemed available.

In addition to a writ of mandamus, the Court has available to it such other
alternatives as:

(l) clarification of its mandate

(2) modification of its mandate, as in Asselta last Term.
LFE

N.B. Pursuant to Sec. 237 of the Judicial Code, 28 USCA §3449 this Court can in

"