Meredith v. Fair

PER CURIAM.

Pursuant to the provisions of Title 28 U.S.Code § 1651¹ and Rule 62(g), F.R. Civ.P., 28 U.S.C.A.,² the appellant moves the Court for an injunction during the pendency of this appeal, enjoining the appellees from refusing to admit appellant to the Liberal Arts College of the University of Mississippi for the semester which commenced February 6, 1962, and as to which admissions can be received no later than February 15, 1962, on the ground that such injunction is necessary in aid of this Court’s jurisdiction of this appeal which, according to appellant, would otherwise be defeated through mootness of this appeal.

The district court’s judgment was entered on February 5, 1962, and the testimony taken before the district court is not yet available to this Court. Hearing on the motion for injunction pending appeal was had before this Court on Saturday, February 10, 1962.

The ground upon which appellant claims that this appeal will become moot before it can be heard and decided in normal course is that, prior to such time, the appellant will graduate from Jackson State College, and will then lose any right to be admitted to the Liberal Arts College of the University of Mississippi. The appellees point out that it is within the appellant’s power to avoid that result by his non-attendance on Jackson State College for one quarter of a school year.³ The appellees insist, and assure this Court, that such non-attendance would not prejudice the appellant’s claim to a right to be admitted to the Liberal Arts College of the University of Mississippi.

While we appreciate the hardship which such non-attendance may impose on the appellant, when that hardship is balanced against other possible irreparable damages which might be suffered by the appellant himself and by the appellees from the issuance of the mandatory injunction prayed in the event that the judgment of the district court should ultimately be affirmed, such hardship is not sufficient to permit us to issue the mandatory injunction prayed without an opportunity to study the full record and testimony on the hearing before the district court. At this time we express no views on the merits of this appeal.

By expediting the hearing of this appeal, it can be decided on its merits before the beginning of the next college term. The Clerk of this Court and the parties are therefore directed to take all necessary and proper steps to expedite the hearing of this appeal on its merits, and the motion for injunction pending appeal is denied. The Clerk is directed to issue the mandate forthwith.

1 . “Writs, (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

“(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. June 25, 1948, e. 646, 62 Stat. 944, amended May 24,1949, c. 139, § 90, 63 Stat. 102.”

2 . “Rule 62 * * * (g) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered. As amended Dec. 29, 1948, effective Oct. 20, 1949.”

3 . It seems to us, also, that the appeal would not be mooted if appellant did not in fact graduate from Jackson State College because of being permitted to choose-subjects of study other than those leading to Ms graduation.