CONCLUSION For the reasons stated, the Court should reverse the provisions of the judgment of the Circuit Court insofar as they relate to the assignment and busing of senior high school and junior high school students; approve the provisions of the judgment of the Circuit Court insofar as they vacate the order of the District Court relating to the assignment and busing of elementary school children; and grant the motion of the School Board to stay the order of the District Court reinstating its previous orders relating to the assignment and busing of elementary school students. Respectfully submitted, SAM J. ERVIN, Jr. CHARLES R. JONAS. APPENDIX Constitutional provisions involved 1. The First Section of the Fourteenth Amendment, which reads, in pertinent part, as follows: "nor (shall any State) deny to any person within its jurisdiction the equal protection of the laws." 2. The Fifth Section of the Fourteenth Amendment, which specifies that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article." 3. The First Section of Article III, which states, in pertinent part, that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." 4. The Second Section of Article III of the Constitution, which reads, in pertinent part, as follows: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority-to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of Admiralty and Maritime Jurisdiction; to Controversies to which the United States shall be a Party; —to Controversies between two or more States;-between a State and Citizens of another State; -between Citizens of different States; -between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Statutory Provisions Involved 1. Title IV of the Civil Rights Act of 1964 which originally appeared in Title IV of Public Law 88-352 of the 88th Congress and is now codified as 42 USC 2000c-2000c-9. This statute reads as follows: "Title VI-Desegregation of Public Education Definitions "Sec. 401. As used in this title "(a) 'Commissioner' means the Commissioner of Education. "(b) 'Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but "desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance. "(c) 'Public school' means any elementary or secondary educational institution, and 'public college' means any institution of higher education or any technical or vocational school above the secondary school level, provided that such public school or public college is operated by a State, subdivision of a State, or governmental agency within a State, or operated wholly or predominantly from or through the use of governmental funds or property, or funds or property derived from a governmental source. "(d) 'School board' means any agency or agencies which administer a system of one or more public schools and any other agency which is responsible for the assignment of students to or within such system. Survey and Report of Educational Opportunities "Sec. 402. The Commissioner shall conduct a survey and make a report to the President and the Congress, within two years of the enactment of this title, concerning the lack of availability of equal educational opportunities for individuals by reason of race, color, religion, or national origin in public educational institutions at all levels in the United States, its territories and possessions, and the District of Columbia. Technical Assistance "Sec. 403. The Commissioner is authorized, upon the application of any school board, State, municipality, school district, or other governmental unit legally responsible for operating a public school or schools, to render technical assistance to such applicant in the preparation, adoption, and implementation of plans for the desegregation of public schools. Such technical assistance may, among other activities, include making available to such agencies information regarding effective methods of coping with special educational problems occasioned by desegregation, and making available to such agencies personnel of the Office of Education or other persons specially equipped to advise and assist them in coping with such problems. Training Institutes "Sec. 404. The Commissioner is authorized to arrange, through grants or contracts, with institutions of higher education for the operation of short-term or regular session institutes for special training designed to improve the ability of teachers, supervisors, counselors, and other elementary or secondary school personnel to deal effectively with special educational problems occasioned by desegregation. Individuals who attend such an institute on a full-time basis may be paid stipends for the period of their attendance at such institute in amounts specified by the Commissioner in regulations, including allowances for travel to attend such institute. Grants "Sec. 405. (a) The Commissioner is authorized, upon application of a school board, to make grants to such board to pay, in whole or in part, the cost of— "(1) giving to teachers and other school personnel in-service training in dealing with problems incident to desegregation, and "(2) employing specialists to advise in problems incident to desegregation. "(b) In determining whether to make a grant, and in fixing the amount thereof and the terms and conditions on which it will be made, the Commissioner shall take into consideration the amount available for grants under this section and the other applications which are pending before him, the financial condition of the applicant and the other resources available to it; the nature, extent, and gravity of its problems incident to desegregation; and such other factors as he finds relevant. Payments "Sec. 406. Payments pursuant to a grant or contract under this title may be made (after necessary adjustments on account of previously made overpayments or underpayments) in advance or by way of reimbursement, and in such installments, as the Commissioner may determine. Suits by the Attorney General "Sec. 407. (a) Whenever the Attorney General receives a complaint in writing "(1) signed by a parent or group of parents to the effect that his or their minor children, as members of a class of persons similarly situated, are being deprived by a school board of the equal protection of the laws, or "(2) signed by an individual, or his parent, to the effect that he has been denied admission to or not permitted to continue in attendance at a public college by reason of race, color, religion, or national origin, and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly achievement of desegregation in public education, the Attorney General is authorized, after giving notice of such complaint to the appropriate school board or college authority and after certifying that he is satisfied that such board or authority has had a reasonable time to adjust the conditions alleged in such complaint, to institute for or in the name of the United States a civil action in any appropriate district court of the United States against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section, provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards. The Attorney General may implead as defendants such additional parties as are or become necessary to the grant of effective relief hereunder. "(b) The Attorney General may deem a person or persons unable to initiate and maintain appropriate legal proceedings within the meaning of subsection (a) of this section when such person or persons are unable, either directly or through other interested persons or organizations, to bear the expense of the litigation or to obtain effective legal representation; or whenever he is satisfied that the institution of such litigation would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or their property. "(c) The term 'parent', as used in this section includes any person standing in loco parentis. A 'complaint' as used in this section is a writing or document within the meaning of section 1001, title 18, United States Code. "Sec. 408. In any action or proceeding under this title the United States shall be liable for costs the same as a private person. "Sec. 409. Nothing in this title shall affect adversely the right of any person to sue for or obtain relief in any court against discrimination in public education. "Sec. 410. Nothing in this title shall prohibit classification and assignment for reasons other than race, color, religion, or national origin. Ex parte WILLIAM H. McCARDLE. (See S. C. 7 Wall. 506-515.) Jurisdiction in cases of habeas corpus-repeal of Act-effect of. The Act of March, 1868, takes away the jurisdiction defined by the Act of February, 1867, of this court, in cases of habeas corpus. No judgment can be rendered in a suit, after the repeal of the Act under which it was brought and prosecuted. This court in such case has no longer jurisdiction of the appeal. [No. 223.] Argued Mar. 19, 1869. Decided Apr. 12, 1869. Appeal from the Circuit Court of the United States for the Southern District of Mississippi. This case arose upon a petition for the writ of habeas corpus, filed in the court below by the appellant, alleging unlawful restraint by military force. The writ was issued and return was made, denying that the restraint was unlawful. The court below, upon the hearing, having remanded the petitioner to military custody, he took an appeal to this court. A motion to dismiss this appeal for want of jurisdiction was denied at the last term. For a full statement of the case, see the opinion of the court, and the report of the decision denying said motion to dismiss. 6 Wall. 318, 18 L. ed. 816. Messrs. Lyman Trumbull, Matt H. Carpenter, James Hughes, D. G. Swain, and Enoch Totten, for respondents: It is clear that this court had no jurisdiction of this proceeding and appeal from the circuit court, except under the Act of Feb. 5, 1867; and so this court held on the motion to dismiss made by us. NOTE. Effect of statutes to defeat or preserve pending civil actions-see note, 14 L.R.A. 721. Ex parte McCardle, 6 Wall. 318, 18 L. ed. 816. When the jurisdiction of a court to determine a case of a class of cases depends upon a statute, and the statute is repealed, the jurisdiction ceases absolutely. If any cause be pending at the time of such repeal it falls. Rex v. The Justices of London, 3 Burr. 1456; Norris v. Crocker, 13 How. 429; Ins. Co. v Ritchie, 5 Wall. 541, 18 L. ed. 540; Gale v. Wells, 7 How. Pr. 191; Hollingsworth v. Va. 3 Dall. 378; Surtees v. Ellison, 9 B. & C. 750; Butler v. Palmer, 1 Hill. 324. 2. The Act conferring the jurisdiction having been repealed, the jurisdiction ceased; and the court had thereafter no authority to pronounce any opinion or render any judgment in this cause. It can make no difference at what period in the progress of the cause the jurisdiction ceases. After it has ceased, no judicial act formed. Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. ed. 540; Hollingsworth v. Va. 3 Dall. 378. In Norris v. Crocker, 13 How. 429, this court affirmed and acted upon the same principle; and the exhausive argument of the present Chief Justice, then at the bar, reported in that case, and the numerous authorities there cited, render any further argument or citation of cases unnecessary. Rex v. Justices of London, 3 Burr. 1456; Yeaton v. U.S. 5 Cranch, 281; The Rachel v. U.S. 6 Cranch, 329; U.S. v. Preston, 3 Pet. 57; Com. v. Marshall, 11 Pick. 350. Messrs. J. S. Black, W.L. Sharkey, C. T. Botts, and David Dudley Field, for appellant. (This case was very elaborately argued on the merits, early in March, 1868, prior to the passage of the Act taking from this court jurisdiction of appeals in such cases. (But as the court does not go into the merits, no abstract of the argument is deemed necessary.) Mr. Chief Justice Chase delivered the opinion of the court: This cause came here by appeal from the Circuit Court for the Southern District of Mississippi. A petition for the writ of habeas corpus was preferred in that court by the appellant, alleging unlawful restraint by military force. *The writ was issued and a return was [*508 made by the military commander, admitting the restraint, but denying that it was unlawful. It appeared that the petitioner was not in the military service of the United States, but was held in custody by military authority, for trial before a Military Commission, upon charges founded upon the publication of articles alleged to be incendiary and libelous, in a newspaper of which he was editor. Upon the hearing, the petitioner was remanded to military custody; but upon his prayer, an appeal was allowed him to this court, and upon filing the usual appeal bond for costs, he was admitted to bail upon recognizance with sureties conditioned for his future appearance in the circuit court, to abide by and perform the final judgment of this court. A motion to dismiss this appeal was made at the last term, and after argument, was denied. A full statement of the case may be found in the report of this decision and it is unnecessary to repeat it here. Ex parte McCardle, 6 Wall. 318, 18 L. ed. 516. Subsequently the case was argued very thoroughly and ably upon the merits, and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to be made, an Act was passed by Congress (Act March 27, 1868, 15 Stat. at L. 44), returned, with objections by the President, and repassed by the constitutional majority, which, it is insisted, takes from this court jurisdiction of the appeal. The 2d section of this Act was as follows: "And be it further enacted, that so much of the Act approved February 5, 1867, entitled an 'Act to Amend an Act to Establish the Judicial Courts of the United States,' approved September 24, 1789, as authorized an appeal from the judgment of the circuit court to the Supreme Court of the United States, for the exercise of any such jurisdiction by said Supreme Court on appeals which have been or may hereafter be taken, be, and the same is hereby repealed." 509*] *The attention of the court was directed to this statute at the last term, but counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here by his duties in the Court of Impeachment, the cause was continued under advisement. At this term we have heard arguments upon the effect of the repealing Act, and will now dispose of the case. The first question necessarily is that of jurisdiction; for, if the Act of March, 1868, takes away the jurisdiction defined by the Act of February, 1867, it is useless, if not improper, to enter into any discussions of other questions. It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from Acts of Congress. It is, strictly speaking, conferred 513*] *by the Constitution. But it is conferred "with such exceptions and under such regulations as Congress shall make." It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. From among the earliest Acts of the first Congress, at its first session, was the Act of September 24th, 1789, to establish the judicial courts of the United States. That Act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction. The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on several occasions subjects of consideration here. In the case of Durousseau v. U.S. 6 Cranch, 312; Wiscart v. Dauchy, 3 Dall. 321, particularly, the whole matter was carefully examined, and the court held, that while "the appellate powers of this court are not given by the Judicial Act, but are given by the Constitution;" they are, nevertheless, "limited and regulated by that Act, and by such others Acts as have been passed on the subject." The court said, further, that the Judicial Act was an exercise of the power given by the Constitution to Congress "of making exceptions to the appellate jurisdiction of the Supreme Court." "They have described affirmatively," said the court, "its jurisdiction and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it." The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that Acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as Acts granting jurisdiction, and not as Acts making exceptions to the constitutional grant of it. The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other *appellate juris- [*514 diction. It is made in terms. The provision of the Act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus, is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception. We are not at liberty to inquire into the motives of the Legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing Act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle. Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this case is not affected by the repealing Act. But none of them, in our judgment, afford any support to it. They are all cases of the exercise of judicial power by the Legislature, or of legislative interference with courts in the exercising of continuing jurisdiction. De Chastellux v. Fairchild, 15 Pa. 18; State v. Fleming, 7 Humph. 152; Lewis v. Webb, 3 Me. 326; Lanier v. Gallatas, 13 La. Ann. 175. On the other hand, the general rule, supported by the best elementary writers (Dwarris, Stat. 538), is, that "when an Act of the Legislature is repealed, it must be considered, except as to transactions past and closed, as if it never existed." And the effect of repealing Acts upon suits under Acts repealed, has been determined by the adjudications of this court. The subject was fully considered in Norris v. Crocker, 13 How 429, and more recently in Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. ed. 540. In both of these cases it was held that no judgment could be rendered in a suit after the repeal of the Act under which it was brought and prosecuted. *It is quite clear, therefore, that this [*515 court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and |