Bryan v Austin Jr Brief Opposing Motion to Dismiss or Affirm

    kapron* (Emirt ni %  United States
October Term, 1956

IN THE

No. 931

Ola L. Bryan, et al., 

against

M. 6 . A ustin, Jr., et al.,

Appellants,

Appellees.

O n  A ppeal F rom the United States District Court for 
the E astern D istrict of South Carolina 

Charleston D ivision

BRIEF OPPOSING MOTION TO DISMISS 
OR AFFIRM

Thurgood Marshall,
R obert L. Carter,
J ack Greenberg,

107 West 43rd Street,
New York, New York,

L incoln C. J enkins, J r.,
1101V% Washington Street, 

Columbia, South Carolina,
Attorneys for Appellants.



IN THE

&ttpranp dtfttrt at tljp MmtTii
October Term, 19S6 

No. 931

------------------ o----------------—

Ola L, Bryan, et al., 

against
Appellants,

M. G. A ustin, J r ., et al.,
Appellees.

O n  A ppeal From the United States District Court for 
the Eastern D istrict op South Carolina 

Charleston D ivision

— ---------------------------o -   —  ------- -— -—

BRIEF OPPOSING MOTION TO DISMISS 
OR AFFIRM

The Cause Is Not Moot.

Appellants’ Jurisdictional Statement was tiled April 
22. On April 23, Act No. 741, whose constitutionality is 
one of the issues in this case, was repealed by the South 
Carolina Legislature. On April 24th, Governor Timmer­
man signed the repealer. Appellees now contend that this 
move made by one of their number (the State has appeared 
herein by its Attorney General) moots the case.

But this tactic does not convert the case into one in 
which this Court “ cannot affect the rights of the litigants 
in the ease before it,”  St. Pierre v. United States, 319 U. S. 
41, 42, nor does the repeal of Act. No. 741 create a circum­
stance in which “ [a] 11 possibility or threat of the [prior



2

situation] has disappeared now,”  Berry v. Davis. 242 U. S. 
468, 470. The threat is the same: Appellees’ answer as­
serts and the record otherwise demonstrates (R. 64-68; 
Motion to Dismiss or Affirm p. 2) that prior to Act No. 
741 ’s adoption, as a prerequisite to employment, they 
required reply to questions concerning NAACP member­
ship and the applicants’ views concerning desegregation;1 * 
appellees’ answer also states that following the statute’s 
enactment they would have conditioned employment on 
reply to such questions even had there not been a statute:

“ 13. That the inquiries contained in the employ­
ment application tendered to all of the teachers in 
Orangeburg School District No. 7 are similar to 
those made of the teachers in the District in Sep­
tember, 1955 prior to the enactment of the South 
Carolina statute approved on the 17th of March, 
1956. On information, advice and belief, the in­
quiries contained in the employment application are 
consistent with the aforesaid statute, but substan­
tially the same information had been solicited prior 
to the enactment of this statute and would have been 
solicited of applicants had no such statute been en­
acted.”  (R. 15) (Emphasis supplied.)

Appellants’ prayers for relief requested not only in­
junctions against the enforcement of Act No. 741, but also 
against the asking of the illegal questions as a prerequi­
site to employment:

“ 3. That this Court enter preliminary and final 
injunctions restraining defendants from otherwise 
refusing to continue the employment of plaintiffs 
solely because of their membership in the National 
Association for the Advancement of Colored Peo­
ple, or their attitude towards school segregation.

1 In 1955 at least some of the appellants completed such a ques­
tionnaire under protest while the school term was in session (R. 64).



3

“ 4. That this Court enter preliminary and final 
injunctions restraining defendants from inquiring 
into plaintiffs’ beliefs and associations as a condi­
tion of continued employment.

“ 5. That this Court enter preliminary and final 
injunctions restraining defendants from refusing to 
continue the employment of plaintiffs because they 
have refused to disclose whether or not they are 
members of the National Association for the Ad­
vancement of Colored People or what their attitudes 
may be towards the integration of the races in the 
public schools.” (R. 10)

The repeal of Act No. 741 does not forbid appellees 
to ask these constitutionally objectionable questions, nor 
does it furnish any other relief and the relief prayed for 
has not otherwise been given.

Act No. 324, 1957, the statute which repealed Act No. 
741 also enacted a new prerequisite to employment by the 
State which indicates that the repeal was in fact illusory:

“ Section 1. State, County, and municipal offi­
cers, departments, boards and commissions, and all 
school districts, in this State, shall require applica­
tions in writing for employment by them, upon such 
application forms as they may severally prescribe, 
which shall include information as to active or hon­
orary membership in or affiliation with all member­
ship associations and organizations.”  2 3

3 Act No. 324’s intention is transparent and has been described 
as an attempt to accomplish by another means the result sought in 
Act No. 741. See The State, Section C, p. 1, April 25, 1957, Colum­
bia, South Carolina.

( “ Governor S igns NAACP L egislation 
“ Gov. Timmerman yesterday signed legislation repealing one 

law and substituting another aimed at barring members of the



4

This statute has not been invoked in this ease and ap­
pellants submit that therefore a ruling on its validity is 
not essential to the disposition of the instant proceedings. 
But this Court could pass upon its validity now, Abie 
State Bank v. Bryan, 282 U. S. 765, 777, 781. Act No. 324 
in its attempt to accomplish in veiled fashion the same 
result overtly sought by Act No. 741 resembles the legis­
lative maneuvers taken by South Carolina following this 
Court’s decision in Smith v. Allwright, 321 U. S. 649. By 
eliminating reference to race from the primary election 
statutes while retaining their requirements in different 
legal formulations, South Carolina hoped to thwart this 
Court’s rulings. These new statutes were condemned in 
Rice v. Elmore, 165 F. 2d 387 (4th Cir., 1947), aff’d 333

National Assn, for the Advancement of Colored People from 
public employment in the state.

“ The step makes moot Federal Court action by the NAACP 
against the 1956 statute.

*  * *  *>>)

and The State, Section A, p. 10, May 7, 1957, Columbia, South 
Carolina.

( “ T rustees’ A ttention Called to L aw  on M embership
L ists

“ By the Associated Press
“ The South Carolina State Department of Education is call­

ing the attention of school trustees throughout the state to a 
new law aimed at barring members of the National Association 
for the Advancement of Colored People from public employ­
ment— especially from teaching jobs.

lit *  *

“ There is nothing in the law naming the NAACP, but the 
general assembly has made it clear that members of the integra­
tion-seeking organization are anathema in public jobs.

* *



5

U. S. 875 and Brown v. Baskin, 80 F. Supp. 1017, a il’d 174 
F. 2d 391 (4th Cir., 1949).8

Where a change in law does not furnish relief or where 
power still exists to require acts complained of this Court 
has held that a case does not become moot. McOrain v. 
Daugherty, 273 U. S. 135, 181-182; United States v. B,ock 
Royal Cooperative, 307 U. S. 533, 555-556; F. T. C. v. Good­
year Tire R. Co., 304 IT. S. 257, 260; see Groesbeck v. 
Duluth S.S. & A. R. Co., 250 U. S. 607, 609; Fiswick v. 
United States, 329 U. S. 211, 220-221. Indeed, in the in­
stant case there is not even the temporary suspension of 
power which existed in the McGrain and Rock Royal cases.

As was said in United States v. Trans-Missouri Freight 
Association, 166 U. S. 290, 308-309, where a contested course 
of conduct was abandoned during the litigation:

“  ‘ The defendants cannot foreclose those rights 
nor prevent assertion thereof * * * ;by any such ac­
tion as has been taken in this case.’ ”  * * 4

8 A similar maneuver was employed by South Carolina in Clark 
v. Flory, 141 F. Supp. 248 (E. D. S. C., 1956) (upon filing of com­
plaint for desegregating public beach, State closed it). But compare 
with Department o f Conservation and Development v. Tate, 231 
F. 2d 615 (4th Cir., 1956) ; cert. den. 352 U. S. 838.

4 The elision in the quotation omits reference to the fact that 
the government was the plaintiff in that case. But that the nature 
of the parties is not determinative was established in Southern P. 
Terminal Co. v. Interstate Commerce Comm., 219 U. S. 498, 516, 
where, as in this case, the government was the defendant: “ that the 
government is the respondent, not complainant, does not lessen or 
change the character of the interests involved in the controversy, 
or terminate its questions.”



6

Decision following such limited alteration8 in the legal 
relationships of the parties is especially appropriate where 
issues of great public importance are involved. McGrain v. 
Daugherty, supra.

None of the cases cited by appellees are apposite, for 
none deal with an unconstitutional exercise and assertion 
of power anteceding and surviving a statute which but 
complemented that power, and was not necessary to it:

Mills v. Green, 159 U. S. 651 concerned an election which 
was concluded before judicial action could affect it; Board 
of Flour Inspectors v. Glover, 160 U. S. 170, which merely 
cites Mills v. Green, apparently deals with a statute, repeal 
of which terminated the dispute between the parties; in 
Dinsmore v. Southern Express Co., 183 U. S. 115, 120 it 
was held that “ the plaintiffs do not need any relief, be­
cause the act of 1901 accomplishes the result they want” ; 
in Metzger Motor Car Co. v. Parrot, 233 U. S. 36 the state 
court’s holding that the statute was unconstitutional ah 
initio under the state constitution erased tort liability (and 
this Court, following the state court reversed). In Berry 
v. Davis, 242 U. S. 468, 4701 Justice Holmes rested the dis­
missal on the ground that “ All possibility or threat of the 
operation has disappeared now.”  In United States v. 
Alaska Steamship Co., 253 IT. S. 113, 116 the complainants 
did “ not now need an injunction to prevent the Commis­
sion from putting in force bills of lading in the form pre­
sented. ”  Natural Milk Producers Association v. City and 
County of San Francisco, 317 U. S'. 423 was a case in which 
the appellants had not challenged an exercise of power 
which was effective after repeal of the ordinance assailed 
at the outset.

6 Compare with United States v. United States Steel Corp., 251 
U. S. 417, 445, where it was held that “ [t]here is no evidence that 
the abandonment was in prophecy of or dread of suit; and the illegal 
practices have not been resumed, nor is there any evidence o f an 
intention to resume them, and certainly no ‘dangerous probability’ 
of their resumption. * * * ”



7

This ease should be heard on the appeal and jurisdic­
tional statements filed heretofore by appellants. The sub­
stantive questions remaining in the case are essentially 
the same as when the Notice of Appeal was filed and are 
“ subsidiary question[s] fairly comprised”  in the question 
presented in the Jurisdictional Statement (Rule 15(c)(1)). 
All of the jurisdictional prerequisites have been fulfilled. 
As discussed more fully in the Jurisdictional Statement, 
there has been a denial of injunction by a properly con­
stituted three-judge court as required by 28 U. S. C. § 1253. 
“ The jurisdiction of the District Court so constituted and 
of this Court upon appeal extends to every question in­
volved, whether of state or federal law, and enables the 
court to rest its judgment on the decision of such of the 
questions as in its opinion effectively dispose of the case.”  
Sterling v. Constantin, 287 U. S. 378, 393-394.

There Is No Reason Why Relief Should Not Be Granted.

The motion to dismiss or affirm apparently argues that 
it is within the unfettered discretion of a district court 
to deny application for interlocutory injunction. That the 
exercise of discretion is bound by law is demonstrated in 
the Jurisdictional Statement where it is shown that it is 
as much an abuse of discretion to fail to exercise jurisdic­
tion which is given as it is to usurp jurisdiction which 
does not exist (Cohens v. Virginia, 6 Wheaton 264, 404; 
United States v. Corrick, 298 U. S. 435). Moreover, the 
argument is made in the motion to dismiss or affirm that 
an interlocutory injunction will be given only to preserve 
the status quo. That this is not so is demonstrated in 
Board of Supervisors of Louisiana State University v. 
Wilson, 340 U. S. 909, aff ’g 92 F. Supp. 986 (E. D. La., 
1950), in which this Court affirmed a. judgment awarding 
an interlocutory injunction ordering the admission of re­
spondent therein to the Law School of Louisiana State 
University.



8

The only consequence of Act No. 741’s repeal is that 
even the illusory reasons for denial of relief have been 
eliminated from the ease. There is no longer a statute 
to be construed by state courts; the so-called administrative 
remedy granted by the defunct statute has been repealed. 
Therefore, the questions presented remain justiciable and 
substantial. Nothing that has occurred herein and no argu­
ment of appellees impairs appellants ’ position taken in the 
Jurisdictional Statement.

Wherefore for the foregoing reasons appellees’ mo­
tion to dismiss or affirm should be denied.

Respectfully submitted,

T hubgood Marshall,
R obert L. Carter,
Jack Greenberg,

107 West 43rd Street,
New York, New York,

L incoln C. Jenkins, Jr.,
1107% Washington Street, 

Columbia, South Carolina,
Attorneys for Appellants.



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