Bryan v Austin Jr Statement in Opposition to Jurisdiction and Motions to Dismiss or Affirm

    IN THE

Supreme Court Of The United States
OCTOBER TERM, 1956 

No. 931

OLA L. BRYAN, et. al. ,  A ppellants,
vs.

M. G. AUSTIN, JR., et al. ,  A ppellees.

On A ppeal From The United States D istrict Court For 
The Eastern District Of South Carolina 

Charleston Division

STATEMENT IN OPPOSITION TO JURISDICTION AND 
MOTIONS TO DISMISS OR AFFIRM

A. J. H ydricr, Jr.
Marshall W illiams 

Orangeburg, S. C>.
Robert McO. F igg, Jr.

Charleston, S. C.
P. H. McEachin 

Florence, S. C.
David W. Robinson 

1213 Washington Street 
Columbia, S. C.

Attorneys for the Appellees

TM* STATE SOMMERCIAL PRINTING CO.



TABLE OF CASES
Page

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 241 8

Alston v. School Board of City of Norfolk, 4 Cir., 112
F. 2d 992, 130 A.L.K. 1506; 311 U.S. 693 ................  9

Altvater v. Freeman, 319 U.S. 359, 363 .........................  8

Berry v. Davis, 242 U.S. 468 ................... .........................5 7

Coffman v. Breeze Corporations, 323 U.S. 316, 323, 324. .8, 9

Dinsmore v. Southern Express Co., 183 U.S., 115, 120 .. 5

Dorchy v. Kansas, 264 U.S. 286, 289 .................................  5

Jones v. Montague, 194 U.S. 147, 153 .............................  9

Metzger Motor Car Co. v. Parrott, 233 U.S. 3 6 .............. 5

Mills v. Green, 159 U .S ................................................651 5

National Milk Producers v. City & County of San Fran­
cisco, 317 U.S. 423 ...................................................... 5

New Orleans Flour Inspectors v. Glover, 160 U.S. 170 .. 5

Rice v. Lathrop, 278 U.S. 509, 514 .................................  10

United States v. Alaska S. S. Co., 254 U.S. 113 ..............5, 6

United Public Workers v. Mitchell, 330 U.S. 75, 89, 90, 91 8

Yakus v. U.S., 321 U.S. 414, 440 ....................................... 10



INDEX

Page

OPINIONS BELOW ........................................................  1

STATUTES INVOLVED ............................................   1

STATEMENT OF THE C A S E ..........................................  2

MOTIONS TO DISMISS OR TO A F F IR M .................. 4

ARGUMENT .......................     4

I. (a) The Cause is Moot Because of the Repeal of
Act No. 7 4 1 .......................................................... 4

(b) No Justiciable Controversy Was Presented 7
II. There was No Abuse of Discretion in Denying An 

Interlocutory Injunction ................................    9

CONCLUSION ....................................................       10

APPENDIX 11



IN THE

Supreme Court Of The United States
OCTOBER TERM, 1956 

No. 931

OLA L. BRYAN, et. al., A ppellants,

vs.
M. G. AUSTIN, JR., et al, A ppellees.

On A ppeal F rom The United States D istrict Court F oe 
The Eastern District Of South Carolina 

Charleston Division

STATEMENT IN OPPOSITION TO JURISDICTION AND 
MOTIONS TO DISMISS OR AFFIRM

OPINIONS BELOW
The opinions below are incorporated in the Appellants’ 

Appendix pp la-41a. The Order of the Court is shown in the 
Appendix pp 42a-43a. These opinions are reported as Bryan 
v. Austin, 14S F. Supp. 563.

STATUTES INVOLVED
The statutes at issue are:
(1) Act No. 741 of the South Carilina General Assembly, 

1956, shown in the Appellants’ Appendix pp 44a-47a;
(2) Section 21-103 of the South Carolina Code of 1952, 

Appellants’ Appendix 47a-48a.



2 O. L. Bryan, et al., A ppellants, vs. M. G. A ustin, Jr., A ppellees

(3) Act No. 324 of the South Carolina General Assembly, 
1957, repealing Act No. 741 of 1956, Appellees’ Appendix p. 
51.

STATEMENT OF THE CASE
In its 1956 Session, the General Assembly of the State of 

South Carolina enacted Act No. 741 of that Session, which 
became effective on March 17, 1956, whereunder it was made 
unlawful, thirty days after the effective date of the Act, for 
any school district of the State to employ any member of 
the National Association for the Advancement of Colored 
People, such prohibition continuing so long as such member­
ship was maintained. The Trustees of any school were au­
thorized by the Act to require any teacher or other employee 
suspected of such membership to submit a written state­
ment under oath in reference thereto. (Appellants’ Jurisdic­
tional Statement, Appendix B, page 44a).

In May, 1956, the appellee Austin, as Superintendent of 
School District No. 7 of Orangeburg County, South Caro­
lina, handed or sent to each white and Negro teacher in the 
school district the employment application blank attached 
to the complaint (Appellants’ Jurisdictional Statement, Ap­
pendix C, page 49a), which included the question “Do you 
belong to the NAACP?” . This application blank had been 
approved by the other appellees as the members of the Board 
of Trustees of the school district.

The appellants were Negro teachers, who had been em­
ployed in the school district for varying periods of time. 
They had signed and filed a substantially similar applica­
tion blank in 1955, which was not under oath. One of the 
appellants, Hattie Fulton, was in May 1956 a member of 
the National Association for the Advancement of Colored 
People, a fact which was not known to the appellant Charles 
E. Davis, the principal of the school in which they taught, 
nor to the appellees.

When each of the appellants refused to sign the applica­
tion for employment for the 1956-57 school year, the appel­
lee Austin asked them to sign a form of resignation effective 
at the end of their current employment period (May 31, 
1956 or June 30, 1956), so that the Board of Trustees would



O. L. Bryan, et al., A ppellants, vs. M. G. Austin, Jr., A ppellees 3

know definitely the position of each. There was no threat or 
coercion. Some, including the appellant Hattie Fulton, exe­
cuted the resignation. Those signing the resignation under­
stood that its effect was to remove them from consideration 
for employment for the 1956-1957 school year.

No appellant having filed an application for employment, 
none was considered in filling the teaching positions in the 
school district for the school year 1956-57, which began on 
September 4, 1956. Each was so notified on May 15, 1956. 
No appellant then or thereafter asked for reconsideration 
of such action, or filed any application for employment, or 
appealed to the Board of Trustees or to the County Board 
of Education or to the State Court.

There is neither allegation nor evidence that any of the 
appellants had any contractual right extending beyond June 
30, 1956. There is no teacher tenure under the school laws 
of South Carolina, and none is asserted by the appellants.

This action was commenced on September 10, 1956. The 
appellants prayed that the District Court enter preliminary 
and final injunctions restraining the appellees from enforc­
ing Act No. 741 of the Acts of 1956, and that it adjudge, de­
clare and decree the rights and legal relationships of the 
parties.

The District Court, after taking the testimony, ordered 
that the case be retained and remain pending on the docket 
but that proceedings therein be stayed to permit the ap­
pellants a reasonable time for the exhaustion of state ad­
ministrative and judicial remedies, after which such further 
proceedings, if any, will be had by the District Court as may 
then appear proper in the premises. Bryan, et al., v. Austin, 
et. al, 148 F. Supp. 563.

At its 1957 Session, the General Assembly of the State of 
South Carolina enacted a statute repealing Act No. 741 of 
1956. It became effective on April 24, 1957. (App. 51.)

The question presented on this appeal is whether the Dis­
trict Court correctly denied injunctive relief restraining the 
enforcement of Act No. 741 of the Acts of 1956, relegating 
the appellants to administrative remedies and to State 
courts. (Appellants’ Jurisdictional Statement, page 3.)



4 O. L. Bryan, et al., A ppellants, vs. M. G. A ustin, Jr., A ppellees

MOTIONS TO DISMISS OR AFFIRM
I. The appellees M. G. Austin, Jr., et al., move this Honor­

able Court to dismiss the appeal herein, upon the ground 
that there is no actual controversy involving real and sub­
stantial rights between the parties, and no subject matter 
upon which the judgment of the Court can operate, in that 
(a) Act No. 741 of the Acts of the General Assembly of the 
State of South Carolina, 1956, to restrain the enforcement 
of which this action was instituted, was repealed, effective 
April 24, 1957, and is no longer the law of South Carolina, 
and (b) no issue justiciable in the present action was or is 
presented by the pleadings and evidence, the appellants 
having no tenure under the South Carolina school laws and 
no contractual relationship with the school district at the 
time of the commencement of this action, and there being 
neither allegation nor proof that there are, or were at the 
commencement of this action, any teaching positions un­
filled in School District No. 7 of Orangeburg, South Caro­
lina.

II. The appellees M. G. Austin, Jr., et al., also move this 
Honorable Court to dismiss the appeal herein, or in the 
alternative to affirm the order appealed from, upon the 
ground that there is lack of substance in the question sought 
to be presented to this Court in the appeal, in that the order 
appealed from was within the discretion of the District 
Court, and it does not appear that such discretion was er­
roneously exercised under the circumstances appearing in 
the record.

ARGUMENT 
I (a)

The Cause is Moot Because of the Repeal of Act No, 7J/1.
It is respectfully submitted that, Act No. 741 of the Acts 

of 1956 having been repealed effective April 24, 1957, the 
question whether a preliminary injunction should have been 
issued by the District Court is now moot, that there is now 
no actual controversy and no subject matter upon which 
tire judgment of the Court can operate, and that under set­
tled principles the appeal should be dismissed.



O. L. Bryan, et al„ A ppellants, vs. M. G. Austin, Jr., A ppellees 5

Mills v. Green, 159 U. S. 651;
New Orleans Flour Inspectors v. Glover, 160 U. S. 170;
Dinsmore v. Southern Express Go., 183 U. S. 115, 120;
Metzger Motor Gar Co. v. Parrott, 233 U. S, 36;
Berry v. Davis, 242 U. S. 468;
United States v. Alaska S. S. Co., 253 U. S. 113;
Dorchy v. Kansas, 264 U. S. 286, 289;
National Milk Producers v. City & County of San Fran­

cisco, 317 IT. S. 423.
In Mills v. Green, 159 U. S. 651, 653, the Court held:

“ The duty of this court, as of every other judicial 
tribunal, is to decide actual controversies by a judg­
ment which can be carried into effect, and not to give 
opinions upon moot questions or abstract propositions, 
or to declare principles or rules of law which cannot 
affect the matter in issue in the case before it. It neces­
sarily follows that when, pending an appeal from the 
judgment of a lower court, and without any fault of 
the defendant, an event occurs which renders it impos­
sible for this court, if it should decide the case in favor 
of the plaintiff, to grant him any effectual relief what­
ever, the court will not proceed to a formal judgment, 
but will dismiss the appeal. And such a fact, when not 
appearing on the record, may be proved by extrinsic 
evidence.”

And further, at page 657:
“The lower courts of the United States, and this court, 

on appeal from their decisions, take judicial notice of 
the constitution and public laws of each State of the 
Union.”

In New Orleans Flour Inspectors v. Glover, 160 U. S. 170, 
it was held:

“ The decree below enjoined appellants from enforc­
ing against appellees Act No. 71 of the extra session of 
the general assembly of Louisiana of 1807, (Session 
Laws La. Ex. Sess. 1870, 156). This act was repealed 
June 28, 1892, (No. 23 of 1892, Acts La. 1892, 34), and 
the appeal is dismissed on the authority of Mills v. 
Green, 159 U. S. 651.”



6 O. L. Bryan, et al., A ppellants, vs. M. G. Austin, Jr., A ppellees

Any suggestion that may be made that this Court should 
retain the cause and consider the validity and effect of the 
1957 repealing act, in lieu of the repealed 1956 act, is an­
swered by the holding of the Court in United States v. Alaska 
S. S. Co., 253 U. S. 113. In that case, the District Court of 
three judges had held that the Interstate Commerce Com­
mission had no authority to prescribe the terms of carriers’ 
bills of lading, and an injunction pendente lite against the 
Commission was granted. Pending the appeal, the Trans­
portation Act of 1920 was passed by Congress. This Court 
held:

“ The Transportation Act of 1920, passed pending this ap­
peal, makes it evident (and it is in fact conceded in the brief 
filed by appellants) that changes will be required in both 
forms of bills of lading in order that they may conform to the 
requirements of the statute. We need not now discuss the 
details of these changes. It is sufficient to say that the act 
requires them as to both classes of bills. We are of opinion 
that the necessary effect of the enactment of this statute is to 
make the cause a moot one. In the appellants’ brief it is in­
sisted that the power of the Commission to prescribe bills of 
lading is still existent, and has not been modified by the pro­
visions of the new law. But that is only one of the questions 
in the case. It is true that the determination of it underlies 
the right of the Commission to prescribe new forms of bills of 
lading, but it is a settled principle in this court that it will 
determine only actual matters in controversy essential to the 
decision of the particular case before it. Where by an act of 
the parties, or a subsequent law, the existing controversy has 
come to an end, the case becomes moot and should be treated 
accordingly. However convenient it might be to have decided 
the question of the power of the Commission to require the 
carriers to comply with an order prescribing bills of lading, 
this court ‘is not empowered to decide moot questions or ab­
stract propositions, or to declare, for the government of fu­
ture cases, principles or rules of law which cannot affect the 
result as to the thing in issue in the case before it . . .’

“ In the present case what we have said makes it apparent 
that the complainants do not now need an injunction to pre­
vent the Commission from putting in force bills of lading in



O. L. Bryan, et al., A ppellants, vs. M. G. A ustin, Jr., A ppellees 7

the form prescribed. The subsequent legislation necessitates 
the adoption of different forms of bills in the event that the 
power of the Commission be sustained. This legislation, hav­
ing that effect, renders the case moot. Berry v. Davis, 242 
U.S. 468.”

Moreover, the 1957 Act applies to memberships in all asso­
ciations, and does not prohibit employment on account of 
any such membership. Its validity and effect may properly be 
considered only upon its actual application to his detriment 
to some party complaining thereabout.

I (b)
No Justiciable Controversy Was Presented.

It is respectfully submitted that no issue justiciable in the 
present action was or is presented by the pleadings and evi­
dence, since the appellants had no tenure under the South 
Carolina school laws and no contractual relationship with 
the school district at the time of the commencement of this 
action, and there was neither allegation nor proof that there 
are, or at the time of the commencement of this action were, 
any teaching positions unfilled in the school district, No 
damages were sought by the appellants in this action, and 
there were in existence no positions as to the filling of which 
the Court could by its judgment require the appellants to be 
considered by the appellees.

It is also submitted that there is no evidence that any 
appellant was aggrieved by the provisions of Act No. 741, 
Section 1 of the Act prohibits the employment of a member 
of the NAACP by the School District but only one of the 
appellants was, on May 15, 1956, a member of the NAACP 
and no Appellee knew that she was a member. The Appel­
lants were not considered for employment because none filed 
an application for employment and most signed a resigna­
tion, the effect of which was to withdraw his or her name 
from consideration. Section 2 of the Act requiring the dis­
charge of a School District employee who refuses to answer 
whether he or she is a member of NAACP is not applicable 
since no Appellant was discharged. App. 45a.

The requirements of case or controversy are no less strict 
under the Declaratory Judgments Act than in case of other



8 O. L. Bryan, et a l„  A ppellants, vj. M. G. A ustin, Jr., A ppellees

suits, Altvater v. Freeman, 319 U.S. 359, 363, and a contro­
versy must be a real and substantial admitting of specific- 
relief through a decree of a conclusive character, as distin­
guished from an opinion advising what the law would be 
upon a hypothetical state of facts, and must be one that is 
appropriate for judicial determination, as distinguished from 
one that is academic or moot, Aetna Life Ins. Co. v. Haworth, 
300 U.S. 227, 240, 241. Cf. United Public Workers v. Mitchell, 
330 U.S. 75, 89, 90, 91.

In Coffman v. Breeze Corporations, 323 U.S. 316, 323, 324, 
the Court held:

“Appellant thus fails to assert any right of recovery at law 
in the present suit or to show that its remedy available at law 
is so inadequate as to entitle it to ask an equitable remedy.***

“ So far as the present suit seeks a declaratory judgment or 
an injunction restraining payment of the royalties into the 
Treasury, it raises no justiciable issue. Appellant asserts in 
the present suit no right to recover the royalties. It asks only 
a determination that the Royalties Adjustment Act is uncon­
stitutional and, if so found, that compliance with the Act be 
enjoined, an issue which appellee by its answer declines to 
contest. If contested the validity of the Act would be an issue 
which, so far as it could ever become material, would prop­
erly arise only in a suit to recover the royalties, where it 
could be appropriately decided.

“In the circumstances disclosed by the record and for pur­
poses of the present suit, the constitutionality of the Act is 
without legal significance and can involve no justiciable 
question unless and until appellant seeks recovery of the 
royalties, and then only if appellee relies on the Act as a 
defense. The prayer of the bill of complaint that the Act be 
declared unconstitutional is thus but a request for an ad­
visory opinion as to the validity of a defense to a suit for 
recovery of the royalties. * * * The bill of complaint thus fails 
to disclose any ground for the determination of any question 
of law or fact which could be the basis of a judgment adjudi­
cating the rights of the parties.”

The appellants in the instant case have not alleged or 
proved a case in which the Court can grant relief, since there



O. L. Bryan, et at., A ppellants, vs. M. G. A ustin, Jr., A ppellees 9

are no positions unfilled in the school district’s schools, and 
hence none in the filling of which the Court can by its judg­
ment order that the appellants be considered. “ The thing 
sought to be prohibited has been done, and cannot be undone 
by any order of court.” Jones v. Montague, 194 U.S. 147, 153. 
Their remedy is by an action for the recovery of the damages 
which they may allege and prove that they sustained by 
reason of alleged illegal acts of the appellees, and the consti­
tutionality of the legislative act complained of will be an 
issue to be considered by the Court if it is relied on by the 
appellees as a defense. To grant a declaratory judgment in 
the instant case as to the validity of the act would be to de­
termine the validity of a defense based thereon in another 
action before it has been instituted. The situation here is 
similar in substance to that considered in Coffman v. Breeze 
Corporations, supra, and it is respectfully submitted that 
the instant case comes within the principle which governed 
the decision there.

The appellants in the District Court relied upon A lston v. 
School Board of City of Norfolk, 4 Cir., 112 P. 2d 992, 130 
A.L.R. 1506, certiorari denied, 311 U.S. 693, but that case the 
situation was not like that existing on the day the instant 
action was commenced in September, 1956, by which time 
all the teaching positions in the school district had been 
filled. The situation in the Alston case was like that existing 
in May, 1956, when the employment of the appellants was 
under consideration, or later up to the time when the teach­
ing positions were all filled.

II.
There Was No Abuse of Discretion in Denying an 

Interlocutory Injunction
It is respectfully submitted that the appeal herein should 

be dismissed, or in the alternative that the order appealed 
from should be affirmed, upon the ground that there is lack 
of substance in the question sought to be presented to this 
Court, in that it does not appear that the District Court 
erroneously exercised its discretion in staying proceedings in 
the action under the circumstances appearing in the record.



10 O. L. Bryan, et ai., A ppellants, vs. M. G. A ustin, Jr., A ppellees

Since the District Court has rendered no final judgment 
we do not discuss the merits of this case. (App. 42a). The 
appeal here is from the failure of that Court to grant an 
interlocutory injunction. Usually a temporary or interlocu­
tory injunction is granted only when the Court concludes 
that the status quo should be maintained until a judgment 
on the merits. The issuance of such an injunction is discre­
tionary and will not be issued unless irreparable injury may 
otherwise result. Yalciis v. U. S., 321 U.S. 414, 440; Rice v. 
Lathrop, 278 U.S. 509, 514.

Here there is no status quo to maintain. Either on May 31, 
1956 or on June 30, 1956 the employment contracts of the 
Appellants expired. On or about May 15, 1956 all of the 
Appellants were notified and understood that they would 
not be considered for employment for the school term begin­
ning September 4, 1956. In fact, most of them signed resigna­
tions which they understood operated as withdrawals of their 
names from employment consideration.

No Appellant asked the Trustees or the County Board of 
Education to review the decision that they not be employed 
though such a remedy was available (App. 47a). No Appel­
lant took advantage of his right of review in the South Caro­
lina Courts (App. 46a). As teachers, each knew that the 
Trustees would have to fill the teaching positions at some 
time between May 15th and September 4th when school 
opened. Yet they waited until September 10th to institute 
this suit.

Under these circumstances there was no abuse of discretion 
in refusing a temporary injunction.

CONCLUSION
For the reasons herein assigned it is urged that the Appeal 

be dismissed or in the alternative the judgment below be 
affirmed.

A. J. Hydrick, Jr.
Marshall W illiams 
Kobert McC. F igg, Jr.
P. H. McEachin 
David W. Robinson 

Attorneys for Appellees
Mav 1957.



O. L. Bryan, et a!., A ppellants, v s . M, G. Austin, Jr., A ppellees 11

Page 51
APPELLEES’ APPENDIX

(R324, H1462)
An Act To Authorize State, County, And Municipal Offi­

cers, Departments, Boards And Commissions, And All School 
Districts, To Require Written Applications For Employment 
And To Prescribe The Form Thereof, And To Repeal Act No. 
11,1 Of The Acts Of 1956.
Be it enacted by the General Assembly of the State of South 

Carolina:
SECTION 1. State, county, and municipal officers, de­
partments, boards and commissions, and all school districts 
in this State, shall require applications in writing for em­
ployment by them, upon such application forms as they may 
severally prescribe, which shall include information as to 
active or honorary membership in or affiliation with all mem­
bership associations and organizations.
SECTION 2. The provisions of this act shall not apply to 
any office or position which by law is filled by the vote of the 
qualified electors in any general or special election. 
SECTION 3. Act No. 741 of the Acts and Joint Resolutions 
of the General Assembly of the State of South Carolina in 
the Regular 1956 Session, and also all other acts or parts of 
acts inconsistent with the provisions of this act are repealed. 
SECTION 4. This act shall take effect upon approval by 
the Governor.
In the Senate House the 23rd day of April
In the Year of Our Lord One Thousand Nine Hundred and
Fifty-seven.

Ernest F. Hollings,
President of the Senate.

Solomon Blatt,
Speaker of the Rouse of Representatives. 

Approved the 24th day of April, 1957.
George Bell Timmerman, Jr.,

Governor.
Printer’s No. 74— S.