Clark v. Flory Petition
Public Court Documents
August 23, 1955

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Brief Collection, LDF Court Filings. Clark v. Flory Petition, 1955. 5984b5aa-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/24af8301-a230-4c55-80de-291daf9dd21a/clark-v-flory-petition. Accessed April 19, 2025.
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is>tate of i§s>outf) Carolina ttt tfje Supreme Court COLUMBIA, SOUTH CAROLINA Mrs. Etta Clark, Et Al ., Plaintiffs vs. C. H. Flory, Et Al ., Defendants P E T I T I O N John H. W righten, 230 Coming Street, Charleston, South Carolina, W. Newton Pough, P. 0. Box 81, Orangeburg, South Carolina Attorneys for Petitioners I N D E X Page Petition ................................................................ ...................... la-4a Order ........................................................................................... 5a-6a Statements ...........................................................................-...... 7a-Sa ££>tate of i£>outt) Carolina in tfje Supreme Court COLUMBIA, SOUTH CAROLINA Mrs. Etta Clark, Et Al ., Plaintiffs vs. C. H. Flory, Et Al ., Defendants P E T I T I O N The undersigned, Petitioners, through their attorneys, John H. Wrighten and W. Newton Pough, by leave of the United States District Court, Eastern District of South Carolina, Charleston Division, move before this Honorable Court for the purpose of having this Honorable Court to take jurisdiction of the above entitled action under the Constitution of South Carolina, Article 5, Section 4 of the Constitution of South Carolina. The same being taken with leave from the United States District Court, Eastern Dis trict of South Carolina, Charleston Division. The basis of this action is for an Order of Injunction, the grounds for which Order will hereafter more specifically appear. The jurisdiction of this Honorable Court is also sought under 15-121 Code of Laws of South Carolina, 1952 and Rules of the Supreme Court, Rule 20, Section 1. The issues raised by the Petitioners are of great Public interest, public welfare and they are peculiar in nature, to w it: The statutes in question exclude Colored People who are taxpayers in certain areas or sections of this State from the use of the Edisto State Park Beach. The statutes of the State of South Carolina; 51-181, 51-182, 51-183 and 51-184, Code of Laws, 1952 exclude Colored taxpayers from the full use and enjoyment of the property which has been set aside and designated for the use of the General Public and are being operated by the State of South Carolina out of Public funds; that the statutes when passed, was directed to Charleston County because it was the only County with a City that met the specifications as to population at that time making the said statutes local in its application when it should have been general in nature. The exclusion of Colored People who are taxpayers from the use of the Edisto State Park is believed to be a denial of the constitu tional rights of those taxpayers under the United States Constitution, the 14th Amendment and the Constitution of South Carolina, Article 1, Section 5, South Carolina’s Constitution of 1895. The above innumerated issues comes within the category as set out in Rule 20, Section 1 of the South Carolina Su preme Court Rules and are of great Public interest at least to a large segment of the population of the State of South Carolina. STATEMENT OF FACTS The Plaintiffs, Mrs. Etta Clark, J. Arthur Brown, John L. Chisolm and Charles C. Mason, Citizens of the State of South Carolina and the United States of America are residents of and domiciled in the County of Charleston, State of South Carolina. They are over the age of 21 and are taxpayers and property owners in the County of Charleston, State of South Carolina and of the United States of America. All of the Plaintiffs are classified as Negroes under the Laws of South Carolina. The Defend ants, C. H. Flory, C. West Jacocks, are members of the State Commission of Forestry, which said Commission was oa created under the laws of South Carolina and vested with power and authority to establish and supervise bathing- beaches, bathhouse facilities and other recreational facili ties for the benefit of citizens and residents of the State of South Carolina pursuant to authority vested in them under Section 29-1 of the 1952 Code of Laws of South Carolina and Section 51-1 of the 1952 Code of Laws of South Caro lina. Donald B. Cooler is the Superintendent of the Edisto Beach State Park, Edisto Island, South Carolina, who is appointed by the State Park Director, an instrumentality of the State of South Carolina with authority to maintain, supervise and control the operation of the recreational fa cilities maintained by the State, at Edisto Island, for the benefit and use of citizens of the State of South Carolina. On or about May 12, 1955, the Plaintiffs directed letters to Mr. J. M. Pope, who was then the Superintendent of the Edisto Beach State Park, asking and begging for the permission to use the said Park on May 25th, at about 11:30 A.M. for outdoor and recreational purposes, Mr. Donald B. Cooler, Superintendent of the Edisto State Park Beach, Mr. J. M. Pope’s successor in office, answered the communication, to w it: “ I have been instructed by our Central Office in Co lumbia to advise you that the Forestry Commission is not empowered with the authority to grant your per mission to visit Edisto State Park. This Park was established in 1935 for the exclusive use of White per sons, and based on custom and precedence, we will have to deny your request.” The Plaintiffs then instituted a cause of action against the Defendants in the United States District Court, Eastern District of South Carolina, Charleston Division. At the hearing in Charleston, South Carolina August 23, 1955, before the Honorable Ashton H. Williams, Judge of said Court, it was agreed by the Attorney for Plaintiffs and Defendants, that the sections of South Carolina’s Laws that were being challenged by Plaintiffs were never ruled upon by this Honorable Court. The Sections being; 51-181, 51- 182, 51-183 and 51-184 of the 1952 Code of Laws of South Carolina, and it therefore becomes necessary to have this Honorable Court construe and pass upon the validity of the above sections and as to their constitutionality. The issues are as follows: 1. Whether or not Sections: 51-181, 51-182, 51-183 and 51-184 of the Code of Laws of South Carolina, and the policy, custom and usage and practice of the Defendants under authority and color of said statutes, and otherwise, in denying on account of race and/or color to Plaintiffs and other Colored Citizens similarly situated, rights and privi leges of attending and making use of the bathing beach and bathhouse facilities at the Edisto State Park Beach, re pugnant to the 14th Amendment of the United States Con stitution and Article 1, Section 5 of the Constitution of South Carolina. 2. Whether or not these Sections are repugnant to Arti cle 3 of the Constitution of South Carolina, Section 34. 3. Whether or not Sections: 51-181, 51-182, 51-183 and 51-184 violates the Equal Protection Clause of the 14th Amendment to the United States Constitution and Article 1, Section 5 of the Constitution of South Carolina. 4. Whether or not Sections: 51-181, 51-182, 51-183 and 51-184 are violative of the Due Process of Law under the 14th Amendment of the United States Constitution and the 5a Constitution of South Carolina, Article 1, Section 5. Mrs. Etta Clark J. Arthur Brown John L. Chisolm Charles C. Mason Petitioners. John H. W righten W. Newton Bough Attorneys for Petitioners ♦ Copy Copy IN THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION C/A No. 5082 Mrs. Etta Clark, Et Al ., Plaintiffs vs. C. H. Flory, Et Al ., Defendants O R D E R This matter was heard today with reference to the ques tion of whether or not a three-judge court should be con vened to hear the issues herein. It was agreed by both parties that the case of Daivson, et al, vs. The Mayor and City Council of Baltimore would be controlling in this case. The defendants insisted that the case should be held in abeyance until an opportunity was afforded to the Supreme Court of the State of South Carolina to pass upon the con 6a stitutionality of the act. A full discussion was had in open court and both parties thereupon agreed that the matter would be submitted to the State Supreme Court to pass upon the questions involved, and specifically the question of the constitutionality of Sections 51-181 through 51-184, inclusive, of the 1952 Code of Laws of the State of South Carolina. It was further agreed that the federal court would retain jurisdiction until the questions raised in the complaint were passed on by the State Supreme Court. Accordingly, it is ORDERED that this court will retain jurisdiction of the above entitled case until the Supreme Court of the State of South Carolina has had an opportunity to pass upon the constitutionality of the above sections, and/or upon any other issues raised in the case over which the State Supreme Court would have jurisdiction. The parties are directed to take prompt and appropriate action to bring these matters before the Supreme Court of the State of South Carolina. A shton H. W illiams, United States District Judge Charleston, S. C. August 23, 1955. 7 a Copy Copy (The following is an excerpt of the proceedings held in the case of Mrs. Etta Clark, et al, vs. C. H. Flory, et al, C /A 5082, August- 23, 1955, at Charleston, S. C.) THE COURT: Let me get this clear. I understand that there is no objection by either side to the State Court pass ing on the constitutionality of this act. Is that correct? MR. WRIGHTEN: Yes, sir. MR. CALLISON: We have no objection. THE COURT: All right. Provided the federal court re tains jurisdiction for final action in the matter. MR, WRIGHTEN: Yes, sir. THE COURT: Do you have any objection to that, Mr. Callison? MR. CALLISON: Your Honor, that is exactly what the Dupre case held and directed. MR. VERN ER: We have no objection. THE COURT: Well, just make a statement as to what you agree to, Mr. Verner. MR. VERNER: We have no objection. THE COURT: Well, make a statement as to what you agree to and I will see whether he agrees to it, and I will put that in the form of an Order. MR. VERNER: We have no objection on behalf of the 8a State of South Carolina for this matter to remain pending and in status quo until the State Supreme Court of South Carolina has passed upon the questions involved in this ease. THE COURT: You can’t add anything to that? MR. WRIGHTEN: No, sir; but I should like to point out there that he said “questions involved in this case,” and we should like to be specific. Certainly we have no objec tion to letting the State Supreme Court of South Carolina pass on the constitutionality of those sections that we have quoted, which are Sections 51-181 through 51-184. I believe those are the sections. We have no objection to letting the State Supreme Court pass on the constitutionality of those sections. THE COURT: Well, as I understand it, that is the only question before the court. MR. VERN ER: Pass on the questions in the case, what ever they are. THE COURT: Well, the only question about constitu tionality of an act is the constitutionality of the act relat ing to Edisto Beach. MR. VERNER: That is all. But there are many phases of the constitutionality of the act, all phases that may come up under the constitution, state or federal. THE COURT: Well, it seems to me,— I don’t know,— that the federal court can retain jurisdiction. And it seems to me that the quickest and simplest way to get to the United States Supreme Court is to appeal from the Su preme Court of the State of South Carolina.