Clark v. Flory Petition

    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.