Covington v. Edwards Brief and Appendix of Appellees

    BRIEF AND APPENDIX OF APPELLEES

United States Court of Appeals 
for the Fourth Circuit

No. 7802

H E L E N  COVINGTON, et  a l„
Plaintiffs-A ppellan ts, 

v.

j .  S. EDW ARDS, S u p e r in t e n d e n t  of S chools of 
M ontgomery  Co u n ty , N orth  Ca ro lina , et  a l .,

Defendants-A ppellees.

Appeal from the United States District Court for the 
Middle District of North Carolina

f i l e d
FEB 2 ;> 1959

Garland S. Garriss 
Troy, North Carolina

T hom as F. E l lis  
Raleigh, North Carolina

Counsel for Appellees



TABLE OF CONTENTS
Page 

... 1S ta tem en t  of Ca s e ......... .

P oints  I nvolved ............

Sta tem en t  of t h e  F acts

A rgu m en t  ........ ...................

I. The Plaintiffs Failed to State a Cause of Action Both in 
the Complaint, with Amendments, and in the Proposed 
Amended and Supplemental Complaints Against the De­
fendants on Which Relief Could Be Granted; That No 
Facts Have Been Alleged in the Complaint to Show That 
an Actual Controversy Exists so as to Give Jurisdiction to 
Enter Any Judgment or Decree Declaring the Rights of
the Plaintiffs................................... -....................................  7

II. The Members of the State Board of Education and the 
State Superintendent of Public Instruction Are Not Nec­
essary and Proper Parties to the Action............................  20

C onclusion  ..... ......................................... -.............. — ...............................-  21

A ppen d ix  :

A. North Carolina Assignment and Enrollment of Pupils
Act ............................................................ -.................  App. 1

B. Order of Judge Hayes of April 26, 1956..................... App. 4

TABLE OF CASES

Aldredge v. Williams, 44 U. S. 9, 24, 11 L. Ed. 469, 476.............  15

Briggs v. Elliott, 132 F. Supp. 776...............    9

Brown v. Board of Education, 347 U. S. 483 .................................  4

Brown v. Board of Education, 349 U. S. 294.................................  4



Page

Carson v. Board of Education of McDowell County, 277 F. 2d 
789 ......................................................... .....................  7, 8, 10, 19

Carson v. Warlick, 238 F. 2d 724, cert. den. 353 U. S. 910 .... 7, 8, 11

Constantian v. Anson County, 224 N. C. 221, 93 S. E. 2d 163 .... 9, 20

Covington v. Montgomery County School Board, 139 F. Supp.
!61 ............................. ............................................ ............  6, 7, 21

Dewey v. U. S., 178 U. S. 510, 521, 44 L. Ed. 1170, 1174,
59 C. J. 1017 ........................ ...... ................................................  15

Goldsmith v. U. S. Board of Tax Appeals, 270 U. S. 117............... 14

Highland Farms Dairy v. Agnew, 300 U. S. 608, 616-17, 81 L. Ed. 
835,842 ............................. .................................................... 1.5. 19

Holland v. Board of Public Instruction of Palm Beach County,
258 F. 2d 730 ...................... .........................................................  8

Hood v. Board, 232 F. 2d 626, cert, denied 352 U. S. 870............. 19

International L. & W. v. Boyd, 347 U. S. 22, 98 L. Ed. 650 .... 16, 19

Kelly v. Board of Instruction of City of Nashville, 159 F. Supp 
272 ......................................... ..................... ........................... . . 8

Porter v. Investors Syndicate, 286 U. S. 461, 76 L. Ed. 1226.......  13

Robinson v. St. Mary’s Board of Education, 143 F. Supp. 481.....  19

San Francisco Lodge v. Forrestall, 58 F. Supp. 466, 468, 469 .. 17, 19

Vandalia R. Co. v. Public Service Co., 242 U. S. 255, 261, 61 L.
Ed. 276, 286 .........................................................................  14, 19



United States Court of Appeals 
for the Fourth Circuit

No. 7802

H E L E N  COVINGTON, et  a l .,
Plaintiffs-A ppellants,

v.

J. S. EDW ARDS, S u pe r in t e n d e n t  of S chools of 
M ontgomery  Co u n ty , N orth  Ca ro lin a , et  a l .,

Defendants-A ppellees.

Appeal from the United States District Court for the 
Middle District of North Carolina

BRIEF OF APPELLEES

STATEMENT OF THE CASE

On the 6th day of October, 1958, the District Judge 
entered his Judgment (Plf. Appdx. p. 55a) dismissing the 
action, on defendants’ motion, for failure to state a claim 
on which relief could be granted and denying plaintiffs’ 
motion for leave to file amended and supplemental complaint 
and to add parties defendant.

In the complaint filed on July 29, 1955 (Plf. Appdx. p. 
4a), and the subsequent amendments of August 12, 1955 
and December 16, 1955 (Plf. Appdx. p. 10a and 33a), 
the plaintiffs contended: that infant-plaintiffs satisfy re­



2

quirements for admission to the schools of Montgomery 
County; that the Superintendent and County Board of 
Education maintain and supervise certain schools in said 
County “for the education of white children exclusively and 
other schools in the said County for the education of Negro 
children exclusively” ; that plaintiffs petitioned the Board 
on September 7, 1954, to abolish segregation in their district, 
but said Board refused; that Article IX, Section 2, of the 
North Carolina Constitution provides that children of the 
white race and children of the colored race be taught in 
separate public schools and that customs, practices and 
usages of the Montgomery County school officials as applied 
to the plaintiffs deprives them of equal protection of the 
laws in violation of the Fourteenth Amendment to the 
Constitution of the United States; that plaintiffs and those 
similarly situated suffer and are threatened with irreparable 
injury and have no adequate or complete remedy to redress 
these wrongs other than their suit for injunction; that a 
class action is proper. Plaintiffs then prayed fo r : an inter­
locutory and permanent injunction declaring Article IX, 
Section 2, of the North Carolina Constitution, and any 
customs, practices and usages pursuant to which plaintiffs 
are segregated in their schooling because of race, in viola­
tion of the Fourteenth Amendment of the United States 
Constitution; an interlocutory and permanent injunction 
ordering defendants to promptly present a plan of desegre­
gation to this Court which will desegregate the schools and 
forever restrain and enjoin defendants from thereafter re­
quiring these plaintiffs and all other Negroes of public 
school age to attend or not to attend the public schools of 
Montgomery County because of race.

On September 13, 1956, plaintiffs filed a motion for leave 
to file an amended and supplemental complaint (Plf. Appdx. 
p. 36a and 39a). The motion to file an amended and sup­



3

plemental complaint, which was denied by the District Judge 
below and from which the plaintiffs now appeal, alleges in 
addition to what was set forth in the original complaint th a t: 
the State Board of Education and the State Superintendent 
of Instruction should be added as parties defendant because 
of their broad supervisory powers over the public schools 
of North Carolina; the enactment of Articles 34 and 35 
of Chapter 115 of the General Statutes of North Caro­
lina on or about July 23, 1956, which authorized educational 
expense grants and local option to suspend operation of 
public schools, had as their sole purpose and effect the 
continuation of racial segregation in the public schools of 
this State; the resolution by the General Assembly of 
North Carolina in August 1956 entitled “Resolution of 
Condemnation and Protest” had as its purpose a public 
policy to continue segregation of the races in public edu­
cation. The prayer for relief in the amended and supple­
mental complaint was substantially the same as requested in 
the original complaint.

In the Appellants’ Brief, under the “Statement of the 
Case”, page 3, the following statement is found: “It should 
be observed that the North Carolina Advisory Committee 
on Education petitioned the Court for the right to appear 
in this case, take depositions and otherwise participate (App. 
27a, 28a), that said motion was granted (App. 29a), and 
that a further motion of said Committee was granted allow­
ing it to be present at any legal proceeding in the action 
(App. 32a).” The Court will observe from a cursory ex­
amination at the pages referred to in Appellants’ Appendix 
that the counsel for the North Carolina Advisory Committee 
on Education petitioned the Court for permission “to be 
present at any legal proceedings in the above entitled action, 
including the taking of depositions and other preliminary



4

hearings” and that the Court entered an Order allowing said 
counsel and members of the Advisory Committee “to be 
present during any legal proceedings or preliminary hear­
ings in the above entitled action”.

POINTS INVOLVED

The questions presented to this Court for determination 
are whether the District Court erred in concluding th a t:

1. The plaintiffs failed to state a cause of action both 
in the complaint, with amendments, and in the proposed 
amended and supplemental complaints against the defend­
ants on which relief could be granted; no facts have been 
alleged in the complaint to show that an actual controversy 
exists so as to give jurisdiction to enter any judgment or 
decree declaring the rights of the plaintiffs.

2. The members of the State Board of Education and 
the State Superintendent of Public Instruction were not 
necessary and proper parties to the action.

STATEMENT OF THE FACTS

On September 7, 1954, plaintiffs petitioned the Board 
of Education of Montgomery County to abolish segregation 
in the schools in their district. This petition was filed with 
the defendant School Board about four months after the 
first order in Brown v. The Board, 347 U. S. 483, and some 
eight months prior to the implementing decision in Brown 
v. The Board, 349 U. S. 294. Immediately following the 
presentation of the petition the Montgomery Board of Edu­
cation passed a resolution in accord with the State Board 
of Education resolution of June 3, 1954, which said in p a r t:



5

“The Court (Supreme Court of the United States) has 
ruled in actions pending before it that segregation of 
pupils on the basis of race is unconstitutional. The 
Court has adjudicated a principle, but not the proce­
dures through which the principle shall be implemented 
and effectuated. The Court has called for future hear­
ings and arguments at the October term, 1954, before 
issuing a final decree directing the course of action to be 
followed.” (Plf. Appdx. p. 14a)

Three of the petitioners signed the complaint of July 29, 
1955, almost a year after the original petition, and stated 
in the complaint in paragraph 5 and 6 thereof, that “on 
September 7, 1954, plaintiffs petitioned the Board of Edu­
cation of Montgomery County to abolish segregation in the 
schools in their district. Said Board refused to desegregate 
the schools within its jurisdiction” (Plf. Appdx. p. 7a). It 
is obvious from the plaintiffs’ brief that they bottom their 
case in large measure on the above stated facts (P lf. Brief 
p. 5).

However, prior to the filing of the original complaint in 
this action, the Board of Education of Montgomery County 
on July 26, 1955, created a study commission and recognized 
and assumed the transfer from the State to their adminis­
trative unit of complete authority over the enrollment and 
assignment of children in the public schools. Cognizant of 
this newly delegated duty the Board adopted a resolution 
at this time which set forth in detail administrative rules and 
regulations by which any child dissatisfied with the assign­
ment by the Board could file application for change of as­
signment with right of a hearing before the Board (Plf. 
Appdx. pp. 17a, 20a).

The plaintiffs chose to ignore the “Pupil Assignment Act” 
of North Carolina which was in full force and effect at the 
time of filing of the complaint and further chose to ignore



6

the administrative rules and regulations set up by the defend­
ant prior to the filing of the complaint.

Thus, the statement of facts contained in the plaintiffs’ 
Brief in the last paragraph on page 6 and continuing- 
through page 7 states an erroneous conclusion of law : the 
public schools of Montgomery County were being operated

. . in the manner in which they were operated prior to the 
adoption of the resolutions quoted above, that is, on a 
segregated basis.” It seems clear from a reading of the 
resolutions that the Board recognized in the 1954 resolu­
tion that the Supreme Court of the United States had ruled 
that segregation in the public schools was unconstitutional 
and that in the second resolution they recognized that the 
delegated duty of assigning children within their adminis­
trative unit could no longer be on a racial basis but must 
follow the “Pupil Assignment Act” of North Carolina as 
enacted by the Legislative session of 1955 (Def. Appdx.
p. 21).

Thus, the conclusions of law and fact appearing in the 
plaintiffs’ “Statement of Facts” on page 7 is not in accord 
with state policies, county policies nor with the mandates 
of the Supreme Court of North Carolina and the Fourth 
Circuit, which will be argued later in this brief.

It is the defendants’ contention that a cursory reading 
of the complaint that plaintiffs, through counsel, in the face 
of Judge Hayes’ Opinion of April 7, 1956, in the instant 
action ( Covington v. Montgomery School B o a r d 139 F. 
Supp. 161) and his further Order of April 26, 1956 (Def. 
Appdx. p. 24), were not and are not now making any 
attempt to comply with the statutes of North Carolina. 
Statutes construed and approved by the Circuit Court of 
this District as well as the heretofore referred to opinions 
and orders of the District Judge in the pending action.



7

ARGUMENT

I.

The Plaintiffs Failed to State a Cause of Action Both in 
the Complaint, with Amendments, and in the Proposed 
Amended and Supplemental Complaints Against the 
Defendants on Which Relief Could Be Granted; Ih at  
No Facts Have Been Alleged in the Complaint to Show 
That an Actual Controversy Exists so as to Give Juris­
diction to Enter Any Judgment or Decree Declaring the 
Rights of the Plaintiffs.
The plaintiffs state in their argument (P lf. Brief pp. 7, 

8 and 9) to this Court that this action is not governed by 
the decisions of the Fourth Circuit in Carson v. Board of 
Education of McDowell County, 277 F. 2d 789, and Carson 
v. Warlick, 238 F. 2d 724, cert, denied 353 U. S. 910. They 
allege that the difference in this case and in the above re­
ferred to actions was that the appellants there sought ad­
mission to a particular school and had not employed the 
“Pupil Assignment Act” for the purpose of obtaining ad­
mission to a “particular” school. They state that the plain­
tiffs in this case have not requested admission to a “particu­
lar” school but have merely requested abolition of what is 
“admittedly” a policy of assignment by race—thus, in the 
“teeth” of Judge Hayes’ Opinion in the instant action, 
Covington v. Montgomery County School Board, supra, 
wherein it is stated at page 163:

“The validity of that part of the North Carolina Con­
stitution requiring separate schools for the two races 
is no longer the subject for legal controversy. Nor is 
any statute— state or local—or order of a Board com­
pelling segregation in the public schools, a legal con­
troversy now.”



8

The plaintiffs quote at length from Holland v. Board of 
Public Instruction of Palm Beach County, 258 F. 2d 730, 
and they term it an “important” distinction between the 
Carson opinions and where individual plaintiffs have not 
requested admission to any particular school. However, 
they failed to quote at page 9 of their brief a basic sentence 
which should appear at the end of the first quoted paragraph, 
namely:

“In the light of compulsory residential segregation of 
races by city ordinance, it is wholly unrealistic to as­
sume the complete segregation existing in public schools 
is either voluntary or the incidental result of valid rules 
not based on race.” (Emphasis supplied)

There is no ordinance, order or regulation of defendants 
set forth in the plaintiffs’ complaint that they would segre­
gate the races in the public school. On the contrary, the reso­
lutions and regulations adopted by the Board clearly 
recognize the mandate of the Supreme Court in both 
Brown decisions, the laws enacted by the General As­
sembly of North Carolina in 1955 abolishing race as a 
factor to be considered in the assignment of pupils to public 
schools and the duty to assign pupils in accordance therewith.

In Appellants’ brief (pp. 10 and 11) the decision of 
Judge Miller in Kelly v. Board of Instruction of City of 
Nashville, 159 F. Supp. 272, is quoted in part. We call the 
Court’s attention to the sentence in the paragraph quoted 
which reads as follows:

“This is true because the Court is of the opinion that 
the administrative remedy under the act in question 
would not be an adequate r e m e d y (Emphasis sup- 
plied)



9

Even if the defendants were to assume that decisions in 
other Circuits require District Courts to enter decrees on 
complaints asking for a declaration that compulsory segre­
gation is unconstitutional, it seems clear in the Fourth 
Circuit, since the decision in Briggs v. Elliott, 132 F. Supp. 
776, and the Carson cases, supra, that such a moot question 
does not require decision by the District Courts for each 
of the 174 administrative units in North Carolina. How­
ever, it is not necessary to look to the Federal Court deci­
sions, as the North Carolina Supreme Court in Constantian 
v. Anson County, 224 N. C. 221, 93 S. E. 2d 163, makes 
this step unnecessary:

“Its (Supreme Court of the United States) decision in 
the Brown case is the law of the land and will remain so 
unless reversed or altered by constitutional means. 
Recognizing fully that its decision is authoritative in 
this jurisdiction, any provision of the Constitution or 
Statutes of North Carolina in conflict therewith must 
be deemed invalid”.

The plaintiffs in their brief (p. 11) state:

“An administrative remedy must be adequate if a 
plaintiff is to be barred from a Federal Court for fail­
ure to have exhausted it.”

Thus, plaintiffs clearly recognize that they will be barred 
from the Federal Court if they fail to exhaust an adequate 
administrative remedy. If there is any law which is clearly 
settled in the Fourth Circuit, it is that the North Carolina 
“Pupil Assignment Act” is an adequate administrative 
remedy. Defendants hesitate to quote from the cases in this 
Circuit, but have no other choice in the light of plaintiffs’



10

obvious misconstruction of their clear meaning. In the 
first Carson case, 227 F. 2d 789, Judge Parker said:

“In further consideration of the case, however, the 
District Judge should give consideration not merely to 
the decision of the Supreme Court but also to subse­
quent legislation of the State of North Carolina pro­
viding an administrative remedy for persons who feel 
aggrieved with respect to their enrollment in the public 
schools of the state. The Act of March 30, 1955, en­
titled ‘An Act to Provide for the Enrollment of Pupils 
in Public Schools’, being chapter 366 of the Public 
Laws of North Carolina of the Session of 1955, pro­
vides for enrollment by the county and city boards of 
education of school children applying for admission to 
schools, and authorizes the boards to adopt rules and 
regulations with regard thereto. It further provides 
for application to and prompt hearing by the board in 
any case of any child whose admission to any public 
school within the county or city administrative unit has 
been denied, with right of appeal therefrom to the 
Superior Court of the county and thence to the Supreme 
Court of the State. An administrative remedy is thus 
provided by state law for persons who feel that they 
have not been assigned to the schools that they are 
entitled to attend; and it is well settled that the courts 
of the United States will not grant injunctive relief 
until administrative remedies have been exhausted. 
Myers v. Bethlehem Corp., 303 U. S. 41, 51; Natural 
Gas v. Slattery 302 U. S. 300, 310-311; Hegeman 
Farms Corp. v. Baldwin 293 U. S. 163, 172; United 
States v. Illinois Central R. Co., 291 U. S. 457, 463; 
Peterson v. Bryan, 290 U. S. 570, 575; Porter v. In­
vestor’s Syndicate, 286 U. S. 461; Matthews v. Rogers, 
284 U. S. 521, 525-526; Prewtis v. A. C. L. R. Co., 
211 U. S. 210.

“This rule is especially applicable to a case such as 
this, where injunction is asked against state or county



11

officers with respect to the control of schools maintained 
and supported by the state. The federal courts mani­
festly cannot operate the schools. All that they have 
power to do in the premises is to enjoin violation of 
constitutional rights in the operation of schools by 
state authorities. Where the state law provides ade­
quate administrative procedure for the protection of 
such rights, the federal courts manifestly should not 
interfere with the operation of the schools until such 
administrative procedure has been exhausted and the 
intervention of the federal courts is shown to be nec­
essary. As said by Mr. Justice Stone in Matthews v. 
Rodgers, supra (284 U. S. S25) : ‘The scrupulous re­
gard for the rightful independence of state govern­
ments which should at all times actuate the federal 
court, and a proper reluctance to interfere by injunc­
tion with their fiscal operations, require that such relief 
should be denied in every case where the asserted fed­
eral right may be preserved without it.’ Interference 
by injunction with the schools of a state is as grave a 
matter as interfering with its fiscal operations and 
should not be resorted to ‘where the asserted federal 
right may be preserved without it.’ ”

In the second Ccvrson case, 238 F. 2d 724, cert. den. 353 
U. S. 919, Judge Parker again discusses the North Carolina 
“Pupil Assignment Act” :

“While the presentation of the children at the Old 
Fort School appears to have been sufficient as the first 
step in the administrative procedure provided by statute 
the prosecution of a joint or class proceeding before the 
school board was not sufficient under the North Caro­
lina statute as the Supreme Court of North Carolina 
pointed out in its opinion; and not until the administra­
tive procedure before the board had been followed in 
accordance with the interpretation placed upon the 
statute by that court would applicants be in position to



12

say that administrative remedies had been exhausted.
“It is argued that the Pupil Enrollment Act is uncon­

stitutional; but we cannot hold that that statute is un­
constitutional upon its face and the question as to 
whether it has been unconstitutionally applied is not 
before us, as the administrative remedy which it pro­
vided has not been invoked. It is argued that it is un­
constitutional on its face in that it vests discretion in 
an administrative body without prescribing adequate 
standards for the exercise of the discretion. The stand­
ards are set forth in the second section of that act, G. S. 
115-177, and require the enrollment to be made ‘So as 
to provide for the orderly and efficient administration 
of such public schools, the effective instruction of the 
pupils enrolled, and the health, safety and general wel­
fare of such pupils’. Surely the standards thus pre­
scribed are not on their face insufficient to sustain the 
exercise of the administrative power conferred. As said 
in Opp Cotton Mills v. Administrator of the Wage and 
Hour Division of the Department of Labor, 312 U. S. 
126, 145: ‘The essentials of the legislative function 
are the determination of the legislative policy and its 
formulation as a rule of conduct. Those essentials are 
preserved when Congress specifies the basic conclu­
sions of fact upon ascertainment of which, from rele­
vant data by a designated administrative agency, it 
ordains that its statutory command is to be effective.’ 
The authority given the boards £is of a fact-finding 
and administrative nature, and hence is lawfully con­
ferred’. Sproies v. Binford, 286 U. S. 374. See also 
Douglas v. Noble, 261 U. S. 165, 169-170; Holt v. 
Geiger Jones Co., 242 U. S. 539, 553-554; Mutual Film 
Corp. v. Hodges, 236 U. S. 230, 245-246; Red “C” 
Oil Mfg. Co. v. North Carolina, 222 U. S. 380, 394.

“Somebody must enroll the pupils in the schools. 
They cannot enroll themselves; and we can think of no 
one better qualified to undertake the task than the offi­
cials of the schools and the school boards having the 
schools in charge. It is to be presumed that these will



13

obey the law, observe the standards prescribed by the 
legislature, and avoid the discrimination on account of 
race which the Constitution forbids. Not until they 
have been applied to and have failed to give relief 
should the courts be asked to interfere in school ad­
ministration. As said by the Supreme Court in Brown, 
et al v. Board of Education, et al, 349 U. S. 294, 299: 
‘School authorities have the primary responsibility for 
elucidating, assessing, and solving these problems; 
courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles’.”

The Supreme Court of the United States has held many 
times that Federal Courts are without jurisdiction to enjoin 
the enforcement of administrative orders where the complain­
ant has failed to exhaust the administrative remedy afforded 
to him by state statutes. In the case of Porter v. Investors 
Syndicate, 286 U. S. 461, 76 L. Ed. 1226, appears the 
following:

“We are of the opinion that the appellee failed to 
exhaust its administrative remedy before applying to 
the District Court for injunctive relief. The granting 
and revocation of permits is an exercise by the appellant 
of delegated legislative power . . .

“Clearly the function of the state district court under 
the statutory mandate is not solely judicial, that is, to 
set aside a decision of the commissioner if arbitrary or 
unreasonable and hence violative of constitutional 
rights. The duty is laid on the court to examine the 
evidence presented and either to set aside or to modify 
or to affirm the commissioner’s orders, as the proofs 
may require. The legislative process remains incom­
plete until the action on that shall have become final. 
Preintis v. Atlantic Coast Line Co., 211 U. S. 210, 229, 
230 53 L. Ed. 150, 160; Pacific Live Stock Co. v. 
Lewis, 241 U. S. 440, 444, 450, 451, 60 L. Ed. 1084,



14

1095, 1097, 1098. And the capacity in which the court 
acts is none the less administrative because the pro­
ceeding is designated as a suit in equity instead of by 
appeal. Keller v. Potomac Electric Power Co., 261 
U. S. 428, 438-442, 67 L. Ed. 731, 734-736.”

On a rehearing of the above-caption case the Supreme 
Court adhered to the opinion and decree above quoted and 
reiterated its lack of jurisdiction to pass upon the issues 
(287 U. S. 346, 77 L. Ed. 354):

“In this cause, reversing the decree of the United 
States District Court, we held (286 U. S. 461, 76 L. 
Ed. 1226) that the appellee had failed to exhaust the 
administrative remedy afforded by the Montana statute, 
and that the federal court was therefore without juris­
diction as a court of equity to enjoin enforcement of the 
State Auditor’s order.”

The rule which requires that plaintiffs exhaust their 
administrative remedies does not except cases where parties 
applying for relief allege the violation of rights secured by 
the Constitution. The U. S. Supreme Court said in Van- 
dalia R. Co. v. Public Service Co., 242 U. S. 255, 261, 61 
L. Ed. 276, 286:

“The general rule is that one aggrieved by the rul­
ings of such an administrative tribunal may not com­
plain that the Constitution of the United States has 
been violated if he has not availed himself of the rem­
edies prescribed by the state law for a rectification of 
such rulings. Bradley v. Richmond, 227 U. S. 477, 
485, 57 L. Ed. 603, 606.”

And in Goldsmith v. U. S. Board of Tax Appeals, 270 
U. S. 117, the Court said: “. . . Until he had sought a



15

hearing from the board, and been denied it, he could not 
appeal to the courts for any remedy, and certainly not for 
mandamus to compel enrollment.”

Any argument based on the proposition that plaintiffs 
will be denied relief under the “Pupil Assignment Act” does 
not relieve the plaintiffs from the necessity of exhausting 
administrative remedies. In Highland Farms Dairy v. 
Agnew, 300 U. S. 608, 616-17, 81 L. Ed. 835, 842, the 
court held:

“One who is required to take out a license will not be 
heard to complain, in advance of application, that there 
is danger of refusal. . . .  He should apply and see 
what happens.”

The plaintiffs can not complain that the defendants will 
not act in good faith under the “Pupil Assignment Act” 
nor that they threaten to make malicious use of legal proc­
esses of the State. There is no allegation in the complaint 
which tends to show that, availing themselves of the pro­
cedures provided for by the State, they will be any more 
embarrassing or injurious than litigation in the federal 
courts.

Any argument that may be advanced by the plaintiffs as 
to the purpose of the North Carolina Legislature in enacting 
the “Pupil Assignment Act” should not be considered by 
the court. On its face the statute is clear and unambiguous 
and in no way offends the Federal Constitution. Courts 
will construe the law as they find it and are not concerned 
with the motives of the Legislature when it passed the law. 
See AIdredge v. Williams, 44 U. S. 9, 24, 11 L. Ed. 469, 
476; Dewey v. U. S., 178 U. S. 510, 521, 44 L. Ed. 1170, 
1174; 59 C. J. 1017.

The complaint fails to state a cause upon which relief can



16

be granted as the judicial power of the federal courts extend 
only to actual cases or controversies and does not authorize 
the granting of advisory opinions. As set forth above, 
plaintiffs have not alleged that they are entitled to enroll­
ment in any particular school in Montgomery County, nor 
have they attempted to enroll their children or wards in a 
particular school and been refused admission thereto. As a 
matter of fact, nothing is alleged in the complaint as to any 
acts of the defendants which have violated any of the rights 
of the plaintiffs. It is apparent upon the face of the com­
plaint that the plaintiffs merely seek a ruling from this 
court ordering the indiscriminate integration of whites and 
Negroes in public schools. This is clear from the language 
in the prayer for relief requesting the court to permanently 
enjoin the defendants to promptly present a plan of desegre­
gation which will expeditiously desegregate the schools in 
Montgomery County.

The Supreme Court in denying a prayer for declaratory 
judgment and injunction said in the case of International 
L. & W. v. Boyd, 347 U. S. 222, 98 L. Ed. 650:

“Appellants in effect asked the District Court to rule 
that a statute the sanctions of which had not been set 
in motion against individuals on whose behalf relief 
was sought, because an occasion for doing so had not 
arisen, would not be applied to them if in the future 
such a contingency should arise. That it is not a lawsuit 
to enforce a rig h t; it is an endeavor to obtain a court’s 
assurance that a statute does not govern hypothetical 
situations that may or may not make the challenged 
statute applicable. Determination of the scope and con­
stitutionality of legislation in advance of its immediate 
adverse effect in the context of a concrete case involves 
too remote and abstract an inquiry for the proper 
exercise of the judicial function. United Public W ork­
ers v. Mitchell, 330 U. S. 75, 91 L. Ed. 754; see Musk­



17

rat v. United States, 219 U. S. 346, 55 L. Ed. 246, and 
Alabama State Federation of Labor v. McAdory, 325 
U. S. 450, 89 L. Ed. 1725. Since we do not have on the 
record before us a controversy appropriate for adjudi­
cation, the judgment of the District Court must be 
vacated, with directions to dismiss the complaint.”

In the case of San Francisco Lodge v. Forrestall, 58 F. 
Supp. 466, 468, 469, the court refused to take jurisdiction of 
the case, saying:

“An actual controversy is not one which may occur, 
but one which in fact exists.

“The record here conclusively shows that plaintiffs 
claim rests upon anticipation as to the future course of 
action of defendants and not upon a present actual 
factual issue.

“I am also of the opinion that the record does not 
disclose any grounds for general equitable relief by 
restraining order, injunction or the like. That a mem­
ber of plaintiff association may violate the rules of em­
ployment, that he may be discharged therefor, and he 
may be consequently denied clearance and referral— 
these are speculative and conjectural factors. State of 
Texas v. Interstate Commerce Comm., 258 U. S. 158, 
66 L. Ed. 531.

“It is alleged that the Secretary of the Navy has 
announced that he will discharge employees for in­
fractions of the W ar Labor Board order and will direct 
the W ar Manpower Commission to refuse clearances. 
This, plaintiff says, is a threat, that it constitutes com­
pulsion, for which equity should give relief. However, 
the threat, if it be such, at least as to clearances, is not 
real until an infraction by a member of plaintiff asso­
ciation is committed. National WTar Labor Board v. 
Montgomery W ard & Co., App. D. C., 144 F. 2d 528. 
Until then, at the earliest, no justiciable issue arises. 
It may never arise. No infraction may be committed, 
clearance may not be refused. That being the case, the



18

court, if it decided the matter now, would be doing 
no more than declaring a policy. Such is not a judicial 
function. Muskrat v. United States, 219 U. S. 346, 
55 L. Ed. 246; Ashwander v. Tennessee Valley Au­
thority, 297 U. S. 288, 80 L. Ed. 688.

“Inasmuch as no justiciable controversy exists, no 
cause of action is stated.”

The petition which three of the parties plaintiff filed on 
September 7, 1954, and referred to in paragraph five of the 
complaint (Plf. Appdx. p. 7a), asked for no specific relief 
for any one of the plaintiffs and in effect was nothing more 
than an expression of their opinion as to the law regarding 
the administration of the schools in Montgomery County. 
It is obvious that there is neither a case nor a controversy 
stated in the complaint of a justiciable nature over which 
this court can assume jurisdiction.

The plaintiffs conclude their argument by stating: “Plain­
tiffs would not presume to suggest the method by which such 
desegregation can be accomplished” (Plf. Brief p. 13). In 
other words, plaintiffs are requesting the federal courts to 
operate the public schools in the 174 administrative districts 
in the State of North Carolina. If they are not entitled to 
circumvent the approved administrative remedies provided, 
then plaintiffs must exhaust the administrative process en­
acted by the State before they can ask any federal court for 
relief.

There must be a specific act o f the board, in personam, 
subject to attack before a justiciable controversy arises. 
Administrative remedies must be taken initially or exclu­
sively and the courts have no right or function to anticipate 
the administrative decision. Here there has been no admin­
istrative relief initiated or exhausted. For the courts to 
intervene would be to nullify the statutes of North Carolina



19

and would be contrary to the decisions of the State Supreme 
Court and the Federal Circuit Court for this district.

Carson v. Board, supra, has clearly established the con­
stitutionality of the “Pupil Assignment Act.” The rule 
which requires plaintiffs to exhaust their administrative 
remedies does not except them from cases where complain­
ants apply for relief from alleged violation of rights re­
served by the constitution. Vandalio v. Pub. Service, supra. 
Any argument based on the proposition that plaintiffs will 
be denied relief under the laws of North Carolina does not 
relieve them of the necessity of exhausting administrative 
remedies. Highland Farm Dairies v. Agnezv, supra. The 
presumption must always be that the school board will act 
in good faith and within the laws of North Carolina and 
the United States.

There is nothing in the complaint which alleges any act 
or acts of the defendants which have violated any of the 
rights of the plaintiffs. As no justiciable controversy exists, 
no cause of action is stated. (San Francisco Lodge v. For- 
restall, supra; International L. & W. v. Boyd, supra.)

In Robinson v. St. M arys Board of Education (Dist. 
Court of Maryland, July 9, 1956), 143 F. Supp. 481, the 
motion to dismiss the complaint was granted in an action 
grounded on a petition to desegregate. The Court said that 
the plaintiffs must exhaust their administrative remedies 
by appealing first to the County Superintendent and thence 
to the State Board of Education, citing Carson v. Board, 
supra, and Hood v. Board, 232 F. 2d 626, cert, denied 352 
U. S. 870:

“. . . courts of equity decline all interference and 
leave parties to abide the summary decisions of those 
clothed with visitorial authority. . . . There is an ex­
ception where the exercise of discretion by the State



20

Board is ‘fraudulent or corrupt or such an abuse of 
discretion as to amount to a breach of trust’

The petition which the present plaintiffs filed on Septem­
ber 7, 1954, and referred to in paragraph five of the com­
plaint, asked for no specific relief for any one of the plain­
tiffs and in effect is nothing more than a request for an 
expression of opinion as to the law regarding the admin­
istration of the schools in Montgomery County. It is obvi­
ous that there is neither a case nor a controversy stated in 
the complaint of a justiciable nature over which this court 
can assume jurisdiction.

II.

The Members of the State Board of Education and the 
State Superintendent of Public Instruction Are Not 
Necessary and Proper Parties to the Action.

As the question of law involved with regard to plain­
tiffs’ motion to amend and file supplemental complaint re­
quests permission to add parties defendant, namely the State 
Board of Education and the State Superintendent of Public 
Instruction, defendants do not feel that this question should 
reach this court for decision provided the court below prop­
erly dismissed the complaint for failure to state a cause of 
action. However, should this Court determine that the lower 
court erred in dismissing the complaint, then the “Pupil 
Assignment Act” clearly places the duty and responsibility 
on the local boards of education for the assignment of 
pupils in the public schools. The State Board and Super­
intendent of Public Instruction no longer have control over 
assignment of pupils in North Carolina. They are not 
necessary parties to this action. See Constantain v. Anson 
County, supra.



21

Defendants also call to the Court’s attention to Judge 
Hayes’ earlier Opinion in the instant action. Covington v. 
Montgomery County School Board, 139 F. Supp. 161:

“A suit to restrain enforcement of the State-wide 
school law, applicable alike in each county of the State, 
although against only these officials in Montgomery 
County, is in reality a suit against State Officers. They 
are not enforcing the school law of Montgomery County 
but the school law of North Carolina in Montgomery 
County. Speilman Motor Sales Co. v. Dodge, supra.”

As this question is treated exhaustively in the brief to be 
filed by the Attorney General of North Carolina, defendants 
will not belabor this point further.

CONCLUSION

The opinion in the District Court below should be sus­
tained. As to the motion, and denial thereof, to amend and 
file supplemental complaint, we call the Court’s attention to 
Rule 15(a) and 15(d) of Federal Rules of Civil Procedure. 
The District Court is allowed wide discretion in allowing 
parties to file amended or supplemental pleadings after an 
action is at issue.

The complaint in this suit sets forth no facts and presents 
no claims for which the relief sought can be given. Plain­
tiffs claim no rights nor does it appear that, if there were 
such rights, and if plaintiffs have alleged them, that they 
are presently threatened with any invasion. Plaintiffs are 
in reality complaining of the fact that the schools in Mont­
gomery County are not now integrated. They are saying 
in effect that the defendant is required to integrate the 
schools. And further, that the Federal Court should act as 
a “school board” and fashion a plan of desegregation for



22

the schools of Montgomery County. The decisions in the 
Fourth Circuit are clearly contrary to such reasoning.

The judgment rendered by Judge Stanley on October 6, 
1958, should be affirmed.

Respectfully submitted,

Garland  S. Garriss 
Troy, North Carolina

T hom as F. E llis  
Raleigh, North Carolina

Counsel for Appellees



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