Davis v. Cook Brief in Opposition to Petition for Certiorari

    K ? 3

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1949.

No. 808.

SAMUEL L. DAVIS, Individually and on Behalf 
of Others Similarly Situated,

Petitioner,
v.

E. S. COOK et a!., Constituting the Board of 
Education of the City of Atlanta.

BRIEF IN OPPOSITION TO PETITION 
FOR CERTIORARI.

J. C. SAVAGE,
J. M. B. BLOODWORTH,

803 C. & S. National Bank Building, 
Atlanta 3, Georgia,

M. F. GOLDSTEIN,
B. D. MURPHY,

1130 C. & S. National Bank Building, 
Atlanta 3, Georgia,

Counsel for Respondents.

S t . L o u is  L a w  P r in t in g  Co ., 415 N orth  E igh th  Street. C E ntra l 4477.



INDEX.
Page

Statement .......................................................................  2
Brief and argument........................................................  5

1. The petition fails to comply with the rules.........  5
2. The case is not a proper one for issuance of the

writ of certiorari....................................................  9
There is no conflict, between decisions of Courts 

of A ppeal........................................................  13
Appendix .......................................................................  17

Cases Cited.
Bradley Lumber Co. v. National Labor Relations

Board, 84 F. (2) 97...........................  13
Cook et al. v. Davis et ah, No. 12,727, 178 F. (2) 595... 2
Larson v. Domestic & Foreign Commerce Corporation,

337 U. 8. 682................................................................ 9
Lehon v. City of Atlanta, 242 U. S. 53, at 56, 61 L. ed.

145, at 150.................................................................- 11
Myers v. Bethlehem Ship Building Company, 303 U. S.

41 ................................................................................  13
Natural Gas Pipe Line v. Slattery, 302 U. S. 300.........  13
Steele v. L. & N. R. Co., 323 U. S. 192...........................  12
Transpacific Air Lines v. Hawaiian Air Lines, 174 F.

(2) 63 ......................................................................... 13
Tunstall v. Brotherhood of Locomotive Firemen and 

Enginemen, 323 U. S. 210........................................... 12

Supreme Court Rules.
Rule 38, Paragraph 1 ...................................................  1, 5
Rule 38, Paragraphs 7 and 8....................................... 6
Rule 38, Subdivision 5 (b )...........................................  2

Statute Cited.
Code Section 32-414........................................................  14



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM. 1949.

No. 808.

SAMUEL L. DAVIS, Individually and on Behalf 
of Others Similarly Situated,

Petitioner,
v.

E. S. COOK et al., Constituting the Board of 
Education of the City of Atlanta,

BRIEF IN OPPOSITION TO PETITION 
FOR CERTIORARI.

Respondents respectfully submit this brief in opposition 
to the grant of the writ of certiorari in the above stated 
cause.

They show that the writ should be denied for the follow­
ing reasons:

1. The petitioner has not complied with Paragraph 1 of 
Rule 38 of this Court in that the petition was not accom­
panied by a certified transcript of the record in the case, 
including the proceedings in the court to which the writ is



2

asked to be directed. On the contrary, petitioner seeks a 
review in this Court by bringing forward only the plead­
ings, including the opinions of the District Court and the 
Court of Appeals, and certain exhibits, omitting all of the 
oral testimony and most of the documentary evidence. 
This evidence was before the Court of Appeals, and the 
conclusions of the Court of Appeals regarding the findings 
of the trial court were based upon this evidence, which is 
not before this Court.

2. The case does not fall within any of the classes of 
cases enumerated in subdivision 5 (b) of Rule 38.

The case is reported below as Cook et al. v. Davis et al., 
No. 12,727, 178 F. (2) 595.

STATEMENT.

This case was tried in the District Court for the North­
ern District of Georgia, where certain findings of fact and 
conclusions of law were entered by the District Judge. 
Judgment for the plaintiff there was reversed by the Court 
of Appeals for the Fifth Circuit with direction.

The suit is one to enjoin alleged discrimination on ac­
count of race or color in the payment of salaries to school 
teachers in the City of Atlanta. The complaint also sought 
declaratory relief that such discrimination existed. A brief 
resume of the facts may be helpful, since the complete 
record is not before the Court.

School teachers are paid in Georgia partly by State funds 
and partly by local funds. Atlanta is known as an inde­
pendent system, that is, it has the same standing as a 
county school system, but is governed by a City Board of 
Fiducation instead of a county board of education. The



persons who constitute the City Board of Education are 
the defendants here.

The Atlanta Board, as said by the Court of Appeals, ‘ ‘ de­
vised a nondiseriminatory scheme of individual classifica­
tion and salaries with which no fault is found,” which pro­
vided for the classification of all teachers on a basis of 
individual worth by committees established for that pur­
pose. The Superintendent was not a member of the com­
mittee, but provision was made for appeal to the Super­
intendent by any teacher who was dissatisfied with the 
action of the committee. The committee consisted of the 
Assistant Superintendent and certain white and colored 
supervisors. There were separate committees for white 
high school teachers and colored high school teachers, and 
separate committees for the white and colored grammar 
school teachers.

It was provided that any teacher who was dissatisfied 
with the action of the Superintendent on appeal could re­
quest the Board of Education to review the Superintend­
ent’s action, the only procedure required being that the 
request be made in writing within ten days from the action 
of the Superintendent.

All of the teachers were classified for the school year 
beginning September, 1944. Each teacher was notified of 
his classification and of what his basic salary would be.1

There were no formal appeals from the placement com­
mittees to the Superintendent. There were some informal 
appeals, all of which were handled satisfactorily to the 
complaining teacher, about equally divided between white 
and colored teachers. There were no appeals, formal or 
informal, from the Superintendent to the City Board, and 
no appeals of any sort to the State Board of Education,

l  T here w as a supplem ent, called a  bonus, of the basic salary, uniform  
in percen tage as to all teachers.

—  3 —



which has general appellate jurisdiction under the laws of 
the State.

The points presented to the Court of Appeals were:
(1) Should the motion to dismiss have been sus­

tained ?
(2) Are the findings of fact and conclusions of law 

of the trial judge authorized by the record and the 
evidence ?

The Court of Appeals for the Fifth Circuit reversed the 
trial judge and directed “ that the cause be remanded to 
the District Court and remain pending for a reasonable 
time to permit exhaustion of administrative remedies; and 
thereafter such further proceedings may be had as shall 
then appear to be proper.”

—  4 —



5

BRIEF AND ARGUMENT.

1.

The Petition Fails to Comply With the Rules.

As we understand Paragraph 1 of Rule 38, it requires 
that a petition for certiorari be accompanied by certified 
transcript of the entire record in the case, including the 
proceedings in the court to which the writ is asked to be 
directed. Petitioner here has filed as the record the printed 
portion of the record in the Court of Appeals for the Fifth 
Circuit, which is numbered pages 1 through 68 of the 
printed record here. To this he has added printed pages 
numbered 69 to 95, both inclusive, appearing in the printed 
record here, which contain certain extracts from the 
minutes of the Court of Appeals showing argument and 
submission to that Court, the opinion and judgment of the 
Court of Appeals, and the petition for rehearing, with the 
order denying it.

In addition to this printed record in the Court of Ap­
peals, petitioner has had transmitted as original documents 
from the District Court Plaintiff’s Exhibits Nos. 11, 12, 13, 
14 and 30, introduced in evidence in that Court.

It will be noted from page 68 of the printed record here, 
which page contains a certificate of the Clerk of the Dis­
trict Court to the Court of Appeals, that the pages certified 
by him as correct contain a correct copy of the original 
record “ except original physical exhibits and reporter’s 
transcript of evidence.”

There was filed in the Court of Appeals a motion by 
attorneys for appellants (respondents here) that the orig­
inal documentary evidence and the reporter’s transcript of 
the parol testimony be transmitted to the Court of Ap­
peals. This petition or motion was consented to by attor­



neys for appellee (petitioner here), who joined in the 
request. There was an order by the Senior Judge of the 
Court of Appeals for the Fifth Circuit granting the motion 
as prayed for. For the Court’s information, we attach to 
this brief as an exhibit a certified copy of this proceeding, 
which is also omitted from the record filed here.

Apparently the documentary evidence and the reporter’s 
transcript of the parol testimony were returned to the 
District Court with the mandate of the Court of Appeals, 
for counsel for petitioner on April 6, 1950, procured an 
order from the District Judge authorizing the Clerk to 
certify and transmit to the Supreme Court of the United 
States such portions of the original exhibits and records 
as might be requested by counsel.

Paragraphs 7 and 8 of Eule 38 of this Court relate to 
the printing of the record, and paragraph 8 contemplates 
that counsel by agreement dispense with printing any un­
necessary part of the record where it has to be printed for 
this Court. No such agreement has been made. But this 
has nothing to do with paragraph 1, which requires that 
the entire record be transmitted.

Petitioner here seems simply to have failed to comply 
with the rules, and that we think is and should be ground 
for denying the writ.

Apparently petitioner seeks to excuse the absence of the 
evidence by the statement in the petition (page 4), “ The 
findings of fact of the District Court, beginning at page 40 
of the record and reported in 80 F. Supp. 443, are adopted 
and accepted by the petitioner as a correct statement of 
the facts of the case and these findings were not disputed 
by the Court of Appeals.”

We do not think this adoption of the facts as stated by 
the District Judge can justify a failure to comply with the

—  6 —



7

rules of this Court. But we cannot agree with petitioner 
that the Court of Appeals did not dispute the findings of 
the District Judge. To the contrary, the Court of Appeals, 
178 F. (2) 599, made a detailed examination of the parol 
testimony and was dissatisfied with the weight given to it 
by the District Court. The Court of Appeals said:

“ The Superintendent and the defendants who testi­
fied say they are making a sincere, diligent and suc­
cessful effort to classify all their teachers according to 
their individual worth as teachers. No teacher but 
Davis (the plaintiff) testified, and he makes a very 
unimpressive case for himself.” (Emphasis supplied.)

The Court further said:

“ The decree is very vague; it could not be of much 
practical help to the Board. Nor could it be easily 
enforced, for it only states in general terms a duty 
which no one disputes, with no specifics at all pointed 
out.”

The Court of Appeals also did not agree with the con­
clusions of the District Judge concerning the remedy by 
appeal. The Court of Appeals said:

“ The appeal to the Atlanta Board from the deci­
sions of the Atlanta Superintendent and her aides as 
to individual placements and salaries is not to the 
same persons who did the wrong. The Board, after 
the ten days allowed for appeal, makes annual con­
tracts with the teachers recommended by the Superin­
tendent at the salaries recommended, but if the Su­
perintendent erred in making the recommendations, 
the members of the Board had no part in it, and may 
properly act to correct it. The State Board is even 
further removed from the error of the Atlanta Superin­
tendent.”



It is impossible for this Court to determine whether the 
conclusions of the Court of Appeals upon the facts are 
proper without the evidence before it.

Without the evidence before it, the Court cannot deter­
mine whether the Court below was right in concluding that 
the plaintiff had never appealed from his classification and 
placement on the salary scale.

The court below said:
“ The new Superintendent, Miss Jarrell, testified 

that Davis made no complaint; and since this suit was 
pending she asked him if he was still dissatisfied, and 
he said he ‘thought we were doing the best we could’; 
and she asked him to come and talk about his salary, 
but he never did. A few other teachers complained to 
her, and each complaint was satisfactorily adjusted. 
No one has ever appealed to the Atlanta Board or the 
State Board. Neither Davis nor any other witness 
denies this.”2

In his brief petitioner claims, “ Petitioner has conclu­
sively proved that he and other Negro teachers and prin­
cipals are being discriminated against in the administra­
tion of the salary scale and schedule under which the 
Atlanta Board of Education is operating.”

We deny the correctness of this bold statement, but its 
correctness depends upon the evidence, which is not here. 
This Court should not undertake to review a conclusion of 
the Court of Appeals that the only testimony in the record

2 A ctually th e  testim ony of Miss J a rre ll is a little  stronger than  tha t. 
Concerning Davis she testified:

“He cam e in to  my office and ta lked  to  me a t one tim e about an ­
o ther m atter, and I asked him  w hy he didn’t come in and ta lk  about 
h is salary  if he w as dissatisfied, and he said a t  th a t tim e he thought 
we w ere try ing  to  do th e  best job we possibly could, and he w as 
m oving (advancing in salary) and he was satisfied.”

W e take  the quotation from th e  appendix to  th e  brief filed in th e  Court 
of Appeals.



9

was that of Davis, and that he made a very unimpressive 
case for himself without the evidence before it.

As a matter of fact, the District Court and the Court of 
Appeals both say that the salary schedule adopted by the 
Atlanta Board is not discriminatory on its face. Whether 
or not it discriminates against any teacher on account of 
race or color or for any other reason is a matter of fact 
and of proof. An administrative remedy was provided for 
detecting discrimination, if any existed, and for detecting 
any injustice done any teacher for any reason. But the 
plaintiff did not avail himself of his administrative remedy, 
nor did he testify to discrimination against himself on ac­
count of race or color or for any other reason. No other 
teacher testified and the whole claim of discrimination is 
based entirely on figures.

2 .

The Case Is Not a Proper One for Issuance of the 
Writ of Certiorari.

Respondents see in this case no such unusual situation 
as to justify review by this Court. Had there been a ruling 
below adverse to petitioner upon the legal merits of the 
right of a Negro school teacher not to be discriminated 
against on account of race or color in the matter of pay­
ment of salary, the case might have been proper for adjudi­
cation here.

Nobody has disputed this legal right of the plaintiff, and 
the court below did not decide that against him.

If the court below had said, as respondents insisted it 
should say, that under the ruling by this Court in Larson 
v. Domestic & Foreign Commerce Corporation, 337 U. S.
682, and cases there cited, the suit was in purpose and 
effect one against the State of Georgia, there might have



10 —

existed good ground for reviewing that conclusion by writ 
of certiorari. But the Court did not so hold. It ruled in 
petitioner’s favor on that question.

The court considered, and consideration was proper, the 
evidence below both on the question of whether or not the 
plaintiff had followed his administrative remedy and 
whether he had shown discrimination against himself. The 
court believed that inasmuch as under the evidence the 
classification and salary of each teacher was reviewed 
every year, any dissatisfaction should be tested by an 
appeal. It said:

“ As each year’s classifications and salaries are 
fixed, the appeals there provided ought to be used. 
But failure to use that provided since the filing of the 
suit ought not justly to cause dismissal of the suit 
now . . . But . . .  we think the decree ought 
to have been withheld till the remedies then available 
shall be exercised, because a pursuit of them may 
cause an adjustment of the controversy and will cer­
tainly bring to a focus the particular wrongs so as to 
enable the court to frame a specific and useful de­
cree . . . Therefore, upholding the court’s juris­
diction, we set aside the findings and the decree as 
improvidently granted and direct that the cause be 
remanded to the District Court and remain pending 
for a reasonable time to permit exhaustion of admin­
istrative remedies; and thereafter such further pro­
ceedings may be had as shall then appear to be 
proper. ’ ’

Thus it appears that the questions decided below were 
governed by the peculiar facts of the particular case.

We think clearly, therefore, the case does not come 
within the general rule concerning the granting of writs 
of certiorari.



11 —

Petitioner in his brief assigns a number of reasons why- 
certiorari should be granted.

None of them is, we think, sufficient.

First, it is said that the State Board of Education is 
without jurisdiction to grant petitioner the relief he seeks. 
This contention is not tenable iior is it borne out by the 
authorities cited in the brief to support it.

The appellate jurisdiction of the State Board of Educa­
tion embraces “ all school matters which may be appealed 
from any county or city hoard of education.” The deci­
sions of the State Board of Education upon any such appeal 
“ shall be final and conclusive.” The Georgia statute so 
provides.

If the plaintiff was discriminated against in the fixing 
of his salary (and he did not so testify), he had a right to 
appeal from the committee that placed him to the Super­
intendent. He had a right to appeal from the Superintend­
ent to the City Board of Education, and from the City 
Board of Education to the State Board of Education. He 
had a right to appeal if he was being inadequately paid, 
whether or not he was discriminated against on account of 
race or color or for any other reason. The remedy was en­
tirely adequate. The decisions of the Georgia Supreme 
Court cited on the question simply do not hold anything to 
the contrary of what is here asserted.

Petitioner in general terms alleges that the provisions 
for appeal are inadequate. The comprehensive analysis of 
the procedure made by the Circuit Court of Appeals indi­
cates that this complaint is without substance. The right 
of petitioner to assail the remedy for inadequacy is very 
doubtful in view of the fact that he did not appeal at all. 
This principle is firmly established in this Court. See 
Lehon v. City of Atlanta, 242 U. S. 53, at 56, 61 L. ed. 145, 
at 150, where this Court said:



—  12

“ To complain of a ruling, one must be made the 
victim of it. One cannot invoke, to defeat a law, an 
apprehension of what might be done under it, and 
which, if done, might not receive judicial approval.”

The contention that the City Board of Education deter­
mines the salary and the placement of the teacher under 
the schedule in the first instance is simply not borne out 
by the record. The resolution of the Board provided for 
placement by the committees created by the resolution, and 
not for the placement by the Board itself. Nor is there 
any basis for the suggestion that the remedy by appeal 
is judicial. It is purely administrative and possesses none 
of the characteristics of a judicial remedy.

The contention that the appeal to the Atlanta Board was 
not to a disinterested party made by the statement of 
questions presented is also not borne out.3

The cases cited in this division of the brief, Steele v. 
L. & N. R. Co., 323 U. S. 192, and Tunstall v. Brotherhood 
of Locomotive Firemen and Enginemen, 323 U. S. 210, do 
not support the contention. In those cases the Court said 
there was no administrative remedy.

The contention that under Georgia law and the decisions 
of Georgia courts, the administrative remedy provided is 
permissive and not mandatory, simply overlooks a rule 
stated by the Court of Appeals in this case:

“ Exhaustion of state remedies is a rule of self re­
straint formulated by the federal courts and is not 
influenced by state practice.”

3 Counsel who prepared the petition  evidently  did no t partic ipa te  in 
the case helow and have no t considered th e  en tire  record, as they  do 
no t seem  to be’ fam iliar w ith  the testim ony of re tired  teachers concern­
ing conferences w ith  m em bers of the City Board, or w ith  the undisputed 
testim ony th a t pe titioner no t only m ade no effort to  pursue h is adm inis­
tra tiv e  rem edy, b u t told Miss Jarre ll, the  Superin tendent, he was satisfied.



—  13

There Is No Conflict Between Decisions 
of Courts of Appeal,

One of the grounds on which petitioner largely relies is 
an alleged conflict between the decision in this case and 
the decision of the Ninth Circuit in Transpacific Air Lines 
v. Hawaiian Air Lines, 174 F. (2) 63. Not only is there 
no conflict, but an examination of the Transpacific case 
discloses that the courts are in harmony. There, as here, 
the case was reversed with instructions to the District 
Court to retain it a sufficient length of time to permit the 
complainant to assert his administrative remedies. The 
discussion in the Transpacific case on which petitioner 
relies is clearly obiter. In the case at bar, the Court below 
followed the decision of this Court in Myers v. Bethlehem 
Ship Building Company, 303 U. S. 41, and Natural Gas 
Pipe Line v. Slattery, 302 U. S. 300, and its own decision 
to the same effect in Bradley Lumber Co. v. National Labor 
Relations Board, 84 F. (2) 97.

The opinion of the Court of Appeals does not conflict 
with the principles stated in Division 6 of petitioner’s 
brief. The facts of the present case simply do not bring it 
within the rule there stated. This again makes manifest 
the inability of the Court to pass upon these questions 
without the evidence before it.

In paragraph 7 of their statement of points, petitioner 
overlooks the record again. The rule adopted by the At­
lanta Board of Education does not, as stated, provide “ a 
period of only ten days for taking an appeal to the Atlanta 
Board of Education.”

The rule simply says “ such request shall be made in 
writing within ten days from the action of the Superin­
tendent.” It does not require consideration and completion



—  14 —

of the appeal within ten days, nor does § 32-414 of the Code 
place a time limit upon appeals from the City Board to 
the State Board. The only requirement is that the appeal 
must be in writing and distinctly set forth the question of 
law as well as the facts in the case.

The contention of subparagraph 8 is simply not borne 
out by the record. The provision of the rule that “ the 
Board shall consider such request and review the action of 
the Superintendent,” as well as the requirement of the 
statute that the State Board “ shall provide by regulation 
for notice to the opposite party and for hearing on the 
appeal,” certainly do not contemplate failure of notice or 
denial of hearing.

This Court seems to us to have uniformly ruled that in 
a case such as the present one, where an administrative 
remedy is provided by state law or state rule, it must be 
exhausted before there can be resort to a federal court of 
equity, and this is so, as the Court of Appeals for the Fifth 
Circuit pointed out, because pursuit of the administrative 
remedy “ may cause an adjustment of the controversy,” 
and as the Court further pointed out, because it will cer­
tainly bring to a focus the particular wrong so as to 
enable the Court to frame a more specific and usable decree.

In the present case, the District Court in general lan­
guage ordered that the defendants be enjoined against dis­
crimination on account of race or color, a decree which it 
would be virtually impossible to obey, as this Court could 
readily determine if it had the record before it. This case 
is one in which the application of the principle that the 
administrative remedy must be first exhausted is pe­
culiarly apt. Certainly in saying, as it did, that the case 
should be returned to the District Court for further pro­
ceedings, in order that the plaintiff might have an oppor­
tunity to exhaust his administrative remedy, the Court of



Appeals decided no new or novel question of lawq such as 
to require review by this Court by the writ of certiorari.

Respectfully submitted,

J. C. SAVAGE,
803 C. & S. National Bank Bldg., 

Atlanta 3, Georgia,

J. M. B. BLOOD WORTH,
803 C. & S. National Bank Bldg., 

Atlanta 3, Georgia,

M. F. GOLDSTEIN,
1130 C. & S. National Bank Bldg., 

Atlanta 3, Georgia,

B. D. MURPHY,
1130 C. & S. National Bank Bldg., 

Atlanta 3, Georgia,
Counsel for Respondents.



17

APPENDIX.

In the
UNITED STATES COURT OF APPEALS 

For the Fifth Circuit.

E. S. Cook, Devereaux McClatchey, Jr., 
Charles C. Rife, J. H. Landers, I). M. 
Therrell and J. Austin Dilbeck, Con­
stituting the Board of Education of 
the City of Atlanta,

Appellants,
versus

No. 12,727.

Samuel L. Davis, Individually and on 
Behalf of Others Similarly Situated,

Appellee, j

Appeal From the United States District Court for 
the Northern District of Georgia,

Atlanta Division.

To the Honorable Judges of Said Court:

The petition of E. S. Cook et al. would show:

1. That they are the appellants in this court in the case 
of E. S. Cook et ah, constituting the Board of Education of 
the City of Atlanta, Appellants, versus Samuel L. Davis, 
Individually and on Behalf of Others Similarly Situated, 
Appellee, being an appeal from a judgment of the Honor­
able E. Marvin Underwood, sitting without a jury, ren­
dered on the 16th day of December, 1948.

2. That a timely notice of appeal was given, and said 
notice of appeal has been filed and docketed in this court.



— 18 —

3. These petitioners would show that they have been 
sued and they now appeal in their official capacity as mem­
bers of the Board of Education of the City of Atlanta, and 
not personally. The funds within their control are public 
funds appropriated for educational purposes, the budget 
for which was prepared before the entry of the judgment 
in this case. Appellants in their official capacity have no 
other funds with which the cost of printing the record in 
this case can be paid. The Appellee and others in whose 
behalf he has brought this action are teachers in public 
schools, all of them being of limited means, and a great 
hardship would fall on them if eventually they were 
obliged to pay the cost of printing the record in this case.

4. The parties have therefore agreed and respectfully 
request that this court permit the evidence in the case to 
be transmitted to this court as original exhibits, thereby 
relieving them of the cost of printing the same. As addi­
tional grounds therefore, the petitioners and Appellants set 
forth below additional reasons for such action.

5. In addition to the oral evidence which has been tran­
scribed by the official reporter, and two copies of which 
are available for filing in this court, the evidence consists 
of an analysis of the pay schedules and conclusions drawn 
therefrom, which were prepared for the Appellants by 
Jarvis Barnes, and for the Appellee by J. B. Blayton & 
Company. Each of these reports is very voluminous, and 
containing as they do a great many calculations and ex­
amples, would be extremely expensive to print.

6. In addition thereto the Appellants and Appellee have 
submitted schedules showing promotions that have been 
made and the conclusions drawn therefrom. It would be 
very difficult and expensive to print these exhibits.

7. The questions involved in this case can fairly be set 
forth in the briefs of the parties, together with the printing



—  19

as a supplement to the briefs of the matter in the record 
specifically relied upon by either party.

8. The Appellants have consulted the Appellee prior to 
filing this motion, and Appellee has no objection to the 
granting of this order.

Wherefore, the Appellants pray:

(a) That this court consider this petition for the trans­
mission of the testimony and the exhibits to this court as 
original exhibits;

(b) That pending the determination of this motion, if 
this motion be not disposed of promptly, the time for the 
filing of the record be extended beyond March 8th, 1949, 
the time when the same expires under the order of the 
District Judge.

/s /  B. D. Murphy,
B. D. Murphy,

/s /  J. C. Savage,
J. C. Savage,

/s /  J. M. B. Bloodworth,
J. M. B. Bloodworth, 

Attorneys for Appellants and Petitioners 
Herein.

Post Office Addresses:
B. D. Murphy,

1130 Cit. & Sou. Bank Bldg.,
Atlanta 3, Georgia.

J. C. Savage,
J. M. B. Bloodworth,

803 Cit. & Sou. Bank Bldg.,
Atlanta 3, Georgia.



20 —

The undersigned, as attorneys for Appellee, have care­
fully examined the foregoing petition and consent to the 
transmission of all the exhibits filed by both parties as 
original exhibits. Appellee also joins in the request that 
this court permit the reporter’s transcript of the oral testi­
mony to be sent to this court in lieu of the printed record.

/s /  A. T. Walden,
A. T. Walden,

/s /  Oliver W. Hill,
Oliver W. Hill,
Edward R. Dudley,

Attorneys for Appellee.

Post Office Addresses:
A. T. Walden,

428 Herndon Building, 
Atlanta 3, Georgia.

Oliver W. Hill,
623 North Third Street, 

Richmond, Virginia.
Edward R. Dudley,

20 West Fortieth Street, 
New York 18, New York.



21 —

In the
UNITED STATES COURT OF APPEALS 

For the Fifth Circuit.

No. 12,727.

E. S. Cook, Devereau McClatchey, Jr., Charles 
G. Rife, J. H. Landers, D. M. Therrell and 

J. Austin Dilbeck, Constituting the Board 
of Education of the City of Atlanta,

Appellants,
versus

Samuel L. David, Individually and on Behalf of 
Others Similarly Situated,

Appellee.

Appeal from the District Court of the United States 
for the Northern District of Georgia.

Order:

Pursuant to the motion of appellants for permission to 
bring up to this Court the transcript of evidence and all 
of the Exhibits as original Exhibits, and to dispense with 
the printing thereof, which motion is consented to by the 
attorneys for appellees,

It Is Ordered that said motion be, and the same is hereby, 
granted.

/s /  J. C. Hutcheson, Jr.,
IT. S. Circuit Judge.



—  22 —

United States Court of Appeals for the 
Fifth Circuit.

I, Oakley F. Dodd, Clerk of the United States Court of 
Appeals for the Fifth Circuit, do hereby certify that the 
foregoing six pages [five printed pages] contain a true 
copy of the Motion and Order to dispense with printing 
Original Exhibits in the case of E. S. Cook et ah, Constitut­
ing the Board of Education of the City of Atlanta, Appel­
lants, versus Samuel L. Davis, Individually and on Behalf 
of Others Similarly Situated, Appellee, No. 12,727, as the 
same remains upon the files and records of said United 
States Court of Appeals.

In Testimony Whereof, I hereunto subscribe my name 
and affix the seal of said United States Court of Appeals, 
at the City of New Orleans, Louisiana, this 10th day of 
May, A. D. 1950.

Oakley F. Dodd,
(Seal) Clerk, U. S. Court of Appeals for

the Fifth Circuit.