Greenberg, Jack, 1961-1983 - 9 of 56

    No..

In the Supreme Court of Ohio

TH E STA TE OF OHIO E X -R E L  
W ILLIAM  PH ILLIPS,

Plaintiff In Error, 
vs.

TH E BO AR D  OF ED U CATIO N  OF W OOD- 
LA W N  R U R A L  SCHOOL DISTRICT,

Defendant In Error.

B rief o f  Defendant In E rror Against 
M otion To Certify.

CHAS. S. BELL,
Prosecuting Attorney.

CHESTER S. DURR,
Asst. Prosecuting Attorney.

Attorneys for Defendant 
In Error.

BLADU PUB. CD.



No___________________

The Supreme Court of Ohio

TH E STA TE OF OHIO E X -R E L  
W ILLIAM  PH ILLIPS,

Plaintiff In Error, 
vs.

TH E BO A R D  OF ED U CATIO N  OF W OOD- 
LA W N  R U R A L  SCHOOL DISTRICT,

Defendant In Error.

B rief o f  Defendant In E rror Against 
M otion To Certify.

This cause comes into this court on a motion to direct 
the Court of Appeals of the First Appellate Judicial 
District of Ohio to certify its record in the above en­
titled cause for review here.

STATEMENT OF FACT.

This cause had its inception in the Court of Common 
Pleas of Hamilton County, Ohio, on the filing by the 
Plaintiff in Error here of a petition praying for the 
issuance of a writ of mandamus to compel the Wood- 
lawn Rural School District to cease an alleged discrimi­
nation against certain colored pupils.

An alternative writ of mandamus was issued and on 
the return day, defendants below filed an answer gen­



erally denying all the allegations in the petition. A 
hearing was had and the Common Pleas Court refused 
the writ. The cause was carried to the Court of 
Appeals of the First Appellate Judicial District of Ohio 
in an error proceeding, which court affirmed the judg­
ment of the Court of Common Pleas.

The Court of Appeals decision is contained in Ap­
pendix 1 of this brief.

The petition and prayer for a writ of mandamus is 
contained in Appendix 2 of this brief.

The sole ground of complaint alleged and proved is 
that the Woodlawn Rural School District assigned col­
ored children of grades 1, 2, 3 and 4 to Room 1 of the 
school building, which room was in charge of a colored 
school teacher. There is little or no dispute about the 
facts in the cause. The record discloses that the Wood- 
lawn Board of Education hired an experienced colored 
teacher and placed her in charge of Room 1; that col­
ored pupils in Grades 1, 2, 3 and 4 were assigned to 
Room 1; that the equipment of Room 1 was in all 
respects the same as, if not better than the other 
three rooms; that at the time the petition was filed, 
colored pupils were in all rooms of the school but Room 
2, which was occupied exclusively by white children of 
the grades 1, 2 and 3; that all pupils of the school had 
joint playground and toilet facilities and that between 
the time of filing the petition and the hearing in the 
Court of Common Pleas, colored pupils had been trans­
ferred from Room 1 to Room 2, so that there were at 
the time the case was submitted to the trial court, 
colored pupils in every room of the Woodlawn Rural 
School.



s

ARGUMENT.

Three grounds of defense were presented by the 
respondents, to-wit:

1. That the question raised by the petition was, 
at the time of the hearing below, and is now, 
a moot question.

2. That relator does not seek to compel the re­
spondent to perform a duty specially enjoined 
by law, but to restrain them from pursuing a 
course of conduct which relator claims is illegal 
—hence relator’s remedy, if he has any, is by 
injunction and not mandamus.

3. That mandamus does not lie because the writ 
is not to be used to control the discretionary 
powers vested in the Board of Education by 
the legislature.

We shall briefly discuss these three grounds of de­
fense in the order presented:

1. That the question raised by the petition was, 
at the time of the hearing below, and is now, 
a moot question.”

The complaint of the petition in the language thereof 
is that,

“ The Board of Education has heretofore, and is 
now, by order or resolution enacted by it for that 
purpose, discriminating against the children of 
the relator, and other children of their race and



4

color, to their lasting disadvantage and injury by 
denying to them the rights and privileges due to 
them as residents of said school district to enjoy 
the benefits of said school, regardless of their 
race or color and compelling them to attend; 
if they attend school at all, in a separate depart­
ment established and maintained therein for the 
colored pupils exclusively.”

The record contains, on pages 41 and 43, the minutes 
and resolutions adopted on May 27, 1924, establishing 
an additional room because of the overcrowded condi­
tion of the school due to the greatly increased attend­
ance, authorizing the employment of a colored teacher 
and assigning the colored children of 1-2-3-4 grades to 
such room.

Relator does not claim that the establishing of an 
additional room or the hiring of a colored teacher con­
stitutes discrimination so that if there is discrimination 
against colored pupils at the Woodlawn School, it must 
result solely from the remaining portion of the above 
resolution, to wit, the part assigning all the colored 
pupils of grades 1-2-3-4 to Room 1, instead of assigning 
some of them to Room 2, wherein grades 1-2 and 3 are 
taught by a white teacher, the latter room having been 
the only room in the school in which colored pupils were 
not regularly assigned.

The record establishes that this portion of the May 
27th resolution to which relator objected, was amended 
at a special meeting of the Board held prior to the hear­
ing before the Court below, so that at the time of 
the hearing there was no actual or fancied discrimina­
tion of the Woodlawn School, but colored pupils were



5

regularly assigned to and in actual attendance in each 
and every one of the four rooms.

(See middle of page 44 and bottom of 
page 49 of the record.)

So that it is our contention and we submit to the 
court that there is nothing but a moot question in­
volved in the instant case.

The second ground of defense is:

2. “ That relator does not seek to compel the re­
spondents to perform a duty specially enjoined 
by law, but to restrain them from pursuing a 
course of conduct which relator claims is illegal 
—hence relator’s remedy, if he has any, is by 
injuction and not mandamus.

An analysis of the prayer of the petition which 
relator desires incorporated into an order of Court 
discloses that there is no act which the relator wants 
performed, but rather that relator seeks a writ enjoin­
ing the respondent from doing or continuing to do 
certain things.

Relator wants the Board to cease discriminating 
against the colored pupils—only another way of 
expressing the desire for a permanent injunction re­
straining them from discriminating.

“ The Writs of Mandamus, in name and nature, 
and at common law, are something of a mandatory 
nature, compelling an act. The writs to prevent 
the doing of an act by courts, or individuals, were 
those of prohibition and injuction.”



6

“ Mandamus was a writ of a moving nature, the 
proper writ to enforce obedience to an act of par­
liament, and hence only proper to compel quies­
cence where an act is itself mandatory or some­
thing negative, where it specially directs the not 
doing of a thing which might be natural or 
otherwise proper. It would be to suppose that 
the legislature in abolishing forms of action meant 
also to abolish all meaning of terms and distinc­
tions of things, to suppose that it meant, in the 
case of ministerial and executive officers, to make 
the writ of mandamus perform a function hitherto 
unknown, and take the place of an injunction.”

In the above language the Court in Crawford vs. 
Carson, 35 Arkansas, at page 565, aptly expresses our 
position on this ground. The same Court in the syl­
labus of the same case has this to say:

“ The writ of mandamus is a writ to compel the 
performance of an act or duty, and not to prevent 
it, and our Code does not intend that it shall take 
the place of an injunction.”

That this is the rule in Ohio— see Selby, Auditor, vs. 
State ex rel King, 63 0. S. 543.

The language of the Ohio Code on Mandamus is as 
follows:

“ Sect. 12283.— “ Mandamus is a writ issued, in 
the name of the State, to an inferior tribunal, a 
corporation, board, or person, commanding ti e per­
formance of an act which the law specially en­
joins as a duty, resulting from an office trust or 
station.”



7

The language of the Ohio Code on Injunction is as 
follows:

Sect. 11875.— “ The injunction provided by this 
title is a command to refrain from or do a par­
ticular act. . . .”

No where in the Constitution or in the Statute law 
do we find the law specially enjoining a duty on the 
Board of Education not to segregate colored pupils*— 
an observation which will be more fully gone into in 
our consideration of our third ground of defense.

The third ground of defense is advanced for con­
sideration in the event the Court should find both of 
the first two grounds untenable and is advanced as a 
complete defense to this cause of action, abandoning for 
the purposes of argument only, the points made and 
raised in the first two grounds.

3. “ That mandamus does not lie because the writ 
is not to be used to control the discretionary 
powers vested in the Board of Education by the 
legislature.”

It is well settled in this state that the writ of 
mandamus cannot be used to control discretion.



8

Ex parte Black, 1 0. S. 30.
State ex rel vs. Commissioners, 36 0. S. 326. 
Commissioners vs. Commissioners, 24 0. S. 393. 
State ex rel vs. Harris, 17 0. S. 608.
State ex rel vs. Crites, 48 0. S. 460.
State ex rel vs. Commissioners, 49 0. S. 301. 
State ex rel vs. Board, 19 0. C. C. 574.
State ex rel vs. Spiegel, 20 0. C. C. 597. 
Cleveland vs. Library Board, 49 0. S. 311 fol­

lowing.
State ex rel vs. Turner, 93 0. S. 379.
State ex rel vs. Industrial Commission, 100 O. 

S. 500.

This rule is subject to the exceptions that the Courts 
will intervene on a showing of fraud or the gross abuse 
of discretion.

No allegations of fraud or showings of abuse of dis­
cretion are present in this case, but for the purpose of 
this argument, we are content to meet the relator on the 
assumption that the record raises, properly, two 
questions:

(a) Whether or not there is a clear legal duty 
imposed by constitutional or legislative man­
date upon Boards of Education not to classify 
pupils and determine to which rooms they are 
to be assigned?

(b) That if the right to classify vests in the 
discretion of The Board of Education, whether 
or not what was done in the instant case con­
stitutes an abuse of discretion?



9

Relator claims that the respondent Board of Educa­
tion has no legal right to classify pupils according to 
color. To justify his prayer for a writ of mandamus, 
he must contend that there is a clear legal duty im­
posed on the Board not to so classify. No where in 
the constitution or the statute law is there to be found 
the imposition of any such duty. On the contrary, 
the Board is vested with all the powers the Legisla­
ture has with reference to the government of the Board 
itself, its employees and the pupils of the schools.

Section 4750 of the General Code establishes this 
in the following language.

“ The Board of Education shall make such rules 
and regulations as it deems necessary for its gov­
ernment and the government of its employes and 
the pupils of the schools.”

A rule and regulation assigning colored pupils of 
certain grades to a certain room is certainly one having 
to do with the government of the pupils of the school 
and if the Woodlawn Board of Education in the exercise 
of its discretion deemed it necessary, its adoption was 
in strict conformity with the purpose of the above 
statute.

There can be no question but that the Legislature 
has the power to classify pupils according to race and 
color and to segregate them from other races. That 
such action does not contravene any provisions of the 
State of Ohio or the United States Constitutions is 
well established by the case of The State of Ohio ex 
rel William Games vs. John W. McCann, and others,



10

where the constitutionality of an act authorizing and 
requiring Boards of Education to establish separate 
schools for colored children was upheld, the Syllabus 
being in part :

“ Held, that the act authorizing such classifica­
tion, on the basis of color, does not contravene 
the constitution of the State, nor the 14th amend­
ment of the Constitution of the United States.”
See State ex rel Games vs. John McCann, 21 0. S. 
at page 198.

That the right to segregate on the basis of eolor and 
race is not in contravention of the constitution, has 
been almost universally established by the weight of 
authority throughout the country.

See Paragraph 110, page 652, volume 24, Ruling 
Case Law.

It is our contention therefor and we submit to this 
Court that the Legislature, having the right to enact 
rules and regulations for the government of pupils of 
the schools, have by the provisions of Section 4750 of 
the General Code, vested an equal right in the Board 
of Education. By that section the Legislature has 
given to the Board of Education every power the leg­
islature possesses to pass and adopt rules and regula­
tions for the government of the pupils of the schools, 
among which is the right to segregate the pupils ac­
cording to race and color if they deem that necessary.

Relator bases his right to a writ of mandamus in 
this case not upon the refusal of the Board to perform 
a duty specially enjoined upon them by law, but upon



11

the judicial legislation indulged in by the Court in the 
case of State ex rel Perry Gibson vs. The Board of 
Education of the Village of Oxford, Ohio.

It is our understanding of the law and our contention 
in the instant case that public officers have only those 
duties to perform which the legislative branch of our 
government imposes upon them. The judiciary can 
have no part in the making of laws imposing duties on 
public officers—their only connection therewith being 
for the purpose of interpreting legislative enactments.

The Gibson case, upon which relator relies, has no 
application to the instant case, either on the facts or 
the law. That case was a mandamus proceeding, rais­
ing by the record the question as to whether or not 
the Board of Education was authorized by law to con­
duct a separate school in a separate building for colored 
children. Prior to that time the Legislature had re­
pealed Section 4008 R. S., which vested in Boards of 
Education the right to construct and maintain separate 
schools in separate buildings for colored pupils.

In its consideration of that question, the Court trans­
gressed, in our humble opinion, every rule consonant 
with the proper exercise of its power, and attempted 
to write into the statute law of this state a specific 
prohibition against the classification or segregation of 
pupils according to color, basing its conclusions upon 
the sole reason that the legislature had repealed the 
law which authorized the Boards of Education to con­
struct and maintain separate schools for colored pupils.

In the instant case there is no question of a separate 
school. Woodlawn District has but one school in one



12

building under one principal, with one prescribed course 
of study for each grade.

That the Gibson case has no application to the in­
stant case is conclusively established by the fact that 
Section 4750 G. C. referred to above (The section which 
vests in the Board of Education the right to prescribe 
its own rules and regulations for the government of its 
pupils) was not considered by the Court.

We respectfully urge upon this Honorable Court as 
we urged below, that nowhere in the law is thei'e any 
duty specially enjoined upon the respondents which 
they are refusing to perform, but that on the contrary, 
they are exercising the authority vested in them by 
Section 4750 General Code to pass and adopt their own 
rules and regulations for the government of their school 
and their pupils and that in such matters it was never 
intended that judicial discretion should summarily 
substitute itself for the discretion of the members of 
the Board of Education regularly elected by the votes 
of the residents of their district.

In conclusion, therefore, we respectfully submit there 
is no error in the judgment of the Court of Appeals 
of the First Appellate Judicial District and that the 
motion to certify its record here for review should be 
overruled.

Respectfully submitted,

CHAS. S. BELL,
Prosecuting Attorney,

CHESTER S. DURR,
Asst. Prosecuting Attorney.

Attorneys for Defendants in Error.



APPENDIX NO. 1.

COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO

Hamilton County, N o. 2590

The State o f  Ohio ex rel \
William Phillips, ]

Plaintiff in Error, I
va ! OPINION

The Board o f  Education o f  f January 19, 1925 
W oodlawn Rural School \

District,
Defendant in Error. j

Mr. Chas. L. Hopping, Counsel for Plaintiff in Error; 
Mr. Charles S. Bell, Prosecuting Attorney, and Mr. 
Chester S. Durr, Assistant Prosecuting Attorney, 
Counsel for Defendant in Error.

HAMILTON, J.

This was an action for mandamus, brought in the 
Court of Common Pleas of Hamilton County, Ohio.

The trial court refused the writ, and from that judg­
ment, the plaintiff prosecutes error to this court.

The petition charges: “ that said defendant Board
of Education has heretofore and is now, by order 
or resolution enacted by it for that purpose, discrimi­



14

nating against the children of the relator, and other 
children of their race and color, to their lasting dis­
advantages and injury by denying to them the rights 
and privileges due to them as residents of said school 
district to enjoy the benefits of said school regardless 
of their race or color and compelling them to attend, 
if they attend school at all, in a separate department 
established and maintained therein for colored pupils 
exclusively.”

The petition further charges: That the said depart­
ment for colored pupils as now established and main­
tained includes grades one, two, three and four for col­
ored children while a like department established and 
maintained for the use and benefit exclusively of white 
pupils includes only grades one, two and three, a most 
decided discrimination in favor of white pupils as 
against colored pupils and one that renders it impos­
sible that colored pupils should make the mental prog­
ress that white children of the same grades can make 
in a given time.”

The prayer of the petition is: “ Wherefore, plain­
tiff prays that a writ of mandamus issue herein com­
pelling said defendant Board of Education to abandon 
and discontinue the maintenance of said separate de­
partment for colored pupils as a part of its school 
organization; compelling said Board also to cease dis­
criminating against said colored pupils and to accord 
to them every privilege and advantage accorded to 
white pupils; compelling said Board to permit colored 
pupils to participate in every way, at their own elec­
tion, in the educational advantages of said school and 
for all further proper relief.”



16

The first question for consideration is whether or 
not mandamus is the proper remedy.

The office of a writ of mandamus is statutory, and 
is clearly indicated by the definite terms of section
12.283 of the General Code, which is as follows: “ Man­
damus is a writ issued in the name of the State to an 
inferior tribunal, corporation, board, or person, com­
manding the performance of an act, which the law 
specially enjoins as a duty resulting from an office, 
trust, or station.”

The relief asked for in the petition is not that the 
defendant Board of Education be commanded to per­
form certain acts enjoined by law, but to cease doing 
certain things.

In the case of Selby, Auditor, v. State ex rel King, 
63 Ohio St. 543, it was held: “ The office of a writ of 
mandamus is clearly indicated by the definitive terms 
of Section 6741 o f the Revised Statutes. (Now Section
12.283 General Code). The writ is there defined in 
accordance with the view taken by the Courts at the 
time of the adoption of the constitution, and vesting of 
jurisdiction of the action. The writ may issue to 
command ‘the performance of an act which the law 
specially enjoins as a duty resulting from an office, 
trust, or station’. It may not issue to compel the per­
formance of an act not so enjoined.”

The petition and the relief asked, not bringing the 
case within the office of a writ of mandamus, the trial 
court was correct in ref using the writ, and that judg­
ment is affirmed.

Judges Cushing and Bucbwalter concur.



t



APPENDIX NO. 2.

COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO

No. 191985

The State o f  Ohio, ex rel, 
William Phillips,

Plaintiff,
vs.

The Board o f  Education o f  
W oodlawn Rural School 

District,

Petition for Writ 
of Mandamus.

Defendant, j
/

Your petitioner represents that the defendant Board 
of Education is the legally qualified authority in direct­
ing the conduct of the school being maintained in the 
Woodlawn Rural School District, Hamilton County, 
Ohio, and that the relator, William Phillips, is a resi­
dent of said Rural School District and is the parent of 
children eligible to attend and have the benefits of 
said school.

Your petitioner alleges further that said defendant 
Board of Education has heretofore and is now, by order



18

or resolution enacted by it for that purpose, discrimi­
nating against the children of the relator, and other 
children of their race and color, to their lasting disad­
vantage and injury by denying to them the rights and 
privileges due to them as residents of said school 
district to enjoy the benefits of said school regardless 
of their race or color and compelling them to attend, 
if they attend school at all, in a separate department 
established and maintained therein for the colored 
pupils exclusively.

Your petitioner says also, that the said department 
for colored pupils as now maintained and established 
includes grades One, Two, Three and Four for colored 
children, while a like department established and main­
tained for the use and benefit exclusively of white 
pupils includes only grades One, Two and Three, a most 
decided discrimination in favor of the white pupils and 
one that renders it impossible that colored pupils make 
the mental progress that white children of the same 
grades can make in a given time.

Plaintiff avers that there is no adequate remedy at 
law for the amelioration of the conditions com­
plained of.

Wherefore plaintiff prays that a Writ of Mandamus 
issue herein compelling said defendant Board of Edu­
cation to abandon and discontinue the maintenance of 
said separate department for colored pupils as a part 
of its school organization; compelling said Board also 
to cease discriminating against said colored pupils and 
to accord to them every privilege and advantage oc- 
corded to white pupils; compelling said Board to permit 
colored pupils to participate in every w?ay and at their



own option in the educational advantages of said school 
and for all further proper relief.

Attorney for Plaintiff.

State of Ohio, Hamilton County, ss.

William Phillips, being first duly sworn, says that 
the statements and allegations of the foregoing peti­
tion are true as he verily believes.

Sworn to and subscribed in my presence this 
day of Sept., 1924.

Notary Public.