Alston v. Norfolk Records and Briefs

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United States Circuit Court of Appeals 
for the Fourth Circuit

, -

M e l v in  0 .  A l st o n , and the N orfolk  
T e a c h e r s ’  A ssociation , an Unincorpo­
rated Association,

Appellants,

vs. File No. 4623

S chool B oard of t h e  C it y  of N o rfo lk , a 
Body Corporate, and C. W. M ason , 
Superintendent of Schools of Norfolk,

Appellees.

BRIEF OF APPELLANTS  
%

O liver  W . H il l ,
T hurgood  M a r s h a ll ,
L eo n  A. R a n s o m ,
W il l ia m  H . H astie ,

Counsel for Appellants.

117 E. Leigh Street,
Richmond, Ya.

Printed by Law Reporter Ptgr. Co., 518 5th St., Washington, D. C.





SUBJECT INDEX

Statement of the Case-----------------------    1

Questions Involved_____________      2

Statement of Facts-----------------------------------------------------  3

P art O ne  : Legislative Background of Appellants ’ Case 5
I. Virginia Has Undertaken the Duty of Providing 

Free Public Education as a State Function----------- 5

A. General Supervision of the Virginia Public 
School System is Vested in the State Board
of Education------------      5

B. The Counties and Cities are the Units for Edu­
cation in Virginia__________________ ______ 5

C. The Public School System of Virginia is Fi­
nanced Jointly by State and Local Public Funds 5

P art  T w o : Appellants’ Substantive Case......... -..........  8

I. The Racial Discrimination in Salary Schedules and 
in Actual Salaries as Alleged in the Complaint is a 
Denial of Constitutional Right to the Equal Protec­
tion of the Law s________________________________ -  8
A. The Teachers’ Salary Schedule Being Enforced 

by Appellees on its Face Provides and Requires 
a Differential in Teachers’ Salaries Based Soley
on Race or Color_____________________________ 10

B. The Salaries Paid to All Teachers and Princi­
pals Reveal a Racial Differential Imposed Pur­
suant to a General Practice of Unconstitutional 
Discrimination___________________________ ___-  13

C. The Equal Protection Clause of the Fourteenth
Amendment Prohibits Such Racial Discrimina­
tion Against Appellants as Teachers by Occu­
pation and Profession . ----------------- -------------- 14

PAGE



II

1. The Fourteenth Amendment Prohibits All
Arbitrary and Unreasonable Classifica­
tions by State Agencies--------- ----  14

2. Discrimination Because of Race or Color is
Clearly Arbitrary and Unreasonable With­
in the Meaning of the Fourteenth Amend­
ment________________________    15

D. The Equal Protection Clause of the Fourteenth 
Amendment Prohibits Such Discrimination 
Against Appellant Alston as a Taxpayer______ 19

II. The Facts Alleged in Appellant Alston’s Pleading 
Do Not Constitute a Waiver of His Right to the
Relief for Which He Prays______________________ 22
Scope of Present Waiver Issue___________________ 22

A. The Contract of Hire is not Affected by the Re­
lief Sought________   24

B. The Doctrine of Waiver Has Been Held Inap­
plicable to Analogous Dealings with Public
Authorities __________________________________  26
Rationale of the Decisions___________   28

C. Decision on the Waiver Was Erroneously Based
Upon Facts not Before the District Court_____ 32

III. There Is No Merit in the Other Purported De­
fenses of Law Raised by the Answer and Not 
Relied Upon in the Argument________________  35

A. An Amount in Controversy to Exceed $3,000
Is Not Required to Confer Jurisdiction in This 
Case_______________________________________  35

B. Appellants Have No Full, Adequate and Com­
plete Remedy at Law_______________________  37

C. The Plea of Res Judicata Is an Affirmative
Defense and Not Now Before the Court____ _ 38

Conclusion___________________________________________  39

PAGE



Ill

TABLE OF CASES

American Union Telegraph Co. v. Bell Telephone Co.,
1 Fed. 698_________________________________________  38

Anderson v. Fuller, 51 Fla. 380,11 So. 684--------------------  21
Black v. Ross, 37 Mo. App. 250—---- ------------------------------ 22
Board of Education v. Arnold, 112 111. 11-------------- —  21
Broom v. Wood, 1 F. Supp. 134, 136----------------------------- 36
Buchannan v. Warley, 245 U. S. 60--------------------------------  17
Chaires v. City of Atlanta, 164 Ga. 755,139 S. E. 559 17
Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 27  ̂ - 27
City of Cleveland v. Clements Bros. Construction Co.,

67 Ohio St. 197, 65 N. E. 885 _______________________  28
Claybrook v. City of Owensboro, 16 F. 297----- ---------------  20
Davenport v. Cloverport, 72 Fed. 689----- — 17-20-36
Di Giovanni v. Camden Ins. Association, 296 IT. S. 64 ..... 37
Ex parte Virginia, 100 U. S. 339------------------------------  12-16
Frost Trucking Co. v. Railroad Commission, 271 U. S.

583_________________________________________________ 29
Gaines v. Missouri, 305 U. S. 337---------------------------------- 17
Gibbs v. Buck, 307 U. S. 66_______________ ____________  34
Glavey v. United States, 182 U. S. 595 --------------------------  27
Glenwood Light and Water Co. v. Mutual Light, Heat

and Power Co., 239 U. S. 121 ---------- -----....... — 36
Gulf C. & S. F. R. Co. v. Ellis, 165 U. S. 150__________  15
Hague v. Committee for Industrial Organization, 307

|  U. S. 496__________________________________________  36
Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 29
Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E.

109_________________________________________________  27
Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818_________ 18-26
International News Service v. Associated Press, 248

U. S. 215__________________________________________  36
Joyner v. Browning, 30 F. Supp. 512--------------- ------------  34
Juniata Limestone Co. Ltd. v. Fagley, et ah, 187 Pa. 193,

40 Atl. 977_________________________________________  15
Knapp v. Lake Shore, etc. Ry Co., 197 U. S. 536 ___ ___  38
Lane v. Wilson, 307 U. S. 268_______________   17

PAGE



IV

Lukens v. Nye, 156 Cal. 498, 105 Pac. 593______________  28
McCabe v. Atchison, Topeka & Santa Fe Rv. Co., 235

U. S. 151_____________________________ ______________ 17
Miller v. United States, 103 Fed. 413___________________ 27
Mills v. Anne Arundel County Board of Education, et al,

30 Fed. Supp. 245________ ___ _______________  13-25-36
Mills v. Lowndes, et al 26 Fed. Supp. 792______________  12
Minnesota ex rel Jennison, v. Rogers, 87 Minn. 130, 91

N. W. 438 _______ __________ ______ __ ________ _______  28
M ’Intire v. Wood, 7 Cranch. 504________________ ___ __  38
Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S.

265, rev’d, 245 N. Y. 106___________________________  26
Nixon v. Condon, 286 U. S. 73___  _____________________ 17
O ’Brien v. Moss, 131 Ind. 99, 30 N. E. 894______________  22
Oehler v. City of St. Paul, 174 Minn. 410, 219 N. W. 760 __ 21 
Opinion of the Justices, In re, — Mass. -—, 22 N. E.

(2d) 4 9 ____________________________________________  18
Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 1031______ 27
People ex rel Fursman, v. Chicago, 278 111., 318, 116

N. E. 158__________________________________________ 18
People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716..... 28
People ex rel Satterlee v. Board of Police, 75 N. Y. 38__ 27
Petroleum Exploration Inc. v. Public Service Commis­

sion, 304 U. S. 209__________________________________  38
Pierre v. Louisiana, 306 U. S. 354______________________  17
Polk v. Glover, 305 U. S. 5________ ___________________  34
Puitt v. Commissioner of Gaston County, 94 N. C. 709,

55 Am. Rep. 638_________________    20
Railroad Tax Cases, 13 Fed. 722_____________________ _ 15
Rockwell v. Board of Education, 125 Misc. 136, 210 

N. Y. S. 582; rev’d, 214 App. Div. 431, 212 N. Y. S. 281 26
Roper v. McWhorter, 77 Va. 214_______________ _____  20
School District v. Teachers’ Retirement Fund Assn., —

Ore —, 95 P. (2d) 720; 96 P. (2d) 419________ ____  27-31
Seattle High School, etc. v. Sharpless, 159 Wash. 424, 293

Pac. 994___________________________________________  18
Settle v. Sterling, 1 Idaho, 259_________________________  27
Simpson v. Geary, et al 204 Fed. 507___________________ 15

PAGE



V

Smith v. Bourbon County, 127 U. S. 105------------------------ 38
Southern Railway Co. v. Greene, 216 U. S. 400------- -------- 15
Strauder v. West Virginia, 100 U. S. 303-------------- 15-16-17
Swafford v. Templeton, 185 U. S. 487--- ------------- ~--------  36
Truax v. Raich, 239 U. S. 33------------------------------------------ 15
Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 12------------ -------- 21
Union Pacific Railway v. Public Service Corporation,

248 U. S. 67________________________ -— .................... 30
Whiteley County Board of Education v. Rose, 267 Ivy.

283,102 S. W. (2d) 28___________________________  27-29
Wiley v. Sinkler, 179 U. S. 58--------------------------------------  36
Yu Cong Eng v. Trinidad 271 U. S. 500-------------------------  15

CONSTITUTIONS, STATUTES AND RULES

CONSTITUTIONS CITED

PAGE

United States Constitution, Amendment Fourteen..... 2
Virginia Constitution, Article I X :

Section 129------------------      5-31
131_____________________________________ -  6
133__________ _____________________ -........ -  6
135 ___________________________    7
136 _____________________________________  7

PRINCIPAL STATUTES CITED
United States Code:

Title 28, Sec. 41 (1 ) ............................. .......... ........ ......  36
Title 28, Sec. 41 (14)______  ______-   ....... .......  36

Virginia Code:
Sections 611-718-649-653-777 . 6
Section 786 _______      7-22-31
Section 646 -------------------------    7
Section 664 ________________ ______  . -----  22-23
Section 680 _____________________ — ---- ---------------  32

Virginia Acts of 1928, cli. 471, p. 1186.. - 5

RULES CITED
Federal Rules of Civil Procedure:

Rule No. 7 (a )______ _____________ _________.._ 24-34
Rule No. 8 ( c ) ________________    24-38



*



United States Circuit Court o f Appeals 
for the Fourth Circuit

M elvin  0 .  A l st o n , and the N orfolk  
T e a c h e r s ’ A ssociation , an Unincorpo­
rated Association,

Appellants,

vs. File No. 4623

S chool  B oard of t h e  C it y  of N o rfo lk , a 
Body Corporate, and C. W. M aso n , 
Superintendent of Schools of Norfolk,

Appellees.

BRIEF OF APPELLANTS

STATEMENT OF THE CASE

This is an appeal from a final judgment of the District 
Court of the United States for the Eastern District of 
Virginia in a case arising under the Constitution and laws 
of the United States, wherein appellants, plaintiffs below, 
are seeking a declaratory judgment and a permanent 
injunction.

On November 2, 1939, appellants filed a complaint chal­
lenging the system, practice and custom of the School Board 
of the City of Norfolk, (1) of establishing schedules and 
rates of pay for all Negro public school teachers substan­
tially lower than those established for white public school



2

teachers similarly situated, and (2) in actually paying to 
all Negro teachers, pursuant to such schedules, substan­
tially less than is paid to white teachers similarly situated, 
all solely because of race or color and in violation of the 
equal protection clause of the Fourteenth Amendment and 
paragraph 14 of Section 41 of Title 28 of the United States 
Code. Appellants prayed for a declaratory judgment assert­
ing the existence and unconstitutionality of this racial 
discrimination and for an injunction restraining its con­
tinuance.

On November 21, 1939, the appellees, defendants below, A 
filed an answer containing four separate defenses. There­
after, the Court suggested that inasmuch as defenses in 
law were raised in the portions of the answer denominated 
‘ ‘ First Defense ” , “  Second Defense ’ ’ and ‘ ‘ Third Defense ’ ’, 
the hearing and disposition of the case might be facilitated 
if argument could be made upon these defenses in advance 
of trial, treating the said defenses as a motion to dismiss 
the bill of complaint for alleged legal insufficiency.

Thereafter, pursuant to the said suggestion of the Court, 
the case was argued on February 12, 1940, as upon the ap­
pellees’ motion to dismiss the bill of complaint. No testi­
mony was taken. On February 29, 1940, the Court entered 
a final order dismissing the complaint.

QUESTIONS INVOLVED

1. Is the racial discrimination in salary schedules and in 
actual salaries as alleged in the complaint a denial of con­
stitutional right to equal protection of the laws?

2. Has the appellant Alston, by accepting employment 
as a matter of law on the facts alleged by his pleading, 
waived his right to the relief for which he prays?

3. Is there any substance to the defenses of res judicata, 
lack of jurisdiction, and adequacy of remedy at law, pleaded 
by the defendants but not relied upon in the argument or 
in the decision of the District Court?



STATEMENT OF FACTS

At the hearing on the motion to dismiss the only facts 
before the Court were the facts as alleged in the complaint. 
Briefly summarized, the basic facts set out in the complaint 
are as follows:

Appellant, Melvin 0. Alston, is a citizen of the United 
States, and a citizen and resident of the State of Virginia. 
He is a Negro, a taxpayer of the City of Norfolk and the 
State of Virginia, and is a regular teacher in a public high 
school maintained and operated by the School Board of the 
City of Norfolk. Appellant Alston brings this action (1) as a 
teacher by profession and occupation, (2) as a taxpayer, and 
(3) as a representative of all other Negro teachers and 
principals in the public schools of Norfolk, Virginia, simi­
larly situated and affected. (Appendix, p. 41.)

Appellant, Norfolk Teachers’ Association, a voluntary 
unincorporated association, is composed of Negro teachers 
and principals in the public schools of Norfolk, Virginia, 
organized for the mutual improvement and protection of 
its members in their profession as teachers and principals 
in the public schools of Norfolk, Virginia. (Appendix, 
p. 41.)

Appellant Alston and all of the members of the appellant 
association and all other Negro teachers and principals in 
the public schools of the City of Norfolk are teachers by 
profession and are specially trained for their calling. 
(Appendix, p. 44.)

The appellee, School Board of the City of Norfolk, is an 
administrative department of the Commonwealth of Vir­
ginia having the direct control and supervision of the public 
schools of Norfolk, Virginia, and is charged with the duty 
of maintaining an efficient system of public schools includ­
ing the employment of teachers and the fixing of teachers’ 
salaries. Appellee, C. W. Mason, is the administrative and 
executive official of the public school system in Norfolk and 
is sued in his official capacity. (Appendix, pp. 41, 43.)



4

All public school teachers in Virginia, including appel­
lants and all other teachers in Norfolk, are required to hold 
teaching certificates in accordance with the rules of cer­
tification established by the State Board of Education.
Negro and white teachers and principals alike must meet 
the same requirements to receive teachers’ certificates from 
the State Board of Education, and upon qualifying do re­
ceive identical certificates. (Appendix, pp. 42, 43.)

The appellees over a long period of years have consist­
ently pursued and maintained and are now pursuing and 
maintaining the policy, custom, and usage of paying Negro A 
teachers and principals in the public schools of Norfolk less 
salary than white teachers and principals possessing the 
same professional qualifications, certificates and experience, 
exercising the same duties and performing the same serv­
ices as Negro teachers and principals. Such discrimination 
is being practiced against the appellants and all other 
Negro teachers and principals in Norfolk solely because of 
their race or color. (Appendix, p. 43.)

Pursuant to the policy, custom and usage, set out above, 
the appellees acting as agents and agencies of the Common­
wealth of Virginia have established and maintained a salary 
schedule used by them to fix the amount of compensation 
for teachers and principals in the public schools of Norfolk.
This salary schedule (set out in full in the complaint— 
Appendix, p. 46), on its face, provides and requires a dif- >
ferential in teachers’ salaries based solely on race or color.

The practical application of this salary schedule has 
been, is, and will be to pay Negro teachers and principals 
of qualifications, certification and experience equal to that 
of white teachers and principals, less salary than is paid 
white teachers and principals solely because of race or color. 
(Appendix, p. 46.)

In order to qualify for his position as teacher, appellant 
Alston has satisfied the same requirements as those exacted 
of all other teachers, white as well as Negro, qualifying for 
similar positions, and he is charged with the same duties



and performs services equivalent to those of all other teach­
ers holding these certificates, white as well as Negro. Never­
theless, all white male teachers receive salaries much larger 
than the salary paid this appellant. White male high school 
teachers employed by appellees whose qualifications, cer­
tification, duties and services are the same as appellant’s 
are paid a minimum annual salary of $1200 while appellant 
Alston is paid $921. (Appendix, p. 45.)

As a taxpayer, appellant Alston has contributed to the 
fund set out of which all teachers’ salaries are paid. As a 
taxpayer he complains of discrimination against him, solely 
on account of race or color in the distribution of the public 
fund to which he contributes. (Appendix, pp. 48-49.)

PART ONE

LEGISLATIVE BACKGROUND OF APPELLANTS’
CASE

I

Virginia Has Undertaken the Duty of Providing Free 
Public Education as a State Function

The Commonwealth of Virginia realizing that free public 
education was an essential function of government author­
ized the establishment of an adequate educational system 
by placing the following mandate in the Constitution of 
Virginia:

* ‘ Free schools to be maintained.— The general assembly 
shall establish and maintain an efficient system of public 
free schools throughout the State.”  Article IX, Section 
129, Virginia Constitution.

Chapter 471 of the Acts of 1928, page 1186, revised, con­
solidated, amended and codified the school laws and certain 
laws relating to the State Board of Education; the act



6

repealed certain sections and substituted others in their 
place; and the new school code is codified as sections 611-718, 
inclusive, of the Virginia Code. Section 611 provides that:

“ An efficient system of public schools of a minimum 
school term of one hundred and sixty school days, shall 
he established and maintained in all of the cities and 
counties of the State. The public school system shall 
be administered by the following authorities, to-wit:
A State board of education, a superintendent of public 
instruction, division superintendent of schools and 
county and city school boards.”  £

A. General Supervision of the Virginia Public School 
System Is Vested in the State Board 

of Education

Article IX  of the Constitution of Virginia established 
a State Board of Education and defined its powers and 
duties. General supervision is vested in this board and the 
members thereof are appointed by the Governor subject 
to the approval of the General Assembly.

Section 131 of Article IX  of the Constitution provides 
for the appointment of a Superintendent of Public Instruc­
tion by the Governor subject to confirmation of the General 
Assembly.

B. The Counties and Cities Are the Units for Education |
in Virginia

Section 133 of Article IX  of the Constitution provides 
that: “ The supervision of schools in each county and city 
shall be vested in a school board, to be composed of trustees 
to be selected in the manner for the term and to the number 
provided by law.”  The local school boards are declared to 
be bodies corporate with power to sue and be sued in their 
corporate names (Va. Code, Sections 653, 777).

By Section 649 of the Virginia Code each school board 
is authorized and required to appoint a division superin­



7

tendent of schools. By Section 786, the city school boards 
are required to:

. establish and maintain therein a general system 
of public free schools in accordance with the require­
ments of the Constitution and the general educational 
policy of the Commonwealth for the accomplishment 
of which purpose it shall have the following powers 
and duties . . . :
“ Third. To employ teachers from a list or lists of 
eligibles to be furnished by the division superintendents 
and to dismiss them when delinquent, inefficient or in 
anywise unworthy of the position . . .
“ Twelfth. To manage and control the school funds 
of the city, to provide for the pay of teachers and of 
the Clerk of the board, . . . . ”

C. The Public School System of Virginia is Financed 
Jointly by State and Local Public Funds

Section 135 of Article IX  of the Virginia Constitution 
provides for the distribution of state funds for school pur­
poses and Section 136 authorizes each county, city and town 
to raise additional funds for local school purposes.

Section 646 of the Virginia Code provides:

“ Of what school fund to consist.— The fund applicable 
annually to the establishment, support and maintenance 
of public schools in the Commonwealth shall consist o f :
“ First. State funds embracing the annual interest 
on the literary fund; all appropriations made by the 
general assembly for public school purposes; that por­
tion of the capitation tax required by the Constitution 
to be paid into the State treasury and not returnable 
to the localities, and such State taxes as the general 
assembly, from time to time, may order to he levied.
“ Second. Local funds embracing such appropriations 
as may be made by the board of supervisors or council 
for school purposes, or such funds as shall be raised 
by levy by the hoard of supervisors or council, either



8

or both, as authorized by law, and donations or the 
income arising therefrom, or any other funds that may 
be set apart for local school purposes.”

Realizing that the efficiency of the school system depended 
upon an efficient teaching staff which can only be secured 
by adequate pay, the General Assembly, by Section 701, 
provided:

‘ ‘ All moneys appropriated by the State for local schools, 
unless otherwise specifically provided, shall be used 
exclusively for teachers’ salaries.”

PART TWO

APPELLANTS’ SUBSTANTIVE CASE 

I

The Racial Discrimination in Salary Schedules and in 
Actual Salaries as Alleged in the Complaint Is a Denial 
of Constitutional Right to the Equal Protection of 
the Laws

The gravamen of this action is clearly set out in the 
eleventh and twelfth paragraphs of the complaint which 
allege that:

‘ ‘ Defendants over a long period of years have consist­
ently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of paying 
Negro teachers and principals in the public schools 
of Norfolk less salary than white teachers and princi­
pals in said public school system possessing the same 
professional qualifications, certificates and experience, 
exercising the same duties and performing the same 
services as Negro teachers and principals. Such dis­
crimination is being practiced against the plaintiffs 
and all other Negro teachers and principals in Norfolk, 
Virginia, and is based solely upon their race or color. 
(Italics added.)



“ The plaintiff Alston and all of the members of the 
plaintiff association and all other Negro teachers and 
principals in public schools in the City of Norfolk are 
teachers by profession and are specially trained for 
their calling. By rules, regulations, practice, usage 
and custom of the Commonwealth acting by and through 
the defendants as its agents and agencies, the plaintiff 
Alston and all of the members of the plaintiff associa­
tion and all other Negro teachers and principals in the 
City of Norfolk are being denied the equal protection 
of the laws in that solely by reason of their race and 
color they are being denied compensation from public 
funds for their services as teachers equal to the compen­
sation provided from public funds for and being paid 
to white teachers with equal qualifications and experi­
ence for equivalent services pursuant to rules, regu­
lations, custom and practice of the Commonwealth 
acting by and through its agents and agencies, the 
School Board of the City of Norfolk and the Superin­
tendent of Schools of Norfolk, Virginia.”  (Appendix, 
pp. 43-44.)

The District Judge, in his opinion, recognized the prin­
ciple that these allegations, accepted as true on a motion to 
dismiss, established unconstitutional discrimination against 
Negroes. It is readily apparent from the opinion that he 
had no doubt that the practice, custom, and usage of pay­
ing Negro teachers and principals less salary than white 
teachers and principals of the same professional qualifi­
cations, certification, and experience solely because of race 
or color violates the Fourteenth Amendment. We quote:

“ . . . . The authorities are clear, I think however, that 
there can be no discrimination in a case of this kind, 
if such discrimination is based on race or color alone. 
Under our constitution, particularly the fourteenth 
amendment, all citizens stand upon equal footing before 
the law and are entitled to equal benefits and privileges 
where state action is involved; or, to state the propo­
sition another way, a state can not, through its consti­
tution, statutes, or rules and regulations, or through 
one of its administrative bodies, arbitrarily discrimi-



10

nate against persons within its jurisdiction. In the 
words of the fourteenth amendment, a state cannot 
deny to any person within its jurisdiction the equal 
protection of the law. That principle is firmly estab­
lished, and, if and when a case of discrimination based 
on race or color is presented, the person discriminated 
against will be granted appropriate relief.
“ The view that I take of the plaintiff’s case, with some 
hesitation I will admit, does not render it necessary 
for the Court to pass on the unconstitutional discrimi­
nation charged in the complaint to have been practiced 
against the plaintiff, other than to observe that the 
complaint charges in clear and explicit language that 
the discrimination in compensation is based on race or 
color alone.”  (Italics added.) (Appendix pp. 60-61.)

This cause of action is based upon a system of racial dis­
crimination set up by administrative rulings of the appellees 
acting as administrative agencies of the Commonwealth of 
Virginia. It involves the question of the distribution of 
public funds by state agencies pursuant to a system which 
discriminates against Negroes solely because of race or 
color.

The discriminatory practice, usage and custom of the 
appellees consist o f: (1) a salary schedule which on its 
face provides and requires a differential in teachers’ sal­
aries based solely on race or color, and, (2) the practice 
of fixing teachers ’ salaries pursuant to this schedule in such 
a manner as to provide less salary for Negro teachers and 
principals than for white teachers and principals with equal 
qualifications and experience solely because of race or color.

A. The Teachers’ Salary Schedule Being Enforced by Ap- 
lees on Its Face Provides and Requires a Differential in 
Teachers’ Salaries Based Solely on Pace or Color

Pursuant to the policy, custom and usage set out above 
the appellees acting as agents and agencies of the Common­
wealth of Virginia have established and maintained a salary



schedule used by them to fix the amount of compensation 
for teachers and principals in the public schools of Norfolk.

; salary schedule provides

Negro—
Elementary

as follows:

S a la r ie s  n o w  
b e in g  p a id  

te a c h e r s  n e w  
t o  th e  s y s te m

M a x im u m  s a la r y  
b e in g  p a id  

(a f fe c t in g  o n ly  
th o s e  in  s y s te m  

b e fo r e  in cr e m e n t  
p la n  w a s  

d is co n t in u e d )

Normal Certificate $ 597.50 $ 960.10
Degree 

High School
611.00 960.00

Women 699.00 1,105.20
Men

White
Elementary

784.50 1,235.00

Normal Certificate 850.00 1,425.00
Degree 

High School
937.00 1,425.00

Women 970.00 1,900.00
Men 1,200.00

(Appendix,
2,185.00 

p. 46.)

This salary schedule is a basic factor of the discrimina­
tory system. The evil in the schedule is two-fold: first, it 
provides a lower minimum for Negro teachers new to the 
system than for white teachers with equal professional 
qualifications and new to the system; and, second, it pro­
vides a higher maximum for white teachers than for Negro 
teachers. Under this schedule appellant Alston and other 
Negro teachers can never receive more than the maximum 
of $1235 for Negroes which is but $35 more than the mini­
mum for white male high school teachers, and $950 less 
than the maximum for white male high school teachers.

Under this schedule a Negro teacher must start at a 
lower salary than a white teacher and no matter how long 
he teaches or how well, how many degrees he obtains at 
college or how proficient he may become he can never re­
ceive as much as the maximum for white teachers solely



12

because of his race or color. This system of racial dis­
crimination destroys the opportunity of Negro teachers 
to bargain freely for their salaries. Their freedom of con­
tract is limited to the figures on the schedule which are 
lower than the corresponding figures for white teachers.

Two decisions of similar cases in this circuit clearly rec­
ognize that such discrimination as this is a denial of con­
stitutional rights. In the first case, Mills v. Lowndes, et al.,
26 Fed. Supp. 792 (D. C. Md. 1939), a Negro public school 
teacher in Maryland challenged the constitutionality of a 
state statute which provided a higher minimum salary for f
white teachers than for colored teachers. The Court de­
clared that this type of schedule was unconstitutional:

“ . . . The plaintiff is a qualified school teacher and 
has the civil right as such to pursue his occupation 
without discriminatory legislation on account of his 
race or color. While the State may freely select its 
employees and determine their compensation it would, 
in my opinion, be clearly unconstitutional for a state 
to pass legislation which imposed discriminatory bur­
dens on the colored race with respect to their qualifi­
cations for office or prescribe a rate of pay less than 
that for other classes solely on account of race or 
color . . . ”  (26 Fed. Supp. at 801.)

In the Mills case, supra, the schedule provided for mini­
mum salaries only—in the instant case the discrimination 
is not only as to minimum salaries but maximum salaries 
as well. In the Mills case there was a statutory salary 
schedule—in the instant case there is a salary schedule 
established by administrative ruling of an administrative 
agency of the state.

There can be no question but that the prohibitions of the 
Fourteenth Amendment apply with full vigour to the acts 
of such agencies. Ex parte Virginia, 100 U. S. 339 (1879).



13

B. The Salaries Paid to all Teachers and Principals Reveal 
a Racial Differential Imposed Pursuant to a General 
Practice of Unconstitutional Discrimination

Using the salary schedule set out above as a basis, the 
appellees fix the salaries of the Negro teachers in the public 
schools of Norfolk who are new to the system at a lower 
rate than white teachers new to the system who have identi­
cal state teachers’ certificates, years of experience, exer­
cising the same duties and performing essentially the same 
services (Appendix, p. 46). Similarly Negro teachers in 
intermediary salary status are paid less than white teachers 
with equivalent intermediate status (Appendix, p. 46). The 
discrimination in maximum salaries had already been set 
forth. It is further alleged in the complaint that the dis­
crimination in salaries is based solely on race or color (A p­
pendix, p. 47). White male high school teachers employed 
by appellees whose qualifications, certification, duties and 
services are the same as appellants’ are paid a minimum 
annual salary of $1200 while appellant Alston is paid $921.

The second Mills case, Mills v. Anne Arundel County 
Board of Education, et al., 30 Fed. Supp. 245 (D. C. Md. 
1939), involved the policy, custom and usage of paying 
Negro teachers in Anne Arundel County, Maryland, less 
salary than white teachers solely because of race or color. 
In granting a declaratory judgment and an injunction to the 
Negro teacher, District Judge Chestnut stated:

“ . . . . As already stated, the controlling issue of fact 
is whether there has been unlawful discrimination by 
the defendants in determining the salaries of white and 
colored teachers in Anne Arundel County solely on 
account of race or color, and my finding from the testi­
mony is that this question must be answered in the 
affirmative, and the conclusion of law is that the plaintiff 
is therefore entitled to an injunction against the contin­
uance of this unlawful discrimination. (Italics added.) 
(30 Fed. Supp. at 252.)



14

C. The Equal Protection Clause of the Fourteenth Amend­
ment Prohibits Such Racial Discrimination Against Appel­
lants as Teachers by Occupation and Profession

Virginia has no tenure of office statute covering teachers 
and there are no civil service provisions applicable to them.
The question in this case is not of the right to teach but of 
the right of Negroes, teachers by training and occupation 
not to be discriminated against because of color in the fixing 
of salaries for public employment by the appellees.

In the employment of teachers and the fixing of salaries ^
the appellees are acting as an administrative department 
of the Commonwealth of Virginia distributing public funds 
and not as a private employer distributing his own funds.
A significant difference between the individual employer 
and the state at once suggests itself. The federal Constitu­
tion does not require individuals to accord equal treatment 
to all. It does not forbid individuals to discriminate against 
individuals. It does, however, expressly declare that no 
state shall deny to any person within its jurisdiction the 
equal protection of the laws. Thus state action is prohibited 
by the federal Constitution where individual action is not 
prohibited.

(1 )  T h e  F o u r t e e n t h  A m e n d m e n t  P ro h ibits  a l l  A rbitrary  
an d  U n reason able  C lassificatio n s  b y  S tate  A gencies

While a state is permitted to make reasonable classifica­
tions without doing violence to the equal protection of the 
laws, such classification must be based upon some real and 
substantial distinction, bearing a reasonable and just rela­
tion to the things in respect to which such classification is 
imposed; and classification cannot be arbitrarily made with­
out any substantial basis.

This protection of the Fourteenth Amendment has been 
applied in numerous types of cases in which the courts con­
cluded that unreasonable classification and resultant dis­
crimination were held to be arbitrary and unlawful.



15

Railroad Tax Cases, 13 Fed. 722 (1882);
Southern Railway Co. v. Greene, 216 U. S. 400 (1910); 
Gulf C. and S. F. R. Co. v. Ellis, 165 U. S. 150 (1896); 
Juniata Limestone, Ltd. v. Fagley, et al., 187 Pa. 193, 

40 Atl. 977, (1898);
Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926).

This doctrine has been invoked to prohibit unlawful dis­
crimination in employment. An Arizona statute which pro­
vided that all employers of more than five employees must 
employ not less than eighty percent qualified electors or 
native-born citizens of the United States was held unconsti­
tutional in a suit by an alien.

Truax v. Raich, 239 U. S. 33 (1915).

“ The right to contract for and retain employment in a 
given occupation or calling is not a right secured by 
the Constitution of the United States, nor by any 
Constitution. It is primarily a natural right, and it 
is only when a state law regulating such employment 
discriminates arbitrarily against the equal right of 
some class of citizens of the United States, or some 
class of persons within its jurisdiction, as, for example, 
on account of race or color, that the civil rights of such 
persons are invaded, and the protection of the federal 
Constitution can be invoked to protect the individual 
in his employment or calling.”

Simpson v. Geary, et al., (D. C. Ariz. 1913) 204 Fed. 
507, 512.

(2) D isc r im in a tio n  B ecause  of R ace or C olor Is C learly  
A rbitrary  and  U n reasonable  W it h in  t h e  M e a n in g  of 
t h e  F o u r t e e n t h  A m e n d m e n t

It is clear that, under the Fourteenth Amendment, officers 
of a state cannot discriminate against Negro citizens solely 
because of race or color. The purpose of the Fourteenth 
Amendment has been clearly set out by Mr. Justice Strong 
of the United States Supreme Court in the case of Strauder 
v. West Virginia, 100 U. S. 303 (1879):



16

“ . . . What is this (amendment) but declaring that 
the law in the States shall be the same for the black 
as for the white; that all persons, whether colored or 
white, shall stand equal before the laws of the States 
and, in regard to the colored race, for whose protection 
the Amendment was primarily designed, that no dis­
crimination shall he made against them by law because 
of their color? The words of the Amendment, it is true, 
are prohibitory, but they contain a necessary implica­
tion of a positive immunity, a right, most valuable to 
the colored race—the right to exemption from un­
friendly legislation against them distinctively as col­
ored; . . . ”  Strauder v. West Virginia {supra, at 

_ p .  307).

The Fourteenth Amendment is in general terms and does 
not enumerate the rights it protects:

“ The Fourteenth Amendment makes no attempt to 
enumerate the rights it is designed to protect. It speaks 
in general terms, and those are as comprehensive as 
possible. Its language is prohibitory; but every pro­
hibition implies the existence of rights and immunities, 
prominent among which is an immunity from inequality 
of legal protection, either of life, liberty, or property.
Any State action that denies this immunity to a colored 
man is in conflict with the Constitution.”  /yo °'^

Strauder v. West Virginia {supra, at p. 310.) ^#3,3®

The United States Supreme Court in the case of Ex parte 
Virginia, 100 U. S. 339, 344 (1879), declared:

“ One great purpose of the Amendment was to raise 
the colored race from that condition of inferiority and 
servitude in which most of them had previously stood 
into perfect equality of civil rights with all other per­
sons within the jurisdiction of all the States. They 
were intended to take away all possibility of oppression 
by law because of race or color . . . ”

In consistent application of this interpretation to a great 
variety of situations the courts have condemned all forms 
of state action which impose discriminatory treatment upon 
Negroes because of their race or color.



17

Exclusion from petit jury—Strauder v. West Virginia, 
swpra.

Exclusion from grand jury—Pierre v. Louisiana, 306 
U. S. 354 (1939).

Exclusion from voting at party primary—Nixon v. Con­
don, 286 U. S. 73 (1932).

Discrimination in registration privileges—Lane v. Wil­
son, 307 U. S. 268 (1939).

Ordinance restricting ownership and occupancy of 
property—Buchannan v. Warley, 245 U. S. 60 (1917).

Ordinance restricting pursuit of vocation—Chaires v. 
City of Atlanta, 164 Ga. 755,139 S. E. 559 (1927).

Refusal of pullman accommodations—McCabe v. At. 
chison, Topeka & Sante Fe Ry. Co., 235 U. S. 151 
(1914).

Discrimination in distribution of public school fund— 
Davenport v. Cloverport, 72 Fed. 689 (D. C. Kv. 
1 8 9 6 ).

Discrimination in public school facilities—Gaines v. 
Missouri, 305 U. S. 337 (1938).

It is clear from the cases set out above that: (1) state 
agencies, such as appellees, cannot make classifications on 
an arbitrary or unreasonable basis, and (2) race or color 
alone cannot be used as a basis for discrimination against 
Negroes. There is, therefore, complete legal justification 
for the decisions in the two Mills cases, supra, and the con­
clusion of the District Judge on this point in this instant 
case that: “ . . . there can be no discrimination in a case of 
this kind, if such discrimination is based on race or color 
alone” . (Appendix, p. 60.)

As a general proposition, local school boards, in employ­
ing teachers, may make reasonable classifications which can 
be justified as having a direct connection with the proper 
administration of the school system. There is even some 
authority that local school boards have the power to require 
all new teachers to take an oath that they are not members



18

of a teachers’ union. (Seattle High School, etc. v. Sharpless,
159 Wash. 424, 293 Pac. 994 (1930), and People ex rel. 
Fursman v. Chicago, 278 111. 318, 116 N. E. 158 (1917)). 
However, this power of local school boards must be con­
sidered in connection with the concurring opinion of two 
Justices in the Fursman case, supra, that: “ . . . This power 
does not, however, include the power to adopt any kind of 
an arbitrary rule for the employment of teachers it chooses 
to adopt; for a rule can easily be imagined the adoption of 
which would be unreasonable, contrary to public policy, 
and on the face of it not calculated to promote the best m
interests and welfare of the schools. In our opinion, courts 
would have the power, in the interest of the public good, to 
prohibit the enforcement of such an arbitrary rule . . . ” .
The correctness of the limitation thus declared by the con­
curring justices is well illustrated by two other cases in 
which discriminations against public employees upon the 
basis of unreasonable classifications have been held to he 
invalid.

In In re Opinion of the Justices,—Mass.— , 22 N. E. (2d)
49 (1939), the Supreme Judicial Court of Massachusetts 
held that discrimination against married women in the pub­
lic service, solely because of their marital status, is invalid 
as a denial of equal protection of the laws guaranteed by 
the State Constitution:

“  . . .  the General Court cannot constitutionally enact a S
law, even with respect to employment, in the public 
service, that arbitrarily discriminates against any class 
of citizens by excluding it from such service. This con­
clusion results from . . . the guarantees in Articles 1,
6 and 7 of the Declaration of Eights ‘ for equal protec­
tion of equal laws without discrimination or favor based 
upon unreasonable distinctions.’ ”  (22 N. E. (2d)
at 58).

In Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937), a 
salary differential between married and unmarried teachers 
was held to he an unreasonable classification, and thus to



be void. The situation in that case was closely analagous 
to that in the case at har, and the language of the Indiana 
Court is directly applicable here:

“ So, if the legislative intent, . . . was to authorize the 
School Board to classify its teachers, it necessarily fol­
lows that such classification must be reasonable, nat­
ural, and based upon substantial difference germane to 
the subject . . . The compensation of appellge was 
fixed by the board, partly at least upon the fact that she 
was married. This, in our opinion, was unlawful and 
arbitrary, and formed no rational basis of classifica­
tion. It had no reasonable relation to the work assigned 
to her, as the fact that appellant was a married woman 
did not affect her ability to impart knowledge or per­
form her duties in the school room. It is conceded that 
her marriage status has no such effect and, if not, there 
could be no just or reasonable basis for the school board 
classifying her as far as compensation is concerned, in 
a different and lower class than an unmarried female 
teacher having like qualifications and doing like work. ’ ’ 
(8 N. E. (2d) at 820.)

A fortiori, discrimination based on race or color is arbi­
trary and unreasonable, and therefore is unconstitutional.

D. The Equal Protection Clause of the Fourteenth Amend­
ment Prohibits Such Discrimination Against Appellant 
Alston as a Taxpayer

In addition to his right as a citizen of the United States 
and a teacher by occupation and profession to maintain this 
action, appellant Alston also bases his right to the relief 
prayed for upon the fact that he is a taxpayer. As a tax­
payer he is required to contribute to the public tax fund, 
a portion of which is used for public schools. As a teacher 
in the public schools he has a right to share in this fund 
without discrimination because of his race or color. Any 
illegal action on the part of the appellees in the distribution 
of this fund directly affects appellant Alston and is an 
injury peculiar to him as a taxpayer who is also a teacher.



20

The right of a citizen, resident and taxpayer to attack 
the unconstitutional distribution of public funds has been 
clearly established. In the case of Claybrooh v. City of 
Owensboro, 16 F. 297 (D. C. Ky., 1883), the General As­
sembly of Kentucky passed an act authorizing a municipal 
corporation to levy taxes for school purposes and to dis­
tribute taxes from white people to the white schools, and 
taxes from the colored people to colored schools. Residents 
of the City of Owensboro filed a petition for an injunction 
in the District Court restraining the distribution of these 
taxes on this basis. The Court in granting the injunction 
prayed for stated that:

“ The equal protection of the laws guaranteed by this 
Amendment means and can only mean that the laws of 
the states must be equal in their benefit as well as equal 
in their burdens, and that less would not be ‘ equal pro­
tection of the laws. ’ This does not mean absolute equal­
ity in distributing the benefits of taxation. This is im­
practicable; but it does mean the distribution of the 
benefits upon some fair and equal classification or 
basis.”  (16 Fed. at 302)

See also: Davenport v. Cloverport, 72 Fed. 689, (D. C. 
Ky. 1896); Puitt v. Commissioner of Gaston County, 94 N. C. 
709, 55 Am. R. 638 (1886).

The law sustaining this case is well established and was 
recognized in Virginia in 1883 by the case of Roper v. Mc­
Whorter, 77 Va. 214 (1883):

“ . . . In this country the right of property-holders or 
taxable inhabitants to resort to equity to restrain mu­
nicipal corporations and their officers, and quasi cor­
porations and their officers from transcending their 
lawful powers or violating their legal duties in any 
way which will injuriously affect the taxpayers, such 
as making an unauthorized appropriation of the cor­
porate funds, or an illegal disposition of the corpo­
rate property, . . . has been affirmed or recognized in 
numerous cases in many of the states. It is the prevail­
ing doctrine on the subject.”  (77 Va. at p. 217.)



21

This rule of law as applied in Virginia is the prevailing 
doctrine today as to public schools:

“ Except as relief may be denied where the act com­
plained of does not affect the taxpayer with an injury 
peculiar to himself, it has been held that the authorities 
of a school district may be enjoined at the suit of tax­
payers from making any illegal or unauthorized appro­
priation, use, or expenditure of the district funds, as 
where there is a threatened use or expenditure of funds 
for an illegal or unauthorized purpose, or a threatened 
diversion of funds. ”  56 C. J., Schools and School Dis- 
tricts, sec. 906, page 764.

In the case of Oehler v. City of St. Paul, 174 Minn. 410, 219 
N. W. 760 (1928), the court upheld an injunction restraining 
the appointment to a civil service position without meeting 
civil service requirements, stating:

“  It is well settled that a taxpayer may, when the situ­
ation warrants, maintain an action to restrain unlawful 
disbursement of public moneys . . .  as well as to restrain 
illegal action on the part of public officials.”  (219 N. W. 
at p. 763.)

In the case of Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 
12 (1933), taxpayers were granted an injunction to enjoin 
the local school district from unauthorized use of public 
funds for digging a well.

I In the case of Anderson v. Fuller, 51 Fla. 380, 41 So. 684
(1906), it was held that taxpayers may sue to enjoin public 
officers from paying money under an illegal contract. In 
this case the contract was let without competitive bidding.

In Board of Education v. Arnold, 112 111. 11 (1884), an 
action by a taxpayer, an injunction was granted preventing 
the payment of a teacher who had no certificate from the 
county superintendent.

And a taxpayer was held entitled to an injunction against 
a school district to prevent the employment of a teacher 
whose employment was voted down by a majority of the



22

district. O’Brien v. Moss, 131 Ind. 99, 30 N. E. 894, (1892).
A taxpayer was held entitled to maintain an injunction 

to restrain the payment of a warrant for a school teacher’s 
salary which was illegal. Black v. Ross, 37 Mo. App. 250 
(1889). The court said:

“ If the defendants, as directors of the school dis­
trict, were about to make an unlawful and unauthorized 
disposition of the public school fund, an injunction was 
the only adequate remedy afforded the individual tax­
payer, to prevent the illegal diversion.”

The Facts Alleged in Appellant Alston’s Pleading Do Not 
Constitute a Waiver of His Right to the Relief 

for Which He Prays

In considering the issue of waiver it is and must be as­
sumed that racial discrimination in fixing the salaries of 
public school teachers violates the equal protection clause 
of the Fourteenth Amendment. But admitting such un­
constitutionality the District Court concluded that appellant 
Alston had waived his right to complain of the unconstitu­
tional discrimination.

Scope of Present Waiver Issue

Paragraph 10 of the complaint (Appendix, p. 43) alleges 
that appellees are under a statutory duty to employ teachers 
and to provide for the payment of their salaries, citing, 
inter alia, Section 786 of the Virginia School Laws which 
provides in part that,

“ The City school board of every city shall . . . have 
the following powers and duties. . . . Third. To em­
ploy teachers . . . Twelfth. To . . . provide for the 
pay of teachers . . . ”

It is further provided in Section 664 that



23

“ Written contracts shall be made by the school board 
with all public school teachers before they enter upon 
their duties, in a form to be prescribed by the Super­
intendent of Public Instruction.”

Paragraph 15 of the complaint (Appendix, p. 45) alleges 
that appellant Alston

“ is being paid by the defendants for his services this 
school year as a regular male high school teacher as 
aforesaid an annual salary of $921.”

Thus, from the complaint and the above quoted language 
of applicable Virginia statutes it seems a proper conclusion 
that appellant Alston is employed during the current year 
pursuant to a contract of hire and at an annual salary of 
$921. Moreover, in a preliminary proceeding in the nature 
of a hearing on motion to dismiss the complaint it seems 
proper that the court determine whether any conclusion of 
law fatal to the plaintiff’s case follows from the facts out­
lined above. To that extent, and to that extent only, the 
question of waiver was before the District Court and is in 
issue upon the present appeal.

It is to be noted that so much of the “ Second Defense”  
in the answer as raises the issue of waiver is in form a 
defense in law in the nature of a motion to dismiss, but in 
substance it combines a challenge to the sufficiency of the 
complaint with an introduction of new matter in the nature 
of an affirmative defense. Thus, the sub-paragraphs num­
bered (4) and (5) (Appendix, p. 55) go beyond an allega­
tion that acceptance of employment by the appellant is a 
waiver of the rights asserted in his complaint. These 
sub-paragraphs refer to the specific contract of the appellant 
and incorporate by reference an attached document de­
scribed as a copy of his contract. In thus going beyond the 
fact of employment pursuant to a contract of hire as already 
revealed by the complaint and pertinent statutes, and 
in attempting to put in issue the terms of a particular 
contract, the circumstances of its execution and any legal



24

conclusions that may depend upon such terms and cir­
cumstances, the appellees have introduced an affirmative 
defense. Under Rule 8(c) of the Federal Rules of Civil 
Procedure, such new matter is deemed to be denied without 
reply. Indeed, no reply is permitted except by order of the 
court. See Rule 7(a). Therefore, the new matter alleged 
in the answer was not before the court on a motion to dis­
miss and is not material to the present appeal.

In brief, the question now at issue is whether the facts 
(1) that appellant’s status was created by a contract of 
hire and (2) that he has been employed for a definite salary, 
operate as a matter of law to preclude this suit. Clearly the 
answer to this question is in the negative and, therefore, 
the appellants contend that the judgment of the District 
Court cannot be sustained. Even if the answer to this ques­
tion should be—and the appellants do not concede the cor­
rectness of such an assumption—that the circumstances of 
the particular hiring must be considered before the issue 
of waiver can be decided, the judgment of the District Court 
is in error because such an issue can be determined only 
by a hearing on the merits.

A. The Contract of Hire Is Not Affected hy the Relief 
Sought

No modification of the contract of hire is sought in this 
case. The appellants ask for declaratory relief in the 
form of a decree that the policy, custom and usage of dis­
crimination in salary schedules solely on the basis of race 
and the actual discrimination against them solely on ac­
count of their race are a denial of equal protection of the 
laws. Injunctive relief is sought in the form of a decree 
restraining the appellees from applying the discrimina­
tory salary schedule and from continuing the practice of 
racial differentials in teachers’ salaries.

It is to be emphasized that under the prayers of the com­
plaint the appellees would be left free to determine the



actual salary of each teacher on any basis other than race. 
Certainly the Court is not asked to amend any contract or 
to determine the wage to be paid to any teacher.

Moreover, although the appellants seek immediate relief 
they complain of a continuing wrong. They have a very 
real interest in protection against the continuation of this 
discrimination from year to year in the future. It is within 
the discretion of a court administering equitable relief to 
determine whether its injunctive decree shall impose an 
immediate restraint or whether the decree shall become 
operative at some other date determined in the light of 
the equities of the case before it. Thus, in Mills v. The 
Board of Education, supra, under prayers essentially simi­
lar to those in the present case, the court declared the un­
constitutionality of a racial salary differential and re­
strained its continuance as of the beginning of the next 
school year.

The value of such a prospective decree and the interest 
of the appellants in obtaining such prospective relief, if 
the court in its discretion should thus postpone the oper­
ation of its decree, are apparent. A teacher has a reason­
able expectancy of reemployment from year to year, par­
ticularly such a teacher as the appellant Alston, who has 
been employed continuously for the past five (5) years 
(Appendix, p. 44). Yet his opportunity to bargain for and 
to obtain compensation for the next year is impeded by the 
existing salary schedule and by the custom and practice of 
paying colored teachers less than white teachers solely 
because of their race. That this impediment is an effective 
barrier is shown by appellees ’ denial of appellant Alston’s 
petition for the discontinuance of the racial salary differ­
ential at the beginning of the present school year (A p­
pendix, p. 50) and by the denial of a similar petition of 
another Negro school teacher at the beginning of the 
preceding year. (Appendix, p. 50.)

Thus, the waiver argument is but colorable at best since 
the court is not asked to modify any contract; and with



26

reference to possible prospective relief for the next school 
year the waiver argument has no basis whatever. Yet, the 
contention of appellees and the holding of the District Court 
seem to be that the appellant Alston is precluded from ob­
taining immediate relief because he is under a contract of 
employment for the current school year, and that he is pre­
cluded from obtaining any prospective relief which will 
benefit him in bargaining for compensation for next year 
because he is not now under contract for that year. In 
brief, the decision below puts him in the dilemma of being 
unable to acquire such a status and interest as will give him *
standing to challenge a constitutional wrong without 
waiving his objection to that wrong.

B. The Doctrine of Waiver Has Been Held Inapplicable to 
Analogous Dealings with Public Authorities

The cases generally hold that the acceptance of public 
employment at a particular salary is no waiver of the right 
subsequently to object to the unconstitutionality of unlaw­
ful conduct of public administrative officers in fixing that 
salary. Cases involving various contractual relations with 
agencies of the state are in accord. In the cases which 
follow, courts have gone far beyond any relief sought in the 
present case and have actually modified contracts of public 
employment and other contracts with public agencies.

Courts have granted relief against discrimination be­
tween salaries of men and women teachers, or between the 
salaries of married and single women, imposed by public 
authority contrary to law, despite the complainants ’ agree­
ments to accept a discriminatory salary.

Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937);
Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S.

265; rev’d on other grounds, 245 N. Y. 106 (1927);
Rockwell v. Board of Education, 125 Misc. 136, 210 

N. Y. S. 582; rev’d on other grounds, 214 App. Div.
431, 212 N. Y. S. 281 (1925).



27

Cf.: Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 
27 (1933).

To the same effect are the cases in which a teacher has 
complained of an illegal retirement deduction or other de­
nial of benefits incidental to his employment accomplished 
by imposition of the school authorities, but ivitli his formal 
consent.

Minnesota ex rel. Jennison v. Rogers, 87 Minn. 130, 
91 N. W. 438 (1902)

Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E. 
109 (1901)

School District v. Teachers’ Retirement Fund Assn., 
Ore. —, 95 P. (2d) 720, 96 P. (2d) 419 (1939).

The same conclusion is reached in the long line of cases 
involving agreements to accept less than the statutory sal­
ary of a particular office.

Glavey v. United States, 182 U. S. 595 (1901)
Miller v. United States, 103 Fed. 413 (1900)
Settle v. Sterling, 1 Idaho 259 (1869)
Whiteley County Board of Education v. Rose, 267 Ky.

283, 102 S. W. (2d) 28 (1937)
People ex rel Satterlee v. Board of Police, 75 N. Y. 38 

(1878)

Cf.: Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 
1031 (1933) (Alleged waiver of double compensation 
for overtime)

Courts have not hestitated to invalidate bargains between 
public officers and independent contractors upon the com­
plaints of such contractors that the contracts signed by them 
contained terms which the public authorities had imposed 
in violation of some constitutional or other legal right.



28

Lukens v. Nye, 156 Cal. 498, 105 Pac. 593 (1909)
People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E.

716 (1901)
City of Cleveland v. Clements Bros. Construction Co.,

67 Ohio St. 197, 65 N. E. 885 (1902)

R atio n ale  of t h e  D ecisions

Considerations of equity and public policy underlie the 
refusal of courts to recognize any waiver or estoppel in 
these cases. fi

Where a statute or administrative order or regulation 
requires the discriminatory or otherwise illegal action in 
question, the person dealing with the public agency has no 
such choice or freedom of bargaining with reference to 
that phase of the transaction as will on equitable principles 
create an estoppel. The subject matter in question has been 
removed from the area of free bargaining by the illegal 
conduct of the state or its agents. The illegal element in 
the transaction is present not because of voluntary agree­
ment of the parties that it be there but because govern­
mental authority has required that it be there.

See Minnesota ex rel. Jennison v. Rogers, supra 
City of Cleveland v. Clements Bros., supra 
Whiteley County Board of Education v. Rose, supra

The fact that appellants are met at the threshold of their 
transaction with the state by a schedule and a practice of 
race discrimination in salaries leaves them only the alter­
natives of foregoing employment altogether or accepting 
employment under conditions of discrimination. This situ­
ation is emphasized by the fact, pleaded by the appellants 
(Appendix, p. 50) that a petition filed by a Negro school 
teacher on behalf of herself and the other Negro teachers 
of Norfolk in October, 1939, requesting the elimination of 
racial salary differentials was denied. In such circum­
stances submission to discrimination cannot be said to be



29

voluntary in the sense in which a choice must be voluntary 
to constitute a waiver of objection to the imposed condition.

“ Were the rule otherwise it would be comparatively an 
easy matter for the governing authorities to take ad­
vantage of an officer dependent upon his salary for a 
livelihood and virtually compel him to forego his con­
stitutional right.”  Whiteley County Board of Educa­
tion v. Rose, 102 S. W. (2d) at p. 30.

A comparable and analogous situation arises when a state 
imposes upon a foreign corporation, as a condition of con­
tinuation in business within its borders, the payment of a 
tax which denies the corporation equal protection of the 
laws. The corporation may remain in the state and resist 
the tax.

Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926)

Similarly, when the privilege of using the public highway 
as a private carrier for hire is conditioned upon the assump­
tion of the obligations of a public carrier the entrepreneur 
may use the highway in his business as a private carrier 
and at the same time resist the unconstitutional condition.

Frost Trucking Co. v. Railroad Commission, 271 U. S.
583 (1926)

“ Having regard to form alone, the act here is an offer 
to the private carrier of a privilege, which the state 
may grant or deny, upon a condition, which the carrier 
is free to accept or reject. In reality, the carrier is 
given no choice, except a choice between the rock and 
the whirlpool—an option to forego a privilege which 
may be vital to his livelihood or submit to a require­
ment which may constitute an intolerable burden.”  
(271 U. S. at 593)

The court continues with language peculiarly apposite to 
the contention of waiver in the present case:



30

“ It is not necessary to challenge the proposition that, 
as a general rule, the state, having power to deny a 
privilege altogether, may grant it upon such conditions 
as it sees fit to impose. But the power of the state in 
that respect is not unlimited; and one of the limitations 
is that it may not impose conditions which require the 
relinquishment of constitutional rights. If the state 
may compel the surrender of one constitutional right 
as a condition of its favor, it may, in like manner, com­
pel a surrender of all. It is inconceivable that guaran­
tees embedded in the Constitution of the United States 
may thus be manipulated out of existence.”  (271 U. S. 
at p. 593-4)

Again, the Supreme Court has held in Union Pacific Rail­
way v. Public Service Corporation, 248 U. S. 67 (1918), that 
in applying for and obtaining a certificate which was a 
statutory prerequisite to the issuance of certain bonds, the 
corporation did not waive its right to contest the consti­
tutionality of the condition thus imposed on it.

“ The certificate was a commercial necessity for the 
issue of the bonds. . . .  Of course, it was for the in­
terest of the company to get the certificate. It always 
is for the interest of a party under duress to choose 
the lesser of two evils. But the fact that a choice was 
made according to interest does not exclude duress. It 
is the characteristic of duress properly so called.”  
(248 U. S. at p. 70)

The common element of duress resulting from imposition 
of economic pressure characterizes the action of the public 
authorities in all of these cases as in the case at bar. The 
state leaves the constrained person merely a choice be­
tween accepting an unconstitutional and otherwise illegal 
arrangement on the one hand or suffering serious loss on 
the other. No doctrine of waiver founded on equitable 
principles can have application in such a situation. ‘ ‘ Guar­
antees imbedded in the Constitution of the United States 
(cannot) thus be manipulated out of existence.”



In addition to the considerations above presented, the 
question of public policy is emphasized in a large number 
of decisions against alleged waiver of advantages incidental 
to public employment. The courts have reasoned that the 
deprivation of rights to salary or other benefits incidental 
to public employment, or incidental to some other public 
relationship, involves not only the individual interest of 
the person immediately effected, but also the public interest 
in the public activity in which that person is engaged. 
Thus, in the already cited cases of statutory salaries the 
courts agree that there is a controlling public interest in 
the protection of the public service against the demoralizing 
effect of salary reductions below the amount legislatively 
determined to be adequate, and that no waiver by the in­
dividual employee can be effective in such circumstances. 
To the same effect is School District v. Teachers’ Retirement 
Fund Assn., supra, where a teacher’s express waiver of 
his right to certain disability compensation was held to he 
against public policy and therefore ineffective.

The case at bar involves the very important public in­
terest in maintaining an effective public school system and 
in providing equal educational opportunities for white and 
colored children. Express declarations of such interest and 
policy appear in Section 129 of Article IX  of the Constitu­
tion of Virginia and in Sections 680 and 786 of the School 
Code of Virginia.

“ The general assembly shall establish and maintain 
an efficient system of public free schools throughout 
the State.”  Va. Const., Art. IX, Sec. 129.

City school boards are required to

“ . . . establish and maintain . . .  a general system 
of public free schools in accordance with the require­
ments of the constitution and the general educational 
policy of the Commonwealth.”  Va. School Code, Sec. 
786.



32

‘ ‘ White and colored children shall not be taught in the 
same school, but shall be taught in separate schools, 
under the same general regulations as to management, 
usefulness and efficiency.”  Va. School Code, Sec. 680.

While colored teachers are held to the same professional 
standards as white teachers and many colored teachers 
manage to continue their professional studies so as to 
achieve efficiency beyond the requirement of their classi­
fication, it cannot be denied that the general effect of sub­
stantial salary discrimination is to impose a barrier of 
economic disadvantage which impedes the professional and 
scholarly advancement of those who teach colored children. 
The imposition of such a handicap upon the whole body of 
teachers in colored schools is in plain derogation of the 
legislative policy of maintaining an efficient school system 
and the more specific policy of equality in educational facili­
ties for white and colored children. It is also noteworthy 
that, since on the record race and color are admitted to be 
the sole basis of the unlawful discrimination, there is not 
even a design to promote any public interest through this 
discrimination.

For these reasons, public policy alone is a sufficient basis 
for judicial refusal to impose any estoppel or waiver upon 
a teacher who complains of unconstitutional salary dis­
crimination against Negro teachers.

C. Decision on the Waiver Issue Was Erroneously Based 
Upon Facts Not Before the District Court

The foregoing discussion of waiver presupposes that a 
decisive answer on the question of waiver or estoppel can 
be given on the appellants’ complaint and applicable stat­
utes. Appellants, for the reasons hereinbefore presented, 
contend that it is clear that no waiver results from the con­
duct of appellant Alston. Appellees, on the other hand, 
contend that employment pursuant to a contract of hire 
results as a matter of law in waiver of the rights herein



asserted. But the District Court took an intermediate posi­
tion,—that waiver is a question to be determined upon the 
facts of the particular hiring. The following excerpts from 
the opinion of the District Court show that court’s approach 
and analysis:

“ A  defense set up in the answer . . . and which stands 
out in the record as an undisputed fact, is that some­
time before this suit was instituted the plaintiff entered 
into a contract with the defendant school board, which 
contract covers the subject matter of this litigation. . . .
“ A  copy of that contract is in the record before the 
court. There is an absence of any claim that I can find 
in the complaint to the effect that the plaintiff was in­
duced to enter into the contract by fraud, misrepre­
sentation or that it was entered into under duress or 
that any unfair means were employed by defendants 
in that behalf, or that it was ever made or signed under 
protest. . . .  I am fully aware of the fact that in situ­
ations of this kind it sometimes happens that the em­
ployee is at a distinct disadvantage, is not in a position 
boldly to assert what he conceives to be his rights, and 
does not, in fact, therefore, contract freely with the 
other party. But I do not find in the record any facts 
that have been pleaded by way of explanation that could 
reasonably justify the court in reaching the conclu­
sion that it ought to disregard the written contract and 
further proceed in the case in spite of the fact that 
the plaintiff voluntarily entered into such contractual 
relation with the defendants. ’ ’ (Appendix, pp. 61-62.)

The error of this analysis, in addition to the mistaken 
premise that the issue of waiver in this type of case cannot 
be dismissed without consideration of the details of the 
particular hiring, is that new matter, pleaded in the answer 
and an exhibit to the answer, is used as the factual basis of 
decision on a motion to dismiss the complaint. It is beyond 
question, both before and since the adoption of the present 
Rules of Civil Procedure, that such pleadings and exhibits, 
extrinsic of the complaint, cannot be considered on a motion 
to dismiss.



34

Cf.: Polk v. Glover, 305 U. S. 5 (1938)
Gibbs v. Buck, 307 U. S. 66 (1939)
Joyner v. Browning, 30 F. Supp. 512 (D. C. W. D.

Tenn., 1939)

As heretofore pointed out, the terms and circumstances 
of hiring pleaded in the answer represent an attempt to as­
sert an affirmative defense, and under Civil Rule No. 7(a) 
such new matter is deemed denied without reply. If the 
terms of the particular hiring are material, or if the con­
duct of the parties prior to and at the time of the particular t
hiring have any legal significance in a case of this char­
acter, then decision on the issue of waiver should have been 
for the appellants on preliminary hearing, with ultimate 
decision on the issue reserved for determination after a 
final hearing on the merits.

At such a hearing the appellants would have been prepared 
to show, in addition to the petitions of Aline Black and the 
appellant Alston in 1938 and 1939 for removal of racial 
discrimination in salaries, and such other matters as are 
already pleaded in the complaint, the following facts:

(1) That at the time he signed the contract in question 
appellant Alston knew that Aline Black, a teacher in 
the same building with him, very recently had been 
denied reemployment because of her efforts to have 
racial discrimination in salaries discontinued.

(2) That appellant Alston is dependent upon his salary 
as a teacher for his livelihood and faced the prospect 
of destitution if he should not have been reemployed.

(3) That the appellees had caused appellant Alston 
to believe, and reasonably so, that any protest made 
by him before the execution of his contract would re­
sult in his being denied reemployment.



35

(4) That the contract of the appellant Alston contains 
a clause which is properly construed as giving the 
appellee school board an absolute right to increase or 
decrease his salary for any reason on one month’s 
notice.
(5) That before the tender of teachers’ contracts for 
the year 1939-40 the appellee school board by formal 
resolution fixed the precise salary to be stipulated in 
the contract of each teacher, including appellant Alston.
(6) That the aforesaid action of the board left appel­
lant Alston and the person tendering a contract to him 
on behalf of the board powerless to change or bargain 
with reference to the terms of hiring.
(7) That before receiving any salary or other benefit 
under his contract appellant Alston, seasonably and 
at the first reasonable opportunity petitioned the board 
to reconsider its action in fixing salaries on a discrimi­
natory basis.

Thus, even on the District Court’s analysis of the waiver 
issue, appellants were denied their lawful opportunity and 
valuable right to contest an affirmative defense on its 
merits.

I l l

There Is No Merit in the Other Purported Defenses of Law 
Raised by the Answer and Not Relied Upon 

in the Argument

A. An Amount in Controversy to Exceed $3,000 Is Not 
Required to Confer Jurisdiction in This Case

At the hearing on the Motion to Dismiss the appellees 
properly disclaimed any reliance upon the contention raised 
by paragraph (a) of their “ First Defense”  (see Appendix, 
p. 54).

The federal courts have repeatedly asserted that in a 
suit to vindicate the denial of civil rights guaranteed under



36

the Constitution and laws of the United States no monetary 
value, in terms of exact measurement, can be placed upon 
such rights, and they will therefore be presumed to have 
a value in excess of the jurisdictional amount, if such valu­
ation be necessary.

Glenwood Light and Water Co. v. Mutual Light, Heat 
and Power Co., 239 U. S. 121 (1915)

Wiley v. Sinkler, 179 U. S. 58 (1900)
Swafford v. Templeton, 185 U. S. 487 (1902) 
International News Service v. Associated Press, 248 

U. S. 215 (1918)

However, it has likewise been repeatedly asserted, by the 
federal courts, that in actions for the deprivation of civil 
rights and liberties the statutes of the United States confer 
jurisdiction upon the federal courts irrespective of the 
amounts in controversy or whether any amount of damage 
is averred. Section 24 (1) of the Judicial Code (28 U. S. C., 
Sec. 41 (1)) is followed by a series of situations excepted 
from the requirements of the jurisdictional amount. Among 
these is the 14th subdivision upon which appellants rely:

“ Suits to redress deprivation of civil rights. Four­
teenth. Of all suits at law or in equity authorized by 
law to be brought by any person to redress the depriva­
tion, under color of any law, statute, ordinance, regu­
lation, custom, or usage, of any State, or any right, 
privilege, or immunity, secured by the Constitution 
of the United States, or of any right secured by any 
law of the United States providing for equal rights of 
citizens of the United States, or of all persons within 
the jurisdiction of the United States.”

The courts have without hesitancy applied this section, 
and stated that the amount in controversy is not material. 

Davenport v. Cloverport, supra.
Broom v. Wood, 1 F. Supp. 134,136 (1931)
Mills v. Board of Education, etc., supra.
Hague v. Committee for Industrial Organization, 307 

U. S. 496, 519 (1939)



37

In the last cited case, the most recent opinion of the 
Supreme Court on the subject, Mr. Justice Stone said:

‘ ‘ As will presently appear, the right to maintain a suit 
in equity to restrain state officers, acting under a state 
law, from infringing the rights of freedom of speech 
and of assembly guaranteed by the due process clause, 
is given by Act of Congress to every person within the 
jurisdiction of the United States, whether a citizen or 
not, and such a suit may be maintained in the district 
court without allegation or proof that the jurisdictional 
amount required by section 24 (1) of the Judicial Code 

Jl is involved. . . .”  (Italics added.)

B. Appellants Have No Full, Adequate and Complete 
Remedy at Law

Presumably appellees, in asserting the existence of a 
complete remedy at law, intended to rely upon the proposi­
tion that appellants have a legal remedy by mandamus in 
the state courts. While this was not argued below, and 
therefore, may be deemed to have been abandoned, it is 
not considered improper to direct the court’s attention to 
two recent cases by the Supreme Court of the United States 
which clearly establish that such contention is without 
merit. In Di Giovanni v. Camden Ins. Association, 296 U. S. 
64, 69 (1935), the court said:

“ It is true, as this Court has often pointed out, that 
the inadequacy prerequisite to relief in a federal court 
of equity is measured by the character of the remedy 
afforded in a federal rather than a state court of law. 
(Citing cases) If a plaintiff is entitled to be heard in 
in the federal courts he may resort to equity when the 
remedy at law there is inadequate, regardless of the 
legal adequacy of the legal remedy the state courts may 
afford. Otherwise the suitor in the federal courts might 
be entitled to a remedy in equity which the federal 
courts of law are not competent to give, or, on the other 
hand, be obliged to forego his right to be heard in the



38

federal courts in order to secure an equitable remedy 
which the state courts of law do but the federal courts 
of law do not give. ’ ’

In Petroleum Exploration Inc. v. Public Service Com­
mission, et al., 304 U. S. 209, 217 (1937), the court said:

“ It is settled that no adequate remedy at law exists, 
so as to deprive federal courts of equity jurisdiction, 
unless it is available in the federal courts.”

It is well settled by a long course of judicial decisions that 
an original writ of mandamus does not lie within the juris­
diction of the federal courts conferred by Section 24 (1) 
Judicial Code (28 U. S. C. A. 41 (1)).

Knapp v. Lake Shore, etc. Ry. Co., 197 U. S. 536 (1905) 
American Union Telegraph Co. v. Bell Telephone Co., 

1 F ed .698 (1880)
M ’Intire v. Wood, 7 Cranch 504, (1813)
Smith v. Bourbon County, 127 U. S. 105, (1888)

Lacking an adequate remedy at law in the federal courts 
appellants cannot be denied their right to resort to that 
sovereignty for equitable relief because some other sov­
ereign offers aid of a different sort.

C. The Plea of Res Judicata Is an Affirmative Defense and 
Not Now Before the Court

The plea of res judicata was properly ignored by the 
court below. Res judicata is an affirmative defense (Civil 
Rules 8 (c)) and the District Court did not have the opin­
ion or pleadings in the Black case before it. A  document 
purporting to be the final order therein is attached as an 
exhibit to the answer, but, under the rules, was not before 
the court for consideration.

At the proper time, upon a hearing on the merits, the 
defense will fail (a) because the Black case was not decided



upon the merits but on a question of availability of man­
damus as a remedy under Virginia law, and (b) because 
the appellants here were neither party nor privy to that 
litigation.

CONCLUSION

A constitutional issue of great importance to the parties 
and to the public is presented by this litigation. The effect 
of the decision of the trial court is to place material damage 
resulting from violation of Constitutional right beyond judi­
cial cognizance. No conduct of appellants requires or war­
rants such a result. While justice remains the end of law, 
such a decision as is here challenged cannot be consistent 
with law.

Respectfully submitted,

O liver  W . H il l ,
T hurgood  M a r sh a ll ,
L eon  A. R a n so m ,
W il l ia m  H . H a stie ,

Counsel for Appellants.
117 E. Leigh Street,
Richmond, Va.



40

APPENDIX

[Caption]

Complaint

1. The jurisdiction of this court is invoked under Judicial 
Code, section 24 (1) (28 U.S.C., Section 41 (1), this being a 
suit in equity which arises under the Constitution and/or 
laws of the United States, viz., the Fourteenth Amendment 
of said Constitution and/or Sections 41 and 43 of Title 8 
of the United States Code, wherein the matter in contro­
versy exceeds, exclusive of interest and costs, the sum of 
$3000. The jurisdiction of this court is also invoked under 
Judicial Code, Section 24 (14) (28 U.S.C., Section 41 (14), 
this being a suit in equity authorized by law to be brought 
to redress the deprivation under color of law, statute, regu­
lation, custom and usage of a State of rights, privileges and 
immunities secured by the Constitution of the United 
States, viz., the Fourteenth Amendment to said Constitu­
tion, and of rights secured by laws of the United States 
providing for equal rights of citizens of the United States 
and of all persons within the jurisdiction of the United 
States, viz., Sections 41 and 43 of Title 8 of the United 
States Code.

2. Plaintiffs show further that this is a proceeding for a 
declaratory judgment and an injunction under Section 274D 
of the Judicial Code for the purpose of determining a ques­
tion in actual controversy between the parties, to-wit, the 
question of whether the practice of the defendants, in 
adopting, enforcing and maintaining the policy, custom 
and usage by which plaintiffs and other Negro teachers and 
principals in the public schools of the City of Norfolk are 
uniformly paid lower salaries than white teachers and prin­
cipals in the City of Norfolk possessing the same profes­
sional qualifications and certificates, exercising the same 
duties and performing the same services, solely on account 
of their race and color is unconstitutional and void being a



41

violation of the Fourteenth Amendment to the United 
States Constitution and the laws of the United States and 
the Constitution and Laws of the Commonwealth of Vir­
ginia, all of which will appear more fully hereafter.

3. All parties to this action, both plaintiffs and defend­
ants, are citizens of the United States and of the State of 
Virginia and are resident and domiciled in said State. 
Defendant School Board of the City of Norfolk at all times 
mentioned herein was and is by law declared a body cor­
porate.

4. Plaintiff, Melvin 0. Alston, is colored, a person of 
African descent and of Negro blood. He is a tax payer of 
the City of Norfolk and the State of Virginia. He is a 
regular teacher in the Booker T. Washington High School, 
a public high school located in Norfolk, Virginia, main­
tained and operated by the School Board of the City of 
Norfolk. This suit is brought on his own behalf and also 
on behalf of other persons, citizens and residents of the 
State of Virginia, namely, teachers and principals in the 
colored schools of Norfolk, Virginia, similarly situated and 
affected, as will hereinafter more fully appear.

5. Plaintiff, Norfolk Teachers’ Association, a voluntary 
unincorporated association, is composed of Negro teachers 
and principals in the public colored schools of Norfolk, V ir­
ginia, organized for the mutual improvement and protection 
of its members in their profession as teachers and principals 
in the public schools of Norfolk, Virginia.

6. Defendant School Board of the City of Norfolk exists 
pursuant to the laws of Virginia as an administrative de­
partment of the State of Virginia discharging governmental 
functions (Constitution of Virginia, Article IX, Section 
133; Code of Virginia, Chapter 35, Sections 774-776). 
Defendant C. W. Mason is Superintendent of Schools of 
Norfolk and holds office pursuant to the Constitution and 
laws of Virginia as an administrative officer of the public



42

free school system of Virginia (Constitution of Virginia,
Article IX, Section 133; Code of Virginia, Chapter 34, Sec­
tion 774). C. W. Mason is made a defendant herein and is 
sued in his official capacity.

7. The State of Virginia has declared public education a 
State function. The Constitution of Virginia, Article IX, 
Section 129, provides:

“ Free schools to be maintained.—The general assem­
bly shall establish and maintain an efficient system of 
public free schools throughout the State.”  4

Pursuant to this mandate the General Assembly of Virginia 
has established a system of free public schools in the State 
of Virginia according to a plan set out in Chapters 34 and 
35 of the Virginia Code of 1936, and supplement thereto 
of 1938. Provision has been made for the establishment of 
separate schools for white and colored persons with the 
positive duty of maintaining these separate schools under 
the same general regulations as to management, usefulness 
and efficiency (Virginia School Code, Section 680). The 
establishment, maintenance and administration of the pub­
lic school system of Virginia is vested in a State Board of 
Education, a Superintendent of Public Instruction, division 
superintendent of schools and county and city school hoards 
(Constitution of Virginia, Article IX, Sections 131-133; ,
Virginia School Code, Chapter 33, Section 611A).

8. All teachers in Virginia, including plaintiffs and other 
teachers in Norfolk are required to hold teaching certifi­
cates in full force in accordance with the rules of certifica­
tion laid down by the State Board of Education (Virginia 
School Code, Chapter 33, Section 660). The duty of en­
forcing this system is imposed upon the several county and 
city school boards including the defendant School Board of 
the City of Norfolk (Virginia School Code, Chapter 33, Sec­
tion 660.) Negro and white teachers and principals alike



43

must meet the same requirements to receive teachers’ cer­
tificates from the State Board of Education, and upon 
qualifying are issued identical certificates.

9. The public schools of the City of Norfolk, Virginia, are 
under the direct control and supervision of the defendants 
acting as an administrative department or division of the 
Commonwealth of Virginia (Virginia School Code, Chapter 
34, Sections 774-786); the defendants are under a duty to 
maintain an efficient system of public schools in Norfolk 
(Virginia School Code, Chapter 33, Section 611); Chapter 
36, Section 786); and to enforce the school laws of the 
Commonwealth of Virginia (Virginia School Code, Chap­
ter 33, Section 660; Chapter 35, Section 786).

10. The defendants are under a duty to employ teachers 
(Virginia School Code, Chapter 33, Section 660; Chapter 35, 
Section 786); and to provide for the payment of teachers’ 
salaries (Virginia School Code, Chapter 33, Section 656; 
Chapter 35, Section 786); including the salaries of the plain­
tiffs herein and all other teachers and principals employed 
by defendants. The defendants are under a positive duty 
to enforce regulations for the employment, remuneration 
and dismissal of teachers in Norfolk (Chapter 48, Section 
754 of the Charter and General Ordinances of the City of 
Norfolk—1920).

11. Defendants over a long period of years have con­
sistently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of paying 
Negro teachers and principals in the public schools of Nor­
folk less salary than white teachers and principals in said 
public school system possessing the same professional quali­
fications, certificates and experience, exercising the same 
duties and performing the same services as Negro teachers 
and principals. Such discrimination is being practiced 
against the plaintiffs and all other Negro teachers and prin­
cipals in Norfolk, Virginia, and is based solely upon their 
race or color.



44

12. The plaintiff Alston and all of the members of the 
plaintiff association and all other Negro teachers and prin­
cipals in public schools in the City of Norfolk are teachers 
by profession and are specially trained for their calling. 
By rules, regulations, practice, usage and custom of the 
Commonwealth acting by and through the defendants as its 
agents and agencies, the plaintiff Alston and all of the 
members of the plaintiff association and all other Negro 
teachers and principals in the City of Norfolk are being- 
denied the equal protection of the laws in that solely by 
reason of their race and color they are being denied com­
pensation from public funds for their services as teachers 
equal to the compensation provided from public funds for 
and being paid to white teachers with equal qualifications 
and experience for equivalent services pursuant to rules, 
regulations, custom and practice of the Commonwealth act­
ing by and through its agents and agencies, the School 
Board of the City of Norfolk and the Superintendent of 
Schools of Norfolk, Virginia.

13. Plaintiff, Melvin 0. Alston, has been employed as a 
regular male teacher by the defendants since September, 
1935, and is in his fifth year of experience as a regular 
teacher in the Booker T. Washington High School, a public 
high school maintained and operated under the direct con­
trol, supervision, rules and regulations of the defendants. 
He successfully completed the course of instruction pro­
vided at Virginia State College for Negroes, an accredited 
college maintained and operated by the State of Virginia 
for the instruction and preparation of Negroes as teachers 
in the public schools of the State. He holds a Collegiate 
Professional Certificate, the highest certificate issued by 
the Virginia State Board of Education for teaching in the 
public high schools of Virginia. In order to qualify for this 
certificate plaintiff has satisfied the same requirements as 
those exacted of all other teachers, white as well as Negro, 
qualifying therefor, and he exercises the same duties and 
performs services substantially equivalent to those per-



45

formed by other holders of the said certificate, white as well 
as Negro, yet all white male teachers in Norfolk who hold 
the said certificate with equal and less experience receive 
salaries much larger than the salary paid the plaintiff.

14. White male high school teachers employed by de­
fendants whose qualifications, certification, duties and serv­
ices are the same as plaintiff’s are being paid by defendants 
a minimum annual salary of Twelve Hundred ($1200.00) 
Dollars.

|! 15. Plaintiff Alston is being paid by the defendants for
his services this school year as a regular male high school 
teacher as aforesaid an annual salary of Nine Hundred and 
Twenty-one ($921.00) Dollars, being the amount fixed by 
defendants for Negro male high school teachers in their 
fifth year of teaching experience and solely because of the 
practice, usage and custom complained of in paragraph 11 
of this complaint, and by the operation of the discriminatory 
salary schedule described in paragraphs 16 and 17 of this 
complaint the plaintiffs have been, are, and unless relief 
shall be granted by this Honorable Court as hereinafter 
prayed, will continue to be denied, solely by reason of race 
and color the opportunity to receive a higher salary equal 
to that paid to any white teachers similarly situated.

16. Pursuant to the policy, custom and usage set out in
* paragraph 12 the defendants acting as agents and agencies 

of the Commonwealth of Virginia have established and 
maintained a salary schedule used by them to fix the amount 
of compensation for teachers and principals in the public 
schools of Norfolk which discriminates against plaintiffs 
solely because of their race or color. All teachers and prin­
cipals in the public schools of Norfolk, including the plain­
tiffs, have been, are being and will continue to be paid by 
defendants pursuant to the following salary schedule 
adopted, maintained and being enforced by the defendants 
for the school year 1939-1940:



46

Negro— 
Elementary

S a la r ie s  n o w  
b e in g  p a id  

te a c h e r s  n e w  
t o  th e  s y s te m

M a x im u m  s a la r y  
b e in g  p a id  

(a f fe c t in g  o n ly  
th o s e  in  s y s te m  

b e fo r e  in cr e m e n t  
p la n  w a s  

d is c o n t in u e d )

Normal Certificate $ 597.50 $ 960.10
Degree 

High School
611.00 960.00

Women 699.00 1,105.20
Men

White
Elementary

784.50 1,235.00

Normal Certificate 850.00 1,425.00
Degree 

High School
937.00 1,425.00

Women 970.00 1,900.00
Men 1,200.00 2,185.00

The practical application of this salary schedule has been, 
is, and will be to pay Negro teachers and principals of equal 
qualifications, certification and experience with white teach­
ers and principals less compensation from public funds 
solely on account of their race or color.

17. The salary schedule set out in paragraph 16 by which 
plaintiffs and other teachers and principals in Norfolk are 
being paid and are to be paid provides for a higher salary 
for Avhite teachers new to the system than for Negro teach­
ers new to the system with identical state certificates, exer­
cising the same duties and performing essentially the same 
services; and a higher maximum salary for white teachers 
than for Negro teachers with identical state certificates, 
exercising the same duties and performing essentially the 
same services; and pursuant to and because of said maxima 
and minima white teachers in intermediate salary status are 
paid higher salaries than Negro teachers with equivalent 
intermediate status and experience, holding identical state 
certificates, exercising the same duties and performing es­



47

sentially the same services. The said discriminations in and 
pursuant to the schedule of salaries being paid and to be 
paid are based solely on race or color and amount to an 
unlawful discrimination which constitutes a denial of due 
process of law and equal protection of the laws guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution, and is therefore unconstitutional and void.

18. In enforcing and maintaining the policy, regulation, 
custom, and usage by which plaintiffs and other Negro 
teachers and principals in the public schools of Norfolk are 
uniformly paid lower salaries than white teachers and 
principals possessing the same professional qualifications 
and certificates, having the same experience, exercising the 
same duties and performing essentially the same services, 
solely on account of the race or color of the plaintiffs, de­
fendants, as administx-ative agents of the Commonwealth 
of Virginia, have violated and are continuing to violate the 
equal protection of the laws and due process clauses of the 
Fourteenth Amendment to the United States Constitution, 
and Sections 41 and 43 of Title 8 of the United States Code. 
To the extent that defendants in enforcing said discrimina­
tory system are acting under color of statute, regulation, 
policy, custom or usage, said statute, regulation, policy, 
custom or usage is void and unconstitutional, and to the 
extent that defendants may he acting without benefit of 
statute, regulation, policy, custom or usage, their acts are 
nevertheless acts of the State, similarly void and unconsti­
tutional.

19. The salaries of all teachers and principals in the pub­
lic schools of the City of Norfolk, including the salaries of 
petitioners, are paid out of the public school fund. This 
fund derives from two sources: The Commonwealth of Vir­
ginia and the City of Norfolk (Virginia School Code, Chap­
ter 33, Section 646); all of said public school fund is raised 
by means of taxation upon the inhabitants of Virginia and 
their property (Constitution of Virginia, Article IX, Sec­



48

tions 135, 136; Virginia School Code, Chapter 33, Sections 
657, 698, 699; Chapter 35, Section 782). Pursuant to these 
statutes all that portion of the public school fund which de­
rives directly from the state is used exclusively for the pay­
ment of teachers’ salaries (Virginia School Code, Chapter 
33, Section 701).

20. Plaintiff Melvin 0. Alston is an owner of property 
jointly with other members of his family, a citizen and a 
resident of the City of Norfolk, and the Commonwealth of 
Virginia, and is a taxpayer in said City and Commonwealth 
contributing directly thereby to the creation of said public 
school fund and the payment of teachers’ and principals’ 
salaries, including his own. The property of plaintiff Al­
ston is taxed equally and in the same proportion as that of 
all other citizens, residents and property owners of the 
City of Norfolk and the Commonwealth of Virginia; no 
discrimination is made in the rate of taxes he is required to 
pay into the said public school fund on account of his race 
or color. Under the Constitution of Virginia said public 
school fund is to be administered for the equal benefit of all 
the people of the State (Constitution of Virginia, Article 
IX, Section 135.)

21. By virtue of the discriminatory salary schedule for 
teachers established and maintained by the defendants, 
hereinbefore set forth in paragraph 16, and the custom set 
out in paragraph 12, the plaintiff is denied an equal and 
proportionate participation in the benefit derived from that 
portion of his taxes devoted to the public school fund and 
the payment of teachers’ salaries therefrom; he is denied 
said equal and proportionate participation in said benefit 
and return solely on account of his race and color, con­
trary to the provisions of the Fourteenth Amendment to 
the Constitution of the United States and thereby suffers 
and sustains special and particular damage from the dis­
crimination practiced against him in the distribution of the 
fund which his taxes helped to create; and he is Avithout 
remedy save this Honorable Court issue its writ of in­



49

junction restraining the defendants from distributing on 
an unconstitutional basis, and according to the discrimina­
tory and unconstitutional salary schedule hereinbefore de­
scribed and set forth at paragraph 16, the public school 
fund, to which plaintiff contributes, and which is used for 
the payment of teachers ’ salaries.

22. The defendants have the official authority and duty 
of maintaining the public schools within the corporate limits 
of the City of Norfolk (Chapter 48, Section 754 of the 
Charter and General Ordinances of the City of Norfolk— 
1920); the defendant School Board is required on or before 
the first day of October of each year to submit to the City 
Manager of the City of Norfolk, Virginia, a detailed esti­
mate of its budget for the ensuing school year (Charter of 
the City of Norfolk, Section 109, Acts of Assembly of 1918). 
The City Manager of the City of Norfolk is required to 
submit all estimates, including the estimate of the public 
school budget for annual appropriations to the City Council 
at least sixty days before the end of the fiscal year (Charter 
of the City of Norfolk, Section 67, Acts of Assembly, 1918). 
Beginning with January 1, 1920, the fiscal year for Norfolk 
begins with January 1 and ends with December 31 of each 
year (Charter of the City of Norfolk, Section 69, Acts of 
Assembly 1918.) The City Council is required to pass the 
annual appropriations at least thirty days prior to the end 
of the fiscal year (Charter of the City of Norfolk, Section 
68, Acts of Assembly, 1918). The section of the estimate of 
the budget for the year 1940 for the public schools of Nor­
folk on teachers’ salaries is based upon the discriminatory 
salary schedule set out in paragraph 16 of this complaint 
and the practice, policy, custom and usage set out in para­
graph 12 of this complaint. Unless this Honorable Court 
intervenes and grants the relief prayed in this complaint, 
the defendants will continue to distribute the public school 
fund for the City of Norfolk on the illegal and unconstitu­
tional basis set out above to the irreparable injury of the 
plaintiffs and others on whose behalf they file this suit.



50

23. A  petition on behalf of Aline Elizabeth Black, indi­
vidually and on behalf of the Negro teachers and principals, 
including the present plaintiffs, was filed with the defend­
ants on or about October 27, 1938, requesting that the sal­
aries of Negro teachers and principals be equalized with 
those of white teachers and principals with equal qualifica­
tions and experience and performing essentially the same 
duties; the petition was denied and on September 28, 1939, 
a similar petition was filed on behalf of the plaintiffs with 
the defendant School Board of the City of Norfolk; this 
petition requested that present salary schedule be abolished 
and that plaintiffs and other Negro teachers and principals 
be paid compensation equal to that paid white teachers and 
principals with essentially equivalent qualifications and ex­
perience and performing essentially equivalent duties; this 
petition on or about the 26th of October, 1939, was likewise 
refused.

24. Plaintiffs and those similarly situated and affected 
on whose behalf this suit is brought are suffering irrepa­
rable injury and are threatened with irreparable injury in 
the future by reason of the acts herein complained of. They 
have no plain adequate or complete remedy to redress the 
wrongs and illegal acts herein complained of other than 
this suit for a declaration of rights and an injunction. Any 
other remedy to which plaintiffs and those similarly situated 
could be remitted would be attended by such uncertainties 
and delays as to deny substantial relief, would involve mul­
tiplicity of suits, cause further irreparable injury, and oc­
casion damage, vexation and inconventience not only to the 
plaintiff and those similarly situated, but to defendants as 
governmental agencies.

25. There is between the parties an actual controversy as 
hereinbefore set forth.

WHEREFORE, plaintiffs respectfully pray the Court 
that upon filing of this complaint, as may appear proper 
and convenient to the Court, the Court advance this cause



51

on the docket and order a speedy hearing of this action ac­
cording to law, and that upon such hearings:

(1) That this Court adjudge and decree, and declare 
the rights and legal relations of the parties to the sub­
ject matter here in controversy, in order that such 
declaration shall have the force and effect of a final 
judgment or decree.

(2) That this Court enter a judgment or decree de­
claring that the policy, custom or usage of the defend­
ants in adopting, enforcing, or maintaining a salary 
schedule fixing the salaries of the plaintiffs and other 
Negro teachers and principals at a rate lower than 
that paid to white teachers and principals of equal 
qualifications and experience, and performing essen­
tially the same duties and services, solely because of 
their race or color, is a denial of the equal protection of 
the laws guaranteed by the Fourteenth Amendment of 
the United States Constitution and is therefore uncon­
stitutional and void.

13) That this Court enter a judgment or decree de­
claring that the distribution by the defendants of that 
portion of the public school fund for teachers’ salaries 
on a basis whereby plaintiff Alston and other Negro 
teachers and taxpayers receive less salary than white 
teachers and taxpayers with equal qualifications and 
experience, and performing essentially the same duties 
and services solely because of their race or color denies 
to plaintiff Alston and others similarly situated the 
equal protection of the law and due process of law 
guaranteed by the Fourteenth Amendment of the 
United States Constitution and is therefore uncon­
stitutional and void.

(4) That this Court issue a permanent injunction 
forever restraining and enjoining the defendants and 
each of them from making any distinction solely on the 
grounds of race or color in the fixing of salaries paid 
white and colored teachers and principals employed in 
the public schools of the City of Norfolk.



52

(5) That this Court issue a permanent injunction 
forever restraining and enjoining the defendants and 
each of them from paying to plaintiff Alston or mem­
bers of plaintiff Norfolk Teachers’ Association or any 
other colored teacher or principal employed by them a 
less salary than they pay any white teacher or principal 
employed by them with equal qualifications, certifica­
tion, experience and filling an equivalent position in the 
public schools of the City of Norfolk.

(6) Plaintiffs further pray that the Court will allow 
them their costs herein and such further, other, addi­
tional or alternative relief as may appear to the Court 
to be equitable and just.

(Signed) By M e l v in  0 .  A l st o n , 
M e l v in  0 .  A lsto n  

N o rfolk  T e a c h e r s ’  A ssociation

(Signed) By M e l v in  0 .  A l st o n , 
M e l v in  0 .  A l st o n , President 

Plaintiffs



53

C o m m o n w e a l t h  of V irg in ia  
C it y  of N orfolk

I, Melvin 0. Alston, having been first sworn according to 
law, depose and say upon oath that I am one of the plaintiffs 
named in the foregoing complaint; that I have read said 
complaint and that the matters and facts set forth therein 
are true to the best of my information, knowledge and 
belief.

M e l v in  0 .  A lsto n

Subscribed and sworn to before me th is------ day of No­
vember, 1939, in the City and Commonwealth aforesaid. 

My commission expires

Notary Public

J. T h o m as  H e w in , Jr.
327 North First Street, 
Richmond, Virginia

O liver  W . H il l  
117 East Leigh Street, 
Richmond, Virginia

L eon  A . R an som  
)■ 1512 Girard Street, N. E.,

Washington, D. C.

W il l ia m  H . H a stie ,
1221 Fairmont Street, N. W., 
Washington, D. C.

T hurgood  M a r s h a l l ,
69 Fifth Avenue,
New York, N. Y.

Attorneys for Plaintiffs



54

[Caption]
Answer of Defendants

First Defense

The Court lacks jurisdiction over the subject matter, be­
cause :

(a) The matter in controversy does not exceed, ex­
clusive of interest and costs, the sum of Three Thou­
sand Dollars.

(b) There are no grounds upon which to invoke the 4 
jui’isdiction of the Court under Judicial Code, Section
24 (14), 28 U. S. C. A. Section 41 (14).

(c) No constitutional rights of the plaintiffs have 
been violated.

(d) Plaintiffs have full, complete and adequate rem­
edy at law if they have any remedy at all.

(e) For the reasons alleged in the Second Defense 
herein.

Second Defense

1. The plaintiffs fail to state a claim upon which relief 
can be granted, because:

(1) There is no controversy between the plaintiffs 
and defendants that is embraced within the declaratory 
judgment Act referred to in the complaint.

(2) The Norfolk Teachers’ Association is an unin­
corporated organization and as such is not within the 
constitutional provisions referred to in the bill of com­
plaint.

(3) The plaintiff, Melvin 0. Alston, as an employee 
of the School Board, has no vested rights to any posi­
tion to teach in the public schools and a claim in the



55

premises is not within the provisions of the Constitu­
tion and Acts of Congress alleged.

(4) By reason of contract in writing dated June 12, 
1939, between the plaintiff, Melvin 0. Alston, and said 
School Board, a copy of which is attached hereto as a 
part hereof, covering his services as a teacher in said 
public schools, he is estopped from proceeding in this 
cause and has waived any rights, if any he has, in the 
premises.

(5) By reason of the contract aforesaid, to grant the 
relief requested, the Court would be making a contract, 
which the law vests the School Board with the discretion 
to make, and would further be impairing the obligation 
of the contract heretofore made.

(6) Even if the Court has jurisdiction of the subject 
matter involved, nevertheless it has no jurisdiction in 
this particular case.

(7) The plaintiff, Melvin 0. Alston, has no vested 
right to teach in the public schools of the City of Nor­
folk and therefore no rights to be protected by this 
Court.

(8) Under the laws of the State of Virginia the said 
School Board is authorized and empowered to employ 
teachers and fix their compensation, and such being the

l case they have the right to employ them for such salary
as said Board is willing to pay and the teacher to accept.

(9) The operation of the public schools of the State 
of Virginia is a State function, and to grant relief in 
this case the Court would be interfering with the op­
eration of the State in such function.

2. The plaintiffs cannot proceed on behalf of others who 
are not named in the complaint.

3. For the reasons alleged in the First Defense.



56

Third Defense

Heretofore, Aline Elizabeth Black, a Negro teacher in 
said public schools, brought a writ of mandamus in the Cir­
cuit Court of the City of Norfolk against said defendants 
seeking the same relief alleged in this complaint, “ in her 
own right and on behalf of all such other persons similarly 
situated,”  and by order of said Court entered on the First 
day of June, 1939 (a certified copy of which is attached 
hereto and made a part of this answer), such relief was 
denied. No appeal was taken from this decree, and under 
the laws of the State of Virginia for such cases made and i 
provided, the said decree has become final, thereby fully and 
completely adjudicating the matters and things set forth 
and contained in this complaint.

[Copy]

Contract With Teachers

This Article of Agreement, between the School Board of 
Norfolk, Virginia, State of Virginia, of the first part, and 
M. 0. Alston, of the second part:

Witnesseth, That the said party of the second part sub­
ject to the authority of the said school board under the 
supervision and control of the division superintendent 
agrees to teach in the schools administered by said school 
board under the following conditions; to-wit:

1. The said teacher or party of the second part shall 
open and close school on regular school days at such 
hours as the school board may designate, and shall give 
daily recess with appropriate supervision in accordance 
with the recess schedule adopted by the school board, 
provided the school day consists of not less than five 
hours or more than six and one-half exclusive of the 
noon hour recess, when such is provided.

2. The said teacher shall obey all school laws and 
regulations and all rules made in accordance with the



57

law by the said school board and shall make promptly 
and accurately all reports required by the superin­
tendent of schools.

3. Said teacher shall exercise care in the protection 
and upkeep of the school property, furniture and fix­
tures and shall promptly report to the superintendent 
needed repairs or necessary added facilities or supplies.

4. In schools in which no regular janitor is employed 
the arrangement for keeping the school clean and in 
sanitary condition is stipulated below under special 
covenant, number 1.

5. The said teacher hereby swears or affirms alle­
giance and loyalty to the Government of the United 
States.

6. The school board or party of the first part shall 
deduct monthly from the salary of the said teacher a 
sum equal to one per centum of the salary, to be placed 
to the credit of the Retired Teachers’ Fund and to be 
applied as provided by law.

7. The said teacher may be changed from one teach­
ing position to a different teaching position by the dh 
vision superintendent when the efficiency of the school 
system requires such change, and provided proper ex­
planation be made to the school board.

8. The said board reserves the right to discuss the 
teacher or party of the second part for just cause, an 
opportunity on request being granted for a hearing, 
paying for services rendered in accordance with this 
agreement to date of dismissal. In case schools are 
closed temporarily on account of an epidemic or for 
other necessary cause the board may pay the teacher for 
time lost, or may extend the school term.

9. The said school board or party of the first part 
agrees to pay said teacher or party of the second part, 
$92.10 per school or calendar month for a term of ten
(10) school or calendar months, beginning on Septem-



58

ber 7, 1939 for a lawful school, for services rendered, 
payable on the last day of each school or calendar month 
or as soon thereafter as possible. (See special cove­
nant, number 3).

SPECIAL COVENANT.

1. With reference to care and cleanliness of school 
building and out buildings in which no janitor is em­
ployed.

2. With reference to time lost by teacher on account 
of sickness or for other cause.

Deduction from salary subject to Rides and Regu­
lations of the School Board numbered 25.

3. With reference to shortening the school term in 
case funds are exhausted.

The right is reserved to the School Board to in­
crease or decrease the salary herein specified for 
any month or months immediately after notice to 
that effect.

4. Other covenants.

In witness whereof, the parties hereunto have set their 
hands and seal, this 12th day of June, 1939.

(Signed) A. H . F o r e m a n ,
Chairman of the Board L.S.

L ea h a  H aller  
Clerk of the Board L.S.

(Signed) M e l v in  0. A lto n

Teacher L.S.

[Copy]
V I R G I N I A :

In the Circuit Court of the City of Norfolk, on the 1st day 
of June, in the year, 1939.



59

Aline Elizabeth Black,
Petitioner

vs.
School Board of the City of Norfolk,
A body corporate, and C. W. Mason, 

Superintendent, Defendants

This day came the petitioner and filed her written ex­
ception to the ruling of the Court continuing this cause from 
April 20, 1939, to May 31, 1939; and came also the defend­
ants and filed their separate demurrers and answers to said 
petition; and came the petitioner further and filed her 
joinder in said demurrers and her replications and joinder 
of issues to the separate answers of each of the defendants.

And this cause then came on this day to be heard upon 
the petition of the petitioner and the exhibits filed therewith 
and upon the demurrers of the defendants filed thereto, and 
upon argument of counsel.

Upon consideration of which the Court, for reasons stated 
in its opinion which is filed as a part of the record in this 
cause, being of opinion that said demurrers should be sus­
tained, doth hereby adjudge that the same be sustained, and 
that said petition be and the same is hereby dismissed, to 
which said ruling of the Court the petitioner, by her counsel, 
duly excepted on the ground that the same is contrary to 
the law.

And it is further ordered that the defendants recover of 
the petitioner their costs in this behalf expended.

A COPY T E ST E :
C ecil  M. R obertson , Clerk 

By Sue B. Goforth D.C.

[Caption]
Opinion From the Bench

I feel that the Court ought to announce its conclusions 
now in the presence of those directly interested in the litiga­
tion, rather than defer the decision until a later time. The



60

Court has had the benefit of the briefs for about ten days 
and the opportunity to study the pleadings and the briefs 
and to make an independent investigation of the law deemed 
applicable. I desire to compliment counsel for both sides 
upon the able and exhaustive briefs which they have filed and 
on the oral arguments made today. The questions presented 
and particularly that with respect to the alleged discrimi­
nation on account of race or color, are very important. 
They are questions which concern this section of the coun­
try especially and which must he faced and finally solved in 
accordance with the mandates of the Constitution, without 
regard to the outcome of this pending case. These conclu­
sions can not be doubted by any serious-minded citizen who 
has given careful thought to the subject.

As pointed out in the course of the argument today, one 
of the questions raised in both the complaint and the an­
swer relates to the amount involved in the controversy. 
The defendants have very properly conceded that this is not 
the type of case which requires the allegation and proof of 
any particular amount in order to establish jurisdiction in 
this court. The right asserted in the complaint is a civil 
right, guaranteed by the Constitution, is excepted from the 
provisions of the Act of Congress conferring jurisdiction 
based upon the amount in controversy. Consequently no 
amount is required to be alleged or proved in order to main­
tain a suit based upon an alleged violation of such right,

I do not think that the Court is required, in the view that 
it takes of the right of the plaintiff to maintain his suit in 
the face of the written contract, to express an opinion in 
regard to the most important question involved in cases of 
this type. I do not know what facts the proofs would finally 
establish, if the case proceeded that far, with respect to the 
charge of unconstitutional discrimination against the plain­
tiff on account of his race or color. The authorities are 
clear, I think however, that there can be no discrimination 
in a case of this kind, if such discrimination is based on race 
or color alone. Under our Constitution, particularly the



61

Fourteenth Amendment, all citizens stand upon equal footing- 
before the law and are entitled to equal benefits and privi­
leges where state action is involved; or, to state the proposi­
tion another way, a state can not, through its constitution, 
statutes, or rules and regulations, or through one of its ad­
ministrative bodies, arbitrarily discriminate against per­
sons within its jurisdiction. In the words of the Fourteenth 
Amendment, a state can not deny to any person within its 
jurisdiction the equal protection of the law. That principle 
is firmly established, and, if and when a case of discrimina­
tion based on race or color is presented, the person discrim­
inated against will be granted appropriate relief.

The view that I take of the plaintiff’s case, with some 
hesitation I will admit, does not render it necessary for the 
Court to pass on the unconstitutional discrimination charged 
in the complaint to have been practiced against the plaintiff, 
other than to observe that the complaint charges in clear 
and explicit language that the discrimination in compensa­
tion is based on race or color alone. Under well-established 
rules on a motion to dismiss, the court must accept those 
allegations as true, because they are well pleaded, as an 
examination of the complaint will disclose. That is to say, 
when matters are well pleaded in the complaint and a mo­
tion to dismiss is filed, based upon the alleged ground that 
the complaint fails to show that the plaintiff is entitled to 
any relief, the court must assume that the facts well pleaded 
in the complaint are true. That, of course, does not mean 
that in the event the case proceeds to the taking of testi­
mony, that such allegations will still be assumed to be true. 
In that event the parties alleging facts will have to establish 
their existence by the required degree of proof, but this 
case, however, has been heard today upon motion to dismiss 
and upon such motion, as already observed, the facts alleged 
in the complaint have to be taken as true for the purposes 
of the hearing.

A defense set up in the answer which gave me serious con­
cern from the first in the examination of the pleadings and



62

briefs, and which stands out in the record as an undisputed 
fact, is that some time before this suit was instituted the 
plaintiff entered into a contract with the defendant school 
board, which contract covers the subject matter of this liti­
gation. For the purposes of a decision of this case I think 
that the plaintiff Alston and the defendant school board may 
very properly be regarded as the persons who are essentially 
interested as parties in the outcome.

A  copy of that contract is in the record before the court. 
There is an absence of any claim that I can find in the com­
plaint to the effect that the plaintiff was induced to enter 
into the contract by fraud, misrepresentation or that it was 
entered into under duress or that any unfair means were 
employed by defendants in that behalf, or that it was ever 
made or signed under protest. There was the general 
charge in the oral arguments today that the plaintiff was 
afraid to assert his rights against the defendants, and had 
to accept what the defendants offered him or forego follow­
ing the profession for which he had prepared himself in life. 
And I do not think that this is a suggestion that should be 
lightly disregarded by the court. I am fully aware of the 
fact that in situations of this kind it sometimes happens 
that the employee is at a distinct disadvantage, is not in a 
position to boldly assert what he conceives to be his rights, 
and does not therefore, in fact, contract freely with the 
other party. But I do not find disclosed in the record any 
facts that have been pleaded by way of explanation that 
could reasonably justify the court in reaching the conclu­
sion that it ought to disregard the written contract and fur­
ther proceed in the case in spite of the fact that the plaintiff 
voluntarily entered into such contractual relation with the 
defendants.

It does appear that the plaintiff is a man of intelligence 
and excellent education, that he is experienced, that he has 
been teaching in the public schools of this City for some 
years and was entirely familiar with the alleged unconsti­
tutional discrimination against the members of his race



63

long before be accepted the written contract tendered to 
him by defendant. Of those facts there can not be the 
slightest doubt. Now, there is some persuasiveness in the 
argument that he feared to assert his rights, feared that he 
might be punishd by the loss of his position, having before 
him the unhappy example of another teacher who had 
sought to enforce what she conceived to be her constitutional 
rights. I say, those matters caused me to hesitate, but I am 
satisfied that this plaintiff, and others similarly situated, 
each in his individual right, have a remedy if they are here­
after unconstitutionally discriminated against, without the 
necessity of signing a contract with the Board, a remedy by 
which they can go into a court of competent jurisdiction and 
have the cases heard and their constitutional rights vindi­
cated, if the latter have been violated or are threatened to 
be violated in the immediate future.

I do not think a court ought to be quick in any case, 
whether it is a case of colored citizens or white citizens, or 
individuals or corporations, whether the case relates to 
contracts of this kind or contracts in general, to disregard 
and set aside the solemn obligations of a contract. On the 
contrary, I think it is the duty of the Court, unless it is 
clearly shown that the contract is invalid because contrary 
to law or other cause, to uphold it, and, as far as it is within 
its jurisdiction, to protect its obligations. I do not see, after 
a careful study of the authorities relied on by both sides on 
that particular point, how the plaintiff can have a valid, 
binding contract which he can enforce against the defendant 
Board and at the same time be in a position to repudiate 
that contract insofar as it is not favorable to him and come 
into a court of equity and ask the court to make a different 
contract.

Whatever may be the law in other states, there is no 
doubt that in Virginia a person can not under the law as it 
now exists and has existed for many years, acquire a status 
as a teacher, which gives him certain rights that must be 
respected, independently of a contract with the Board as a



64

teacher. In Virginia the relation is not a continuing one, 
but can be created only by a contract with the School Board 
in a particular jurisdiction. It continues for only one 
school year at a time, with the absolute right on the part of 
the School Board not to contract again with the particular 
person. The Board may decline to contract again with such 
person without rhyme or reason for such refusal and in that 
particular part of the Board’s procedure there manifestly 
has been no discrimination on account of race or color, for 
the simple reason that the Board can, after the expiration 
of the school year, decline to have any further contractual 
relations with an applicant to teach, whether such applicant 
be white or colored.

But I do not think that even that broad discretion in the 
Board would give it the right, after the qualifications of an 
applicant had been favorably passed on, found acceptable 
and the applicant tendered a written contract to teach, to 
say if the applicant then insisted that he be not discrimi­
nated against on account of his race or color, that such 
applicant was without any remedy because he did not have a 
written contract with the Board. In other words, the Board 
could hardly be heard to say, as it now does, that a man 
had entered into a contract binding upon him and had 
thereby waived his right to protest against unconstitutional 
discrimination, and later say to an applicant with the 
proper qualifications, who had been approved and tendered 
a contract, that he had no right because he did not have a 
written contract with the Board.

My conclusion, therefore, is that this contract has not
been shown to be invalid in any particular; that it is binding 
upon the plaintiff, as well as upon the defendant Board, 
plaintiff having signed and entered upon the performance 
of the contract two or three months (I do not recall the 
exact time) before this suit was instituted; that if the 
plaintiff intended to contest the action of the Board with 
respect to compensation, it was his duty to take prompt and 
appropriate action to that end after he was accepted as an



65

applicant and before he entered into a contract with the 
Board for another year. I think that by signing the con­
tract and entering upon its performance, he waived the 
constitutional right which he now asserts in the complaint. 
I think that in principle the case is very much like the case 
of the colored man in Missouri (Missouri ex rel Gaines v. 
Canada, 305 U. S. 337) would have been if he, instead of 
insisting on his constitutional right as he did, had accepted 
the substitute offered by the State of Missouri, and had gone 
to a university in one of the designated adjoining states to 

► study law. In other words, had he accepted the substitute 
offered by the State of Missouri, he could not thereafter 
have insisted upon his original rights. By declining to ac­
cept the substituted privilege he remained in a position to 
demand that to which he was originally entitled. That right 
was personal to him and it lay within his power alone to de­
termine whether he would insist on that right or would 
accept a substitute therefor.

In numerous instances citizens understandingly waive 
constitutional rights, not necessarily expressly but by their 
conduct. For instance, it is fundamental law in this country 
that private property can not be condemned for private use, 
even for just compensation, yet there are many instances 
in which corporations possessing the power of eminent do­
main, have condemned private property for private use, or 

r in which corporations not possessing the power of eminent 
domain have nevertheless condemned private property, and 
yet in these cases the condemnor has acquired good title to 
the property. The owners had a constitutional right to 
object to their property being taken by corporations not 
possessing the power of eminent domain or to its being taken 
for a private use, yet when they failed to insist upon their 
constitutional rights and accepted the compensation 
awarded for the property taken, they could not thereafter 
deny the title of the condemnor.

Unfortunately, there have been instances in which colored 
people have been indicted in courts in which colored citizens



6 6

were systematically excluded from the grand and petit 
juries, but I do not recall at this time any instances where 
that practice prevailed and a defendant, with knowledge of 
the situation, made no appropriate objection to the grand 
and petit juries, but stood trial on the merits and was con­
victed, that the conviction was set aside because of the viola­
tion of the defendant’s constitutional rights in that respect. 
It is true that it has been held in many cases, where the de­
fendant made timely objection to the grand and petit juries 
on the ground that he was being discriminated against be­
cause of his race or color, that the convictions were set aside 
by the appellate courts. In those instances the conviction 
was set aside because the accused had insisted upon his con­
stitutional right. An outstanding illustration of the waiver 
of constitutional rights may be found in the recently adopted 
Rules of Civil Procedure. Nothwithstanding the fact that 
the Seventh Amendment to the Constitution preserves the 
right of trial by jury in certain classes of cases, under the 
express provision of the Rules, unless a party to a civil ac­
tion makes timely written demand for trial by jury, he is 
deemed to have waived that right. (Rule 38)

It is regretable, in a sense, that the Court can not finally 
dispose of all matters in the suit, but will have to dismiss 
the case because of what may by some be thought to be a 
technicality. A  solemn written contract entered into be­
tween parties, whether it be between a citizen and an arm of 
the state, or between two individuals, or betwen individuals 
and a corporation, or between corporations, can in no 
proper sense be regarded as a technicality.

[Caption]
Judgment

The Court having suggested, after examination of the 
bill of complaint and answer herein that insofar as 
defenses in law are raised in the portions of the answer 
denominated “ First Defense” , Second Defense”  and 
“ Third Defense” , the hearing and disposition of the case



67

might be facilitated if argument was made in advance of 
trial upon defendant’s motion to dismiss the bill of com­
plaint for alleged legal insufficiency and upon that part of 
the answer which challenges the legal sufficiency of the 
complaint upon the ground that plaintiff had waived his 
asserted constitutional right by entering into a contract 
with defendant;

And by consent of the parties the case thereafter, on Feb­
ruary 12, 1940, came on to be heard upon the defendant’s 
motion to dismiss the bill of complaint on the ground of 

k legal insufficiency and also so much of the answer as chal­
lenges the legal sufficiency of the complaint because of al­
leged waiver by entering into said contract, and was fully 
argued by counsel, counsel for the respective parties having 
theretofore filed their written briefs with the Court;

And the Court being of the opinion that the plaintiff, 
Melvin 0. Alston, and the defendant, School Board of the 
City of Norfolk, are the only necessary parties to this cause, 
and being further of the opinion that plaintiff, Melvin 0. 
Alston, having entered into said written contract with the 
defendant, School Board of the City of Norfolk, to teach, 
wdiich contract is a part of the record in this cause, and 
having prior to the institution of this suit entered upon 
the performance and partly performed the said written con­
tract, has for the reasons stated in the opinion of the Court, 
delivered orally at the close of the arguments, waived such 

► constitutional rights, if any he has, that he seeks to enforce, 
doth so ADJUDGE and DECREE;

And it is accordingly ADJUDGED, ORDERED AND 
DECREED that this action be and the same hereby is dis­
missed, to which ruling of the Court in dismissing the com­
plaint, plaintiff, by counsel, duly objected and excepted.

And it is further ORDERED that the defendants recover 
of the plaintiffs their costs in this behalf expended.

(Signed) L u t h e r  B. W ay

Norfolk, Virginia, United States District Judge
February 29, 1940.





*





$nttr& £>tate Circuit Court of Appeal*
FOR THE FOURTH CIRCU IT.

M e l v i n  O. A l s t o n , and the N o r f o l k  
-  T e a c h e r s ’ A s s o c ia t io n , an Unincor­

porated Association,
Appellants,

vs.

S c h o o l  B o a r d  o f  t h e  C it y  o f  N o r f o l k , 
a Body Corporate, and C. W. M a s o n , 
Superintendent of Schools of Norfolk,

Appellees.

File No. 
4623.

BRIEF OF APPELLEES.

A l f r e d  A n d e r s o n , 
J o n a t h a n  W . O l d , Jr ., 
W il l ia m  C . C o u p l a n d ,

Counsel for Appellees.

Room 207, City Hall,
Norfolk, Virginia.

JU N

LT D  El





SUBJECT INDEX.
Page

Statement of the Case...................................................... 1
Questions Involved........................................................  3
Statement of Facts........................................................  4

I. The Appellant Melvin 0 . Alston and the 
School Board of the City of Norfolk are the 
Only Proper Parties to this Cause..................  5

II. No Constitutional Rights Violated.................  6
A. School Teacher in Virginia an Employee

of School Board...........................................  6
B. Equal Protection Clause of Fourteenth

Amendment not Applicable........................  14
C. Appellant Alston has no Standing in the

Case as a Taxpayer....................................... 20

III. Appellant Alston, by Entering into a Con­
tract with School Board of City of Norfolk 
and Accepting Employment Thereunder,
Has Waived Such Constitutional Rights, if 
Any he Has, that he Seeks to Enforce.—......  21
A. Decision on Waiver Issue by District

Court Properly Based...............    30

IV. Differentiation of the Maryland Cases from
the Instant Case..................................................  31
A. The Equal Protection Clause of the 

Fourteenth Amendment Has No Ap­
plication to the Instant Case..................  32

B. The Appellant Alston has Waived Any
Rights to the Relief for which he Prays.. 34

V. A Mandatory Court Order Does not Lie to
Control a Discretionary Act_______ ______ ~~ 35

VI. Authorities Cited by Appellants...................... 40

Conclusion...............................................-......................  40



TABLE OF CITATIONS.

Adams, Receiver v. Nagle, 303 U. S. 532, 82 L. Ed.
999................................... ._........................................... 37

American Jurisprudence, Vol. 11, pp. 1170 and 1171..15-22 
American Law Reports, Vol. 75, p. 1352...................  10
Bon Ton Cleaners & Dyers, Inc. v. Cleaning, Dye­

ing & Pressing Board, 176 Sou. 55.... .................... 24
Broaddus v. Supervisors, 99 Va. 370............. ............  37
Claybrook v. City of Owensboro, 16 Fed. 297......... 20
Cooley on Constitutional Limitations, Vol. 1, pp.

368 and 369........................... ..................... .............22-23
Corpus Juris, Vol. 12, pp. 769, 770, 744; Vol. 56, 

pp. 382, 387, 422.............. __.................. .....11-12-21-22
Davenport v. Cloverbrook, 72 Fed. 689........................ 20
Eustis v. Bolles, 150 U. S. 361, 37 L. Ed. 1111....... 26
Heath v. Johnson, 15 S. E. 980...................................  10
Louisiana v. McAdoo, Secretary, 234 U. S. 627,

58 L. Ed. 1506............. ...............................................  38
Miguel v. McCarl, Comptroller General, 291 U. S.

442, 78 L. Ed. 901..................................................... 36
Mills v. Lowndes, et al., 26 Fed. Supp. 792.............. 31
Mills v. Anne Arundel County Board of Education, 

et al., 30 Fed. Supp. 245....................................... .31-34
Mootz v. Belyea, 236 N. W. 358..._____________12-32-34
Mo. ex rel Gaines v. Canada, 305 U. S. 337, 83 L.

Ed. 208____________________  5-21
Palumbo v. Fuller Company, 122 Atl. 63..... ........ . 25
People ex rel Fursman v. Chicago, 116 N. E. 158.... 17
Pierce v. Somerset Railway, 171 U. S. 641, 43 L.

Ed. 316......................     26
Pierce Oil Corp. v. Phoenix Refining Company,

259 U. S. 125, 66 L. Ed. 855......................... .........

Page

2 8



Ill

TABLE OF CITATIONS—Continued.
Page

Puitt v. Commissioner of Gaston County, 94 N. C.
709.................. ..............................................................  20

Ruling Case Law, Vol. 24, p. 613.... ..........................  10
Seattle High School, etc. v. Sharpless, etc., 293 Pac.

994, 72 A. L. R. 1215.........................................13-15-32
Shepard, et als. v. Barron, 194 U. S. 553, 48 L. Ed.

1115...............................................................................  28
I- Simon v. Military Board, 99 Va. 390........................  36

State ex rel Gumm, et als. v. Albritton, et als., 224
Pac. 511..........................   18

State v. Martin, 163 S. E. 850..... ,.............................. 10
United States v. Gale, 109 U. S. 65, 27 L. Ed. 857._. 24 
Wall v. Parrott Silver & Copper Co., 244 U. S. 407,

61 L. Ed. 1229-..........................................................  27
Warner Valley Stock Company v. Smith, 165 U. S.

28, 41 L. Ed. 621....................... ............................... 35
Washington v. State of Florida, 116 Sou. 470, 278

TJ. S. 599, 73 L. Ed. 528........................................... 23
White y . State of Oklahoma, 214 Pac. 202................. 24
Wilbur, Secretary v. United States, 281 U. S. 206,

74 L. Ed. 809..............................................................  38

Federal Rules of Civil Procedure, Rule 38..............  29
Norfolk City Charter (Acts of Assembly of Vir­

ginia, 1918, p. 31), Section 114............................... 8
Virginia Code— Section 611........ ................................  6

Section 680—........................ ............  7
Section 786......   7
Section 664.........................................  8

Virginia Constitution, Article IX — Section 130....... 6
Section 133____ 6
Section 140.......  7



<

1



(Etrrmt (Eourt of Appeals
FOR THE FOURTH CIRCU IT.

M e l v i n  O. A l s t o n , and the N o r f o l k  
T e a c h e r s ’ A s s o c ia t io n , an Unincor­
porated Association,

Appellants,
vs. File No.

4623.
S c h o o l  B o a r d  o f  t h e  C it y  o f  N o r f o l k , 

a Body Corporate, and C. W. M a s o n , 
Superintendent of Schools of Norfolk,

Appellees.

BRIEF OF APPELLEES.

STATEMENT OF THE CASE.

This cause was not heard on its merits by the 
District Court. The appellees, in the Fourth Defense 
of their answer, expressly denied any and all acts of 
discrimination on account of race or color alleged by 
appellants in their complaint. (Appendix, p. 41.) 
The judge of the District Court suggested that the 
hearing of the cause would be facilitated by taking 
up the defenses raised by the First Defense, Second 
Defense and Third Defense of the answer in advance 
of the trial on the merits. It was on these defenses only 
that the cause was heard by the District Court.



2

The judgment from which this appeal has been 
taken adjudicated two questions in the language of 
the court as follows, (1) “ And the court being of the 
opinion that the plaintiff, Melvin 0 . Alston, and the 
defendant, School Board of the City of Norfolk, are 
the only necessary parties to this cause,”  and (2)
“ and being further of the opinion that plaintiff, Melvin 
O. Alston, having entered into said written contract 
with the defendant, School Board of the City of i
Norfolk, to teach, which contract is a part of the 
record in this cause, and having prior to the institu­
tion of this suit entered upon the performance and 
partly performed the said written contract, has for 
the reasons stated in the opinion of the court, delivered 
orally at the close of the arguments, waived such con­
stitutional rights, if any he has, that he seeks to en­
force, doth so Adjudge and Decree;” . (Appellants’
Brief, p. 67.)

The appellant Melvin O. Alston alleged in the 
complaint that he is a “ regular teacher in the Booker 
T. Washington High School, a public high school 
located in Norfolk, Virginia, maintained and operated 
by the School Board of the City of Norfolk.”  (Ap­
pellants’ Brief, p. 41.) The answer to the complaint 
admitted this allegation and as under the school laws 
of Virginia he could only be such a teacher by virtue 
of an annual contract in writing, his contract with 
the School Board of the City of Norfolk under which 
he was and is teaching was filed as an exhibit with the 
answer. This contract was admitted and considered 
by The District Court without objection. (Appellants’
Brief, p. 56.)

The legal relations between the appellant Melvin



3

O. Alston and the School Board of the City of Norfolk 
being that of employer and employee, the School 
Board claimed among other defenses (Appellants’ 
Brief, pp. 54, 55 and 56) that no constitutional rights 
of the appellant have been violated; that even if he 
had such rights, he had waived them; that he had no 
vested right to teach; that the salaries paid are not 
fixed by law but at what the School Board can pay 
and the teacher is willing to accept; and that the 
court would not make a contract for the parties differ­
ent from that which they were capable of making and 
had made for themselves. A full recital of the defenses 
raised will not be set out here since they are set forth 
in full in the appendices to the appellants’ and ap­
pellees’ briefs.

QUESTIONS INVOLVED.

1. Are the said Melvin O. Alston and the School 
Board of the City of Norfolk the only necessary parties 
to this cause?

2. Have any constitutional rights of the appellant 
Alston been violated?

3. If any constitutional rights of the appellant 
Alston have been violated, have they been waived?

4. Does a mandatory Court order lie to control a 
discretionary act?



4

STATEMENT OF FACTS.

The appellees did not file a motion to dismiss 
but filed an answer in which all questions of law and 
fact were raised to be considered by the court in 
determining the issues involved. It was at the sugges­
tion of the court that the questions raised in the First 
Defense, Second Defense and Third Defense of the 
answer be argued in advance of the trial on the merits. 
In this connection the Learned Judge of the District 
Court, in his opinion, says: “ The court has had the 
benefit of the briefs for about ten days and the oppor­
tunity to study the pleadings and the briefs and to 
make an independent investigation of the law deemed 
applicable.”  (Appellants’ Brief, pp. 59 and 60.)

The only fact which was alleged and supported 
Q>y proof Jin the District Court was that the appellant 

Alston is a teacher in the Booker T. Washington High 
School of the City of Norfolk, pursuant to the con­
tract between him and the School Board of the City 
of Norfolk, filed as an exhibit with the answer and 
set forth on page 56 of appellants’ brief. Appellants 
admit that no evidence was taken before the court 
and therefore the judgment of the court was based on 
the admitted fact that the appellant Alston executed 
the said contract, accepted employment as a teacher 
thereunder, and had taught school thereunder prior 
to the institution of this suit and was teaching there­
under at the time of the hearing of the cause. Hence, 
the Learned Judge of the District Court, in the judg­
ment, says:

“ . . . and being further of the opinion
that plaintiff, Melvin O. Alston, having entered



5

into said written contract with the defendant, 
School Board of the City of Norfolk, to teach, 
which contract is a part of the record in this 
cause, and having prior to the institution of this 
suit entered upon the performance and partly 
performed the said written contract, has for the 
reasons stated in the opinion of the Court, 
delivered orally at the close of the arguments, 
waived such constitutional rights, if any he 

_ has, that he seeks to enforce, doth so Adjudge
v  and Decree;”  (Appellants’ Brief, p. 67.)

I .

The Appellant Melvin O. Alston and the School Board 
of the City of Norfolk Are the Only Proper Parties 

To This Cause.

The Norfolk Teachers’ Association, an unincor­
porated association, is named as party complainant 
and joins in the allegations and prayer of the com­
plaint. The rights asserted are personal ones. It is 
the individual who is entitled to the equal protection 
of the laws (Mo. ex rel Gaines v. Canada, 305 U. S. 
337, 83 L. Ed. 208). Since under the Virginia School 

I  Laws as hereinafter set forth, only qualified indi­
viduals, under individual annual contracts, can teach 
in the public schools of the City of Norfolk, it is mani­
fest that this association as such is not a proper party 
to this proceeding, and the Judge of the District Court 
so held.

C. W. Mason, Superintendent of Schools of the 
City of Norfolk, is named as party defendant to the 
cause. From the School Laws of Virginia hereafter 
set forth in this brief, it will be seen that there is no



6

authority vested in the Superintendent of Schools to 
employ teachers, fix their salaries or make contracts 
with them to teach. These laws specifically provide 
that this shall be done by the School Board.

II.

No Constitutional Rights Violated.

A. School Teacher in Virginia an Employee of School 
Board.

Sec. 130 of Article IX  of the Virginia Constitu­
tion, relating to education and public instruction, 
provides:

“ The general supervision of the school 
system shall be vested in a State Board of 
Education, to be appointed by the Governor, 
subject to confirmation by the General As­
sembly, and to consist of seven members.”

Sec. 133 of the same Article of the Virginia 
Constitution provides:

“ The supervision of schools in each county 
and city shall be vested in a school board, to 
be composed of trustees to be selected in the 
manner, for the term and to the number pro­
vided by law.”

In furtherance of the above provisions, Sec. 611 
of the Virginia Code provides:

“ An efficient system of public schools of a 
minimum school term of one hundred and sixty 
school days, shall be established and main­



7

tained in all of the cities and counties of the 
State. The public school system shall be ad­
ministered by the following authorities, to-wit: 
A State board of education, a superintendent 
of public instruction, division superintendent of 
schools and county and city school boards.”

Sec. 140 of Article IX  of the Virginia Constitu­
tion provides:

“ White and colored children shall not be 
taught in the same school.”

Sec. 680 of the Virginia Code provides:

“ White and colored persons shall not be 
taught in the same school, but shall be taught 
in separate schools, under the same general 
regulations as to management, usefulness and 
efficiency.”

Neither of the above provides that the teachers in 
the schools for white children shall be white and those 
in the schools for colored children shall be colored.

There is no provision in either the Virginia Con­
stitution or the Virginia Code prescribing what salaries 
teachers in the public schools shall receive. This is 
left to the discretion of the School Board.

The School Board has a very wide discretion in 
the management of the public schools.

Sec. 786 of the Virginia Code, relating to the 
powers and duties of the School Board, provides, in 
so far as is material to this case, as follows:



8

“ The city school board of every city shall 
establish and maintain therein a general system 
of public free schools in accordance with the 
requirements of the Constitution and the gen­
eral educational policy of the Commonwealth 
for the accomplishment of which purpose it 
shall have the following powers and duties.

a

“ Third. To employ teachers from a list 
or lists of eligibles to be furnished by the divi­
sion superintendent and to dismiss them when 
delinquent, inefficient or in anywise unworthy 
of the position. . . .

“ Twelfth. To manage and control the 
school funds of the city, to provide for the pay 
of teachers and of the clerk of the board, for 
the cost of providing school houses .

Sec. 664 of the Virginia Code relating to contracts 
with teachers provides, in so far as is material to this 
case, as follows:

“ Written contracts shall be made by the 
school board with all public school teachers, 
before they enter upon their duties, in a form 
to be prescribed by the superintendent of 
public instruction. Such contracts shall be 
signed in duplicate, each party holding a copy 
thereof. . . .”

The State of Virginia has no tenure of office act 
covering teachers. They are expressly excluded from 
the civil service classification of city employees by 
Sec. 114 of the Norfolk Charter, which provides:



9

“ Officers who are elected by the people 
. . . the teachers in the public schools and
all other persons employed by the school board 
. . . shall not be included in such classified
service . . (Acts of Assembly of Virginia, 
1918, pp. 31, 85.)

The teachers in the public schools have no vested 
right in the positions they hold. Each year they are 
selected by the School Board in May or June to 
teach for the school term beginning in September 
following. Their term of service is not fixed by any 
law but by the provisions of the contract required by 
law. They have no special right or privilege to teach 
in the public schools of the city. These contracts are 
entered into between the School Board and the teacher 
each year, regardless of whether the teacher has taught 
in the public schools for prior years or is a beginner. 
The contract specifies the time for which employed, 
the rate of compensation, their duties, that they may 
be changed from one teaching position to another, 
and other phases of their employment. Under the 
Virginia law the School Board could, at the term 
beginning next September, contract with an entire 

)  new corps of teachers for all of the public schools of
the City of Norfolk and none of the present teachers 
would have any legal redress in the matter.

The appellant Alston, by such a contract in 
writing (Appellants’ Brief, p. 56), voluntarily executed 
by him and the School Board under date of June 12, 
1939, agreed to teach in the public schools of the City 
of Norfolk for ten (10) school months beginning 
September 7, 1939, for $92.10 per school month. At 
the time of the execution of this contract the appellant



10

knew, or with reasonable diligence could have ascer­
tained, the exact salary paid any other teacher in 
the public schools for the same term.

From the foregoing provisions of Virginia law 
it is clear that public school teachers are not officers 
of the State or political subdivisions wherein they 
teach but are employees of the School Board.

In the case of Heath v. Johnson, (W. Va. 1892), 
15 S. E. 980, which involved a mandamus by a pub­
lishing company against a teacher in the public schools 
to require the teacher to use a certain text book, the 
same was refused, and the court, at p. 982 of the opinion, 
said:

“ What we do decide is that a teacher in 
this State is not a public officer but is an em­
ployee . .

To the same effect is the decision in the case of 
State v. Martin, (W. Va.), 163 S. E. 850.

In 75 A. L. R., p. 1352, under the Annotation 
“ Status of teacher as an officer or employee,”  the 
following appears, with a long citation of cases to 
support it:

“ The courts are almost unanimous in hold­
ing that the position of teacher is that of an 
employee, resting on the contract of employ­
ment, and not that of public officer.”

In Ruling Case Law, Vol. 24, p. 613, under the 
subject of “ Schools,”  the following appears:

“ Under the general powers usually reposed 
in loeal school boards is included the power to



11

enter into contracts with teachers and fix their 
compensation and term of employment.

“ The discretion of a school board in this 
respect is very broad, and the courts will not 
interfere to aid one whom the board does not 
choose to employ.

“ The board has the absolute right to de­
cline to employ any applicant for any reason 
whatever or for no reason at all.

“ It is no infringement on the constitutional 
rights of anyone for the board to decline to 
employ him as a teacher in the schools and it is 
immaterial whether the reason for the refusal 
to employ him is because the applicant is 
married or unmarried, of fair complexion or 
dark, is or is not a member of a trade union, 
or whether no reason is given for such refusal.”

In 56 C. J., p. 422, under “ Schools and School 
Districts,”  the following appears:

“ The amount or rate of compensation which 
a teacher is entitled to receive for his services 
depends upon the terms of the contract under 
which he is employed.”

and at p. 382:

“ A teacher, who has been appointed to the 
position and accepted it, from the time of his 
acceptance stands in a contract relation as 
distinguished from the tenure or holding of a 
public officer. He holds his position by con­
tract and not at the will of the sovereign 
power.”



12

and at p. 387:

“ Except in so far as they be restricted or 
limited by statute, or by a rule or regulation 
of the school board, a school board of officers 
authorized to contract with teachers have the 
power to fix the salaries to be paid them, free 
from interference by other municipal authori­
ties.”

In the case of Mootz v. Belyea, et als., (N. D.), 
236 N. W. 358, a written contract between the teacher 
and the School Board had been executed. Thereafter 
the School Board refused to let the teacher teach 
and employed another in her place. The teacher 
brought a mandamus against the School Board to 
require it to install her as a teacher in the public 
schools, claiming that she had been denied the use and 
enjoyment of a right or office. The court denied the 
mandamus, stating that her remedy in the case was 
for the recovery of her salary under the contract and 
as to that she had an adequate remedy at law, and in 
the course of its opinion, stated:

“ It is the claim of the appellant that she 
is being denied the ‘use and enjoyment of a 
right or office’ to which she is entitled. Whether 
her contract gives her a right or office depends 
upon her relationship to the school board and 
her right under her contract. The duty of 
employing teachers is vested in the school 
board, and this is done by contract. The rela­
tionship is purely contractual in this State. 
There is no fixed tenure of office when a teacher 
is employed other than the pension set forth 
in the contract. In this State the profession is 
not under civil service rules. When a teacher is



13

employed by a school district she is not em­
ployed as an officer and she does not become 
an officer. Her rights are measured by the 
terms of her contract.”

In the case of Seattle High School, etc. v. Sharp­
less, etc., (Wash.), 293 Pae. 994, 72 A. L'. R. 1215, 
which involved the employment of a teacher, and 
from which it appears that the statutes relating to 
such are similar to those in Virginia, the court, in 
defining the relationship between the School Board 
and the teacher, said:

“ The employment of teachers is a matter 
of treaty or voluntary contract. Both parties 
must consent and be mutually satisfied and 
agreed. On the part of each it is a matter of 
choice and discretion. However, though quali­
fied, no teacher has the legal right to teach in 
the schools until the directors willingly enter 
into a contract for that purpose. Unless limited 
by statute in some way, the board is entitled 
to the right of freedom of contract as much as 
the teachers are.”

In the Opinion of the Judge of the District Court, 
the following appears:

“ Whatever may be the law in other States, 
there is no doubt that in Virginia a person 
can not under the law as it now exists and has 
existed for many years, acquire a status as a 
teacher, which gives him certain rights that 
must be respected, independently of a con­
tract with the board as a teacher. In Virginia 
the relation is not a continuing one, but can 
be created only by a contract with the school



14

board in a particular jurisdiction. It con­
tinues for only one school year at a time, with 
the absolute right on the part of the school 
board not to contract again with the particular 
person. The board may decline to contract 
again with such person without rhyme or 
reason for such refusal and in that particular 
part of the board’s procedure there manifestly 
has been no discrimination on account of race 
or color, for the simple reason that the board 
can, after the expiration of the school year, 
decline to have any further contractual rela­
tions with an applicant to teach, whether such 
applicant be white or colored.”  (Appellants’ 
Brief, p. 63.)

B. Equal Protection Clause of Fourteenth Amendment 
not Applicable.

The Virginia Constitution and Code as set out 
above provide that an efficient system of public free 
schools shall be established and maintained throughout 
the State.

The object of this is to afford educational advan­
tages to the children of the State, not to afford oppor­
tunities for persons to follow their vocation as teachers.

The gist of the equal protection clause of the Four­
teenth Amendment is to extend to all citizens sub­
stantially equal treatment in facilities provided from 
public funds.

The school facilities provided from public funds 
are the right to attend school, not the right to teach 
in a public school. While it may be incumbent on 
the School Board to maintain schools for the education



1 5

of children, it is not incumbent on them to maintain 
a place for one to follow his vocation as a teacher.

In American Jurisprudence, Vol. 11, at page 1171, 
under “ Constitutional Law,”  the following appears:

“ In those cases which have considered 
employment contracts from the standpoint of 
the employer, the courts have held that it is 
clear that the right of an employer to employ 
labor is necessarily included in the constitu­
tional guaranty of the right to property. The 
employer may, generally speaking, enter into 
labor contracts with such individuals as he 
chooses. Thus, the refusal of the board of 
directors of a school district empowered to 
employ teachers to engage a certain person, for 
any reason or no reason at all, is in no sense a 
denial of the constitutional right, guaranteed 
by the due process of law provision, of that 
person to follow his chosen profession.”

In the case of Seattle High School, etc. v. Sharpless, 
etc., 1930, Washington State, 293 Pac. 994, 72 A. L. R. 
1215, the school directors adopted a resolution:

“ That no person be employed hereafter, 
or continued in the employ of the District as 
a teacher while a member of the American 
Federation of Teachers, or any local thereof

The plaintiff claimed the resolution was uncon­
stitutional. The court held the same valid.

The laws of the State of Washington governing 
the operation of public schools were similar to those of 
Virginia in this respect and authorize the school 
directors:



16

“ First: To employ for not more than one 
year, and for sufficient cause to discharge 
teachers, and to fix, alter, allow and order paid 
their salaries and compensation . .

The court, in its opinion sustaining the resolution 
of the board, said with reference to the status of 
teachers:

“ The employment of teachers is a matter 
of treaty or voluntary contract. Both parties 
must consent and be mutually satisfied and 
agreed. On the part of each it is a matter of 
choice and discretion. However, though quali­
fied, no teacher has the legal right to teach in 
the schools until the directors willingly enter 
into a contract for that purpose. Similarly the 
directors have no legal right to the services of 
any teacher until the teacher voluntarily enters 
into a contract for that purpose. Unless limited 
by statute in some way the board is entitled 
to the right of freedom of contract, as much so 
as the teachers are.”

It was also claimed by the plaintiff that the 
resolution violated the Constitution of Washington 
State and the Fourteenth Amendment to the Con­
stitution of the United States. As to this the court 
said:

“ Quoting Article 1, See. 3, of the State 
Constitution, viz., ‘No person shall be deprived 
of life, liberty, or property without due process 
of law’ , and also the Fourteenth Amendment 
to the Constitution of the United States on 
the same subject, it is argued on behalf of 
appellants that thereunder the right of a teacher 
to follow his chosen profession is too elementary



17

to require any discussion. Granted, but there 
is no question of that kind in this case. The 
right of freedom of contract as it exists in this 
case to refuse for any reason or no reason at 
all to engage the professional services of any 
person is in no sense a denial of the constitu­
tional right of that person to follow his chosen 
profession. . . . Nor can the courts be suc­
cessfully invited into a consideration of the 
policy of the resolution, for that would lead 
to supervisory control of judgment and dis- 
scretion in the selection and employment of 
teachers which the statute has given exclusively 
to the board of directors.”

In the case of People ex rel Fursman v. Chicago, 
(1916), 116 N. E. 158, the issue was whether the Board 
of Education had the right in the selection of teachers 
to discriminate between those who were members of 
a federation or union and those who were not members 
of any such federation or union, and whether its 
action in such regard violated any constitutional or 
statutory provision.

The court held the Board of Education had such 
right and that no such constitutional provision was 
violated.

From the opinion it appear that the Illinois school 
laws were similar to those of Virginia. At page 160 
the court said:

“ By the statute the Board of Education 
in cities having a population of 100,000 or 
more is given complete control of the schools 
of the city. Among its powers is that of em­
ploying teachers and fixing the amount of their 
compensation . . . The Board has no power



18

to make contracts for the employment of 
teachers to extend beyond the ensuing school 
year, . . .  A new contract must be made 
each year with such teachers as it desires to 
retain in its employ. No person has a right to 
demand that he or she shall be employed as a 
teacher. The Board has the absolute right to 
decline to employ or to re-employ any applicant 
for any reason whatever or for no reason at all.
The Board is responsible for its action only to t
the people of the city, from whom, through 
the mayor, the members have received their 
appointments. It is no infringement upon the 
constitutional rights of anyone for the Board 
to decline to employ him as a teacher, in the 
schools, and it is immaterial whether the reason 
for the refusal to employ him is because the 
applicant is married or unmarried, is of fair 
complexion or dark, is or is not a member of a 
trades union, or whether no reason is given for 
such refusal. The Board is not bound to give 
any reason for its action. It is free to contract 
with whomsoever it chooses. Neither the Con­
stitution nor the statute places any restriction 
upon this right of the Board to contract, and 
no one has any grievance which the courts will 
recognize simply because the Board of Educa- 
cation refuses to contract with him or her.
Questions of policy are solely for determination 
of the Board, and when they have once been 
determined by it the courts will not inquire 
into their propriety.”

In the case of State ex rel Gumm, et als. v. Albritton, 
et als., (Okla. 1923), 224 Pac. 511, it appears that the 
county superintendent discharged the negro members 
of the School Board of the School District in which



19

a majority of the population was of the colored race, 
and appointed white persons on the Board.

The action was brought to oust the white mem­
bers of the Board and have colored members adjudged 
the lawful members of said School Board. This the 
court refused to do.

’ At p. 512 of the opinion, the Court said:

“ It is contended by plaintiff in error that 
the said action of the county superintendent in 
the instant case violates the Fourteenth Amend­
ment to the Constitution of the United States, 
in that such action of said county superintend­
ent, in discharging the colored members and 
appointing defendants in error, was a denial of 
the equal protection of the law to the colored 
children. However, no authorities are cited 
thereunto. It does not appear, nor did plaintiff 
in error offer to show, that by the action of 
said county superintendent in designating the 
colored school as the separate school, or by 
the change of the personnel of the said board, 
the facilities or accommodations for the colored 
children of such district were not rendered 

I impartial, as compared with those of the white
children.”

and at p. 513:

“ However arbitrary the action of such 
superintendent may seem, it cannot be said 
that the equal protection clause of said Four­
teenth Amendment is violated, because it is 
now shown that accommodations of facilities 
equal, though not identical, with those of white 
children, are afforded to the colored children.”



20

C. Appellant Alston Has No Standing in the Case as a 
Taxpayer.

This suit is brought under the equal protection 
clause of the Fourteenth Amendment. The funds pro­
vided for the public schools are for the purpose of 
furnishing educational facilities to the children in the 
City of Norfolk. The funds are not for any distribu­
tion among the teachers. The teachers are employed, 
as well as stenographers, janitors and others, for the 
purpose of operating the schools. There is no require­
ment in the law that the same amount of money per 
capita or otherwise should be expended for the opera­
tions of the schools for colored children as for the 
operation of the schools for white children. The only 
requirement is that the educational facilities afforded 
for the two races shall be equal. There is no complaint 
that they are not equal.

In the cases of ClaybrooJc v. City of Owensboro, 
16 Fed. 297, Davenport v. Cloverbrook, 72 Fed. 689, 
and Puitt v. Commissioner of Gaston County, 94 N. C. 
709, cited by appellants (Appellants’ Brief, p. 20) the 
facts and principles involved were entirely different 
from the instant case. They related to the levying 
of taxes and maintenance of schools for the different 
races. The other cases cited by appellants to support 
their claim in this regard (Appellants’ Brief, pp. 20, 
21 and 22) are from State courts and in none of them 
was the Fourteenth Amendment involved. Further­
more, they all relate to some unlawful or illegal ex­
penditure of public funds. The funds under the con­
trol of the School Board may be lawfully used for the 
operation of the schools. Appellants do not claim 
they are used for any other purpose. So long as used



21

for the purpose permitted they are not used for any 
illegal or unauthorized purpose. If they were, ap­
pellants’ remedy would be in a State court under 
State law and not in the Federal court under the 
Fourteenth Amendment.

III.

Appellant Alston, By Entering Into a Contract With 
School Board of City of Norfolk and Accepting

Employment Thereunder, Has Waived Such 
Constitutional Rights, If Any He Has,

That He Seeks to Enforce.

The appellant’s rights, if he has any, are personal 
to him as an individual. It is as an individual that 
he is entitled to the equal protection of the laws. 
(Mo. v. Canada, 305 U. S. 337, 83 L. Ed. 208.)

The appellant, as stated above, has voluntarily 
contracted in writing with the School Board to teach 
for the current school term for a stipulated salary. 
This contract antedates the filing of these proceedings 
by him. There is no complaint that the School Board 
has breached any part of its contract.

While we do not consider, for reasons set forth 
above, that any constitutional rights of the appellant 
have been denied, yet, in any event, he has waived 
the same, and is accordingly estopped to prosecute 
this cause.

In 12 C. J., at p. 769, under the heading “ Con­
stitutional Law,”  the following appears:

“ A person may by his acts, or omission to 
act, waive a right which he might otherwise 
have under the provisions of the Constitution.”



22

and at p. 770:
“ The waiver of a Constitutional provision 

precludes the party waiving it from afterwards 
claiming protection under it, even though it 
was adopted solely for his benefit, and such a 
waiver is binding as to both past and future 
transactions.”

and at p. 774:
“ But those Constitutional guaranties, which 

are in the nature of personal privileges of the 
accused, may be waived by him and therefore 
he may not question the Constitutionality of 
the statute under which he has made such a 
waiver.”

In 11 American Jurisprudence, at p. 1170, under 
“ Constitutional Law,”  appears the following:

“ It has repeatedly been held that the right 
of a laborer to enter into contracts for his ser­
vices is property within the meaning of the 
Constitutional guaranties.”

In Cooley on Constitutional Limitations, Vol. 1, 
p. 368, the author says:

“ Where a Constitutional provision is de­
signed for the proection solely of the property 
rights of the citizen, it is competent for him to 
waive the protection and to consent to such 
action as would be invalid if taken against his 
will.”

and at p. 369:
“ On this ground it has been held that an 

act appropriating the private property of one



23

person for the private purpose of another, on 
compensation made, was valid if he whose 
property was taken assented thereto and that 
he did assent and waive the Constitutional 
privilege, after he received the compensation 
awarded or brought an action to recover it.”

and again at p. 368:

“ There are cases where a law in its appli­
cation to a particular case must be sustained 
because the party who makes the objection has 
by his prior action precluded himself from being 
heard against it.”

The case of Washington v. State of Florida, 116 
Southern 470, in which a writ of certiorari was denied 
by the Supreme Court of the United States, 278 U. S. 
599, 73 L. Ed. 528, involved the exclusion of negroes 
from juries. Herein the accused claimed he had been 
denied equal protection of the laws guaranteed him 
by the Fourteenth Amendment to the Federal Con­
stitution.

The Florida Supreme Court in this case held:

“ While an unlawful discrimination against 
negroes because of their race or color practiced 
by an officer in sommoning jurors may render 
the act of summoning illegal, the panel of 
jurors may not be illegal.”

“ Where a jury that is competent under 
the law and that is impartial as is required by 
the Constitution has been tendered it may be 
accepted by the accused who thereafter waives 
his right to object to the panel on the ground 
that in summoning the jurors members of his



24

race were discriminated against, there being 
no duress or other improper influence to em­
barrass or injure the accused.”

In the case of United States v. Gale, 109 U. S. 65, 
27 L. Ed. 857, which was a criminal case wherein there 
was an irregularity in selecting the grand jury which 
found the indictment, the accused plead not guilty 
and went to trial without making any objection as to 
the grand jury selection, and after conviction raised 
the Constitutionality of the same. The court said:

“ The second question, as to the Con­
stitutionality of the 820th Section of the revised 
statutes . . .  is not an essential one in this 
ease inasmuch as by pleading not guilty to 
the indictment and going to trial without 
making any objection to the mode of selecting 
the grand jury, such objection was waived.”

In the case of Bon Ton Cleaners and Dyers, Inc. v. 
Cleaning, Dyeing and Pressing Board, February, 1937, 
Florida, 176 Southern 55, certain parties who signed 
a specific agreement with all other parties in a certain 
area to observe price fixing regulations of said Clean­
ing, Dyeing and Pressing Board in the County, prior 
to the time order prescribing regulations was entered, 
were held precluded from questioning the constitu­
tionality of the statute authorizing price fixing for 
such business.

In the case of White v. State of Oklahoma, 214 
Pac. 202, which was a criminal case, the jury was 
sworn and the County attorney then asked leave to 
amend the information. The information was amended 
and the defendant asked for and was given twenty- 
four hours to plead to the amended information. The



25

jury then impaneled was without objection on the 
part of the defendant discharged. Several days there­
after when the case came to trial on the amended in­
formation the accused filed a plea in bar claiming for­
mer jeopardy. The court held the plea was properly 
overruled by the lower court on the ground that the 
accused had waived his rights in the matter and, at 
p. 205 of the opinion, said:

“ Where a Constitutional right is for the 
sold benefit of the accused, in the nature of a 
privilege, that right may be waived by express 
consent, or by implication from conduct in­
dicative of consent, or by failure to claim or 
assert the right in seasonable time.”

In Palumbo v. Fuller Co., Conn., 122 Atl. 63, 
the employer appealed from an award for claimant. 
One of the grounds assigned was the alleged uncon­
stitutionality of the Workmen’s Compensation Act. 
The court, at p. 65, said:

“ A ground of appeal that is fundamental 
is a claim that the Commissioner erred in not 
holding that Section 5345 is unconstitutional; 
as this question is independent of the finding 
it may be considered at the outset.

“ The acceptance of Part B of the Act is 
voluntary on the part of an employer. When 
he so accepts the Act, he cannot thereafter 
urge that its provisions are ineffective in whole 
or in part because of any impairment of the 
constitutional rights of an employer. This 
reason of appeal cannot be sustained.”



2 6

In the case of Pierce v. Somerset Railway, 171 
U. S. 641, 43 L. Ed. 316, which involved a railroad 
mortgage and whether a State statute impaired the 
obligation of the contract, the court, at p. 648, said:

“ A person may by his acts or omission to 
act waive a right which he might otherwise 
have under the Constitution of the United 
States, as well as under a statute, and the 
question whether he has or has not lost such 
right by failure to act, or by his action, is not a 
Federal one.”

In the case of Eustis v. Bolles, 150 U. S. 361, 37 
L. Ed. 1111, the validity of insolvency proceedings 
had under a Massachusetts statute was involved. 
The court said:

“ The defendants in the trial court de­
pended on a discharge obtained by them under 
regular proceedings, under the insolvency stat­
utes of Massachusetts. This defense the plain­
tiffs met by alleging that the statutes, under 
which the defendants had procured their dis­
charge, had been enacted after the promissory 
note sued on had been executed and delivered, 
and that, to give effect to a discharge obtained 
under such subsequent laws, would impair the 
obligation of a contract, within the meaning 
of the Constitution of the United States. Upon 
such a state of facts, it is plain that a Federal 
question, decisive of the case, was presented, 
and that if the judgment of the Supreme 
Judicial Court of Massachusetts adjudged that 
question adversely to the plaintiffs, it would 
be the duty of this court to consider the sound­
ness of such a judgment.



27

“ The record, however, further discloses 
that William T. Eustis, represented in this 
court by his executors, had accepted and 
receipted for the money which had been awarded 
him, as his portion, under the insolvency pro­
ceedings, and that the court below, conceding 
that his cause of action could not be taken from 
him, without his consent, by proceedings under 
statutes of insolvency passed subject to the 
vesting of his rights, held that the action of 
Eustis, in so accepting and receipting for his 
dividend in the insolvency proceedings, was a 
waiver of his right to object to the validity of 
the insolvency statutes, and that, accordingly, 
the defendants were entitled to the judgment.”

The Supreme Court of the United States did not 
disturb the aforesaid ruling of the Massachusetts court.

In the case of Wall v. Parrott Silver & Copper Co., 
244 U. S. 407, 61 L. Ed. 1229, the court said:

‘There remains the contention that the 
statutes of Montana which we have epitomized, 
if enforced, will deprive the appellants of their 
property without due process of law because 
they provide that sale may be made of all the 
assets of the corporation when authorized by 
not less than two-thirds of the outstanding 
capital stock of the corporation, and that the 
plaintiffs must accept either the payment for 
their shares which this large majority of their 
associates think sufficient, or, if they prefer, 
the value in money of their stock, to be deter­
mined by three appraisers, or, still at the 
election of the appellants, by a court and jury.

“ This record does not call upon us to 
examine into this challenge of the validity of 
these statutory provisions, similar as they are



2 8

to those of many other States and of a seem­
ingly equitable character, for the reason that 
the appellants, by their action in instituting a 
proceeding for the valuation of their stock, 
pursuant to these statutes, which is still pend­
ing, waived their right to assail the validity 
of them.”

In the case of Pierce Oil Corporation v. Phoenix 
Refining Company, 259 U. S. 125, 66 L. Ed. 855, 
which involved the making of a pipe line company a 
common carrier, the court held:

“ The right of a foreign corporation to be 
secure against the imposition of conditions 
upon its right to do business which amount to 
a taking of its property without due process of 
law may be waived, or the right to claim it 
barred, by deliberate election, or by conduct 
inconsistent with the assertion of such right.”

In the case of William Shepard, et als. v. Barron, 
194 U. S. 553, 48 L. Ed. 1115, the constitutionality of 
an act regarding assessments against abutting property 
owners for improvements was assailed because the 
act provided that the assessments should be made on a 
front foot basis and not according to the special bene­
fits derived.

The plaintiffs had by petition requested the work 
and impliedly agreed to pay for the same on the front 
foot assessment basis.

The court held that they had waived any con­
stitutional rights they might have, and at p. 566 of the 
opinion said:



29

“ It is, therefore, upon these facts, im­
material that the law under which the pro­
ceedings were conducted was unconstitutional, 
because the work was done at the special re­
quest of the owners, under the provisions of 
the act, and upon a contract, both implied 
and in substance expressed, that the bonds 
would be paid, and the assessment to be im­
posed for the raising of a fund to pay them 
would be legal and proper.”

and at p. 568 said:

“ Provisions of a constitutional nature, in­
tended for the protection of the property owner, 
may be waived by him, not only by an instru­
ment in writing, upon a good consideration, 
signed by him, but also by a course of conduct 
which shows an intention to waive such pro­
vision. . . .”

One of the most sacred personal rights is that of 
trial by jury. The Seventh Amendment to the United 
States Constitution provides that in suits at common 
law the right of trial by jury should be preserved. The 
rules of civil procedure promulgated for the District 
Courts by the Supreme Court of the United States 
provide that the failure of a party to demand a jury 
as required by the Rules shall constitute a waiver by 
him of trial by jury (Rule 38). If one can waive his 
right to trial by jury by his mere inaction, surely the 
appellant Alston can waive his rights in the Four­
teenth Amendment, if any he has, by a contract in 
writing voluntarily executed by him.

The cases cited by appellant dealing with the 
question of waiver in matters of compensation relate



30

to salaries the amount of which are definitely fixed 
and prescribed by law, the courts holding in such 
cases that an acceptance of any less amount would 
be contrary to public policy and place the positions for 
said salaries in the category of barter and exchange. 
In the instant case the salaries are not fixed by law 
but are left as a matter of contract between the 
teachers and the School Board.

A. Decision on Waiver Issue by District Court Properly 
Based.

Appellants allege in their brief (p. 32) that 
the decision on the waiver issue was erroneously 
based on facts not before the District Court. 
Appellants alleged in the complaint (Appellants’ Brief, 
p. 44) that appellant Alston had been employed as a 
regular teacher by the School Board since 1935 and 
was in his fifth year of teaching experience. That on 
September 28, 1939, (Appellants’ Brief, p. 50), he 
filed the petition therein mentioned with the School 
Board. Appellees, in paragraph (4) of the Second 
Defense of their Answer (Appellants’ Brief, p. 55) 
alleged that by reason of contract of June 12, 1939, 
appellant Alston had waived any rights, if any he had, 
in the premises. Appellants filed no reply to the 
answer. There is no allegation in the complaint that 
his teaching was other than a voluntary engagement 
between him and the School Board. He voluntarily 
executed the contract on June 12, 1939, to teach for 
ten school months beginning September 7, 1939
(Contract— Appellants’ Brief, p. 56). He had been 
teaching for five years in the public schools of the city. 
At the time of the execution of the contract he knew,



3 1

or could have known, what salaries were paid all the 
teachers in the public schools of the city. He has con­
tinued to teach since the beginning of the school term 
beginning September 7, 1939, and is now teaching in 
the public schools of the city and has received and 
accepted the salary provided for by the contract.

Furthermore, while such does not appear in the 
record, the matters alleged in paragraphs 1 to 7 on 
pages 34 and 35 of appellants’ brief, to support their 
contention in this regard, were all argued by counsel 
for appellants at the hearing of this case in the District 
Court.

IV.

Differentiation of the Maryland Cases From the
Instant Case.

T h e  M a r y l a n d  C a s e s .

The two cases of Mills v. Lowndes, et al., 26 Fed. 
Supp. 792, (D. C., Md. 1939), and Mills v. Anne 

| Arundel County Board of Education, et al., 30 Fed.
Supp. 245, (D. C., Md. 1939), are quoted from and 
cited with such frequency by appellants as being 
directly in point with the instant case that appellees 
are prompted to deal with the same at some length 
and apply the facts and conclusions of those cases to 
the issues of constitutional rights and waiver as 
raised herein.



32

A. The Equal Protection Clause of the Fourteenth 
Amendment Has No Application to the Instant Case.

The plaintiff Mills, pursuant to Maryland school 
laws, was employed under a continuing contract which 
required an oath of office to be taken and subscribed. 
He further, after the expiration of a probationary 
period, became possessed of a right of property in his 
teaching position by virtue of tenure and could only 
be dismissed for stated cause, and after opportunity 
to be heard in his own defense. The appellant Alston, 
on the other hand, is employed only on an annual 
basis and having no tenure of office, is possessed of no 
vested interest therein.

The case of Mootz v. Belyea, supra, discusses fully 
the rights accruing to and the differences existing 
between a teacher with a fixed tenure of office and a 
teacher whose relationship of employment is purely 
contractual, how, if improperly dismissed, the former 
could proceed by mandamus for reinstatement but 
the latter would be relegated to an action for damages 
under the contract.

It is the contention of appellees that appellants, 
having no rights to employment (Seattle High School, 
etc. v. Sharpless, supra) and having no vested interests 
in their positions after employment, are therefore 
without rights to be protected by the equal protection 
clause of the Fourteenth Amendment. The plaintiff 
Mills, however, while not possessing any right to 
employment, subsequent thereto, did acquire a vested 
right in his position and consequently a fixed property 
right therein to protect.



33

District Judge Chesnut distinguishes between the 
plaintiff Mills as a public employee and as a teacher 
by occupation in holding that the action could be 
maintained for violation of constitutional rights, 
stating:

“ I conclude therefore that the plaintiff 
does have a status, not as a public employee, 
but as a teacher by occupation, which entitles 
him to raise the constitutional question.”

Early in his opinion, however, he recognized the 
question as being one on which there is little available 
judicial authority and makes this pertinent observa­
tion:

“ In view of the fact that the amendment 
has been in force for 75 years, the absence of 
authority on the point is itself rather significant 
in the indication that it has not heretofore been 
thought the amendment applied to such a 
case.”

It is submitted that the conclusion reached by 
Judge Chesnut is predicated upon the status of the 
plaintiff Mills and is only intended to embrace those 
teachers by occupation who possess a fixed tenure of 
office.

Correlated with the question of whether con­
stitutional rights have been violated, is the factor of 
discretion in employment and salary fixing by the 
local board in the instant case. Judge Chesnut stresses 
the Maryland statutes prescribing minimum rates of 
pay and their application, stating:



34

“ Each County Board in cooperation with 
the County Commissioner as to the tax rate is 
free to determine the amount and quality of 
its educational facilities and has power to 
select its teachers and determine their com­
pensation. It may, in the exercise of its lawful 
discretion, decide whether to employ white or 
colored teachers for the colored schools; nor is it 
required to employ any particular teacher, whether 
white or colored, although duly qualified. And 
it may he observed that if the minimum salary 
schedules were written out of the law as uncon­
stitutional, the local Boards will have unlimited 
discretion as to the amount to be paid the teachers.”  
(Italics ours.)

It is also to be noted that an injunction was denied 
to the extent prayed for that colored teachers and 
principals shall not receive less salaries than white 
teachers and principals filling equivalent positions in 
the public schools.

The State of Virginia has no statute prescribing 
rates of pay, minimum or maximum, for teachers and 
principals in the public schools, but leaves the deter­
mination thereof entirely within the discretion of the 
local board to be incorporated in voluntary contracts.

B. The Appellant Alston has Waived Any Rights to the 
Relief for Which He Prays.

In the two Mills cases the contract of employment 
does not fix or designate the rate of pay but provides 
only that it shall not be less than the minimum salary 
provided by law. There is, therefore, no agreement as 
to salary and consequently no basis for waiver therein.



35

In addition tlie plaintiff Mills was the principal of a 
colored elementary school, the minimum salary for 
which is not prescribed by the State of Maryland’s 
minimum statutes.

In the instant case the actual rate of pay is fixed 
by agreement in the contract of employment.

A Mandatory Court Order Does Not Lie to Control 
a Discretionary Act.

This phase of the case was fully treated in the 
brief of appellees submitted to the Judge of the District 
Court. As he decided the case on the matter of waiver 
he did not go into this phase of it. As the Virginia 
laws place the entire matter of the employment of 
teachers in the discretion of the School Board, as 
above set forth in this brief, it is submitted that a 
mandatory court order does not lie to control such 
discretion.

In the absence of mandamus, now abolished by 
the Federal Rules of Civil Procedure, the appellant 
asks for a mandatory court order in the form of an 
injunction. The effect, however, is the same, and 
the same rules of law apply with respect to granting it. 
It is well settled by the authorities, both Federal and 
State, that mandatory orders of our courts do not lie 
to control discretionary acts.

In the case of Warner Valley Stock Company v. 
Smith, 165 U. S. 28, 33, 41 L. Ed. 621, 623, which 
involved a mandatory injunction, the court said:



36

“ The main object of the present bill was 
to compel the defendant, Hoke Smith, as Secre­
tary of the Interior, to prepare patents to be 
issued to plaintiff for the lands in question.
The mandatory injunction prayed for was in 
effect equivalent to a writ of mandamus to 
him.”

In the case of Miguel v. McCarl, Comptroller 
General, 291 U. S. 442, 452, 78 L. Ed. 901, 907, in <
which it appears a suit was brought to enjoin the de­
fendant from interfering with the Chief of Finance to 
prevent payment to complainant of returned pay, and 
also to command the Chief of Finance to pay the 
retired pay claim, the court said:

“ The mandatory injunction here prayed 
for is in effect equivalent to a writ of mandamus 
and governed by like considerations.
With the foregoing well settled rule in mind, 
we turn to the pertinent legislation.”

In the case of Simon v. Military Board, 99 Ya. 
390, which involved the refusal of the Board to approve 
a certain claim for military services, in which a writ 
of mandamus therefor was sought but refused, the 
Supreme Court of Appeals of Virginia said, at p. 392:

“ One of the marked characteristics of a 
proceeding by mandamus is that if the func­
tionary whose conduct is complained of is by 
law to exercise any discretion, that discretion 
will not be controlled by a writ of mandamus, 
for that would be to transfer the discretion 
which the law commits to the functionary to 
the court which undertakes to award the writ.”



37

In the ease of Broaddus v. Supervisors, 99 Va. 370, 
the court, at page 372, quotes with approval from 
High on Extra Remedies as follows:

“ Wherever such officers or bodies are 
vested with discretionary power as to the per­
formance of any duty required at their hands, 
or where, in reaching a given result of official 
action, they are necessarily obliged to use some 
degree of judgment and discretion, while man­
damus will lie to set them in motion and to 
compel action upon the matters in controversy, 
it will in no manner interfere with the exercise 
of such discretion, nor control or dictate the 
judgment or decision which shall be reached. 
But if, upon the other hand, a clear and specific 
duty is positively required by law of any 
officer, and the duty is of a ministerial nature, 
involving no element of discretion, and no 
exercise of official judgment, mandamus is the 
appropriate remedy. . . .”

In the case of Adams, Receiver v. Nagle, et als., 
303 U. S. 532, 542, 82 L. Ed. 999, 1006, which involved 
a suit by stockholders to enjoin the receiver of two 
national banks from enforcing assessments ordered by 
the Comptroller of the Currency, the court ordered 
the bill dismissed, and in discussing injunctions, said:

“ Where a statute vests no discretion in an 
executive officer but to act under a given set 
of circumstances, or forbids his acting except 
upon certain named conditions, a court will 
compel him to act or to refrain from acting if 
he essays wholly to disregard the statutory 
mandate; but if a discretion is vested in him, 
and he is to act in the light of the facts he ascer­
tains and the judgment he forms, a court can-



38

not restrain him from acting on the ground 
that he has exceeded his jurisdiction by reason 
of an error either of fact or law which induced 
his conclusion.”

In the case of Wilbur, Secretary of the Interior v. 
United States ex rel Kadrie, et al., 281 U. S. 206, 218, 
74 L. Ed. 809, 816, a writ of mandamus was sought 
commanding the Secretary of the Interior to restore 
the realtors to the rolls of certain Indian Tribes and 
to pay them a share of all future distributions made 
from a certain fund. The court held that the case 
was not one in which mandamus would lie, and said:

“ Mandamus is employed to compel the 
performance, when refused, of a ministerial duty, 
this being its chief use. It also is employed to 
compel action, when refused, in matters involv­
ing judgment and discretion, but not to direct 
the exercise of judgment or discretion in a 
particular way nor to direct the retraction or 
reversal of action already taken in the exercise 
of either.”

In the case of State of Louisiana v. McAdoo, 
Secretary of the Treasury, 234 U. S. 627, 633, 58 L. Ed. 
1506, 1509, a motion was made by the State of Louisi­
ana to file in the United States Supreme Court a peti­
tion against the Secretary of the Treasury to review 
his official judgment as to the rate of duty to be 
exacted on importations of Cuban sugar. The court 
refused to allow the petition to be filed, and in the 
course of the opinion said:

“ The duties imposed upon the Secretary 
of the Treasury in the collection of sugar tariffs



39

are not ministerial. They are executive, and 
involve the exercise of judgment and discretion.

“ There is a class of cases which hold that 
if a public officer be required by law to do a 
particular thing, not involving the exercise of 
either judgment or discretion, he may be re­
quired to do that thing upon application of 
one having a distinct interest in the doing of 
the act. Such an act would be ministerial 
only. But if the matter in respect to which the 
action of the official is sought is one in which 
the exercise of either judgment or discretion is 
required, the courts will refuse to substitute 
their judgment or discretion for that of the 
official intrusted by law with its execution.”

The laws of Virginia authorize the School Board 
to employ teachers for the public schools of the city 
and to fix their compensation. The employment of 
teachers and the fixing of their compensation is within 
the discretion of the School Board. In the case of such 
discretionary duties injunction should not lie to con­
trol the same. To do so the Court would be exercising 
a discretion which the law places with the School 
Board. Courts should not legislate or invade the 
provinces of the other departments of government. 
Injunction in such cases would be interfering with 
the orderly functions of government.

The School Board of the City of Norfolk operates 
the public schools in the city as an agency of the 
State. It is a governmental function it performs. 
The Board is given by law wide discretion in the 
matter. To grant the relief prayed for would be to 
control the discretion vested in the School Board in



the performance of the essential governmental func­
tion of operating the public schools of the City of 
Norfolk.

VI.

Authorities Cited by Appellants.

The limit of this brief will not permit an analysis 
of the numerous cases cited in appellants’ brief but 
they may well be classified into three general divisions, 
viz.:

1. Jury cases in which negroes were left off. 
When objections thereto were first made after the 
trial the courts, including the Supreme Court of the 
United States, are unanimous in denying relief on the 
grounds that the constitutional right to have negro 
juries had been waived. The instant case is a waiver 
by voluntary contract executed and performed.

2. Denial of equal accommodations or facilities 
and segregation ordinances. This is not the instant 
case, which is a matter of a voluntary employment.

3. Salaries fixed by statutes. In these cases 
where effort is made to pay a lower salary than those 
specifically fixed by statute, the court allowed re­
covery of the statutory amount. In the instant case 
no salaries are fixed by statute but are left in the dis­
cretion of the School Board and fixed by contract 
between the School Board and the teacher.

CONCLUSION.

Appellees content that this is a proceeding between 
the appellant Melvin O. Alston and the appellee



4 1

School Board of the City of Norfolk, that no con­
stitutional rights of the said Melvin O. Alston have 
been violated, that if he had any such constitutional 
rights as alleged he has waived them, that there is no 
error in the judgment of the District Court, and that 
the same should be affirmed.

Respectfully submitted,

A l f r e d  A n d e r s o n , 
J o n a t h a n  W . O l d , J r ., 
W il l ia m  C . C o u p l a n d ,

Counsel for Appellees.
Room 207, City Hall,
Norfolk, Virginia.

APPENDIX.

(Caption)

Answer of Defendant.

(First, Second and Third Defenses are set forth in 
Appellants’ Brief).

Fourth Defense.

The plaintiffs are not entitled to invoke the juris­
diction of this court in this case as alleged in paragraph 
“ 1”  of the complaint, for the reasons set forth in the 
First, Second and Third Defenses herein; and the 
defendants deny the allegations of paragraph “ 1” of 
said complaint.

The defendants deny the allegations of paragraph 
“ 2”  of said complaint.



42

The defendants admit that the defendant School 
Board is by law of the State of Virginia a body cor­
porate, but they are without knowledge and infor­
mation sufficient to answer the other allegations of 
paragraph “ 3”  of the complaint.

The defendants are without sufficient knowledge 
and information to answer the allegations of para­
graphs “ 4”  and “ 20”  of the complaint.

As heretofore stated, the Norfolk Teachers’ Asso­
ciation is an unincorporated organization, and as such 
is not within the constitutional provisions referred to 
in the bill of complaint and therefore not properly a 
party to this proceeding. Other than this the defend­
ants are without sufficient information and knowledge 
to answer the allegations of paragraph “ 5”  of the com­
plaint.

The defendants admit the provisions of the school 
laws referred to in paragraphs “ 6,”  “ 7,”  “ 8,”  “ 9,” 
“ 10”  and “ 19”  under proper construction, but speci­
fically deny the conclusions and deductions made 
therefrom as alleged in said paragraphs of the com­
plaint.

The defendants deny the allegations of paragraph 
“ 11”  of the complaint.

The defendants deny such portions of paragraphs 
“ 1 2 ,”  “ i g ”  “ 16”  and “ 22”  of the complaint as allege 
discrimination because of race or color, a discriminatory 
salary schedule, denial of the equal protection of the 
laws and distribution of public funds on an illegal and 
unconstitutional basis.



43

The defendants deny the allegations contained in 
paragraph “ 13”  of the complaint, except so much 
thereof as recites the qualifications and experience of 
plaintiff Melvin 0 . Alston, in respect to which they 
allege they are without knowledge or information 
sufficient to form a belief as to the truth thereof.

The defendants deny the allegations of para­
graphs “ 14,”  “ 17,”  “ 18,”  and “ 21”  of the complaint.

^  The defendants admit the filing of the petitions
as alleged in paragraph “ 23”  of the complaint. The 
requests contained in the petitions were denied because 
the salaries of the respective teachers and principals 
are matters which are governed by individual con­
tracts voluntarily accepted and executed by the 
individual teachers and principals.

The defendants deny the allegations of para­
graphs “ 24”  and “ 25”  of the complaint.

The aforesaid defenses and denials apply not only 
to the said plaintiffs, but to the others on whose 
behalf plaintiffs allege they are proceeding, if they 
can proceed on their behalf, which defendants deny.

 ̂ The defendants also deny that the plaintiffs are
entitled to the prayer of said complaint.

(Signed) A l f r e d  A n d e r s o n ,

Attorney for Defendants.

City Hall, Norfolk, Va.

(Signed) A l f r e d  A n d e r s o n ,
(Signed) J o n a t h a n  W. O l d , J r .,

Attorneys for Defendants.



t



§



f



United States Circuit Court of Appeals 
for the Fourth Circuit

M elvin  0 .  A lsto n , and the N obfolk  
T e a c h e r s ’  A ssociation , an  Unincorpo­
rated Association,

Appellants,

vs. File No. 4623

S ch ool  B oard of t h e  C it y  of N o rfolk , a 
B ody C orporate, and C. W. M ason , 
Superintendent of Schools of Norfolk,

Appellees.

REPLY BRIEF OF APPELLANTS

O liver  W . H il l ,
T hurgood  M a r sh a ll ,
L eon  A. R a n so m ,
W il l ia m  II. H astie ,

Counsel for Appellants.

117 E. Leigh Street,
Richmond, Va.

Printed by Law Reporter Ptg. Co., 518 5th St., Washington, D. C.



/

"



SUBJECT INDEX

PAGE

P a r t i e s _________________________________________________________ 1

S im il a r it y  of M arylan d  C ases to t h e  I n st a n t  C ase------  3

A ppe n d ix

Findings of Fact in Mills v. Bd. of Education---------  6
Conclusions of Law in Mills v. Bd. of Education------ 12

Final Judgment and Decree______________________  13



i



United States Circuit Court of Appeals 
fo r the Fourth Circuit

M e l v in  0 .  A l st o n , and the N orfolk  
T e a c h e r s ’  A ssociation , an Unincorpo­
rated Association,

Appellants,

vs. File No. 4623

S ch ool  B oard of t h e  C it y  of N o rfolk , a 
B ody C orporate , and C. W. M ason , 
Superintendent of Schools of Norfolk,

Appellees.

REPLY BRIEF OF APPELLANTS

APPELLANTS’ REPLY BRIEF

Most of the questions raised by the appellees in their 
brief filed herein are fully covered either in appellants’ 
brief or in the record of the case filed as an appendix 
therein. There are however two points raised by appellees 
which are not specifically covered in our original brief.

PARTIES

Appellees contend that appellant, Norfolk Teachers’ As­
sociation, is not a proper party because: (1) the rights are 
personal ones, and, (2) only qualified individuals, under in-



2

dividual contracts, can teach in the public schools of the 
City of Norfolk. (Appellees’ brief p. 5)

The Norfolk Teachers’ Association sues in its common 
name pursuant to the authority of Section 17-B of the 
Federal Buies, because it would be too cumbersome to this 
proceeding to name each individual member of the said 
Norfolk Teachers’ Association. The appellant associa­
tion according to the complaint is a voluntary unincor­
porated association and “ is composed of Norfolk teachers 
and principals in the public schools of Norfolk, Virginia, 
organized for the mutual improvement of its members in 
their profession as teachers and principals in the public \ 
schools of Norfolk, Virginia.”  (Appellants’ brief, p. 41)
There seems to be no doubt that each member of the asso­
ciation could maintain this action. Filing this action in the 
name of the unincorporated association is a mere procedural 
device fully authorized by the New Federal Buies.

It is also contended that appellee C. W. Mason, Superin­
tendent of Schools of the City of Norfolk, is not a proper 
party because there is no authority vested in the Superin­
tendent of Schools to employ teachers, fix their salaries or 
make contracts with them to teach. In paragraphs 9-12 
of the complaint it is alleged and admitted by the appellees, 
on a motion to dismiss, that the discriminatory practice, 
custom, and usage complained of is being maintained by the 
defendants, including appellee Mason. (Appellants’ brief 
p. 43-44). (

C. W. Mason is made a party defendant in his official 
capacity. Under the laws of the Commonwealth of V ir­
ginia, it is provided that:

‘ ‘ The public school system shall be administered by the 
following authorities, to w it: a state board of education, 
a superintendent of public instruction, division superin­
tendent of schools, and county, and city school boards.”  
(Virginia Code, sec. 611; italics ours)



3

Under Section 657 of the Virginia Code, it is provided that:

“ It shall be the duty of the division superintendent of 
schools, on or before the first day of April of each year 
to prepare with the advice of the school board, an esti­
mate of the amount of money which will be needed 
during the next scholastic year for the support of the 
public schools of the counties and cities. . . .  On 
the basis of this estimate the division superintendent 
of schools shall require the board of supervisors of the 
county or council of the city to fix such school levy as 
will net an amount of money necessary for the opera­
tion of the schools . . .”

By section 660 of the Virginia Code, it is provided that:

“ The school board shall employ teachers and place 
them in appropriate schools on recommendation of the 
division superintendent, and shall dismiss teachers 
when delinquent, inefficient or otherwise unworthy.’ ’ 
(Italics ours)

It is clear that under these statutes, C. W. Mason, is one 
of the administrative agents of the Commonwealth of Vir­
ginia, operating the public school system of Norfolk, 
charged with the duty of preparing the budget including 
teachers salaries and with the general administration of the 
school system.

SIM ILARITY OF MARYLAND CASES TO THE 
INSTANT CASE

There are two cases from Maryland on the points raised 
in this case. The first case was filed against state officials 
and attacked the statutory salary schedule, (Mills v. Lown­
des, et al, 26 Fed. Supp. 792). The second case was filed 
against the local school board and superintendent and at­
tacked the policy, custom, and usage of enforcing a local



4

salary schedule adopted by them and of paying Negro 
teachers less salary than white teachers of equal qualifica­
tions and experience, (Mills v. Board of Education of Anne 
Arundel County, 30 Fed. Supp. 245). In order that there 
may be no question as to the similarity of that case with 
the instant case, we are including in the Appendix of this 
brief a certified copy of the Findings of Fact, Conclusions 
of Law and Final Judgment and Decree in the second Mills 
case.

Appellees attempt to distinguish these cases from the 
instant case on the ground that while Mills had tenure, ap­
pellant Alston does not have tenure. The question of ten­
ure is not fundamental in either the Mills case or this case. 
Tenure is only material in a case where there is a question 
as to whether a teacher is to be discharged without cause. 
The right of a teacher to maintain this type of action while 
he is employed cannot be affected by the question of whether 
or not he has tenure. Appellant Alston has been teaching 
in Norfolk continuously for five years and has a reasonable 
expectation of being rehired from year to year in the future.

Effort is also made to distinguish both of the Maryland 
cases on the grounds that Virginia does not have a statutory 
salary schedule. The second Mills case was not based upon 
the statutory schedule but a county schedule and a discrim­
inatory system maintained by the local school board similar 
to the one in the instant case.

Although the injunction was not granted in the exact 
language prayed for, the District Judge in his final order 
enjoined the local school hoard from: “ . . . paying
plaintiff and any other colored teachers and principals in 
the public school system of Anne Arundel County less than 
the salary paid white teachers of the same qualifications and 
experience, on account of race or color.”  (Appendix p. 14)

Further effort is made to distinguish the Maryland cases 
on the ground that in the Mills case the contract of employ­
ment does not fix the rate of pay. It is true that the original



5

contract of employment did not fix the rate of pay because 
the rate is fixed each year. In the “ Findings of Fact”  in 
the second Mills case, supra, the District Judge found as a 
fact that . . The annual salary for plaintiff for the
present year has been set at $1058, or $103 more than the 
minimum provided by the county scale; . . (Appen­
dix p. 10). In Maryland, although the contract of em­
ployment is a continuing contract, the question of the 
amount of salary per year is determined each year between 
the local school board and the individual teacher.

The relief prayed for in the instant case is merely to re­
strain the appellees from making any distinction in the pay­
ment of teachers salaries on the basis of race or color in vio­
lation of the Fourteenth Amendment to the United States 
Constitution and section 43 of Title 8 of the U. S. Code. No 
effort is made to control the lawful discretion of the appel­
lees to fix salaries of teachers.

Respectfully submitted,

O liver  W . H il l ,
T hurgood  M a r sh a ll ,
L eon  A. R a n so m ,
W il l ia m  H . H astie ,

Counsel for Appellants.
117 E. Leigh Street,
Richmond, Ya.



6

APPENDIX

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE DISTRICT OF MARYLAND

W alter  M il l s ,
Plaintiff,

v.
Civil Docket-

B oard of E d u catio n  of A n n e  A r u n d e l  No. 170 
C o u n t y , a corporation, and G eorge F ox , 
as County Superintendent of Schools 
of Anne Arundel County,

Defendants.

T h e  C ourt  M ak es  t h e  F o llo w in g  F in d in g s  of F act  :

1. Plaintiff Walter Mills is a Negro, a citizen of the 
United States, and a resident of Anne Arundel County, 
State of Maryland. Plaintiff is a teacher by profession and 
occupation, and is employed by the defendants herein as 
teacher-principal of the Parole Elementary School, a public 
elementary school for colored children located in Anne 
Arundel County.

2. Plaintiff brings this suit on his own behalf and also 
on behalf of all other teachers and principals in the colored 
public schools of Anne Arundel County similarly circum­
stanced.

3. Defendant Board of Education of Anne Arundel 
County is a corporation existing pursuant to the laws of the 
State of Maryland as an administrative department of the



7

State of Maryland discharging governmental functions. 
Defendant George Fox is County Superintendent of Schools 
of Anne Arundel County and the executive officer and the 
secretary and treasurer of defendant Board of Education 
of Anne Arundel County, and is sued in his official capacity.

4. Plaintiff is a graduate of Bowie State Normal School, 
a normal school maintained hy the State of Maryland under 
the supervision of the State Board of Education for the in­
struction and preparation of Negroes as teachers in the 
public schools of the State. He is in his twelfth year of 
teaching experience in the Maryland public schools, and 
holds a first-grade teacher’s certificate and an elementary 
principal’s certificate issued by the State Board of Edu­
cation.

5. The certification and rating of all teachers and prin­
cipals in the public schools of Maryland, both white and 
colored, is determined by the State Board of Education, 
based upon uniform requirements and standards, and is 
certified by said State Board of Education to the County 
Boards of Education, including the defendant Board of 
Education of Anne Arundel County.

6. At the present time and for many years last past all 
teachers and principals in the white public schools of Mary­
land are and have been white, and all teachers and princi­
pals in the colored public schools of Maryland are and have 
been Negroes.

7. The State of Maryland has by its statutes provided a 
minimum salary schedule for white teachers and principals; 
and also a minimum salary schedule for teachers in colored 
schools. Each of these schedules is graduated to profes­
sional qualifications and years of experience. While pro­
vision is made for a minimum salary for white elementary 
school principals, no provision is made for a minimum sal­
ary for colored elementary school principals.



8

8. There is a difference which has existed for many years 
in the State minimum salary schedules in that the minima 
for white teachers have been uniformly higher than the 
minima for colored teachers of comparable qualifications 
and experience.

9. Taking, for simplicity of statement and for purposes 
of comparison, the case of white and colored teachers re­
spectively who have a first grade certificate and nine years 
or more of experience: In 1904 the first minimum salary act 
for white teachers (there being none at all for colored teach­
ers prior to 1918) prescribed a minimum for white teachers 
of $300 per annum; in 1908 and 1910 this was increased (for 
a teacher in white elementary schools having a first class 
rating and more than eight years’ experience) to $450; in 
1916 to $550; in 1918 to $600; in 1920 to $950; in 1922 to 
$1150; and in 1939, (on a slightly different basis as to pro­
fessional qualifications and experience) to $1250, and, if the 
teacher held an academic degree, to $1450. By comparison 
the minimum for colored elementary teachers of similar 
professional qualifications and experience has been uni­
formly less. Their salaries have been fixed by statute not 
on a yearly but a monthly basis, and for some of the time 
heretofore, colored schools have been in session and colored 
teachers have been paid for seven months of the year only. 
In 1918 the minimum was $280 per year, increased in 1920 
to $455 per year; in 1922 to $595, and in 1939 (by reason of 
increase in the duration of the school year) to $765 per year. 
At the present time, therefore, the respective minima are 
$1250 for white teachers and $765 for colored teachers with 
comparable professional qualifications and experience.

10. The County Boards of Education, including the de­
fendant Board of Education of Anne Arundel County, have 
general supervisory control of the public schools within 
their respective jurisdictions, and employ and pay the sal­
aries of teachers and principals within their respective jur­



9

isdictions. Said Boards are required by State statutes to 
pay not less than the statutory minimum salaries.

11. The County is the unit for public education in Mary­
land and the County Board of Education, including the de­
fendant Board of Education of Anne Arundel County have 
authority and discretion as to the actual amount to be paid 
to their teachers, both white and colored, and are at liberty 
to pay higher salaries than the minima fixed by State 
statute.

12. In practice most of the counties of Maryland (includ­
ing Anne Arundel County) have maintained for many years 
a differential in the salaries actually paid white and colored 
teachers by which the salaries paid white teachers have been 
uniformly higher than those paid comparable colored teach­
ers. The annual average salary for white and colored ele­
mentary teachers in Maryland counties for the period of 
1921 to 1939 is in the ratio of nearly two to one in favor of 
the white teachers.

13. However, several of the twenty-three counties of 
Maryland, and Baltimore City, now pay equal salaries to 
white and colored teachers of equal professional qualifica­
tions and experience.

14. For some years past the defendant Board of Edu­
cation of Anne Arundel County has paid to both white and 
colored teachers more than the respective minima pre­
scribed by State statutes.

15. The scales of salaries for teachers and principals in 
Anne Arundel County established by the defendants in 1937 
are still in force. The scales provide, for white elementary 
school teachers with more than nine years’ experience, 
$1250 per year, (the comparable State statutory minimum 
being then $1150); and for colored elementary school teach-



1 0

ers, $700, (the comparable State statutory minimum being 
then $680).

16. The Anne Arundel County scale for white teachers 
and principals provides a minimum salary of $1550 an­
nually for white principals of elementary schools with the 
same qualifications and experience as plaintiff and with 
two to four assistants, (the comparable State statutory 
minimum being $1550). The county’s scale for colored 
teachers and principals provides a minimum yearly salary 
of $995 for colored elementary school principals with plain­
tiff’s qualifications and experience and with two to four 
assistants, (there being no State statutory minimum for 
colored principals of elementary schools.)

17. In practice the defendant Board of Education of Anne 
Arundel County in many cases actually pays higher salaries 
than the county scale to the principals of schools, in consid­
eration of particular conditions and capacities of the re­
spective principals.

18. Plaintiff Mills is employed by the defendants under 
a written contract which provides in part that: 1 ‘ The salary 
of said teacher shall be fixed by the County Board of Edu­
cation, which salary shall be not less than the minimum 
salary provided by law.”  The annual salary for plaintiff 
for the present year has been set at $1058, or $103 more than 
the minimum provided by the county scale; and in the case 
of the three white principals of elementary schools with 
comparable professional qualifications and experience, the 
salary is set at $1800 per year, or $250 more than the county 
scale.

19. The materially higher salaries of the three white 
principals mentioned in the evidence, with comparable pro­
fessional qualifications and experience with the plaintiff, 
are not due solely to their superior professional attainments '



and efficiency; while these personal qualifications might ex­
plain greater compensation to the particular individuals 
than the minimum county scale for the particular position, 
they do not account for the difference between the $1058 
received by plaintiff and the minimum of $1550 which would, 
according to the County scale, have to be paid any white 
principal of a comparable school. If plaintiff were a white 
principal he would necessarily receive, according to the 
county scale, not less than $1550 as compared with his actual 
salary of $1058.

20. By the Anne Arundel County scale the salaries of 
teachers and principals of white high schools is somewhat 
higher than the salaries for the white elementary schools, 
the differences ranging from $300 to $400. There is also a 
differential in favor of high school teachers as against ele­
mentary school teachers in the County scale for colored 
teachers, the difference in favor of the high school teacher 
being about $300. There is also a salary differential be­
tween elementary and high school teachers in colored 
schools in the State statutory minimum schedule. The case 
of Frank Butler, a colored principal of the Bates High 
School at Annapolis may be taken for illustration. He re­
ceives an annual salary of $1600. A  white principal of a 
comparable white high school would receive a minimum of 
$2600.

21. In Anne Arundel County there are 243 white teachers 
and 91 colored teachers; but no one colored teacher receives 
as much salary as any white teacher of similar qualifications 
and experience.

22. The very substantial differential between the salaries 
of white teachers and principals and colored teachers and 
principals of Anne Arundel County is due to discrimination 
on account of race or color.



1 2

23. The amount needed to raise the colored teachers’ pay 
to the minimum schedules for white teachers is $45,000 
annually.

24. There is an existing, actual controversy herein.

January 11, 1940.

CONCLUSIONS OF L A W

1. The Court has jurisdiction over this suit under Sec­
tion 24 (1) of the Judicial Code (28 U.S.C., Section 41 (1), 
and under Section 24 (14) of the Judicial Code (28 U.S.C., 
Section 41 (14)).

2. Plaintiff as a teacher by occupation has a legal right to 
maintain this suit.

3. Plaintiff has established and proved a cause of action 
against the defendants Board of Education of Anne Arun­
del County and George Fox as County Superintendent, etc., 
under the equal protection clause of the Fourteenth Amend­
ment of the Constitution of the United States, and under 
Sections 41 and 43 of Title 8 of the United States Code.

4. The official policy and official acts of the defendants 
in respect to salary payments, including their official policy 
and official acts in providing higher minimum salaries for 
white teachers and principals than for colored teachers and 
principals of comparable qualifications and experience, dis­
criminate against plaintiff and those on whose behalf he 
brings this suit in the practice of their profession and the 
pursuit of their livelihood and occupation, solely on account 
of their race or color, and their policy and acts are to that 
extent unconstitutional under the equal protection clause 
of the Fourteenth Amendment of the Constitution of the 
United States, and to that extent are also violative of Sec- . 
tions 41 and 43 of Title 8 of the United States Code.



13

5. Plaintiff has no adequate remedy at law in this Court. 
This case comes within the rule of Section 43 of Title 8 of 
the United States Code authorizing an injunction as an ap­
propriate remedy in this type of case.

6. The third-party complaint heretofore tiled herein by 
the defendants Board of Education of Anne Arundel County 
and George Fox as County Superintendent, etc., does not 
state any cause of action against the third party defendants 
named therein, nor does the proof entitle said defendants to 
any relief against the third-party defendants, and the third- 
party complaint should accordingly be dismissed.

7. Plaintiff is entitled to a declaratory judgment pursuant 
to Section 247d of the Judicial Code (28 U.S.C., Section 
400) and to a permanent injunction against said defendants 
in terms and forms as in the subjoined judgment and decree.

Dated Baltimore, Maryland, January 11,1940.

FINAL JUDGMENT AND DECREE

It is this 11th day of January, 1940, ORDERED, DE­
CREED a n d  ADJUDGED as follows:

Pursuant to Section 247d of the Judicial Code (28 U.S.C., 
Section 400), it is DECLARED a n d  ADJUDGED:

That the official policy and official acts of the defendants 
Board of Education of Anne Arundel County and George 
Fox, as County Superintendent of Schools of Anne Arundel 
County, in paying the plaintiff and all other colored teachers 
and principals in the public school system of Anne Arundel 
County smaller salaries than are paid by said defendants to 
white teachers and principals with similar professional 
qualifications and experience, in so far as such differentials



14

are predicated solely on race or color, are unlawful and un­
constitutional, and are in violation of the equal protection 
clause of the Fourteenth Amendment of the Constitution of 
the United States of the Sections 41 and 43 of Title 8 of the 
United States Code.

And it is ORDERED, ADJUDGED an d  DECREED:

1. That the third-party complaint heretofore filed herein 
be and the same is hereby dismissed.

2. That the defendants Board of Education of Anne 
Arundel County and George Fox, as County Superintendent 
of Schools of Anne Arundel County, and the agents of said 
defendants and each of them, be and they are hereby per­
petually enjoined and restrained from discriminating in 
the payment of salaries, against the plaintiff and any other 
colored teachers and principals in the public school system 
of Anne Arundel County, and in favor of any white teachers 
or principals in the public school system of Anne Arundel 
County, solely on account of race or color; and from paying- 
plaintiff and any other colored teachers and principals in the 
public school system of Anne Arundel County less than the 
salary paid wThite teachers of the same qualifications and 
experience, on account of race or color.

Provided, that the operative effect of the foregoing judg­
ment and decree be and the same hereby is postponed until 
the scholastic year beginning September, 1940.

The taxable court costs to be paid by the original de­
fendants.

W . C a l v in  C h e s n u t , 
United States District Judge

T hurgood  M a r s h a ll ,
Attorney for Plaintiff



1 5

U n ited  S tates  of A m e rica ,
D istrict  of M ary lan d , to w it  :

I, A r t h u r  L. S p a m e r , Clerk of the District Court of the 
United States for the District of Maryland, do hereby cer­
tify that the aforegoing is a true copy of the Findings of 
Fact, Conclusions of Law and Final Judgment and Decree, 
which was entered and filed on the 11th day of January, 
1940, in the therein entitled case of Walter Mills vs. Board 
of Education of Anne Arundel County, et al., No. 170 Civil 
Docket, in said District Court.

I n T e st im o n y  W h e reo f , I hereunto set my hand and affix 
the Seal of the said District Court, this 15th day of January, 
1940.

A r t h u r  L. S p a m e r ,
Clerk of said District Court.
By C h a s . M . J a m ie , Deputy

[ seal ]



I



>

I





i



*

■



991F A U L K N E R  v. C O M M IS S IO N E R  O F  IN T E R N A L  R E V E N U E
112 F.2d »87

that an organization initially outside of sec­
tion 23fo) (2) because not “organized” for 
purposes exclusively charitable, etc., cannot 
thereafter bring itself within section 23(o) 
(2) by anything short of a formal amend­
ment of its constitution, eliminating the 
non-exempt purposes.

[3] We do not think the statute makes 
so rigid a requirement, at least so far as 
concerns informal unincorporated associa­
tions like the one here involved. Cochran 
v. Commissioner, 4 Cir., 78 F.2d 176, 178. 
Under Article VI of the constitution of the 
League “ the Executive Board shall have 
full power to determine the policies and 
initiate the work and activities of the Birth 
Control League of Massachusetts” . The 
Board has found as a fact that “ early in 
1935, or- shortly before that time” , the Ex­
ecutive Committee of the League decided 
to abandon political or legislative objects 
and to limit its activities to the operation 
of the Mothers’ Health Offices. Apparently 
this abandonment was acquiesced in by the 

. common consent of the members for the 
reason that the League had received a 
legal opinion that a'change in the Massachu­
setts statute was not necessary to legalize 
the operation of the Mothers’ Health Offices 
under the guidance of licensed physicians 
prescribing birth control measures only to 
those women whose physical or mental 
condition indicated that further or im­
mediate pregnancy would be perilous to 
health. Considering the informal way these 
unincorporated associations are run, we con­
clude that after the legislative objectives 
had thus been abandoned, the League 
ceased to be “organized” for purposes other 
than those set forth in section 23(o) (2). 
The exemption of income devoted to charity 
was a liberalization of the law in the tax­
payer’s favor .“ begotten from motives of 
public policy” and “ not to be narrowly con­
strued” . Helvering v. Bliss, 293 U.S. 144, 
150, 151, 55 S.Ct. 17, 20, 21, 79 L.Ed. 246, 
95 A.L.R. 207.

The Government relies heavily on Slee 
v. C ommissioner, 2 Cir., 42 F.2d 184, 72 A. 
L.R. 400, for the proposition that the cur­

rent existence of declared non-exempt pur­
poses in the constitution and by-laws during 
the taxable year inescapably takes the or­
ganization outside the provisions of the 
statute and consequently results in non-de- 
ductibility. As we read that case, it implies 
quite the contrary. The court there was 
dealing with a gift to the American Birth 
Control League. In 42 F.2d at pages 185, 
186, 72 A.L.R. 400, the court says: “ In­
deed the charter [o f the American Birth 
Control League] does not mention the clinic 
or anything of the sort; it speaks only of 
the League’s scientific projects, its general 
purpose to secure the repeal of laws which 
deal with preventing conception, and the 
publication of the magazine. This is not 
indeed conclusive; in practice the League 
might have abandoned all such efforts ex*
ccpt as they conduced to a relief o f t!¥ j
clinic. The evidence passes somewhat light-"" 
ly over this feature of the work, for ob­
vious reasons, but it does not disclaim the 
charter, and, if it did, the Board was not 
obliged to conclude that the abandonment of 
what had been so formally declared was 
final.” [Italics ours.]

The implication seems to be that the 
aims for which an association is “ organ­
ized” can be redefined, at least for purposes 
of section 23(o) (2), without a formal 
amendment of the charter or constitution. 
In the Slee case the court held that the 
Board was “ not obliged to conclude” that 
there had been an abandonment of the 
original stated purposes; in the case at bar 
we have an express finding by the Board 
that the legislative objects had been aban­
doned at the time of the gift. 4B|

As an alternative ground o f decision th<2r  
Board added briefly that in Commonwealth 
v. Gardner, 1938, 300 Mass. 372, 15 N.E.2d 
222, thp Mothers’ Health Offices were held 
to be in violation of Mass.G.L., c. 272, § 
21. s “ In these circumstances” , the Board 
said, “ we think that a contribution to the 
Health Offices could not be allowed as a 
deduction under the provisions of the Fed­
eral statute. It would be contrary to pub­
lic policy, if not directly contrary to the in­

ti “ W hoever sells, lends, gives aw ay, e x ­
hibits, or offers to  sell, lend or give aw ay 
an instrum ent or  other article  intended to 
he used for  self-abuse, or  any drug, m edi­
cine, instrum ent or  article  w hatever fo r  
the prevention o f  conception  or  for  caus­
ing unlaw ful abortion , or  advertises the 
same, or  w rites, prints or  causes to be 
w ritten or printed a card, circu lar, book,, 
pam phlet, advertisem ent or notice o f  any

kind stating when, where, how , o f  whom 
or by w hat means such article  can be 
purchased or obtained, or m anufactures 
or  makes any such article, shall be pun­
ished by im prisonm ent in the state prison 
fo r  not m ore than five years or  in ja il 
or  the house o f  correction  for  not more 
than tw o and one h a lf years or  by a fine 
o f  not less than one hundred nor more 
than one thousand dollars.”



112 FETlERAT. RFPORTFR 2d RFRTES■ $ 2
—J
i'Tention of Congress, to construe the Federal 
Tfiaxmg statute as granting privileges to tax­

payers which would lend encouragement to 
the support of activities inimical to the laws 
of the several states.”

[4 1 The Board makes no findings of 
Tact as to activities deemed to be illegal in 

e the operation of the three Mothers’ Health 
Offices which were in existence in 1935. 
It rests its conclusion of law as to illegality 

p upon Commonwealth v. Gardner, supra. In 
that case the defendants were convicted of 
violating the Massachusetts statute upon 

|. their admission'that they had sold and given 
Haway articles and medicine for the preven- 
P?tion of conception. The defendants made 
r  an offer of proof that they were employed’ 
Kby the North Shore Mothers’ Health Office 

Salem (which was not in existence at 
t t i m e  of the gift now in question); that 
||Hhey had given the contraceptive articles to 
B; patients pursuant to doctors’ prescriptions 
jj? in cases where the health of the patients 
r  would be endangered by further preg- 
y nancies. The court ruled that the offer of 

proof constituted no defense; that no ex- 
s  ception could be read into the statute in 
| favor of doctors’ prescriptions on grounds 
j«_(>f health. This decision is hardly con­
i') elusive on the question whether the Health 
j.  Offices in Brookline, Springfield and Wor- 
f  cester were lawfully conducted in 1935. 
ii They could have been operated lawfully, 
i  even under the strict interpretation of the 
l law laid down in Commonwealth v. Gard- 
| ner. Tt cannot be assumed, in the absence 
, of a finding o f fact by the Board, that the 
'-TJJealth Offices in existence in 1935 were 
i/O^gaged in selling, giving away or exhibit- 
i big contraceptive articles.

[5, 61 Furthermore, even if such a find­
ing had been made, it would not necessarily 

r follow that the deduction should be dis- 
allowed. Interpretation of the word “ chari- 

? table” in a federal revenue act is a matter 
£ of federal, not local, law. Cf. Lyeth v. 
I lloev, 305 U.S. 188, 193, 194, 59 S.Ct. 155, 

83 L.Ed. 199, 119 A.L.R. 410; Eagan v. 
) Commissioner, 5 Cir., 43 F.2d 881, S83, 71 
f A.L.R. 863. Illegality aside, we have held 
| that'the League in 1935 was organized and 

operated exclusively for charitable, scien­
tific and educational purposes. This being 
su, we find no warrant in the language of 

L. section 23fo) (2) for the conclusion that 
a gift to the League in that year is ren- 

;; dered non-deductible because some feature 
| of. the League’s activities, undertaken in

good faith on advice of counsel, later turns 
out to have been in violation o f a local 
penal law. If a hospital had similarly dis­
pensed contraceptive articles in its free 
clinic, one would scarcely have suggested 
that a gift to the hospital was not deducti­
ble under section 23(a) (2). That the gift 
was to the Birth Control League would not 
seem to call for a different conclusion.

Cases holding that expenditures made in 
payment of fines for violation of penal law 
cannot be deducted from gross income, are 
based on the view that Congress could not 
have intended such expenditures to be in­
cluded within the meaning o f ‘‘ordinary and 
necessary expenses paid or incurred during 
the taxable year in carrying on any trade or 
business” . Chicago, R. I. & P. R. Co. v. 
Commissioner, 7 Cir., 47 F.2d 990, 991 ; 
Great Northern R. Co. v. Commissioner, 
8 Cir., 40 F.2d 372; Burroughs Building 
Material Co. v. Commissioner, 2 Cir., 47 
F.2d 178. They are not controlling on the 
construction of section 23(c) (2).

The decision of the Board of Tax Ap­
peals is reversed and the case remanded to 
the Board with directions to enter an order 
that there is no deficiency.

A L S T O N  et al. v. S C H O O L  B O A R D  O F  
C I T Y  O F  N O R F O L K  et al.

No. 4623.

Circuit Court of Appeals, Fourth Circuit. 
June 18, 1940.

1. Constitutional law <3=254
The fixing by local school hoard of 

salary schedules for teachers is “ action by 
the state” which is subject to limitations 
prescribed by Fourteenth Amendment. 
Code Va. 1936, §§ 656, 660, 786; Const. 
Va. § 129; U.S.C.A. Const. Amend. 14.

See W ord s  and P hrases, Perm anent 
E dition , fo r  ail other definitions of 
“ A ction  B y  the S ta te".

2. Pleading <S=360(4)
The allegations of complaint, though 

denied in the answer, would be taken as 
true on motion to dismiss.



993ALSTON v. SCHOOL BOARD OF CTTY OF NORFOLK
112 f .:

3. Constitutional law <©=215, 275(1)
Fixing salaries of negro teachers in pub­

lic schools at a lower rate than that paid 
to white teachers of equal qualifications and 
experience, and performing the same duties 
on the sole basis of race and color, is vio­
lative of the “ due process”  and “ equal 
protection” clauses of the Fourteenth 
Amendment. Code Va. 1936, §§ 656, 660, 
786; Const.Va. § 129; U.S.C.A. Const. 
Amend. 14.

gee W ord s and Phrases, Perm anent 
E dition , fo r  all other definitions of 
"D u e  P rocess”  and "E qu a l P rotection ” .

4. Constitutional law @=215
Negroes holding certificates qualify­

ing them to teach in public schools of Nor­
folk were entitled to have compensation 

:^j|tteaching positions for which they might 
l^ply fixed without unconstitutional dis­
crimination on account of race, and as 
such holders had rights entitling them to 
seek relief from alleged discrimination, not- 

■ withstanding selection of particular teach­
ers was in discretion of the school authori­
ties. Code Va. 1936, §§ 656, 660, 786; 
Const.Va. § 129; U.S.C.A.Const. Amend. 14.

5. Constitutional law @ =43(l)
Negro school teachers who had entered 

into contract with school board for current 
year at discriminatory salary rate were not 
thereby precluded from seeking declaratory 
and injunctive relief for the future. Code 
Va. 1936, §§ 656, 660, 786; Const.Va. § 
129; U.S.C.A. Const.Amend. 14.

5. Action @=6
• ^ ^ p u r t s  @=343
K cs A  voluntary unincorporated association 
composed of negro teachers in the public 
schools of Norfolk was a “ proper party” 
plaintiff in action for declaratory and in- 

? junctive relief from unconstitutional dis-
* crimination against colored school teachers 

in fixing of salaries. Code Va. 1936, §§ 
656, 660, 786; Const.Va. .§ 129; U.S.C.A. 
Const.Amend. 14; Rules of Civil Pro­
cedure for District Courts, rule 17(b), 28 
U.S.C.A. following section 723c.

See W ord s and Phrases, Perm anent 
E dition, fo r  all other definitions o f 
"P rop er  P a rty ” .

r  7. Action @=6 
Courts @=343
■ The superintendent of schools of Nor- 

Ef folk was a “ proper party” defendant in 
j action by colored school teachers of the 
-  _______________________

d 992
city for declaratory and injunctive relief 
from unconstitutional discrimination against 
colored school teachers in fixing of salaries. 
Code Va. 1936, £§ 611, 656, 657, 660, 786; 
Const.Va. § 129; U.S.C.A.Const.Amend. 
14; Rules of Civil Procedure for District 
Courts, rule 17(b), 28 U.S.C.A. following 
section 723c.

Appeal from the District Court of the 
United States for the Eastern District of 
Virginia, at Norfolk; Luther B. Way, 
Judge.

Action by Melvin O. Alston and another 
against the School Board of the City of 
Norfolk and another to obtain a declaratory 
judgment that fixing of salaries of negro 
teachers at a lower rate than that paid to 
white teachers of equal qualifications and 
experience is violative of due process and 
the equal protection clauses of the Constitu­
tion, and to obtain an injunction restraining 
defendants from making any distinctions 
on ground oi race or color in fixing salaries 
of public school teachers in Norfolk. 
From a judgment dismissing the action, 
plaintiffs appeal.

Reversed, and cause remanded.
Thurgood Marshall, o f New York City, 

and William II. Hastie, of Washington, 
D. C. (Oliver W. Hill of Richmond, Va. 
and Leon A. Ranson, of Washington, D. C., 
on the brief), for appellants.

Alfred Anderson and Jonathan W. Old, 
Jr., both o f Norfolk, Va. (William C. 
Coupland, of Norfolk, Va., on the brief), 
for appellees.

Before PARKER, SOPER, and DOBIE, 
Circuit Judges.

PARKER, Circuit Judge.
This is an appeal in a suit instituted by 

Melvin O. Alston, a ’Negro school teacher 
of Norfolk, Va., and the Norfolk Teach­
ers’ Association, an association composed 
of the Negro school teachers of that city, 
against the School Board and the Super­
intendent of Schools of the city. The 
purpose of the suit is to obtain a declaratory 
judgment, to the effect that the policy of 
defendants in maintaining a salary schedule 
which fixes the salaries of Negro teachers 
at a lower rate than that paid to white 
teachers of equal qualifications and ex­
perience, and performing the same duties 
and services, on the sole basis of race 
and color, is violative oi the due process



994 112 FEDERAL REPORTER, 2d SERIES

and equal protection clauses o f the 14th 
amendment, and also to obtain an injunc­
tion restraining defendants from making 
any distinction on the ground of race 
or color in fixing the salaries of public 
school teachers in Norfolk. The suit was 
dismissed by the court below on the ground 
that Alston and the School Board were the 
only necessary parties to the cause and that 
Alston had waived such constitutional 
rights as he was seeking to enforce by hav­
ing entered into a written contract with 
the School Board to teach for a year at the 
price fixed in the contract. On the appeal 
presented by the plaintiffs three questions 
arise: (1) whether upon the face of the
complaint an unconstitutional discrimina­
tion is shown in the fixing of school teach­
ers’ salaries by the defendants; (2) wheth­
er rights of plaintiffs are infringed by such 
discrimination; and (3) whether plaintiffs 
have waived their right to complain of the 
discrimination by entering into contracts 
with the School Board for the current year.

[1] On the first question, there can be 
no doubt but that the fixing of salary sched­
ules for the teachers is action by the state 
which is subject to the limitations pre­
scribed by the 14th Amendment. The Con­
stitution of Virginia provides that the 
General Assembly shall establish and main­
tain an efficient system of public free 
schools throughout the state. Article IX^ 
sec. 129. The General Assembly has estab­
lished such a system. Virginia Code of 
1936, chs. 33 and 35. The public schools 
of the City o f Norfolk are under the direct 
control and supervision o f the defendants, 
whose duty it is to employ teachers and pro­
vide for the payment of teachers’ salaries. 
Virginia Code, ch. 33, secs. 656, 660, and 
ch. 35, sec. 786. While provision is made 
in the law for separate schools for white 
and colored persons, the positive duty is 
enjoined of maintaining these separate 
schools under the same general regula­
tions as to management, usefulness and 
efficiency. Virginia Code, sec. 680. All 
teachers are required to hold teaching 
certificates in accordance with the rules of 
certification of the State Board of Educa­
tion. Virginia Code, ch. 33, sec. 660 and 
ch. 35, sec. 786. White and Negro teachers 
must meet the same requirements to receive 
teachers certificates from the Board of 
Education and upon qualifying are issued 
identical certificates.

[ 2 ]  The allegations o f the complaint as 
to discrimination, which are denied in the

answer, but which must be taken as true on, 
the motion to dismiss, are as follows: 4

“ 11. Defendants over a long period ofj 
years have consistently pursued and main­
tained and are now pursuing and main­
taining the policy, custom, and usage of 
paying Negro teachers and principals in! 
the public schools in Norfolk less salary; 
than white teachers and principals in said' 
public school system possessing the same 
professional qualifications, certificates and 
experience, exercising the same duties and 
performing the sqme services as Negro 
teachers and principals. Such discrimina­
tion is being practiced against the plain­
tiffs and all other Negro teachers-and prin­
cipals in Norfolk, Virginia, and is based 
solely upon their race or color.

“ 12. The plaintiff Alston and all of th 
members of the plaintiff association 
all other Negro teachers and principiS 
in public schools in the City of Norfolk 
are teachers by profession and are specially 
trained for their calling. By rules, regula- I 
tions, practice, usage and custom of the j 
Commonwealth acting by and through the I 
defendants as its agents and agencies, the/ 
plaintiff Alston and all o f the members of/ 
the plaintiff association and all other Negrc 
teachers and principals in the City ok 
Norfolk are being denied the equal protec­
tion of the laws in that solely by reason of j 
their race and color they are being denied ] 
compensation from public funds for their 
services as teachers equal to the compen- j 
sation provided from public funds for ami 
being paid to white teachers with equal i 
qualificatiohs and experience for equiva­
lent services pursuant to rules, regulatj^k 
custom and practice of the CommonwsBtl 
acting by and through its agents and agen- 1 
cies, the School Board of the City of Nor­
folk and the Superintendent of Schools of 
Norfolk, Virginia.

“ 13. Plaintiff, Melvin O. Alston, has 
been employed as a regular male teacher 
by the defendants since September,. 1935, 
and is in his fifth year of experience as a 
regular teacher in the Booker T. Washing­
ton High School, a public high school 
maintained and operated under the direct 
control, supervision, rules and regulations 
of the defendants. Ide successfully com­
pleted the course of instruction provided 
at Virginia State College for Negroes, an a 
accredited college maintained and operated j 
by the State, o f Virginia for the instruction! 
and preparation of Negroes as teachers in : 
the public schools of the State. He holds ;



ALSTON v. SCHOOL BOARD OF CITY OF NORFOLK W Z
112 F.2U 992

a Collegiate Professional Certificate, the 
; highest certificate issued by the Virginia 
: State Board of Education for teaching 
| in the public high schools o f Virginia. In 
l order to qualify for this certificate plain- 
i  tiff has satisfied the same requirements as 

those exacted of all other teachers, white as 
r well as Negro, qualifying therefor, and he 
, exercises the same duties and performs 
I services substantially equivalent to those 

performed by other holders o f the said 
certificate, white as well as Negro, yet all 
white male teachers in Norfolk who hold 
the said certificate with equal and less 
experience receive salaries much larger than 
the salary paid the plaintiff. *

"14. White male high school teachers 
employed by defendants whose qualifica- 

/^ jn s , certification, duties and services are 
hISs same as plaintiff’s are being paid by de­

fendants a minimum annual salary of 
Twelve Hundred ($1200.00) Dollars.

“ 15. Plaintiff Alston is being paid by 
the defendants for his services this school 
year as a regular male high school teacher 
as aforesaid an annual salary of Nine 
Hundred and Twenty-one ($921.00) Dol­
lars, being the amount fixed by defendants 
for Negro male high school teachers in 
their fifth year of teaching experience and 
solely because of the practice, usage and 
custom complained o f in paragraph 11 of 
this complaint, and by the operation of the 
discriminatory salary schedule described in 
paragraphs 16 and 17 of this complaint the 
plaintiffs have been, are, and unless relief 
shall be granted by this Honorable Court 
as hereinafter prayed, will continue to be 

/jgV'jed, solely by reason o f race and color 
opportunity to receive a higher salary 

equal to that paid to any white teachers 
similarly situated.

“ 16. Pursuant to the policy, custom and 
usage set out in paragraph 12 the defend­
ants acting as agents and agencies of the 
Commonwealth of Virginia have established 
and maintained a salary schedule used by 
them to fix the amount o f compensation 
for teachers and principals in the public 
schools of N&rfolk which discriminates 
against plaintiff's solely because of their 
race or color. All teachers and princi­
pals .in the public schools o f Norfolk, 
including the plaintiffs, have been, are 
being and will continue to be paid by de­
fendants pursuant to the following salary 
schedule adopted, maintained and being en­
forced by the defendants for the school 
year 1939-1940:

Maximum salary 
being paid (af-

Negro

Salaries now 
being paid 
teachers new 
to the system.

fectlng only those 
In system before 
Increment plan 
was discontinued.)

Elementary 
Normal Cer­

tificate % 597.50 8 960.10
Degree 611 00 960 00

High School 
Women 699.00 1,105.20
Men 794.50 1,235.00

White 
Elementary 

Normal Cer­
tificate 850.00 1,425.00

Degree 937.00 1,425 00
High School 

Women 970.00 1,900.00
Men 1,200.00 2,185.00

The practical application o f this salary 
schedule has been, is, and will be to pay 
Negro teachers and principals o f equat 
qualifications, certification and experience 
with white teachers and principals less com­
pensation from public funds solely on ac­
count of their race or color.”

“ 19. The salaries of all teachers and 
principals in the public schools of the 
City of Norfolk, including the salaries 
of petitioners, are paid out of the public 
school fund. This fund derives from two 
sources: The Commonwealth o f Virginia
and the City o f Norfolk (Virginia School 
Code, Chapter 33, Section 646): all of 
said public school fund is 'raised by means 
of taxation upon the inhabitants o f Vir­
ginia and their property (Constitution of 
Virginia, Article IX, Sections 135, 136; 
Virginia School Code, Chapter 33, Sec­
tions 657, 698, 699; Chapter 35, Section 
782). Pursuant to these statutes all that 
portion of the public school fund which 
derives directly from the state is used 
exclusively for the payment of teachers’ 
salaries (Virginia School Code, Chapter 33, 
Section 701).” " *■?

[3] That an unconstitutional discrimin- I 
ation is set forth in these paragraphs hardly J 
admits of argument. The allegation is that 
the state, in paying for public services of 
the same kind and character to men and 
women equally qualified according to stan­
dards which the state itself prescribes, arbi­
trarily pays less to Negroes than to white 
persons. This is as clear a discrimination 
on the ground of race as could well be 
imagined and falls squarely within the 
inhibition.>of both the due process and the 
equal protection clauses o f the . 14th



096 112 FEDERAL REPORTER, 2d SERIES

Amendment. As-was said by Mr. Justice 
Harlan in Gibson v. Mississippi, 162 U.S. 
565, 591, 16 S.Ct. 904, 910, 40 L.Ed. 1075: 
“ Underlying all o f those decisions is the 
principle that the constitution] >of the 
United States, in its present form, forbids, 
so far as civil and political rights are con­
cerned, discrimination by the general gov­
ernment, or by the states, against any 
citizen because of his race. All citizens 
are equal before the law. The guaranties 
o f life, liberty, and property are for all 
persons, within the jurisdiction of the 
United States, or of any state, without dis­
crimination against any because of their 
race. Those guaranties, when their viola­
tion is properly presented in the regular 
course of proceedings, must be enforced in 
the courts, both of the nation and of the 
state, without reference to considerations 
based upon race.”

^  Dealing with the precise question here 
involved, Judge Chesnut, in Mills v. 
Lowndes, D„ C., 26 F.Supp. 792, 801, said: 
“ While the State may freely select its em­
ployes and determine their compensation 
it would, in my opinion, be clearly uncon­
stitutional for a state to pass legislation 
which imposed discriminatory burdens on 
the colored race with respect to their quali­
fications for office or prescribe a rate of pay 
less than that for other classes solely on 
account of race or color. If therefore 
the state laws prescribed that colored teach­
ers of equal .qualifications with white 
teachers should receive less compensation 
on account of their color, such a law would 
•clearly be unconstitutional.”

In the later case of Mills v. Board of 
Education of Anne* Arundel County, D.C, 
30 F.Supp. 245, Judge Chesnut applied the 
principle so stated in holding that a dis­
crimination as to pay of teachers in white 
and colored schools was violative of the 
constitutional provision, and that a colored 
teacher might invoke the power of the court 
so to declare. This we think is in accord 
with a long line of decisions which condemn 
discrimination on account of race in the 
exercise o f governmental power by a state 
or its agencies. Thus, in Strauder v. West 
Virginia, 100 U.S. 303, 25 L.Ed. 664, ex­
clusion of colored persons from service on 
petit juries was condemned as violative 
of the constitutional provision. In Pierre 
v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 
83 L.Ed. 757, the same holding was made 
with respect to grand juries. In Nixon 
v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76

L.Ed. 984, 88 A.L.R. 458, and Nixon v .l 
Herndon, 273 U.S. 536, 47 S.Ct. 446, 711 
L.Ed. 759, discriminations with respect to ; 
participating in party primaries were con-| 
demned. In Lane v. Wilson, 307 U.S. 268,] 
59 S.Ct. 872, 83 L.Ed. 1281, and Guinn v.' 
United States, 238 U.S. 347, 35 S.Ct. 926, 59 
L.Ed. 1340, L.R.A.1916A, 1124, like hold­
ings were made with respect to discrimina­
tion relating to the right to participate in 
elections. Discriminations with respect to 
the right to own and occupy property were 
condemned in Buchanan v. Warley, 245 U. 
S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918 
C, 210, Ann.Cas. 1918A, 12U1; with respect 
to Pullman accommodations on railroads, 
in McCabe v. Atchison, Topeka & S. F. 
R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L. 
Ed. 169; with respect to educational fa­
cilities, in Missouri ex rel Gaines v. Can.d^ 
305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 2<ff? 
with respect to the division of school funds 
in Davenport v. Cloverport, D. C., 72 F. 
689; and with respect to the pursuit of 
a trade or vocation, in Chaires v. City 
of Atlanta, 164 Ga. 755, 139 S.E. 559, 55

230.

r[4]_  We come, then, to the second ques­
tion, i. e., do plaintiffs as Negro teachers 
holding certificates qualifying them to teach 
in the public schools of Norfolk have rights 
which are infringed by the discrimination 
o f which they complain? The answer to 
this must be in the affirmative. As teachers 
holding certificates from the state, plain­
tiffs have acquired a professional status. 
It is true that they are not entitled by 
reason of that fact alone to contracts to 
teach in the public schools of the st^Mf 
for whether any particular one of t".“  
shall be employed to teach is a matter rest­
ing in the sound discretion of the school 
authorities; but they are entitled to have 
the compensation for positions for which 
they may apply, and which will unques­
tionably be awarded to some of them, fixed 
without unconstitutional discrimination on 
account of race. As pointed out by Judge 
Chesnut, in Mills v. Lowndes, supra, they 
are qualified school teachers and have the 
civil right, as such, to pursue their pro­
fession without being subjected to dis­
criminatory legislation on account of race 
or color. It is no answer to this to say 
that the hiring of any teacher is a matter 
resting in the discretion of the school au­
thorities. Plaintiffs, as teachers qualified 
and subject to employment by the state, are 
entitled to apply for the positions and to



997A L S T O N  v. S C H O O L  B O A R D  O F  C IT Y  O F  N O R F O L K
1 1 ’  F.2<1 992

ha'r the discretion o f the authorities exer- 
cisefl lawfully and without unconstitutional 
discrimination as to the rate of pay to 

*be awarded them, if their applications are
facCepte .̂ OS)

year, in any event, and the relief asked is 
for the declaration and protection of rights 
which extend beyond any present employ­
ment.

[6,7] We should say, too, that we have
[5] ^Nor do we. think that tITefact that no doubt as to the Norfolk Teachers As-

plaintiffs have entered into contracts with 
the school board for the current year at 
the rate fixed by the discriminatory prac­
tice precludes them from asking relief. 
What the effect of such contracts may be 

s on right to compensation for the current 
year, we need not decide, since plaintiffs 
are not insisting upon additional compen­
sation for the current year and their prayer 
for relief asks a broad declaration o f 
rights and injunctive relief for the future. 
As qualified teachers holding certificates, 
tjtfy have rights as above indicated which 
"y ln o t  confined to the contract for the 
current year, i. e, the right to apply for po-

sociation’s being a proper party to the suit. 
According to the complaint, it is a volun­
tary unincorporated association and “ is 
composed of Negro teachers and principals 
in the public colored schools of Norfolk” ; 
and the right of such an association to sue 
in its common name for the purpose of 
enforcing substantive rights under the Con­
stitution of the United States is provided 
for under the Rules of Civil Procedure. 
Rule 17(b), 28 U.S.C.A. following section 
723c. The point is not important, however, 
as the suit is brought as a class suit and 
the members of the association belong Lo 
the same class as the plaintiff Alston. Like-

sitions in the future and to have the Board- wise, there can be no question as to the
propriety o f joining the Superintendent 
o f Schools with the Board as a party 
defendant, as teachers are employed on 
the recommendation of the Superintendent 
(Va. Code sec. 660); he requests the City 
Council to fix the tax levy so as to net the 
amount necessary for the operation of the 
schools (Va. '‘'"Code sec. 657); and he is 
named by the statute as one o f those 
charged with the administration o f the 
schools (Va. Code sec. 611).

For the reasons stated, the order ap­
pealed from will be reversed and the cause 
will be remanded for further proceedings 
not*inconsistent herewith. If the allega­
tions of the complaint are established, 
plaintiffs will be entitled to a declaratory 

Bfftions which require the relinquishment judgment to the effect that the discrimina- 
of constitutional rights. If the state may t°r>' policy complained of is violative of

award the positions without unconstitution­
al discrimination as to the rate of pay.

The defendants take the position that no 
one but a teacher holding a contract with 
the Board has any such interest in the rate 
of pay as would give him standing to sue 
concerning it, and that he cannot sue be­
cause he has waived the unconstitutional 
discrimination by entering into the contract. 
If this were sound, there would be no 
practical means of redress for teachers sub­
jected to the unconstitutional discrimina­
tion. But it is not sound. As pointed 
out in Frost Trucking Co. v. Railroad 
Comm., 271 U.S. 583, 594, 46 S.Ct. 605, 
607, 70 L.Ed. 1101, even in the granting 

privilege, the state “ may not impose

compel the surrender of one constitutional 
right as a condition of its favor, it may, in 
like manner, compel a surrender of all. It 
is inconceivable that guaranties embedded 
in the Constitution of the United States 
may thus be manipulated out of existence.”  
See, also, Union Pac. R. Co. v. Public 
Service Comm., 248 U.S. 67, 69, 70, 39 
S.Ct. 24, 63 L.Ed. 131; Hanover Ins. Co. 
v. Harding 272 U.S. 494, 507, 47 S.Ct. 179, 
71 L.Ed. 372, 49 A.L.R. 713. But as stated 
above, the waiver could not extend beyond 
the terms o f the contract for the current

their rights under the Constitution and to 
an injunction restraining defendants from 
making any discrimination on the grounds 
of race or color in fixing salaries to be 
paid school teachers after the current fiscal 
year. To avoid confusion and inconveni­
ence in the preparation of the budget and 
the making of contracts for the ensuing 
year, we have given immediate consid­
eration to the case. The mandate will 
issue forthwith, to the end that prompt 
action may be taken by the court below.

Reversed.



112 FEEER.1 T. REPORTER, 2d SERIES

S A N C H O , Trea surer, v. N A T IO N A L  C I T Y  
B A N K  O F  N E W  Y O R K .

No. 3538.

C ircu it  C ou rt o f  A p p ea ls , F ir s t  C iren it, 

J u n e  28, 1940.

998
536, 538; 12 U.S.C.A. § 604 ; 48 U.S.G.A] 
§ 872.

See W ords and Phrases, Permanent 
E dition , fo r  all other definitions f of 
".Special and E xtraord in ary  Circata- 5; 
stan ce".

1. Courts <§=262(4)
Under statute providing that no suit 

for purpose o f restraining assessment or 
collection of any tax imposed by laws of 
Puerto Rico shall be maintained in District 
Court o f United States for Puerto Rico, 
the prohibition against injunction is not 
limited to cases where in the court’s view 
the tax is properly owing. 48 U.S.C.A. 
§ 872.

2. Courts <§=262(4)
Where Puerto Rican statute provided 

procedure by which taxpayer could have 
paid taxes for years 1930 to 1934, inclusive, 
and sued Treasurer of Puerto Rico to re­
cover them back, but taxpayer sought to 
set off against income tax liability for years 
1937 and 1938 amount for which taxpayer 
claimed to be entitled to credit by reason of 
erroneous payments for the prior years, 
District Court o f United States for Puerto 
Rico was without jurisdiction, under statute 
providing that no suit for purpose of re­
straining collection of any tax imposed by 
laws of Puerto Rico shall be maintained in 
District Court, of action to restrain threat­
ened attachment by Treasurer of Puerto 
Rico of taxpayer's property. Income Tax 
Act Puerto Rico 1924, §§ 22, 35, 54-57,*60, 
62, 64(b), 75, 76(a, b), Laws Puerto Rico 
1925, pp. 460, 484, 512, 514, 520, 522, 526, 
536, 538; 12 U.S.C.A. § 604; 4S U.S.C.A. § 
872.

3. Courts <®=262(4)
Under statute providing that no suit 

for purpose of restraining collection of tax 
imposed by laws o f Puerto Rico shall be 
maintained in District Court of United 
States for Puerto Rico, even if taxpayer’s 
failure to follow statutory procedure for 
contesting tax resulted in taxpayer being 
without remedy for recovery of taxes 
erroneously paid for years 1930 to 1934, 
the result was not such a "special and 
extraordinary circumstance” as would 
justify District Court in issuing an injunc­
tion against collection of income taxes for 
years 1937 and 1938. Income Tax Act 
Puerto Rich 1924, §§ 22, 35, 54-57, 60, 
62, 64(b), 75, 76(a, b), Laws Puerto Rico 
1925, pp. 460, 484, 512, 514, 520, 522, 526,

Appeal from the District Court of the] 
United States for Puerto Rico; Robert A.1 
Cooper, Judge.

Action for injunction by the National 
City Bank o f New York against Rafael 
Sancho Bonet, Treasurer o f Puerto Rico. 
From an adverse judgment, defendant ap­
peals.

Judgment vacated, and case remanded, 
with directions.

William Cattron Rigby, o f Washing<lB|| 
D. C. (George A. Malcolm, of San Jut§f 
P. R., and Nathan R. lMargold, o f Washing­
ton, D. C., on the brief), for appellant.

E. T. Fiddler, o f San Juan, P. R., and 
Andrew Kirkpatrick, of Larchmont, N.Y. 
(H. S. McConnell and Fiddler, McConnell 
& Gonzalez, all o f San Juan, P. R,, on the 
brief), for appellee.

Before MAGRUDER and MAHONEY 
Circuit Judges, and PETERS, District 
Judge.

, MAGRUDER, Circuit Judge.
The Butler Act o f March 4, 1927 (44 

Stat. 1421, 48 U.S.C.A. § 872) amended 
Section 48 of the Organic Act of Puerto 
Rico by adding the following:

“ That no suit for the purpose o f re­
straining the assessment or collectio' S 5 
any tax imposed by the laws of PutWo 
Rico shall be maintained in the District 
Court o f the United States for Puerto 
Rico.”

This provision was inserted in the bill 
by amendment on the floor offered by 
Senator Bingham, who thus explained its 
purpose (68 Cong.Rec., p. 5025):

“ I will state that the change in the exist­
ing law is this: The Organic Act o f Porto 
Rico does not carry to Porto Rico the 
general statutes of the United States. 
Consequently, it has been possible and has 
proved an extremely dangerous thing in 
the government of Porto Rico for tax­
payers to secure an injunction against pay­
ing Porto Rican taxes in the court of the 
United States, in the district court of the 
United States for Porto Rico; and there­
by^ instead o f following our practice—



TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1940

N o.

SCHOOL BOARD OF THE CITY OF NORFOLK AND 
C. W. MASON, SUPERINTENDENT OF SCHOOLS 
OF NORFOLK, PETITIONERS,

vs.

MELVIN 0. ALSTON AND THE NORFOLK TEACH­
E RS’ ASSOCIATION

O N  P E T IT IO N  FO B  A W R IT  OF C E R T IO R A R I TO T H E  U N IT E D  ST A TE S 
C IR C U IT  C O U R T OF A P P E A L S FO R T H E  F O U R T H  C IR C U IT

FILED , 194 .



c



SUPREME COURT OF THE UNITED STATES

SCHOOL BOARD OF THE CITY OF NORFOLK AND 
C. W. MASON, SUPERINTENDENT OF SCHOOLS 
OF NORFOLK, PETITIONERS,

vs.

MELVIN 0. ALSTON AND THE NORFOLK TEACH-

ON PETITION FOR A W RIT OF CERTIORARI TO T H E  U N ITED STATES 
CIRCUIT COURT OF APPEALS FOR TH E FOURTH  CIRCUIT

OCTOBER TERM, 1940

No.

OP NORFOLK, PETITIONERS,
VS.

ELVIN 0. ALSTON AND THE NO] 
E R S ’ ASSOCIATION

IN D E X .
Original Print

S tip u la tio n  a s  to  r e co r d  f o r  u se  on  a p p lica t io n  f o r  a  w r it  o f
c e r t io r a r i  ................................................................................................................  1 1

A p p e n d ix  to  b r ie f  o f  a p p e l la n t s ..................................................................... 2  3
C om p la in t ......................................................................................................... 3  4
A n sw e r  o f  d e fe n d a n ts  .............................................................................  17 18
C o n tra c t  w ith  te a ch e r s  ...................................................................... 19 20
O rd er  o f  C ircu it  C ou rt o f  C ity  o f  N o r fo lk  in  ca se  o f  B la c k

y . S c h o o l B o a rd , e t c .......................................................................... 21 23
O p in ion  fr o m  th e  b e n c h ...................................................................... 22  23
J u d g m en t o f  D is t r ic t  C o u r t ..............................................................  29 30

A p p e n d ix  to  b r ie f  o f  a p p e lle e s .................................................................  32 32
A n sw e r  o f  d e fe n d a n t ................................................................................ 32 32

P ro ce e d in g s  in  U n ited  S ta tes  C ir c u it  C ou rt o f  A p p e a ls ............  36  35
A p p e a ra n ce  f o r  a p p e lla n ts  ........................................................................  36  35
A p p e a r a n ce  f o r  a p p e llees  ................................................................................  36  35
A rg u m e n t o f  ca u se  on  m e r it s ...................................................................  37 36
O p in ion  ......................................................................................................................  38  36
D e cr e e  ......................................................................................................................... 50 45
Is su a n ce  o f  m a n d a te  .......................................................................................  51 45
C le rk ’s ce rt ific a te  .............................................................................   51 46

Judd & D etweileb ( I nc. ) ,  P rinters, W ashington, D. C., A ugust 5, 1940.



<



1

[fol. 1] U nited States Circuit Court op A ppeals, F ourth
C ir cu it

No. 4623

S tip u la tio n  as to R ecord for U se on A pplicatio n  for a 
W rit  of C ertiorari— Filed July 24, 1940

M elvin  0. A lston  and the N orfolk  T e a c h e r s ’ A ssociation , 
an unincorporated association, Appellants,

v.

S chool  B oard of t h e  C it y  of N o rfo lk , a body corporate, 
and C. W. M aso n , Superintendent of Schools of Norfolk, 
Appellees

Appeal from the District Court of the United States for the 
Eastern District of Virginia, at Norfolk

It is hereby stipulated between the Appellants, by their 
attorney, and the Appellees, by their attorney, that the 
transcript of the record for use in the Supreme Court of the 
United States on an application for a writ of certiorari in 
this case shall consist of the appendices to the briefs of the 
respective parties filed in this Court plus the proceedings 
of this case in this Court.

Alfred Anderson, Attorney for Appellants. Oliver 
W. Hill, Attorney for Appellees.

1- 9161





APPENDIX TO BRIEF OF APPELLANTS.

Filed May 21, 1940.



APPENDIX

[Caption]

Complaint

1. The jurisdiction of this court is invoked under Judicial 
Code, section 24 (1) (28 U.S.C., Section 41 (1), this being a 
suit in equity which arises under the Constitution and/or 
laws of the United States, viz., the Fourteenth Amendment 
of said Constitution and/or Sections 41 and 43 of Title 8 
of the United States Code, wherein the matter in contro­
versy exceeds, exclusive of interest and costs, the sum of 
$3000. The jurisdiction of this court is also invoked under 
Judicial Code, Section 24 (14) (28 U.S.C., Section 41 (14), 
this being a suit in equity authorized by law to be brought 
to redress the deprivation under color of law, statute, regu­
lation, custom and usage of a State of rights, privileges and 
immunities secured by the Constitution of the United 
States, viz., the Fourteenth Amendment to said Constitu­
tion, and of rights secured by laws of the United States 
providing for equal rights of citizens of the United States 
and of all persons within the jurisdiction of the United 
States, viz., Sections 41 and 43 of Title 8 of the United 
States Code.

2. Plaintiffs show further that this is a proceeding for a 
declaratory judgment and an injunction under Section 274D 
of the Judicial Code for the purpose of determining a ques­
tion in actual controversy between the parties, to-wit, the 
question of whether the practice of the defendants, in 
adopting, enforcing and maintaining the policy, custom 
and usage by which plaintiffs and other Negro teachers and 
principals in the public schools of the City of Norfolk are 
uniformly paid lower salaries than white teachers and prin­
cipals in the City of Norfolk possessing the same profes­
sional qualifications and certificates, exercising the same 
duties and performing the same services, solely on account 
of their race and color is unconstitutional and void being a

4
4 0



5
violation of the Fourteenth Amendment to the United 
States Constitution and the laws of the United States and 
the Constitution and Laws of the Commonwealth of Vir­
ginia, all of which will appear more fully hereafter.

3. All parties to this action, both plaintiffs and defend­
ants, are citizens of the United States and of the State of 
Virginia and are resident and domiciled in said State. 
Defendant School Board of the City of Norfolk at all times 
mentioned herein was and is by law declared a body cor­
porate.

y  4. Plaintiff, Melvin 0. Alston, is colored, a person of 
African descent and of Negro blood. He is a tax payer of 
the City of Norfolk and the State of Virginia. He is a 
regular teacher in the Booker T. Washington High School, 
a public high school located in Norfolk, Virginia, main­
tained and operated by the School Board of the City of 
Norfolk. This suit is brought on his own behalf and also 
on behalf of other persons, citizens and residents of the 
State of Virginia, namely, teachers and principals in the 
colored schools of Norfolk, Virginia, similarly situated and 
affected, as will hereinafter more fully appear.

/  5. Plaintiff, Norfolk Teachers’ Association, a voluntary 
unincorporated association, is composed of Negro teachers 
and principals in the public colored schools of Norfolk, Vir­
ginia, organized for the mutual improvement and protection 
of its members in their profession as teachers and principals 
in the public schools of Norfolk, Virginia.

6. Defendant School Board of the City of Norfolk exists 
pursuant to the laws of Virginia as an administrative de­
partment of the State of Virginia discharging governmental 
functions (Constitution of Virginia, Article IX, Section 
133; Code of Virginia, Chapter 35, Sections 774-776). 
Defendant C. W. Mason is Superintendent of Schools of 
Norfolk and holds office pursuant to the Constitution and 
laws of Virginia as an administrative officer of the public

41



free school system of Virginia (Constitution of Virginia, 
Article IX, Section 133; Code of Virginia, Chapter 34, Sec­
tion 774). C. W. Mason is made a defendant herein and is 
sued in his official capacity.

7. The State of Virginia has declared public education a 
State function. The Constitution of Virginia, Article IX, 
Section 129, provides:

“ Free schools to be maintained.— The general assem­
bly shall establish and maintain an efficient system of 
public free schools throughout the State.”

Pursuant to this mandate the General Assembly of Virginia 
has established a system of free public schools in the State 
of Virginia according to a plan set out in Chapters 34 and 
35 of the Virginia Code of 1936, and supplement thereto 
of 1938. Provision has been made for the establishment of 
separate schools for white and colored persons with the 
positive duty of maintaining these separate schools under 
the same general regulations as to management, usefulness 
and efficiency (Virginia School Code, Section 680). The 
establishment, maintenance and administration of the pub­
lic school system of Virginia is vested in a State Board of 
Education, a Superintendent of Public Instruction, division 
superintendent of schools and county and city school boards 
(Constitution of Virginia, Article IX, Sections 131-133; 
Virginia School Code, Chapter 33, Section 611A).

8. All teachers in Virginia, including plaintiffs and other 
teachers in Norfolk are required to hold teaching certifi­
cates in full force in accordance with the rules of certifica­
tion laid down by the State Board of Education (Virginia 
School Code, Chapter 33, Section 660). The duty of en­
forcing this system is imposed upon the several county and 
city school boards including the defendant School Board of 
the City of Norfolk (Virginia School Code, Chapter 33, Sec­
tion 660.) Negro and white teachers and principals alike

6
42



7
must meet the same requirements to receive teachers’ cer­
tificates from the State Board of Education, and upon 
qualifying are issued identical certificates.

9. The public schools of the City of Norfolk, Virginia, are 
under the direct control and supervision of the defendants 
acting as an administrative department or division of the 
Commonwealth of Virginia (Virginia School Code, Chapter 
34, Sections 774-786); the defendants are under a duty to 
maintain an efficient system of public schools in Norfolk 
(Virginia School Code, Chapter 33, Section 611); Chapter 
36, Section 786); and to enforce the school laws of the 
Commonwealth of Virginia (Virginia School Code, Chap­
ter 33, Section 660; Chapter 35, Section 786).

10. The defendants are under a duty to employ teachers 
(Virginia School Code, Chapter 33, Section 660; Chapter 35, 
Section 786); and to provide for the payment of teachers’ 
salaries (Virginia School Code, Chapter 33, Section 656; 
Chapter 35, Section 786); including the salaries of the plain­
tiffs herein and all other teachers and principals employed 
by defendants. The defendants are under a positive duty 
to enforce regulations for the employment, remuneration 
and dismissal of teachers in Norfolk (Chapter 48, Section 
754 of the Charter and General Ordinances of the City of 
Norfolk—1920).

11. Defendants over a long period of years have con­
sistently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of paying 
Negro teachers and principals in the public schools of Nor­
folk less salary than white teachers and principals in said 
public school system possessing the same professional quali­
fications, certificates and experience, exercising the same 
duties and performing the same services as Negro teachers 
and principals. Such discrimination is being practiced 
against the plaintiffs and all other Negro teachers and prin­
cipals in Norfolk, Virginia, and is based solely upon their 
race or color.

43



/
12. The plaintiff Alston and all of the members of the 

plaintiff association and all other Negro teachers and prin­
cipals in public schools in the City of Norfolk are teachers 
by profession and are specially trained for their calling. 
By rules, regulations, practice, usage and custom of the 
Commonwealth acting by and through the defendants as its 
agents and agencies, the plaintiff Alston and all of the 
members of the plaintiff association and all other Negro 
teachers and principals in the City of Norfolk are being- 
denied the equal protection of the laws in that solely by 
reason of their race and color they are being denied com­
pensation from public funds for their services as teachers 
equal to the compensation provided from public funds for 
and being paid to white teachers with equal qualifications 
and experience for equivalent services pursuant to rules, 
regulations, custom and practice of the Commonwealth act­
ing by and through its agents and agencies, the School 
Board of the City of Norfolk and the Superintendent of 
Schools of Norfolk, Virginia.

13. Plaintiff, Melvin 0. Alston, has been employed as a 
regular male teacher by the defendants since September, 
1935, and is in his fifth year of experience as a regular 
teacher in the Booker T. Washington High School, a public 
high school maintained and operated under the direct con­
trol, supervision, rules and regulations of the defendants. 
He successfully completed the course of instruction pro­
vided at Virginia State College for Negroes, an accredited 
college maintained and operated by the State of Virginia 
for the instruction and preparation of Negroes as teachers 
in the public schools of the State. He holds a Collegiate 
Professional Certificate, the highest certificate issued by 
the Virginia State Board of Education for teaching in the 
public high schools of Virginia. In order to qualify for this 
certificate plaintiff has satisfied the same requirements as 
those exacted of all other teachers, white as well as Negro, 
qualifying therefor, and he exercises the same duties and 
performs services substantially equivalent to those per­

8
4 4



formed by other holders of the said certificate, white as well 
as Negro, yet all white male teachers in Norfolk who hold 
the said certificate with equal and less experience receive 
salaries much larger than the salary paid the plaintiff.

14. White male high school teachers employed by de­
fendants whose qualifications, certification, duties and serv­
ices are the same as plaintiff’s are being paid by defendants 
a minimum annual salary of Twelve Hundred ($1200.00) 
Dollars.

15. Plaintiff Alston is being paid by the defendants for 
his services this school year as a regular male high school 
teacher as aforesaid an annual salary of Nine Hundred and 
TAventy-one ($921.00) Dollars, being the amount fixed by 
defendants for Negro male high school teachers in their 
fifth year of teaching experience and solely because of the 
practice, usage and custom complained of in paragraph 11 
of this complaint, and by the operation of the discriminatory 
salary schedule described in paragraphs 16 and 17 of this 
complaint the plaintiffs have been, are, and unless relief 
shall be granted by this Honorable Court as hereinafter 
prayed, will continue to be denied, solely by reason of race 
and color the opportunity to receive a higher salary equal 
to that paid to any white teachers similarly situated.

16. Pursuant to the policy, custom and usage set out in 
paragraph 12 the defendants acting as agents and agencies 
of the Commonwealth of Virginia have established and 
maintained a salary schedule used by them to fix the amount 
of compensation for teachers and principals in the public 
schools of Norfolk which discriminates against plaintiffs 
solely because of their race or color. All teachers and prin­
cipals in the public schools of Norfolk, including the plain­
tiffs, have been, are being and will continue to be paid by 
defendants pursuant to the following salary schedule 
adopted, maintained and being enforced by the defendants 
for the school year 1939-1940:

9
45



10
46

Negro— 
Elementary

S a la r ie s  n o w  
b e in g  p a id  

te a c h e r s  n e w  
t o  th e  s y s te m

M a x im u m  s a la r y  
b e in g  p a id  

(a f fe c t in g  o n ly  
th o s e  in  s y s te m  

b e fo r e  in cr e m e n t  
p la n  w a s  

d is co n t in u e d )

Normal Certificate $ 597.50 $ 960.10
Degree 

High School
611.00 960.00

Women 699.00 1,105.20
Men

White
Elementary

784.50 1,235.00

Normal Certificate 850.00 1,425.00
Degree 

High School
937.00 1,425.00

Women 970.00 1,900.00
Men 1,200.00 2,185.00

The practical application of this salary schedule has been, 
is, and will be to pay Negro teachers and principals of equal 
qualifications, certification and experience with white teach­
ers and principals less compensation from public funds 
solely on account of their race or color.

17. The salary schedule set out in paragraph 16 by which 
plaintiffs and other teachers and principals in Norfolk are 
being paid and are to be paid provides for a higher salary 
for white teachers new to the system than for Negro teach­
ers new to the system with identical state certificates, exer­
cising the same duties and performing essentially the same 
services; and a higher maximum salary for white teachers 
than for Negro teachers with identical state certificates, 
exercising the same duties and performing essentially the 
same services; and pursuant to and because of said maxima 
and minima white teachers in intermediate salary status are 
paid higher salaries than Negro teachers with equivalent 
intermediate status and experience, holding identical state 
certificates, exercising the same duties and performing es-



«

l i
47

sentially the same services. The said discriminations in and 
pursuant to the schedule of salaries being paid and to be 
paid are based solely on race or color and amount to an 
unlawful discrimination which constitutes a denial of due 
process of law and equal protection of the laws guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution, and is therefore unconstitutional and void.

18. In enforcing and maintaining the policy, regulation, 
custom, and usage by which plaintiffs and other Negro 
teachers and principals in the public schools of Norfolk are 
uniformly paid lower salaries than white teachers and 
principals possessing the same professional qualifications 
and certificates, having the same experience, exercising the 
same duties and performing essentially the same services, 
solely on account of the race or color of the plaintiffs, de­
fendants, as administrative agents of the Commonwealth 
of Virginia, have violated and are continuing to violate the 
equal protection of the laws and due process clauses of the 
Fourteenth Amendment to the United States Constitution, 
and Sections 41 and 43 of Title 8 of the United States Code. 
To the extent that defendants in enforcing said discrimina­
tory system are acting under color of statute, regulation, 
policy, custom or usage, said statute, regulation, policy, 
custom or usage is void and unconstitutional, and to the 
extent that defendants may be acting without benefit of 
statute, regulation, policy, custom or usage, their acts are 
nevertheless acts of the State, similarly void and unconsti­
tutional.

19. The salaries of all teachers and principals in the pub­
lic schools of the City of Norfolk, including the salaries of 
petitioners, are paid out of the public school fund. This 
fund derives from two sources: The Commonwealth of Vir­
ginia and the City of Norfolk (Virginia School Code, Chap­
ter 33, Section 646); all of said public school fund is raised 
by means of taxation upon the inhabitants of Virginia and 
their property (Constitution of Virginia, Article IX, Sec-



tions 135, 136; Virginia School Code, Chapter 33, Sections 
657, 698, 699; Chapter 35, Section 782). Pursuant to these 
statutes all that portion of the public school fund which de­
rives directly from the state is used exclusively for the pay­
ment of teachers’ salaries (Virginia School Code, Chapter 
33, Section 701).

20. Plaintiff Melvin 0. Alston is an owner of property 
jointly with other members of his family, a citizen and a 
resident of the City of Norfolk, and the Commonwealth of 
Virginia, and is a taxpayer in said City and Commonwealth 
contributing directly thereby to the creation of said public 
school fund and the payment of teachers’ and principals’ 
salaries, including his own. The property of plaintiff Al­
ston is taxed equally and in the same proportion as that of 
all other citizens, residents and property owners of the 
City of Norfolk and the Commonwealth of Virginia; no 
discrimination is made in the rate of taxes he is required to 
pay into the said public school fund on account of his race 
or color. Under the Constitution of Virginia said public 
school fund is to be administered for the equal benefit of all 
the people of the State (Constitution of Virginia, Article 
IX, Section 135.)

21. By virtue of the discriminatory salary schedule for 
teachers established and maintained by the defendants, 
hereinbefore set forth in paragraph 16, and the custom set 
out in paragraph 12, the plaintiff is denied an equal and 
proportionate participation in the benefit derived from that 
portion of his taxes devoted to the public school fund and 
the payment of teachers’ salaries therefrom; he is denied 
said equal and proportionate participation in said benefit 
and return solely on account of his race and color, con­
trary to the provisions of the Fourteenth Amendment to 
the Constitution of the United States and thereby suffers 
and sustains special and particular damage from the dis­
crimination practiced against him in the distribution of the 
fund which his taxes helped to create; and he is without 
remedy save this Honorable Court issue its writ of in­

12
48



junction restraining the defendants from distributing on 
an unconstitutional basis, and accoi'ding to the discrimina­
tory and unconstitutional salary schedule hereinbefore de­
scribed and set forth at paragraph 16, the public school 
fund, to which plaintiff contributes, and which is used for 
the payment of teachers ’ salaries.

22. The defendants have the official authority and duty 
of maintaining the public schools within the corporate limits 
of the City of Norfolk (Chapter 48, Section 754 of the 
Charter and General Ordinances of the City of Norfolk—- 
1920); the defendant School Board is required on or before 
the first day of October of each year to submit to the City 
Manager of the City of Norfolk, Virginia, a detailed esti­
mate of its budget for the ensuing school year (Charter of 
the City of Norfolk, Section 109, Acts of Assembly of 1918). 
The City Manager of the City of Norfolk is required to 
submit all estimates, including the estimate of the public 
school budget for annual appropriations to the City Council 
at least sixty days before the end of the fiscal year (Charter 
of the City of Norfolk, Section 67, Acts of Assembly, 1918). 
Beginning with January 1, 1920, the fiscal year for Norfolk 
begins with January 1 and ends with December 31 of each 
year (Charter of the City of Norfolk, Section 69, Acts of 
Assembly 1918.) The City Council is required to pass the 
annual appropriations at least thirty days px-ior to the end 
of the fiscal year (Charter of the City of Norfolk, Section 
68, Acts of Assembly, 1918). The section of the estimate of 
the budget for the year 1940 for the public schools of Nor­
folk on teachers’ salaries is based upon the discriminatory 
salary schedule set out in paragraph 16 of this complaint 
and the practice, policy, custom and usage set out in para­
graph 12 of this complaint. Unless this Honorable Court 
intervenes and grants the relief prayed in this complaint, 
the defendants will continue to distribute the public school 
fund for the City of Norfolk on the illegal and unconstitu­
tional basis set out above to the irreparable injury of the 
plaintiffs and others on whose behalf they file this suit.

13
49



23. A  petition on behalf of Aline Elizabeth Black, indi­
vidually and on behalf of the Negro teachers and principals, 
including the present plaintiffs, was filed with the defend­
ants on or about October 27, 1938, requesting that the sal­
aries of Negro teachers and principals be equalized with 
those of white teachers and principals with equal qualifica­
tions and experience and performing essentially the same 
duties; the petition was denied and on September 28, 1939, 
a similar petition was filed on behalf of the plaintiffs with 
the defendant School Board of the City of Norfolk; this 
petition requested that present salary schedule be abolished 
and that plaintiffs and other Negro teachers and principals 
be paid compensation equal to that paid white teachers and 
principals with essentially equivalent qualifications and ex­
perience and performing essentially equivalent duties; this 
petition on or about the 26th of October, 1939, was likewise 
refused.

24. Plaintiffs and those similarly situated and affected 
on whose behalf this suit is brought are suffering irrepa­
rable injury and are threatened with irreparable injury in 
the future by reason of the acts herein complained of. They 
have no plain adequate or complete remedy to redress the 
wrongs and illegal acts herein complained of other than 
this suit for a declaration of rights and an injunction. Any 
other remedy to which plaintiffs and those similarly situated 
could be remitted would be attended by such uncertainties 
and delays as to deny substantial relief, would involve mul­
tiplicity of suits, cause further irreparable ijijury, and oc­
casion damage, vexation and inconventience not only to the 
plaintiff and those similarly situated, but to defendants as 
governmental agencies.

25. There is between the parties an actual controversy as 
hereinbefore set forth.

WHEREFORE, plaintiffs respectfully pray the Court 
that upon filing of this complaint, as may appear proper 
and convenient to the Court, the Court advance this cause

14
50



on the docket and order a speedy hearing of this action ac­
cording to law, and that upon such hearings:

15
51

(1) That this Court adjudge and decree, and declare 
the rights and legal relations of the parties to the sub­
ject matter here in controversy, in order that such 
declaration shall have the force and effect of a final 
judgment or decree.

(2) That this Court enter a judgment or decree de­
claring that the policy, custom or usage of the defend­
ants in adopting, enforcing, or maintaining a salary

\ schedule fixing the salaries of the plaintiffs and other
Negro teachers and principals at a rate lower than 
that paid to white teachers and principals of equal 
qualifications and experience, and performing essen­
tially the same duties and services, solely because of 
their race or color, is a denial of the equal protection of 
the laws guaranteed by the Fourteenth Amendment of 
the United States Constitution and is therefore uncon­
stitutional and void.

(3) That this Court enter a judgment or decree de­
claring that the distribution by the defendants of that 
portion of the public school fund for teachers’ salaries 
on a basis whereby plaintiff Alston and other Negro 
teachers and taxpayers receive less salary than white 
teachers and taxpayers with equal qualifications and 
experience, and performing essentially the same duties 
and services solely because of their race or color denies 
to plaintiff Alston and others similarly situated the 
equal protection of the law and due process of law 
guaranteed by the Fourteenth Amendment of the 
United States Constitution and is therefore uncon­
stitutional and void.

(4) That this Court issue a permanent injunction 
forever restraining and enjoining the defendants and 
each of them from making any distinction solely on the 
grounds of race or color in the fixing of salaries paid 
white and colored teachers and principals employed in 
the public schools of the City of Norfolk.



/  (5) That this Court issue a permanent injunction 
forever restraining and enjoining the defendants and 
each of them from paying to plaintiff Alston or mem­
bers of plaintiff Norfolk Teachers’ Association or any 
other colQred teacher or principal employed by them a 
less salary than they pay any white teacher or principal 
employed by them with equal qualifications, certifica­
tion, experience and filling an equivalent position in the 
public schools of the City of Norfolk.

(6) Plaintiffs further pray that the Court will allow 
them their costs herein and such further, other, addi­
tional or alternative relief as may appear to the Court 
to be equitable and just.

(Signed) By M e l v i n  0. A l s t o n , 

M e l v i n  O .  A l s t o n  
N o r f o l k  T e a c h e r s ’  A s s o c i a t i o n

(Signed) By M e l v i n  0. A l s t o n ,

M e l v i n  O .  A l s t o n , President 
Plaintiffs

16
52



17
53

C o m m o n w e a l t h  o p  V i r g i n i a  

C i t y  o f  N o r f o l k } ss

I, Melvin 0. Alston, having been first sworn according to 
law, depose and say upon oath that I am one of the plaintiffs 
named in the foregoing complaint; that I have read said 
complaint and that the matters and facts set forth therein 
are true to the best of my information, knowledge and 
belief.

M e l v i n  0 .  A l s t o n

Subscribed and sworn to before me th is------ day of No­
vember, 1939, in the City and Commonwealth aforesaid. 

My commission expires

Notary Public

, J. T h o m a s  H e w i n ,  Jr.
327 North First Street, 
Richmond, Virginia

O l i v e r  W .  H i l l  

117 East Leigh Street, 
Richmond, Virginia

L e o n  A .  R a n s o m  

1512 Girard Street, N. E., 
Washington, D. C.

W i l l i a m  H .  H a s t i e ,

1221 Fairmont Street, N. W., 
Washington, D. C.

T h u r g o o d  M a r s h a l l ,

69 Fifth Avenue,
New York, N. Y.

Attorneys for Plaintiffs



[Caption]
Answer of Defendants

First Defense

The Court lacks jurisdiction over the subject matter, be­
cause :

(a) The matter in controversy does not exceed, ex­
clusive of interest and costs, the sum of Three Thou­
sand Dollars.

(b) There are no grounds upon which to invoke the 
jurisdiction of the Court under Judicial Code, Section 
24 (14), 28 U. S. C. A. Section 41 (14).

(c) No constitutional rights of the plaintiffs have 
been violated.

(d) Plaintiffs have full, complete and adequate rem­
edy at law if they have any remedy at all.

(e) For the reasons alleged in the Second Defense 
herein.

18
54

Second Defense

1. The plaintiffs fail to state a claim upon which relief 
can be granted, because:

(1) There is no controversy between the plaintiffs 
and defendants that is embraced within the declaratory 
judgment Act referred to in the complaint.

(2) The Norfolk Teachers’ Association is an unin­
corporated organization and as such is not within the 
constitutional provisions referred to in the bill of com­
plaint.

(3) The plaintiff, Melvin 0. Alston, as an employee 
of the School Board, has no vested rights to any posi­
tion to teach in the public schools and a claim in the



premises is not within the provisions of the Constitu­
tion and Acts of Congress alleged.

(4) By reason of contract in writing dated June 12, 
1939, between the plaintiff, Melvin 0. Alston, and said 
School Board, a copy of which is attached hereto as a 
part hereof, covering his services as a teacher in said 
public schools, he is estopped from proceeding in this 
cause and has waived any rights, if any he has, in the 
premises.

(5) By reason of the contract aforesaid, to grant the 
relief requested, the Court would be making a contract, 
which the law vests the School Board with the discretion 
to make, and would further be impairing the obligation 
of the contract heretofore made.

(6) Even if the Court has jurisdiction of the subject 
matter involved, nevertheless it has no jurisdiction in 
this particular case.

(7) The plaintiff, Melvin 0. Alston, has no vested 
right to teach in the public schools of the City of Nor­
folk and therefore no rights to be protected by this 
Court.

(8) Under the laws of the State of Virginia the said 
School Board is authorized and empowered to employ 
teachers and fix their compensation, and such being the 
case they have the right to employ them for such salary 
as said Board is willing to pay and the teacher to accept.

(9) The operation of the public schools of the State 
of Virginia is a State function, and to grant relief in 
this case the Court would be interfering with the op­
eration of the State in such function.

2. The plaintiffs cannot proceed on behalf of others who 
are not named in the complaint.

3. For the reasons alleged in the First Defense.

19
55



Third, Defense

Heretofore, Aline Elizabeth Black, a Negro teacher in 
said public schools, brought a writ of mandamus in the Cir­
cuit Court of the City of Norfolk against said defendants 
seeking the same relief alleged in this complaint, “ in her 
own right and on behalf of all such other persons similarly 
situated,”  and by order of said Court entered on the First 
day of June, 1939 (a certified copy of which is attached 
hereto and made a part of this answer), such relief was 
denied. No appeal was taken from this decree, and under 
the laws of the State of Virginia for such cases made and 
provided, the said decree has become final, thereby fully and 
completely adjudicating the matters and things set forth 
and contained in this complaint.

[Copy]

Contract With Teachers

This Article of Agreement, between the School Board of 
Norfolk, Virginia, State of Virginia, of the first part, and 
M. 0. Alston, of the second part:

Witnesseth, That the said party of the second part sub­
ject to the authority of the said school board under the 
supervision and control of the division superintendent 
agrees to teach in the schools administered by said school 
board under the following conditions; to-wit:

1. The said teacher or party of the second part shall 
open and close school on regular school days at such 
hours as the school board may designate, and shall give 
daily recess with appropriate supervision in accordance 
with the recess schedule adopted by the school board, 
provided the school day consists of not less than five 
hours or more than six and one-half exclusive of the 
noon hour recess, when such is provided.

2. The said teacher shall obey all school laws and 
regulations and all rules made in accordance with the

20
56



law by the said school board and shall make promptly 
and accurately all reports required by the superin­
tendent of schools.

3. Said teacher shall exercise care in the protection 
and upkeep of the school property, furniture and fix­
tures and shall promptly report to the superintendent 
needed repairs or necessary added facilities or supplies.

4. In schools in which no regular janitor is employed 
the arrangement for keeping the school clean and in 
sanitary condition is stipulated below under special 
covenant, number 1.

5. The said teacher hereby swears or affirms alle­
giance and loyalty to the Government of the United 
States.

6. The school board or party of the first part shall 
deduct monthly from the salary of the said teacher a 
sum equal to one per centum of the salary, to be placed 
to the credit of the Retired Teachers’ Fund and to be 
applied as provided by law.

7. The said teacher may be changed from one teach­
ing position to a different teaching position by the dh 
vision superintendent when the efficiency of the school 
system requires such change, and provided proper ex­
planation be made to the school board.

8. The said board reserves the right to discuss the 
teacher or party of the second part for just cause, an 
opportunity on request being granted for a hearing, 
paying for services rendered in accordance with this 
agreement to date of dismissal. In case schools are 
closed temporarily on account of an epidemic or for 
other necessary cause the board may pay the teacher for 
time lost, or may extend the school term.

9. The said school board or party of the first part 
agrees to pay said teacher or party of the second part, 
$92.10 per school or calendar month for a term of ten
(10) school or calendar months, beginning on Septem-

21
57



22

58

ber 7, 1939 for a lawful school, for services rendered, 
payable on the last day of each school or calendar month 
or as soon thereafter as possible. (Bee special cove­
nant, number 3).

SPECIAL COVENANT.

1. With reference to care and cleanliness of school 
building and out buildings in which no janitor is em­
ployed.

2. With reference to time lost by teacher on account 
of sickness or for other cause.

Deduction from salary subject to Rides and Regu­
lations of the School Roard numbered 25.

3. With reference to shortening the school term in 
case funds are exhausted.

The right is reserved to the School Board to in­
crease or decrease the salary herein specified for 
any month or months immediately after notice to 
that effect.

4. Other covenants.

In witness whereof, the parties hereunto have set their 
hands and seal, this 12th day of June, 1939.

(Signed) A. H . F o rem an ,
Chairman of the Roard L.S.

L e a h a  H aller  
Clerk of the Roard L.S.

(Signed) M elvin  0. A lto n

Teacher L.S.

[Copy]
V I R G I N I A :

In the Circuit Court of the City of Norfolk, on the 1st day 
of June, in the year, 1939.



23
59

Aline Elizabeth Black,
Petitioner

vs.
School Board of the City of Norfolk,
A body corporate, and C. W. Mason, 

Superintendent, Defendants

This day came the petitioner and filed her written ex­
ception to the ruling of the Court continuing this cause from 
April 20, 1939, to May 31, 1939; and came also the defend­
ants and filed their separate demurrers and answers to said 
petition; and came the petitioner further and filed her 
joinder in said demurrers and her replications and joinder 
of issues to the separate answers of each of the defendants.

And this cause then came on this day to be heard upon 
the petition of the petitioner and the exhibits filed therewith 
and upon the demurrers of the defendants filed thereto, and 
upon argument of counsel.

Upon consideration of which the Court, for reasons stated 
in its opinion which is filed as a part of the record in this 
cause, being of opinion that said demurrers should be sus­
tained, doth hereby adjudge that the same be sustained, and 
that said petition be and the same is hereby dismissed, to 
which said ruling of the Court the petitioner, by her counsel, 
duly excepted on the ground that the same is contrary to 
the law.

And it is further ordered that the defendants recover of 
the petitioner their costs in this behalf expended.

A COPY T E ST E :
C ecil  M. B obertson , Clerk 

By Sue B. Goforth D.C.

[Caption]
Opinion From the Bench

I feel that the Court ought to announce its conclusions 
now in the presence of those directly interested in the litiga­
tion, rather than defer the decision until a later time. The



Court has had the benefit of the briefs for about ten days 
and the opportunity to study the pleadings and the briefs 
and to make an independent investigation of the law deemed 
applicable. I desire to compliment counsel for both sides 
upon the able and exhaustive briefs which they have filed and 
on the oral arguments made today. The questions presented 
and particularly that with respect to the alleged discrimi­
nation on account of race or color, are very important. * 
They are questions which concern this section of the coun­
try especially and which must be faced and finally solved in 
accordance with the mandates of the Constitution, without 
regard to the outcome of this pending case. These conclu­
sions can not be doubted by any serious-minded citizen who 
has given careful thought to the subject.

As pointed out in the course of the argument today, one 
of the questions raised in both the complaint and the an­
swer relates to the amount involved in the controversy. 
The defendants have very properly conceded that this is not 
the type of case which requires the allegation and proof of 
any particular amount in order to establish jurisdiction in 
this court. The right asserted in the complaint is a civil 
right, guaranteed by the Constitution, is excepted from the 
provisions of the Act of Congress conferring jurisdiction 
based upon the amount in controversy. Consequently no 
amount is required to be alleged or proved in order to main­
tain a suit based upon an alleged violation of such right.

I do not think that the Court is required, in the view that 
it takes of the right of the plaintiff to maintain his suit in 
the face of the written contract, to express an opinion in 
regard to the most important question involved in cases of 
this type. I do not know what facts the proofs would finally 
establish, if the case proceeded that far, with respect to the 
charge of unconstitutional discrimination against the plain­
tiff on account of his race or color. /The authorities are 
clear, I think however, that there can be no discrimination 
in a case of this kind, if such discrimination is based on race 
or color alone. Under our Constitution, particularly the

24
60



Fourteenth Amendment, all citizens stand upon equal footing 
before the law and are entitled to equal benefits and privi­
leges where state action is involved; or, to state the proposi­
tion another way, a state can not, through its constitution, 
statutes, or rules and regulations, or through one of its ad­
ministrative bodies, arbitrarily discriminate against per­
sons within its jurisdiction. In the words of the Fourteenth 
Amendment, a state can not deny to any person within its 
jurisdiction the equal protection of the law. That principle 
is firmly established, and, if and when a case of discrimina­
tion based on race or color is presented, the person discrim­
inated against will be granted appropriate relief.

The view that I take of the plaintiff’s case, with some 
hesitation I will admit, does not render it necessary for the 
Court to pass on the unconstitutional discrimination charged 
in the complaint to have been practiced against the plaintiff, 
other than to observe that the complaint charges in clear 
and explicit language that the discrimination in compensa­
tion is based on race or color alone. Under well-established 
rules on a motion to dismiss, the court must accept those 
allegations as true, because they are well pleaded, as an 
examination of the complaint will disclose. That is to say, 
when matters are well pleaded in the complaint and a mo­
tion to dismiss is filed, based upon the alleged ground that 
the complaint fails to show that the plaintiff is entitled to 
any relief, the court must assume that the facts well pleaded 
in the complaint are true. That, of course, does not mean 
that in the event the case proceeds to the taking of testi­
mony, that such allegations will still be assumed to be true. 
In that event the parties alleging facts will have to establish 
their existence by the required degree of proof, but this 
case, however, has been heard today upon motion to dismiss 
and upon such motion, as already observed, the facts alleged 
in the complaint have to be taken as true for the purposes 
of the hearing.

A  defense set up in the ansAver which gave me serious con­
cern from the first in the examination of the pleadings and

25
61



62

briefs, and which stands out in the record as an undisputed 
fact, is that some time before this suit was instituted the 
plaintiff entered into a contract with the defendant school 
board, which contract covers the subject matter of this liti­
gation. For the purposes of a decision of this case I think 
that the plaintiff Alston and the defendant school board may 
very properly be regarded as the persons who are essentially 
interested as parties in the outcome.

A copy of that contract is in the record before the court. 
There is an absence of any claim that I can find in the com­
plaint to the effect that the plaintiff was induced to enter 
into the contract by fraud, misrepresentation or that it was 
entered into under duress or that any unfair means were 
employed by defendants in that behalf, or that it was ever 
made or signed under protest. There was the general 
charge in the oral arguments today that the plaintiff was 
afraid to assert his rights against the defendants, and had 
to accept what the defendants offered him or forego follow­
ing the profession for which he had prepared himself in life. 
And I do not think that this is a suggestion that should be 
lightly disregarded by the court. I am fully aware of the 
fact that in situations of this kind it sometimes happens 
that the employee is at a distinct disadvantage, is not in a 
position to boldly assert what he conceives to be his rights, 
and does not therefore, in fact, contract freely with the 
other party. But I do not find disclosed in the record any 
facts that have been pleaded by way of explanation that 
could reasonably justify the court in reaching the conclu­
sion that it ought to disregard the written contract and fur­
ther proceed in the case in spite of the fact that the plaintiff 
voluntarily entered into such contractual relation with the 
defendants.

It does appear that the plaintiff is a man of intelligence 
and excellent education, that he is experienced, that he has 
been teaching in the public schools of this City for some 
years and was entirely familiar with the alleged unconsti­
tutional discrimination against the members of his race

26



long before he accepted the written contract tendered to 
him by defendant. Of those facts there can not be the 
slightest doubt. Now, there is some persuasiveness in the 
argument that he feared to assert his rights, feared that he 
might be punishd by the loss of his position, having before 
him the unhappy example of another teacher who had 
sought to enforce what she conceived to be her constitutional 
rights. I say, those matters caused me to hesitate, but I am 
satisfied that this plaintiff, and others similarly situated, 
each in his individual right, have a remedy if they are here­
after unconstitutionally discriminated against, without the 
necessity of signing a contract with the Board, a remedy by 
which they can go into a court of competent jurisdiction and 
have the cases heard and their constitutional rights vindi­
cated, if the latter have been violated or are threatened to 
be violated in the immediate future.

I do not think a court ought to be quick in any case, 
whether it is a case of colored citizens or white citizens, or 
individuals or corporations, whether the case relates to 
contracts of this kind or contracts in general, to disregard 
and set aside the solemn obligations of a contract. On the 
contrary, I think it is the duty of the Court, unless it is 
clearly shown that the contract is invalid because contrary 
to law or other cause, to uphold it, and, as far as it is within 
its jurisdiction, to protect its obligations. I do not see, after 
a careful study of the authorities relied on by both sides on 
that particular point, how the plaintiff can have a valid, 
binding contract which he can enforce against the defendant 
Board and at the same time be in a position to repudiate 
that contract insofar as it is not favorable to him and come 
into a court of equity and ask the court to make a different 
contract.

Whatever may be the law in other states, there is no 
doubt that in Virginia a person can not under the law as it 
now exists and has existed for many years, acquire a status 
as a teacher, which gives him certain rights that must be 
respected, independently of a contract with the Board as a

27
63



teacher. In Virginia the relation is not a continuing one, 
but can be created only by a contract with the School Board 
in a particular jurisdiction. It continues for only one 
school year at a time, with the absolute right on the part of 
the School Board not to contract again with the particular 
person. The Board may decline to contract again with such 
person without rhyme or reason for such refusal and in that 
particular part of the Board’s procedure there manifestly 
has been no discrimination on account of race or color, for 
the simple reason that the Board can, after the expiration 
of the school year, decline to have any further contractual 
relations with an applicant to teach, whether such applicant 
be white or colored.

But I do not think that even that broad discretion in the 
Board would give it the right, after the qualifications of an 
applicant had been favorably passed on, found acceptable 
and the applicant tendered a written contract to teach, to 
say if the applicant then insisted that he be not discrimi­
nated against on account of his race or color, that such 
applicant was without any remedy because he did not have a 
written contract with the Board. In other words, the Board 
could hardly be heard to say, as it now does, that a man 
had entered into a contract binding upon him and had 
thereby waived his right to protest against unconstitutional 
discrimination, and later say to an applicant with the 
proper qualifications, who had been approved and tendered 
a contract, that he had no right because he did not have a 
written contract with the Board.

My conclusion, therefore, is that this contract has not
been shown to be invalid in any particular; that it is binding 
upon the plaintiff, as well as upon the defendant Board, 
plaintiff having signed and entered upon the performance 
of the contract two or three months (I do not recall the 
exact time) before this suit was instituted; that if the 
plaintiff intended to contest the action of the Board with 
respect to compensation, it was his duty to take prompt and 
appropriate action to that end after he was accepted as an

2 8
6 4



29
65

applicant and before he entered into a contract with the 
Board for another year. I think that by signing the con­
tract and entering upon its performance, he waived the 
constitutional right which he now asserts in the complaint. 
I think that in principle the case is very much like the case 
of the colored man in Missouri (Missouri ex rel Gaines v. 
Canada, 305 U. S. 337) would have been if he, instead of 
insisting on his constitutional right as he did, had accepted 
the substitute offered by the State of Missouri, and had gone 
to a university in one of the designated adjoining states to 
study law. In other words, had he accepted the substitute 

& offered by the State of Missouri, he could not thereafter 
have insisted upon his original rights. By declining to ac­
cept the substituted privilege he remained in a position to 
demand that to which he was originally entitled. That right 
was personal to him and it lay within his power alone to de­
termine whether he would insist on that right or would 
accept a substitute therefor.

In numerous instances citizens understandingly waive 
constitutional rights, not necessarily expressly but by their 
conduct. For instance, it is fundamental law in this country 
that private property can not be condemned for private use, 
even for just compensation, yet there are many instances 
in which corporations possessing the power of eminent do­
main, have condemned private property for private use, or 
in which corporations not possessing the power of eminent 
domain have nevertheless condemned private property, and 
yet in these cases the condemnor has acquired good title to 
the property. The owners had a constitutional right to 
object to their property being taken by corporations not 
possessing the power of eminent domain or to its being taken 
for a private use, yet when they failed to insist upon their 
constitutional rights and accepted the compensation 
awarded for the property taken, they could not thereafter 
deny the title of the condemnor.

Unfortunately, there have been instances in which colored 
people have been indicted in courts in which colored citizens



30
66

were systematically excluded from the grand and petit 
juries, but I do not recall at this time any instances where 
that practice prevailed and a defendant, with knowledge of 
the situation, made no appropriate objection to the grand 
and petit juries, but stood trial on the merits and was con­
victed, that the conviction was set aside because of the viola­
tion of the defendant’s constitutional rights in that respect.
It is true that it has been held in many cases, where the de­
fendant made timely objection to the grand and petit juries 
on the ground that he was being discriminated against be­
cause of his race or color, that the convictions were set aside 
by the appellate courts. In those instances the conviction  ̂
was set aside because the accused had insisted upon his con­
stitutional right. An outstanding illustration of the waiver 
of constitutional rights may be found in the recently adopted 
Rules of Civil Procedure. Nothwithstanding the fact that 
the Seventh Amendment to the Constitution preserves the 
right of trial by jury in certain classes of cases, under the 
express provision of the Rules, unless a party to a civil ac­
tion makes timely written demand for trial by jury, he is 
deemed to have waived that right. (Rule 38)

It is regretable, in a sense, that the Court can not finally 
dispose of all matters in the suit, but will have to dismiss 
the case because of what may by some be thought to be a 
technicality. A solemn written contract entered into be­
tween parties, whether it be between a citizen and an arm of 
the state, or between two individuals, or betwen individuals . 
and a corporation, or between corporations, can in no 
proper sense be regarded as a technicality.

[Caption]
Judgment

The Court having suggested, after examination of the 
bill of complaint and answer herein that insofar as 
defenses in law are raised in the portions of the answer 
denominated “ First Defense” , Second Defense”  and 
“ Third Defense” , the hearing and disposition of the case



might be facilitated if argument was made in advance of 
trial upon defendant’s motion to dismiss the bill of com­
plaint for alleged legal insufficiency and upon that part of 
the answer which challenges the legal sufficiency of the 
complaint upon the ground that plaintiff had waived his 
asserted constitutional right by entering into a contract 
with defendant;

And by consent of the parties the case thereafter, on Feb­
ruary 12, 1940, came on to be heard upon the defendant’s 
motion to dismiss the bill of complaint on the ground of 
legal insufficiency and also so much of the answer as chal­
lenges the legal sufficiency of the complaint because of al­
leged waiver by entering into said contract, and was fully 
argued by counsel, counsel for the respective parties having 
theretofore filed their written briefs with the Court;

And the Court being of the opinion that the plaintiff, 
Melvin 0. Alston, and the defendant, School Board of the 
City of Norfolk, are the only necessary parties to this cause, 
and being further of the opinion that plaintiff, Melvin 0. 
Alston, having entered into said written contract with the 
defendant, School Board of the City of Norfolk, to teach, 
which contract is a part of the record in this cause, and 
having prior to the institution of this suit entered upon 
the performance and partly performed the said written con­
tract, has for the reasons stated in the opinion of the Court, 
delivered orally at the close of the arguments, waived such 
constitutional rights, if any he has, that he seeks to enforce, 
doth so ADJUDGE and DECREE;

And it is accordingly ADJUDGED, ORDERED AND 
DECREED that this action be and the same hereby is dis­
missed, to which ruling of the Court in dismissing the com­
plaint, plaintiff, by counsel, duly objected and excepted.

And it is further ORDERED that the defendants recover 
of the plaintiffs their costs in this behalf expended.

(Signed) L u t h e r  B. W ay

Norfolk, Virginia, United States District Judge
February 29, 1940.

31
67





32

APPENDIX TO BRIEF OF APPELLEES.
Filed June 5, 1940.

APPENDIX.

(Caption)

Answer of Defendant.

(First, Second and Third Defenses are set forth in 
Appellants’ Brief).

Fourth Defense.

The plaintiffs are not entitled to invoke the juris­
diction of this court in this case as alleged in paragraph 
“ 1”  of the complaint, for the reasons set forth in the 
First, Second and Third Defenses herein; and the 
defendants deny the allegations of paragraph “ 1” of 
said complaint.

The defendants deny the allegations of paragraph 
“ 2”  of said complaint.



33

42

The defendants admit that the defendant School 
Board is by law of the State of Virginia a body cor­
porate, but they are without knowledge and infor­
mation sufficient to answer the other allegations of 
paragraph “ 3”  of the complaint.

The defendants are without sufficient knowledge 
and information to answer the allegations of para­
graphs “ 4”  and “ 20”  of the complaint.

As heretofore stated, the Norfolk Teachers’ Asso­
ciation is an unincorporated organization, and as such 
is not within the constitutional provisions referred to 
in the bill of complaint and therefore not properly a 
party to this proceeding. Other than this the defend­
ants are without sufficient information and knowledge 
to answer the allegations of paragraph “ 5”  of the com­
plaint.

The defendants admit the provisions of the school 
laws referred to in paragraphs “ 6,”  “ 7,”  “ 8,”  “ 9,”  
“ 10”  and “ 19”  under proper construction, but speci­
fically deny the conclusions and deductions made 
therefrom as alleged in said paragraphs of the com­
plaint.

The defendants deny the allegations of paragraph 
“ 11”  of the complaint.

The defendants deny such portions of paragraphs 
“ 12,”  “ 15,”  “ 16”  and “ 22”  of the complaint as allege 
discrimination because of race or color, a discriminatory 
salary schedule, denial of the equal protection of the 
laws and distribution of public funds on an illegal and 
unconstitutional basis.



34

43

The defendants deny the allegations contained in 
paragraph “ 13”  of the complaint, except so much 
thereof as recites the qualifications and experience of 
plaintiff Melvin 0 . Alston, in respect to which they 
allege they are without knowledge or information 
sufficient to form a belief as to the truth thereof.

The defendants deny the allegations of para­
graphs “ 14,”  “ 17,”  “ 18,”  and “ 21”  of the complaint.

The defendants admit the filing of the petitions 
as alleged in paragraph “ 23”  of the complaint. The 
requests contained in the petitions were denied because 
the salaries of the respective teachers and principals 
are matters which are governed by individual con­
tracts voluntarily accepted and executed by the 
individual teachers and principals.

The defendants deny the allegations of para­
graphs “ 24”  and “ 25”  of the complaint.

The aforesaid defenses and denials apply not only 
to the said plaintiffs, but to the others on whose 
behalf plaintiffs allege they are proceeding, if they 
can proceed on their behalf, which defendants deny.

The defendants also deny that the plaintiffs are 
entitled to the prayer of said complaint.

(Signed) A l f r e d  A n d e r s o n ,

Attorney for Defendants.

City Hall, Norfolk, Va.

(Signed) A l f r e d  A n d e r s o n ,
(Signed) J o n a t h a n  W. O l d , J r .,

Attorneys for Defendants.



V  V ffCsflEa



35

[ fo l .  36] P roceedings in  t h e  U n ited  S tates C ir cu it  C ourt 
of A ppeals  for t h e  F o u rth  C ircu it

No. 4623

M elvin  0. A lston  and the N orfolk  T e a c h e r s ’ A ssociation , 
an unincorporated association, Appellants,

versus

S chool  B oard of t h e  C it y  of N o rfolk , a body corporate, 
and C. W. M ason , Superintendent of Schools of Norfolk, 
Appellees

Appeal from the District Court of the United States for the 
Eastern District of Virginia, at Norfolk

March 19, 1940, the transcript of record is filed and the 
cause docketed.

Same day, the appearance of Oliver W. Hill, William ID 
Hastie, Tliurgood Marshall and Leon A. Ransom is entered 
for the appellants.

March 22, 1940, the appearance of Alfred Anderson, 
Jonathan W. Old, Jr., and William C. Coupland is entered 
for the appellees.

April 12, 1940, statement of parts of the record appel­
lants propose to print with their brief is filed.

Same day, notice of and motion of appellants to advance 
cause for hearing are filed.

Same day, objections of appellees to motion of appellants 
to advance cause for hearing are filed.
[fol. 37] April 12, 1940, (April term, 1940) cause came 
on to he heard on the motion of the appellants to advance 
for hearing and the objections of appellees thereto, before 
Parker, Dobie and Northcott, Circuit Judges, and is argued 
by counsel and submitted.

May 21, 1940, brief and appendix on behalf of appellants 
are filed.

June 5, 1940, brief and appendix on behalf of appellees 
are filed.

June 10, 1940, reply brief on behalf of appellants is filed.

2—9161



36

A r g u m e n t  of C au se  on  M erits

June 13, 1940, (June term, 1940) cause came on to be 
beard on the merits before Parker, Soper and Dobie, Cir­
cuit Judges, and is argued by counsel and submitted.

U n ited  S tates  C ir cu it  C ourt of A ppe als , F o u rth  C ir cu it

M e l v in  0 .  A l st o n , and the N orfolk  T e a c h e r s ’ A ssocia­
t io n , an Unincorporated Association, Appellants,

S ch oo l  B oard of t h e  C it y  of N o rfo lk , a Body Corporate, 
and C. W. Mason, Superintendent of Schools of Norfolk, 
Appellees

Appeal from the District Court of the United States for the 
Eastern District of Virginia, at Norfolk

(Argued June 13, 1940. Decided June 18, 1940)

Before Parker, Soper and Dobie, Circuit Judges

Thurgood Marshall and William H. Hastie (Oliver W. 
Hill and Leon A. Ransom on brief) for Appellants, and 
Alfred Anderson and Jonathan W. Old, Jr. (William C. 
Coupland on brief) for Appellees.

[ fo l .  39] P a r k e r , Circuit Judge:
This is an appeal in a suit instituted by Melvin O. Alston, 

a Negro school teacher of Norfolk, Va., and the Norfolk 
Teachers’ Association, an association composed of the 
Negro school teachers of that city, against the School 
Board and the Superintendent of Schools of the city. The 
purpose of the suit is to obtain a declaratory judgment, to 
the effect that the policy of defendants in maintaining a 
salary schedule which fixes the salaries of Negro teachers 
at a lower rate than that paid to white teachers of equal 
qualifications and experience, and performing the same

O p in io n — Filed June 18, 1940

No. 4623

versus



37

duties and services, on the sole basis of race and color, is 
violative of the due process and equal protection clauses 
of the 14th amendment, and also to obtain an injunction 
restraining defendants from making any distinction on the 
ground of race or color in fixing the salaries of public 
school teachers in Norfolk. The suit was dismissed by the 
court below on the ground that Alston and the School 
Board were the only necessary parties to the cause and 
that Alston had waived such constitutional rights as he was 
seeking to enforce by having entered into a written contract 
with the School Board to teach for a year at the price fixed 
in the contract. On the appeal presented by the plaintiffs 
three questions arise: (1) whether upon the face of the 
complaint an unconstitutional discrimination is shown in 
the fixing of school teachers’ salaries by the defendants; 
(2) whether rights of plaintiffs are infringed by such dis­
crimination; and (3) whether plaintiffs have waived their 
right to complain of the discrimination by entering into 
contracts with the School Board for the current year.

On the first question, there can be no doubt but that the 
fixing of salary schedules for the teachers is action by the 
state which is subject to the limitations prescribed by the 
14th Amendment. The Constitution of Virginia provides 
[fol. 40] that the General Assembly shall establish and 
maintain an efficient system of public free schools through­
out the state. Article IX, sec. 129. The General Assembly 
has established such a system. Virginia Code of 1936, chs. 
33 and 35. The public schools of the City of Norfolk are 
under the direct control and supervision of the defend- 

 ̂ ants, whose duty it is to employ teachers and provide for
the payment of teachers’ salaries. Virginia Code, ch. 33, 
secs. 656, 660, and ch. 35, sec. 786. While provision is 
made in the law for separate schools for white and colored 
persons, the positive duty is enjoined of maintaining these 
separate schools under the same general regulations as 
to management, usefulness and efficiency. Virginia Code, 
sec. 680. All teachers are required to hold teaching cer­
tificates in accordance with the rules of certification of 
the State Board of Education. Virginia Code, ch. 33, sec. 
660 and ch. 35, sec. 786. White and Negro teachers must 
meet the same requirements to receive teachers certificates 
from the Board of Education and upon qualifying are 
issued identical certificates.

3—9161



38

The allegations of the complaint as to discrimination, 
which are denied in the answer, but which must be taken 
as true on the motion to dismiss, are as follows:

“ 11. Defendants over a long period of years have con­
sistently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of paying 
Negro teachers and principals in the public schools of 
Norfolk less salary than white teachers and principals in 
said public school system possessing the same professional 
qualifications, certificates and experience, exercising the 
same duties and performing the same services as Negro 
teachers and principals. Such discrimination is being 
practiced against the plaintiffs and all other Negro teach­
ers and principals in Norfolk, Virginia, and is based solely 
upon their race or color.

“ 12. The plaintiff Alston and all of the members of the 
plaintiff association and all other Negro teachers and prin­
cipals in public schools in the City of Norfolk are teachers 
[fol. 41] by profession and are specially trained for their 
calling. By rules, regulations, practice, usage and custom 
of the Commonwealth acting by and through the defend­
ants as its agents and agencies, the plaintiff Alston and 
all of the members of the plaintiff association and all other 
Negro teachers and principals in the City of Norfolk are 
being denied the equal protection of the laws in that solely 
by reason of their race and color they are being denied 
compensation from public funds for their services as 
teachers equal to the compensation provided from public 
funds for and being paid to white teachers with equal quali­
fications and experience for equivalent services pursuant 
to rules, regulations, custom and practice of the Common­
wealth acting by and through its agents and agencies, the 
School Board of the City of Norfolk and the Superintendent 
of Schools of Norfolk, Virginia.

“ 13. Plaintiff, Melvin 0. Alston, has been employed as 
a regular male teacher by the defendants since September, 
1935, and is in his fifth year of experience as a regular 
teacher in the Booker T. Washington High School, a 
public high school maintained and operated under the 
direct control, supervision, rules and regulations of the 
defendants. He successfully completed the course of in­
struction provided at Virginia State College for Negroes,



39

an accredited college maintained and operated by the 
State of Virginia for the instruction and preparation of 
Negroes as teachers in the public schools of the State. He 
holds a Collegiate Professional Certificate, the highest cer­
tificate issued by the Virginia State Board of Education 
for teaching in the public high schools of Virginia. In 
order to qualify for this certificate plaintiff has satisfied 
the same requirements as those exacted of all other teach­
ers, white as well as Negro, qualifying therefor, and he 
exercises the same duties and performs services substan­
tially equivalent to those performed by other holders of 
the said certificate, white as well as Negro, yet all white male 
teachers in Norfolk who hold the said certificate with equal 
and less experience receive salaries much larger than 
the salary paid the plaintiff.

“ 14. White male high school teachers employed by de­
fendants whose qualifications, certification, duties and serv­
ices are the same as plaintiff’s are being paid by defendants 
[fol. 42] a minimum annual salary of Twelve Hundred 
($1200.00) Dollars.

“ 15. Plaintiff Alston is being paid by the defendants for 
his services this school year as a regular male high school 
teacher as aforesaid an annual salary of Nine Hundred 
and Twenty-one (921.00) Dollars, being the amount fixed 
by defendants for Negro male high school teachers in their 
fifth year of teaching experience and solely because of the 
practice, usage and custom complained of in paragraph 
11 of this complaint, and by the operation of the discrimina­
tory salary schedule described in paragraphs 16 and 17 of 
this complaint the plaintiffs have been, are, and unless re­
lief shall be granted by this Honorable Court as hereinafter 
prayed, will continue to be denied, solely by reason of race 
and color the opportunity to receive a higher salary equal 
to that paid to any white teachers similarly situated.

“ 16. Pursuant to the policy, custom and usage set out 
in paragraph 12 the defendants acting as agents and agen­
cies of the Commonwealth of Virginia have established and 
maintained a salary schedule used by them to fix the amount 
of compensation for teachers and principals in the public 
schools of Norfolk which discriminates against plaintiffs 
solely because of their race or color. All teachers and prin­
cipals in the public schools of Norfolk, including the plain­



40

tiffs, have been, are being and will continue to be paid by 
defendants pursuant to the following salary schedule 
adopted, maintained and being enforced by the defendants 
for the school year 1939-1940:

Maximum salary be­
ing paid (affecting 

Salaries now only those in sys- 
b e i n g  paid tern before incre- 
teachers n e w  ment plan was dis- 
to the system, continued).

Negro
Elementary

Normal Certificate. . . . $597.50 $960.10
Degree ......................... 611.00 960.00

High School
Women ....................... 699.00 1,105.20
Men ............................. 784.50 1,235.00

[fol. 43] White 
Elementary

Normal Certificate. . . . 850.00 1,425.00
Degree ......................... 937.00 1,425.00

High School
Women ....................... 970.00 1,900.00
Men ............................. 1,200.00 2,185.00

The practical application of this salary schedule has been, 
is, and will be to pay Negro teachers and principals of equal 
qualifications, certification and experience with white teach­
ers and principals less compensation from public funds 
solely on account of their race or color.”

“ 19. The salaries of all teachers and principals in the 
public schools of the City of Norfolk, including the salaries 
of petitioners, are paid out of the public school fund. This 
fund derives from two sources: The Commonwealth of Vir­
ginia and the City of Norfolk (Virginia School Code, Chap­
ter 33, Section 646); all of said public school fund is raised 
by means of taxation upon the inhabitants of Virginia and 
their property (Constitution of Virginia, Article IX, Sec­
tions 135, 136; Virginia School Code, Chapter 33, Sections 
657, 698, 699; Chapter 35, Section 782). Pursuant to these 
statutes all that portion of the public school fund which



41

derives directly from the state is used exclusively for the 
payment of teachers’ salaries (Virginia School Code, 
Chapter 33, Section 701.”

^  That an unconstitutional discrimination is set forth in 
these paragraphs hardly admits of argument. The allega­
tion is that the state, in paying for public services of the 
same kind and character to men and women equally quali­
fied according to standards which the state itself prescribes, 
arbitrarily pays less to Negroes than to white persons. This 
is as clear a discrimination on the ground of race as could 
[fol7l5T~well be imagined and falls squarely Avithin the 
inhibition of both the due process and the equal protection 
clauses of the 14th Amendment. As was said by Mr. Jus­
tice Harlan in Gibson v. Mississippi, 162 U. S. 565, 591:

“ Underlying all of those decisions is the principle that 
the Constitution of the United States, in its present form, 
forbids, so far as civil and political rights are concerned, 
discrimination by the General Government, or by the States, 
against any citizen because of his race. All citizens are 
equal before the law. The guarantees of life, liberty and 
property are for all persons, within the jurisdiction of the 
United States, or of any State, without discrimination 
against any because of their race. Those guarantees, when 
their violation is properly presented in the regular course 
of proceedings, must be enforced in the courts, both of the 
Nation and of the State, without reference to considerations 
based upon race.”

Dealing with the precise question here involved, Judge 
Chesnut, in Mills v. Lowndes 26 F. Supp. 792, 801, said:
 ̂ “ While the State may freely select its employes and de­

termine their compensation it would, in my opinion, be 
clearly unconstitutional for a state to pass legislation which 
imposed discriminatory burdens on the colored race with 
respect to their qualifications for office or prescribe a rate 
of pay less than that for other classes solely on account of 
race or color. If therefore the state laws prescribed that 
colored teachers of equal qualifications with white teachers 
should receive less compensation on account of their color, 
such a law would clearly be unconstitutional.”  /

In the later case of Mills v. Board of Education of Ann 
Arundel County 30 F. Supp. 245, Judge Chesnut applied



42

the principle so stated in holding that a discrimination as 
to pay of teachers in white and colored schools was viola­
tive of the constitutional provision, and that a colored 
teacher might invoke the power of the court so to declare. 
This we think is in accord with a long line of decisions 
[fol. 45] which condemn discrimination on account of race 
in the exercise of governmental power by a state or its 
agencies. Thus, in Strauder v. West Virginia 100 U. S. 303, 
exclusion of colored persons from service on petit juries 
was condemned as violative of the constitutional provision. 
In Pierre v. Louisiana 306 U. S. 354, the same holding was 
made with respect to grand juries. In Nixon v. Condon, 
286 U. S. 73 and Nixon v. Herndon 273 U. S. 536, discrimina­
tions with respect to participating in party primaries were 
condemned. In Lane v. Wilson 307 U. S. 268 and Guinn v. 
United States 238 U. S. 347 like holdings were made with 
respect to discrimination relating to the right to participate 
in elections. Discriminations with respect to the right to 
own and occupy property were condemned in Buchanan v. 
Warley 245 U. S. 60; with respect to Pullman accommoda­
tions on railroads, in McCabe v. Atchison, Topeka and 
S. F. R. Co. 235 U. S. 151; with respect to educational facili­
ties, in Missouri ex rel Gaines v. Canada 305 U. S. 337; with 
respect to the division of school funds in Davenport v. 
Cloverport 72 F. 689; and with respect to the pursuit of a 
trade or vocation, in Chaires v. City of Atlanta 164 Ga. 755, 
139 S. E. 559.

We come, then, to the^second question, i. e. do plaintiffs 
as Negro teachers holding certificates qualifying them to 
teach in the public schools of Norfolk have rights which are 
infringed by the discrimination of which they complain1? 
The answer to this must he in the affirmative. As teachers 
holding certificates from the state, plaintiffs have acquired 
a professional status.. It is true that they are not entitled 
by reason of that tact alone to contracts to teach in the 
public schools of the state; for whether any particular one 
of them shall be employed to teach is a matter resting in 
the sound discretion of the school authorities; but they are 
entitled to have compensation for positions for which they 
may apply, and which will unquestionably he awarded to 
some of them, fixed without unconstitutional discrimination 
on account of race. As pointed out by Judge Chesnut, in 
-[To06J Mills v.'~Lowndes, supra, they are qualified school 
teachers and have the civil right, as such, to pursue their



43

profession without being subjected to discriminatory legis­
lation on account of race or color. It is no answer to this 
to say that the hiring of any teacher is a matter resting 
in the discretion of the school authorities. ̂ Plaintiffs, as 
teachers qualified and subject to employment by the state, 
are entitled to apply for the positions and to have the dis­
cretion of the authorities exercised lawfully and without 
unconstitutional discrimination as to the rate of pay to he 
awarded them, if their applications are accepted. 1

Nor do we think that the fact that plaintiffs have en­
tered into contracts with the school board for the current 
year at the rate fixed by the discriminatory practice pre­
cludes them from asking relief. What the effect of such 
contracts may be on right to compensation for the current 
year, we need not decide, since plaintiffs are not insisting 
upon additional compensation for the current year and 
their prayer for relief asks a broad declaration of rights 
and injunctive relief for the future.^ As qualified teachers 
holding certificates, they have rights as above indicated 
which are not confined to the contract for the current year, 
i. e. the right to apply for positions in the future and to 
have the Board award the positions without unconstitu­
tional discrimination as to the rate of pay.

The defendants take the position that no one but a 
teacher holding a contract with the Board has any such 
interest in" the rate of pay as would give him standing to 
sue concerning it, and that he cannot sue because he has 
waived the unconstitutional discrimination by entering into 
the contract./1 If this were sound, there would be no practical 
means of redress for teachers subjected to the unconstitu­
tional discrimination. But it is not sound. As pointed 
out in Frost Trucking Co. v. Railroad Com. 271 U. S. 583, 
594, even in the granting of a privilege, the state “ may not 
impose conditions which require the relinquishment of con­
stitutional rights. If the state may compel the surrender 
[fol. 47] of one constitutional right as a condition of its 
favor, it may, in like manner, compel a surrender of all. 
It is inconceivable that guaranties embedded in the Con­
stitution of the United States may thus be manipulated, 
out of existence.”  See also Union Pac. R. Co."vT Public 
Service UbmT'248 U. S. 67, 69, 70; Hanover Ins. Co. v. 
Harding 272 U. S. 494, 507. But as stated above, the 
waiver could not extend beyond the terms of the contract 
for the current year, in any event, and the relief asked is



44

for the declaration and protection of rights which extend 
beyond any present employment.

We should say, too, that we have no doubt as to the 
'Norfolk Teachirs Association being a proper party to the 
suit. According to the complaint, it is a voluntary un­
incorporated association and “ is composed of Negro teach­
ers and principals in the public colored schools of Norfolk” ;
.and the right of such an association to sue in its common 
name for the purpose of enforcing substantive rights 
under the Constitution of the United States is provided for 
under the Rules of Civil Procedure. Rule 17(b). The 
point is not important, however, as the suit is brought 
as a class suit and the members of the association belong .
to the same class as the plaintiff Alston. Likewise, there 
can be no question as to the propriety of joining the 
Superintendent of Schools with the Board as a party de­
fendant, as teachers are employed on the recommendation 
of the Superintendent (Va. Code sec. 660); he requests 
the City Council to fix the tax levy so as to net the amount 
necessary for the operation of the schools (Ya. Code sec.
657); and he is named by the statute as one of those 
charged with the administration of the schools (Va. Code 
sec. 611).

For the reasons stated, the order appealed from will 
be reversed and the cause will be remanded for further 
proceedings not inconsistent herewith. If the allegations 
of the complaint are established, plaintiffs will be entitled 
to a declaratory judgment to the effect that the discrimina- 
[fols. 48-49] tory policy complained of is violative of their 
rights under the Constitution and to an injunction restrain- (
ing defendants from making any discrimination on the 
grounds of race or color in fixing salaries to be paid school 
teachers after the current fiscal year. To avoid confusion 
and inconvenience in the preparation of the budget and the 
making of contracts for the ensuing year, we have given 
immediate consideration to the case. The mandate will 
issue forthwith, to the end that prompt action may be taken 
by the court below.

Reversed.



45

[fol. 50] U n ited  S tates  C ir c u it  C ourt of A p pe a ls ,
F o u rth  C ir cu it

No. 4623

D ecree . Filed and Entered June 18, 1940

M elvin  0 .  A l st o n , an d  t h e  N orfolk  T e a c h e r s ’ A ssocia­
t io n , an unincorporated association, Appellants,

vs.

S chool  B oard of t h e  C it y  of N o rfolk , a body corporate, 
and C. W. M ason , Superintendent of Schools of Norfolk, 
Appellees.
Appeal from the District Court of the United States for 

the Eastern District of Virginia.

This Cause came on to be heard on the transcript of the 
record from the District Court of the United States for the 
Eastern District of Virginia, and was argued by counsel.

On Consideration Whereof, It is now here ordered, ad­
judged, and decreed by this Court that the order of the 
said District Court appealed from, in this cause, be, and the 
same is hereby, reversed with costs; and that this cause 
be, and the same is hereby, remanded to the District Court 
of the United States for the Eastern District of Virginia, 
at Norfolk, for further proceedings in accordance with the 
[fol. 51] opinion of the Court filed herein. Let mandate 
issue forthwith.

June 18, 1940.
• John J. Parker, Senior Circuit Judge.

On another day, to-wit, June 24, 1940, the mandate of 
this Court in this cause is issued and transmitted to the 
District Court of the United States for the Eastern District 
of Virginia, at Norfolk, in due form.

July 24, 1940, stipulation as to record for use on appli­
cation for writ of certiorari is filed. Note: This stipula­
tion appears at page 1 of the transcript of record.



46

C l e r k ’s C ertificate

U n ited  S tates  op A m e r ic a ,
Fourth Circuit, ss:

I, Claude M. Dean, Clerk of the United State Circuit 
Court of Appeals for the Fourth Circuit, do certify that 
the foregoing is a true copy of Appendix to brief of appel­
lants; Appendix to brief of appellees, and of the proceed­
ings in the said Circuit Court of Appeals in the therein 
entitled cause, as the same remain upon the records and 
files of the said Circuit Court of Appeals, and constitute 
and is a true transcript of the record and proceedings in 
the said Circuit Court of Appeals, made up in accordance 
with the stipulation of counsel for the respective parties, 
for use in the Supreme Court of the United States on an 
[fol. 52] application of the appellees for a writ of certiorari.

In Testimony Whereof, I hereto set my hand and affix 
the seal of the said United States Circuit Court of Appeals 
for the Fourth Circuit, at Richmond, Virginia, this 25th 
day of July, A. D., 1940.

Claude M. Dean, Clerk, U. S. Circuit Court of Ap­
peals, Fourth Circuit. (Seal)

(9161)



Supreme M  of me Onlieii M s
O c t o b e r  T e r m , 1940.

N o . . ^ yj

SCHOOL BOARD OF TH E C ITY  OF NORFOLK 
a n d  C. W. MASON, SU PERIN TEN D EN T OF 

SCHOOLS OF NORFOLK,

vs.
Petitioners,

M ELVIN O. ALSTON a n d  t h e  

NORFOLK TEACH ERS’ ASSOCIATION,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO 
THE UNITED STATES CIRCUIT COURT OF 

APPEALS FOR THE FOURTH CIRCUIT 
AND SUPPORTING BRIEF.

R. M. H u g h e s , J r ., 
A l f r e d  A n d e r s o n , 
J o n a t h a n  W. O l d , J r .,
W. C . C o u p l a n d ,

Counsel for Petitioners.



1

/



SUBJECT INDEX.
Page

Petition for Writ of Certiorari................................... 1

Summary and Contents of Brief...............................  9

Brief in Support of Petition.......................................  10

n



11

TABLE OF AUTHORITIES.
Page

Alston, et al. v. School Board of City of Norfolk, 
et al., 112 Fed. 2d, p. 992........................................ 3

American Jurisprudence, Vol. 11, pp. 1170 & 1171.19-26
American Law Reports, Vol. 75, p. 1352.................. 15
Bon Ton Cleaners & Dyers, Inc. v. Cleaning, Dye­

ing & Pressing Board, 176 Sou. 55.......................  28
Cooley on Constitutional Limitations, Vol. 1, pp.

368 and 369................................................................  26
Corpus Juris, Vol. 12, pp. 769, 770, 744; Vol. 56, 

pp. 382, 387, 422.......................................................16-25
Eustis v. Bolles, 150 U. S. 361, 37 L. Ed. 1111. . . 29
Heath v. Johnson, 15 S. E. 980..................................  15
Mills v. Lowndes, et al., 26 Fed. Supp. 792.............. 33
Mills v. Anne Arundel County Board of Education, 

et al,, 30 Fed. Supp. 245.......................................... 33
Mootz v. Belyea, 236 N. W. 358...............................17-34
Mo. ex rel Gaines v. Canada, 305 U. S. 337, 83 L.

Ed. 208..........................................................................5-24
Palumbo v. Fuller Company, 122 Atl. 63................. 28
People ex rel Fursman v. Chicago, 116 N. E. 158. . 7-22

Pierce v. Somerset Railway, 171 U. S. 641, 43 L.
Ed. 316........................................................................  29

Pierce Oil Corp. v. Phoenix Refining Company,
259 U. S. 125, 66 L. Ed. 855.................................. 31

Ruling Case Law, Vol. 24, p. 613.................................. 15

Seattle High School, etc. v. Sharpless, etc., 293 Pae.
994, 72 A. L. R. 1215...................................... 7-17-20-34



Ill

TABLE OF AUTHORITIES—Continued.
Page

Shepard, et als. v. Barron, 194 U. S. 553, 48 L. Ed.
1115..............................................................................  32

State ex rel Gumm, et als. v. Albritton, et als., 224 
Pac. 511...........................................  23

State v. Martin, 163 S. E. 850.................................... 15
^  United States v. Gale, 109 U. S. 65, 27 L. Ed. 857.. 5-27

Wall v. Parrott Silver & Copper Co., 244 U. S. 407,
61 L. Ed. 1229........................................................... 31

Washington v. State of Florida, 116 Sou. 470, 278 
U. S. 599, 73 L. Ed. 528...........................................5-26

White v. State of Oklahoma, 214 Pac. 202...............  28

Federal Rules of Civil Procedure, Rule 38 ............. 33

Norfolk City Charter (Acts of Assembly of Vir­
ginia, 1918, p. 31), Section 114..........................  13

Virginia Code— Section 611......................................  11
Section 680......................................  12
Section 786......................................  12
Section 664......................................  13

Virginia Constitution, Article IX — Section 130. . . 11
Section 133. . . 11
Section 140. . . 12

United States Code Annotated, Title 28, Sec. 347. 7



I

f



Supreme Gouri or lire Diittf Stales
O ctober  T er m , 1940.

No.

SCHOOL BOARD OF THE C ITY  OF NORFOLK 
a n d  C. W. MASON, SU PERIN TEN D EN T OF 

SCHOOLS OF NORFOLK,

vs.
Petitioners,

M ELVIN  O. ALSTON a n d  t h e  

NORFOLK TEACH ERS’ ASSOCIATION,
Respondents.

O N  A P P L I C A T I O N  F O R  A  W R I T  O F  C E R T I O R A R I  T O  T H E  U N I T E D  
S T A T E S  C I R C U I T  C O U R T  O F  A P P E A L S ,  F O U R T H  C I R C U I T .

PETITION .

To the Honorable, the Chief Justice, and the Associate 
Justices of the Supreme Court of the United States:

The petition of the School Board of the City of 
Norfolk, Virginia, a body corporate, and C. W. Mason, 
Superintendent of Public Schools of the City of Nor­
folk, Virginia, respectfully shows to this Honorable 
Court as follows:



1. The above entitled cause was a suit insti­
tuted in November, 1939, in the District Court of 
the United States for the Eastern District of Virginia, 
at Norfolk, against your petitioners by the respond­
ents, Melvin O. Alston, a negro teacher in the Public 
Schools of the City of Norfolk, and the Norfolk 
Teachers’ Association, an unincorporated association 
composed entirely of negro teachers in said Public 
Schools, for the purpose of obtaining a judgment de­
claring that the petitioners, in maintaining, as alleged, 
a salary schedule for teachers in the Public Schools of 
the City of Norfolk which fixes the salaries of negro 
teachers at lower rates than those paid white teachers, 
solely on account of race and color, violate the due 
process and equal protection clauses of the Fourteenth 
Amendment; and also to obtain an injunction to re­
strain petitioners from making any distinction solely 
on account of race and color in salaries of public school 
teachers.

2. In the answer filed by your petitioners, legal 
questions were presented under “ First,”  “ Second” and 
“ Third”  defenses, which petitioners claim preclude 
respondents from the relief asked. These legal defenses 
were (a) that neither C. W. Mason, Superintendent of 
Schools, nor the Norfolk Teachers’ Association, were 
proper parties to the suit, (b) that no constitutional 
rights of the respondent Melvin O. Alston had been 
violated, and (e) that he had waived such constitutional 
rights, if any he had, by voluntarily entering into and 
accepting employment under a written contract with 
said School Board to teach for ten school months 
beginning September 7, 1939 at a salary of $92.10 per 
month. (R. 20.)



Under the “ Fourth”  defense of said answer, peti­
tioners expressly denied that the differences between 
salaries paid negro teachers and white teachers were 
solely on grounds of race and color, as alleged in the 
complaint, but that they are determined by annual 
written contracts voluntarily entered into between the 
School Board and the individual teachers, and also 
denied that any eonsitutional rights had been violated. 
At the suggestion of the District Court, the legal 
questions raised by the “ First,”  “ Second” and “ Third”  
defenses of the answer were considered and disposed of 
in advance of a trial of the case on its merits, and the 
District Court held (1) that the said Melvin 0 . Alston 
and the School Board of the City of Norfolk were the 
only necessary parties to the suit; (2) that the said 
Melvin O. Alston having voluntarily entered into a 
contract with the said School Board to teach and 
having taught thereunder prior to the institution of 
this suit, had waived such eonsitutional rights, if any 
he has, which he seeks to enforce in this suit; and (3) 
dismissed the complaint. (R. 23, 30). All of the 
teachers in the respondent association were under 
similar contracts and their status with reference to 
employment is the same as that of the said Melvin O. 
Alston.

3. From the judgment of the District Court the 
respondents appealed to the Circuit Court of Appeals 
for the Fourth Circuit. On June 18, 1940, a decision 
was handed down reversing the decision of the District 
Court, the cause having been heard before Circuit 
Court Judges Parker, Soper and Dobie, Judge Parker 
having written the opinion. (R. 36). This opinion is 
reported in 112 Fed. 2d. at p. 992. The mandate was



4

issued forthwith, and before your petitioners could 
ask for a stay. When they received notice of the 
decision and asked for a stay of the mandate, in order 
to afford them an opportunity to apply to this Honor­
able Court for a writ of certiorari, they were advised 
to either ask this Honorable Court for a stay, or else 
file a petition for a recall of the mandate.

Your petitioners, therefore, ask that this Honor­
able Court enter the necessary order for the purpose of 
staying the mandate until this, its petition can be con­
sidered.

4. A transcript of the Record is herewith filed. 
The complaint is found at p. 4. The answer to the 
complaint is found at pp. 18 and 32. The opinion of 
the District Court is found at p. 23. The judgment of 
the District Court is found at p. 30, and the decision of 
the Circuit Court of Appeals is found at p. 36.

5. The legal questions involved are:

(1) Whether any constitutional rights of 
the respondents have been violated.

(2) Whether respondents have waived such 
constitutional rights, if any they have, in the 
premises.

m*

The merits of these questions will be discussed in 
the brief herewith filed in support of this petition, and 
no attempt will be made to elucidate these issues at 
this point.

6. We shall now undertake to state reasons why 
we contend that this is a case in which a writ of certior­
ari should be issued by the Supreme Court.



These reasons are:

A. The Appellate decision in this case has decided 
a Federal question, in a way probably in con­
flict with applicable decisions of this Honorable 
Court.

It is the individual who is entitled to the 
equal protection of the laws (Mo. ex rel Gaines 
v. Canada, 305 U. S. 337; 83 L. Ed. 208). This 
Court has consistently held that these indi­
vidual rights can be waived. Washington v. 
State of Florida, 278 U. S. 599; 73 L. Ed. 528; 
United States v..Gale, 109 U. S. 65; 27 L. Ed. 
857; and others cited in the supporting brief 
herewith.

The District Court applied these decisions 
to the respondents who voluntarily entered into 
contracts and taught thereunder without objec­
tion, and dismissed the complaint. The Appel­
late decision reversed this ruling.

B. The Appellate decision decides an important 
question of Federal law, which has not been, 
but should be settled by this Court.

This Court has decided the right of negroes 
to equal State facilities. (Mo. ex rel Gaines v. 
Canada, Supra). But it has not decided the 
important question of the right of voluntary 
contract between a School Board, a body cor­
porate under State laws, and teachers in the 
Public Schools of the State whereby the salaries 
of the teachers are agreed upon and determined.

The Appellate decision in this case holds 
in effect that such contracts are invalid unless 
the salaries of white and negro teachers sim­
ilarly situated are equal. The State is required 
to provide equal school facilities, but it does not



6

follow that salaries in Public Schools must be 
equal when determined by voluntary contracts.

The Constitution and Laws of Virginia 
provide for a system of Public Schools through­
out the State. They are operated and controlled 
by a State Board of Education and a School 
Board in each locality. The School Board of 
the City of Norfolk, as are other local School 
Boards, is controlled in its functions by State 
laws. The State Law and Constitution pro- ^
vide that separate schools shall be maintained 
to afford educational facilities to the children 
of the State and not for the purpose of affording 
anyone an opportunity to follow his vocation 
as a teacher. The teachers in Public Schools 
of Virginia are not under Civil Service and have 
no tenure of office. The School Boards of the 
respective localities are required by the State 
law to employ the teachers and to enter into 
annual written contracts with each in form 
prescribed by the State Board of Education, 
covering the service to be performed and the 
compensation to be received by the teacher.
Briefly stated, the relations between the School 
Board and the teacher is that of employer and 
employee. The applicable school laws are M
quoted in the supporting brief and will not be 
quoted at this point.

C. The Appellate decision decides a question of 
local law in a way probably in conflict with 
applicable local decisions.

Prior to the institution of this suit counsel 
for the respondents here instituted a suit in the 
Circuit Court of the City of Norfolk under the 
style of Aline Elizabeth Black v. your petitioners,
School Board of the City of Norfolk, a body cor­
porate, and C. W. Mason, Superintendent of



7

Schools of Norfolk, in ^hich the same allega­
tions and prayers were made as in the instant 
suit. The Court in that case dismissed the 
complaint. (R. 22). No appeal was taken and 
the judgment has become final. It is most 
probable that the Supreme Court of Appeals 
of Virginia would have affirmed this judgment.

School laws similar to those of Virginia have 
been upheld in the cases of Seattle High School, 

%  etc. v. Sharpless, etc., (Wash.), 293 Pac. 994;
72 A. L. R. 1215, and People ex rel Fursman v. 
Chicago, 1916, 116 N. E. 158. These are more 
fully considered in the supporting brief here­
with.

7. The jurisdiction of this Court is invoked 
under Section 240-a of the judicial code as amended 
by the Act of February 13, 1925, c. 229, Sec. 1, 43 
Stat. 938 (28 U. S. C. A., Sec. 347). The judgment of 
the Circuit Court of Appeals was entered on June 18, 
1940.

Wherefore, upon due consideration of this petition 
and the annexed brief and the certified copy of the 
record of the Circuit Court of Appeals for the Fourth 
Circuit filed herewith, the defendants and petitioners 
respectfully pray "That a stay of the mandate from the 
Circuit Court of Appeals of the Fourth Circuit in this 
case may be orderednhat a writ of certiorari be issued 
under the seal of this Court, directed to the United 
States Circuit Court of Appeals for the Fourth Circuit, 
commanding that Court to certify and send to this 
Court a full and complete transcript of the record of 
all proceedings had in this cause, to the end that the 
same may be reviewed and determined by this Honor­



8

able Court. And petitioners pray that upon a final 
consideration of this cause the said judgment of the 
Circuit Court of Appeals be reversed by this Honor­
able Court and that the judgment of the United States 
District Court be affirmed and judgment rendered in 
favor of the defendant.

Petitioners further pray for such other, equitable 
and general relief as may appertain to this case and as 
may be competent for this Honorable Court to grant.

R. M. H u g h e s , Jk.,
A lfred  A n d e r so n ,
Jo n ath a n  W . Old , Jr .,
W. C. C o u p la n d ,

Counsel for Petitioners.

State  op V ir g in ia ,
C it y  of N o rfo lk , to-w it:

Before me, the undersigned Notary Public, per­
sonally appeared R. M. Hughes, Jr., who being duly 
sworn, deposes and says: That he is a member of the 
bar of the Supreme Court of the United States, and is 
of counsel for petitioners herein; that he has read the 
foregoing application for a writ of certiorari; and that 
all of the facts therein stated are true and correct to 
the best of his knowledge and belief.

R. M. H u g h e s , Jr .

Subscribed and sworn to before me 
this 4th day of September, 1940.

Ju lia  K . G off ,
(Seal) Notary Public.

M y commission expires February 7, 1943.



9

SUMMARY AND CONTENTS OF BRIEF.

Page

I. No Constitutional Rights Violated...............  11

A. School Teachers in Virginia are Em­
ployees of School Board...........................  11

B. Equal Protection Clause of Fourteenth
Amendment not Applicable.....................  19

II. Respondents by Entering Into Contracts 
with School Board of City of Norfolk and 
Accepting Employment Thereunder, Waived 
Such Constitutional Rights, if any They
Have, That They Seek to Enforce..................  24

III. Differentiation of the Mills Cases from the
Instant Case........................................................  33

A. The Equal Protection Clause of the
Fourteenth Amendment Has No Appli­
cation to the Instant Case.....................  34

B. The Respondents Have Waived Any
Rights to the Relief for Which They 
Pray...............................................................  37



10

Court of me United stales
O ctober  T er m , 1940.

No.

SCHOOL BOARD OF THE C ITY  OF NORFOLK 
a n d  C. W. MASON, SU PERIN TEN D EN T OF 

SCHOOLS OF NORFOLK,
Petitioners,

vs.

M ELVIN  0 . ALSTON a n d  t h e  

NORFOLK TEACH ERS’ ASSOCIATION,
Respondents.

O N  A P P L I C A T I O N  F O R  A  W R I T  O F  C E R T I O R A R I  T O  T H E  U N I T E D  
S T A T E S  C I R C U I T  C O U R T  O F  A P P E A L S ,  F O U R T H  C I R C U I T .

BRIEF IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI.

In our petition we have briefly stated the legal 
questions involved. We will now consider these ques­
tions more fully and in the order named:



11

I .

No Constitutional Rights Violated.
♦

A. School Teachers in Virginia are Employees of School 
Board.

Sec. 130 of Article IX  of the Virginia Constitu­
tion, relating to education and public instruction, 

%  provides:

“ The general supervision of the school 
system shall be vested in a State Board of 
Education, to be appointed by the Governor, 
subject to confirmation by the General As­
sembly, and to consist of seven members.”

Sec. 133 of the same Article of the Virginia 
Constitution provides:

“ The supervision of schools in each county 
and city shall be vested in a school board, to 
be composed of trustees to be selected in the 
manner, for the term and to the number pro­
vided by law.”

%
In furtherance of the above provisions, Sec. 611 

of the Virginia Code provides:

“ An efficient system of public schools of a 
minimum school term of one hundred and sixty 
school days, shall be established and main­
tained in all of the cities and counties of the 
State. The public school system shall be ad­
ministered by the following authorities, to-wit: 
A State Board of Education, a superintendent 
of public instruction, division superintendent of 
schools and county and city School Boards.”



See. 140 of Article IX  of the Virginia Constitu­
tion provides:

“ White and colored children shall not be 
taught in the same school.”

Sec. 680 of the Virginia Code provides:

“ White and colored persons shall not be 
taught in the same school, but shall be taught 
in separate schools, under the same general 
regulations as to management, usefulness and 
efficiency.”

Neither of the above provides that the teachers in 
the schools for white children shall be white and those 
in the schools for colored children shall be colored.

There is no provision in either the Virginia Con­
stitution or the Virginia Code prescribing what salaries 
teachers in the public schools shall receive. This is 
left to the discretion of the School Board.

The School Board has a very wide discretion in 
the management of the public schools.

See. 786 of the Virginia Code, relating to the 
powers and duties of the School Board, provides, in 
so far as is material to this case, as follows:

“ The city school board of every city shall 
establish and maintain therein a general system 
of public free schools in accordance with the 
requirements of the Constitution and the gen­
eral educational policy of the Commonwealth 
for the accomplishment of which purpose it 
shall have the following powers and duties.



“ Third. To employ teachers from a list 
or lists of eligibles to be furnished by the divi­
sion superintendent and to dismiss them when 
delinquent, inefficient or in anywise unworthy 
of the position. . . .

“ Twelfth. To manage and control the 
school funds of the city, to provide for the pay 
of teachers and of the clerk of the board for 
the cost of providing school houses . . .” .

Sec. 664 of the Virginia Code relating to contracts 
with teachers provides, in so far as is material to this 
case, as follows:

“ Written contracts shall be made by the 
School Board with all public school teachers, 
before they enter upon their duties, in a form 
to be prescribed by the superintendent of 
public instruction. Such contracts shall be 
signed in duplicate, each party holding a copy 
thereof. . . .”

The State of Virginia has no tenure of office act 
covering teachers. They are expressly excluded from 
the civil service classification of city employees by 
Sec. 114 of the Norfolk Charter, which provides:

“ Officers who are elected by the people 
. . . the teachers in the public schools and
all other persons employed by the school board 
. . . shall not be included in such classified 
service . . .” . (Acts of Assembly of Virginia, 
1918, pp. 31, 85.)

The teachers in the public schools have no vested 
rights in the positions they hold. Each year they are



selected by the School Board in May or June to 
teach for the school term beginning in September 
following. Their term of service is not fixed by any 
law but by the provisions of the contract required by 
law. They have no special right or privilege to teach 
in the public schools of the city. These contracts are 
entered into between the School Board and the teacher 
each year, regardless of whether the teacher has taught 
in the public schools for prior years or is a beginner. 
The contract specifies the time for which employed, 
the rate of compensation, their duties, that they may 
be changed from one teaching position to another, 
and other phases of their employment. Under the 
Virginia law the School Board could, at the term 
beginning next September, contract with an entire 
new corps of teachers for all of the public schools of 
the City of Norfolk and none of the present teachers 
would have any legal redress in the matter.

The respondent Alston, by entering into such a 
contract, in writing, voluntarily executed by him and 
the School Board under date of June 12, 1939, agreed 
to teach in the public schools of the City of Norfolk 
for ten (10) school months beginning September 7, 
1939, for $92.10 per school month. At the time of the 
execution of these contracts respondents knew, or with 
reasonable diligence could have ascertained, the exact 
salary paid any other teacher in the public schools for 
the same term. The members of the Norfolk Teachers’ 
Association were all similarly situated.

From the foregoing provisions of Virginia law 
it is clear that public school teachers are not officers 
of the State or political subdivisions wherein they 
teach but are employees of the School Board.



15

In the case of Heath v. Johnson, (W. Va. 1892), 
15 S. E. 980, which involved a mandamus by a pub­
lishing company against a teacher in the public schools 
to require the teacher to use a certain text book, the 
same was refused, and the Court, at p. 982 of the 
opinion, said:

“ What we do decide is that a teacher in 
this State is not a public officer but is an em­
ployee . .

To the same effect is the decision in the case of 
State v. Martin, (W. Va.), 163 S. E. 850.

In 75 A. L. R., p. 1352, under the Annotation 
“ Status of teacher as an officer or employee,” the 
following appears, with a long citation of cases to 
support it:

“ The Courts are almost unanimous in hold­
ing that the position of teacher is that of an 
employee, resting on the contract of employ­
ment, and not that of public officer.”

In Ruling Case Law, Vol. 24, p. 613, under the 
subject of “ Schools,”  the following appears:

“ Under the general powers usually reposed 
in local school boards is included the power to 
enter into contracts with teachers and fix their 
compensation and term of employment.

“ The discretion of a school board in this 
respect is very broad, and the Courts will not 
interfere to aid one whom the board does not 
choose to employ.



“ The board has the absolute right to de­
cline to employ any applicant for any reason 
whatever or for no reason at all.

“ It is no infringement on the constitutional 
rights of anyone for the board to decline to 
employ him as a teacher in the schools and it is 
immaterial whether the reason for the refusal 
to employ him is because the applicant is 
married or unmarried, of fair complexion or 
dark, is or is not a member of a trade union, 
or whether no reason is given for such refusal.”

In 56 C. J., p. 422, under “ Schools and School
Districts,”  the following appears:

“ The amount or rate of compensation which 
a teacher is entitled to receive for his services 
depends upon the terms of the contract under 
which he is employed.”

and at p. 382:

“ A teacher, who has been appointed to the 
position and accepted it, from the time of his 
acceptance stands in a contract relation as 
distinguished from the tenure or holding of a 
public officer. He holds his position by con­
tract and not at the will of the sovereign 
power.”

and at p. 387:

“ Except in so far as they be restricted or 
limited by statute, or by a rule or regulation 
of the school board, a school board of officers 
authorized to contract with teachers have the 
power to fix the salaries to be paid them, free 
from interference by other municipal authori­
ties.”



In the case of Mootz v. Belyea, et als., (N. D.), 
236 N. W. 358, a written contract between the teacher 
and the School Board had been executed. Thereafter 
the School Board refused to let the teacher teach 
and employed another in her place. The teacher 
brought a mandamus against the School Board to 
require it to install her as a teacher in the public 
schools, claiming that she had been denied the use and 
enjoyment of a right or office. The Court denied the 
mandamus, stating that her remedy in the case was 
for the recovery of her salary under the contract and 
as to that she had an adequate remedy at law, and in 
the course of its opinion, stated:

“ It is the claim of the appellant that she 
is being denied the ‘use and enjoyment of a 
right or office’ to which she is entitled. Whether 
her contract gives her a right or office depends 
upon her relationship to the school board and 
her right under her contract. The duty of 
employing teachers is vested in the school 
board, and this is done by contract. The rela­
tionship is purely contractual in this State. 
There is no fixed tenure of office when a teacher 
is employed other than the pension set forth 
in the contract. In this State the profession is 
not under civil service rules. When a teacher is 
employed by a school district she is not em­
ployed as an officer and she does not become 
an officer. Her rights are measured by the 
terms of her contract.”

In the case of Seattle High School, etc. v. Sharp­
less, etc., (Wash.), 293 Pac. 994, 72 A. L. R. 1215, 
which involved the employment of a teacher, and 
from which it appears that the statutes relating to



such are similar to those in Virginia, the Court, in 
defining the relationship between the School Board 
and the teacher, said:

“ The employment of teachers is a matter 
of treaty or voluntary contract. Both parties 
must consent and be mutually satisfied and 
agreed. On the part of each it is a matter of 
choice and discretion. However, though quali­
fied, no teacher has the legal right to teach in 
the schools until the directors willingly enter 
into a contract for that purpose. Unless limited 
by statute in some way, the board is entitled 
to the right of freedom of contract as much as 
the teachers are.”

In the Opinion of the Judge of the District Court, 
the following appears:

“ Whatever may be the law in other States, 
there is no doubt that in Virginia a person 
can not under the law as it now exists and has 
existed for many years, acquire a status as a 
teacher, which gives him certain rights that 
must be respected, independently of a con­
tract with the board as a teacher. In Virginia 
the relation is not a continuing one, but can 
be created only by a contract with the school 
board in a particular jurisdiction. It con­
tinues for only one school year at a time, with 
the absolute right on the part of the school 
board not to contract again with the particular 
person. The board may decline to contract 
again with such person without rhyme or 
reason for such refusal and in that particular 
part of the board’s procedure there manifestly 
has been no discrimination on account of race 
or color, for the simple reason that the board



can, after the expiration of the school year, 
decline to have any further contractual rela­
tions with an applicant to teach, whether such 
applicant be white or colored.”  (R. 27.)

B. Equal Protection Clause of Fourteenth Amendment 
not Applicable.

The Virginia Constitution and Code as set out 
above provide that an efficient system of public free 
schools shall be established and maintained throughout 
the State.

The object of this is to afford educational advan­
tages to the children of the State, not to afford oppor­
tunities for persons to follow their vocation as teachers.

The gist of the equal protection clause of the Four­
teenth Amendment is to extend to all citizens sub­
stantially equal treatment in facilities provided from 
public funds.

The school facilities provided from public funds 
are the right to attend school, not the right to teach 
in a public school. While it may be incumbent on 
the School Board to maintain schools for the education 
of children, it is not incumbent on them to maintain 
a place for one to follow his vocation as a teacher.

In American Jurisprudence, Vol. 11, at page 1171, 
under “ Constitutional Law,”  the following appears:

“ In those cases which have considered 
employment contracts from the standpoint of 
the employer, the Courts have held that it is 
clear that the right of an employer to employ 
labor is necessarily included in the constitu­
tional guaranty of the right to property. The



20

employer may, generally speaking, enter into 
labor contracts with such individuals as he 
chooses. Thus, the refusal of the board of 
directors of a school district empowered to 
employ teachers to engage a certain person, for 
any reason or no reason at all, is in no sense a 
denial of the constitutional right, guaranteed 
by the due process of law provision, of that 
person to follow his chosen profession.”

In the case of Seattle High School, etc. v. Sharpless, 
etc., Supra, the school directors adopted a resolution:

“ That no person be employed hereafter,
or continued in the employ of the District as
a teacher while a member of the American
Federation of Teachers, or any local thereof 

11

The plaintiff claimed the resolution was uncon­
stitutional. The Court held the same valid.

The laws of the State of Washington governing 
the operation of public schools were similar to those of 
Virginia in this respect and authorize the school 
directors: 0

“ First: To employ for not more than one 
year, and for sufficient cause to discharge 
teachers, and to fix, alter, allow and order paid 
their salaries and compensation . . .”

The Court, in its opinion sustaining the resolution 
of the board, said with reference to the status of 
teachers:

“ The employment of teachers is a matter 
of treaty or voluntary contract. Both parties



21

must consent and be mutually satisfied and 
agreed. On the part of each, it is a matter of 
choice and discretion. However, though quali­
fied, no teacher has the legal right to teach in 
the schools until the directors willingly enter 
into a contract for that purpose. Similarly the 
directors have no legal right to the services of 
any teacher until the teacher voluntarily enters 
into a contract for that purpose. Unless limited 
by statute in some way the board is entitled 
to the right of freedom of contract, as much so 
as the teachers are.”

It was also claimed by the plaintiff that the 
resolution violated the Constitution of Washington 
State and the Fourteenth Amendment to the Con­
stitution of the United States. As to this the Court 
said:

‘ ‘Quoting Article 1, Sec. 3, of the State 
Constitution, viz., ‘No person shall be deprived 
of life, liberty, or property without due process 
of law,’ and also the Fourteenth Amendment 
to the Constitution of the United States on 
the same subject, it is argued on behalf of 
appellants that thereunder the right of a teacher 
to follow his chose profession is too elementary 
to require any discussion. Granted, but there 
is no question of that kind in this case. The 
right of freedom of contract as it exists in this 
case to refuse for any reason or no reason at 
all to engage the professional services of any 
person is in no sense a denial of the constitu­
tional right of that person to follow his chosen 
profession. . . . Nor can the Courts be suc­
cessfully invited into a consideration of the 
policy of the resolution, for that would lead 
to supervisory control of judgment and dis­



2 2

cretion in the selection and employment of 
teachers which the statute has given exclu­
sively to the board of directors.”

In the case of People ex rel Fursman v. Chicago, 
(1916), 116 N. E. 158, the issue was whether the Board 
of Education had the right in the selection of teachers 
to discriminate between those who were members of 
a federation or union and those who were not members 
of any such federation or union, and whether its 
action in such regard violated any constitutional or 
statutory provision.

The Court held the Board of Education had such 
right and that no such constitutional provision was 
violated.

From the opinion it appears that the Illinois school 
laws were similar to those of Virginia. At page 160 
the Court said:

“ By the statute the Board of Education 
in cities having a population of 100,000 or 
more is given complete control of the schools 
of the city. Among its powers is that of em­
ploying teachers and fixing the amount of their 
compensation . . . The Board has no power 
to make contracts for the employment of 
teachers to extend beyond the ensuing school 
year, . . .  A new contract must be made 
each year with such teachers as it desires to 
retain in its employ. No person has a right to 
demand that he or she shall be employed as a 
teacher. The Board has the absolute right to 
decline to employ or to re-employ any applicant 
for any reason whatever or for no reason at all. 
The Board is responsible for its action only to 
the people of the city, from whom, through



23

the mayor, the members have received their 
appointments. It is no infringement upon the 
constitutional rights of anyone for the Board 
to decline to employ him as a teacher, in the 
schools, and it is immaterial whether the reason 
for the refusal to employ him is because the 
applicant is married or unmarried, is of fair 
complexion or dark, is or is not a member of a 
trades union, or whether no reason is given for 
such refusal. The Board is not bound to give 
any reason for its action. It is free to contract 
with whomsoever it chooses. Neither the Con­
stitution nor the statute places any restriction 
upon this right of the Board to contract, and 
no one has any grievance which the Courts will 
recognize simply because the Board of Educa- 
cation refuses to contract with him or her. 
Questions of policy are solely for determination 
of the Board, and when they have once been 
determined by it the Courts will not inquire 
into their propriety.”

In the case of State ex rel Gumm, et als. v. Albritton, 
et als., (Okla. 1923), 224 Pac. 511, it appears that the 
county superintendent discharged the negro members 
of the School Board of the School District in which 
a majority of the population was of the colored race, 
and appointed white persons on the Board.

The action was brought to oust the white mem­
bers of the Board and have colored members adjudged 
the lawful members of said School Board. This the 
Court refused to do.

At p. 512 of the opinion, the Court said:

“ It is contended by plaintiff in error that 
the said action of the county superintendent in



24

the instant case violates the Fourteenth Amend­
ment to the Constitution of the United States, 
in that such action of said county superintend­
ent, in discharging the colored members and 
appointing defendants in error, was a denial of 
the equal protection of the law to the colored 
children. However, no authorities are cited 
thereunto. It does not appear, nor did plaintiff 
in error offer to show, that by the action of 
said county superintendent in designating the 
colored school as the separate school, or by 
the change of the personnel of the said board, 
the facilities or accommodations for the colored 
children of such district were not rendered 
impartial, as compared with those of the white 
children.”

and at p. 513:
“ However arbitrary the action of suc^ 

superintendent may seem, it cannot be said j
that the equal protection clause of said Four­
teenth Amendment is violated, because it is 
now shown that accommodations of facilities 
equal, though not identical, with those of white 
children, are afforded to the colored children.”

Respondents By Entering Into Contracts With School 
Board of City of Norfolk and Accepting Employ= 

ment Thereunder, Waived Such Constitutional 
Rights, If Any They Have, That They 

Seek to Enforce.

The respondents’ rights, if they have any, are 
personal to them as individuals. It is as individuals 
that they are entitled to the equal protection of the 
laws. (Mo.  v. Canada, 305 U. S. 337, 83 L. Ed. 208.)

II.



The respondents, as stated above, have voluntarily 
contracted in writing with the School Board to teach 
for the current school term for a stipulated salary. 
This contract antedates the filing of these proceedings 
by them. There is no complaint that the School Board 
has breached any part of its contract.

While we do not consider, for reasons set forth 
above, that any constitutional rights of the respond­
ents have been denied, yet, in any event, they have 
waived the same, and are accordingly estopped to 
prosecute this cause.

In 12 C. J., at p. 769, under the heading “ Con­
stitutional Law,”  the following appears:

“ A person may by his acts, or omission to 
act, waive a right which he might otherwise 
have under the provisions of the Constitution.”

and at p. 770:

“ The waiver of a Constitutional provision 
precludes the party waiving it from afterwards 
claiming protection under it, even though it 
was adopted solely for his benefit, and such a 
waiver is binding as to both past and future 
transactions.”

and at p. 774:

“ But those Constitutional guaranties, which 
are in the nature of personal privileges of the 
accused, may be waived by him and therefore 
he may not question the Constitutionality of 
the statute under which he has made such a 
waiver.”



In 11 American Jurisprudence, at p. 1170, under 
“ Constitutional Law,”  appears the following:

“ It has repeatedly been held that the right 
of a laborer to enter into contracts for his ser­
vices is property within the meaning of the 
Constitutional guaranties.”

In Cooley on Constitutional Limitations, Vol. 1, 
p. 368, the author says:

“ Where a Constitutional provision is de­
signed for the protection solely of the property 
rights of the citizen, it is competent for him to 
waive the protection and to consent to such 
action as would be invalid if taken against his 
will.”

and at p. 369:
“ On this ground it has been held that an 

act appropriating the private property of one 
person for the private purpose of another, on 
compensation made, was valid if he whose 
property was taken assented thereto and that 
he did assent and waive the Constitutional 
privilege, after he received the compensation 
awarded or brought an action to recover it.”

and again at p. 368:
“ There are cases where a law in its appli­

cation to a particular case must be sustained 
because the party who makes the objection has 
by his prior action precluded himself from being 
heard against it.”

The case of Washington v. State of Florida, 116 
Southern 470, in which a writ of certiorari was denied 
by the Supreme Court of the United States, 278 U. S.



27

599, 73 L. Ed. 528, involved the exclusion of negroes 
from juries. Herein the accused claimed he had been 
denied equal protection of the laws guaranteed him 
by the Fourteenth Amendment to the Federal Con­
stitution.

The Florida Supreme Court in this case held:

“ While an unlawful discrimination against 
negroes because of their race or color practiced 

^  by an officer in summoning jurors may render
the act of summoning illegal, the panel of 
jurors may not be illegal.”

“ Where a jury that is competent under 
the law and that is impartial as is required by 
the Constitution has been tendered it may be 
accepted by the accused who thereafter waives 
his right to object to the panel on the ground 
that in summoning the jurors members of his 
race were discriminated against, there being 
no duress or other improper influence to em­
barrass or injure the accused.”

In the case of United States v. Gale, 109 U. S. 65, 
27 L. Ed. 857, which was a criminal case wherein there 
was an irregularity in selecting the grand jury which 
found the indictment, the accused plead not guilty 
and went to trial without making any objection as to 
the grand jury selection, and after conviction raised 
the Constitutionality of the same. The Court said:

“ The second question, as to the Con­
stitutionality of the 820th Section of the revised 
statutes . . .  is not an essential one in this 
case inasmuch as by pleading not guilty to 
the indictment and going to trial without 
making any objection to the mode of selecting 
the grand jury, such objection was waived.”



In the case of Bon Ton Cleaners and Dyers, Inc. v. 
Cleaning, Dyeing and Pressing Board, February, 1937, 
Florida, 176 Southern 55, certain parties who signed 
a specific agreement with all other parties in a certain 
area to observe price-fixing regulations of said Clean­
ing, Dyeing and Pressing Board in the County, prior 
to the time order prescribing regulations was entered, 
were held precluded from questioning the constitu­
tionality of the statute authorizing price-fixing for 
such business.

In the case of White v. State of Oklahoma, 214 
Pac. 202, which was a criminal case, the jury was 
sworn and the County attorney then asked leave to 
amend the information. The information was amended 
and the defendant asked for and was given twenty- 
four hours to plead to the amended information. The 
jury then impaneled was without objection on the 
part of the defendant discharged. Several days there­
after when the case came to trial on the amended in­
formation the accused filed a plea in bar claiming for­
mer jeopardy. The Court held the plea was properly 
overruled by the lower court on the ground that the 
accused had waived his rights in the matter and, at 
p. 205 of the opinion, said:

“ Where a Constitutional right is for the 
sole benefit of the accused, in the nature of a 
privilege, that right may be waived by express 
consent, or by implication from conduct in­
dicative of consent, or by failure to claim or 
assert the right in seasonable time.”

In Palumbo v. Fuller Co., Conn., 122 Atl. 63, 
the employer appealed from an award for claimant.



29

One of the grounds assigned was the alleged uncon­
stitutionally of the Workmen’s Compensation Act. 
The Court, at p. 65, said:

“ A ground of appeal that is fundamental 
is a claim that the Commissioner erred in not 
holding that Section 5345 is unconstitutional; 
as this question is independent of the finding 
it may be considered at the outset.

*

“ The acceptance of Part B of the Act is 
voluntary on the part of an employer. When 
he so accepts the Act, he cannot thereafter 
urge that its provisions are ineffective in whole 
or in part because of any impairment of the 
constitutional rights of an employer. This 
reason of appeal cannot be sustained.”

In the case of Pierce v. Somerset Railway, 171 
U. S. 641, 43 L. Ed. 316, which involved a railroad 
mortgage and whether a State statute impaired the 
obligation of the contract, the Court, at p. 648, said:

^  “ A person may by his acts or omission to
act waive a right which he might otherwise 
have under the Constitution of the United 
States, as well as under a statute, and the 
question whether he has or has not lost such 
right by failure to act, or by his action, is not a 
Federal one.”

In the case of Eustis v. Bolles, 150 U. S. 361, 37 
L. Ed. 1111, the validity of insolvency proceedings 
had under a Massachusetts statute was involved. 
The Court said:



30

“ The defendants in the trial court de­
pended on a discharge obtained by them under 
regular proceedings, under the insolvency stat­
utes of Massachusetts. This defense the plain­
tiffs met by alleging that the statutes, under 
which the defendants had procured their dis­
charge, had been enacted after the promissory 
note sued on had been executed and delivered, 
and that, to give effect to a discharge obtained 
under such subsequent laws, would impair the 
obligation of a contract, within the meaning ™~~
of the Constitution of the United States. Upon 
such a state of facts, it is plain that a Federal 
question, decisive of the case, was presented, 
and that if the judgment of the Supreme 
Judicial Court of Massachusetts adjudged that 
question adversely to the plaintiffs, it would be 
the duty of this Court to consider the sound­
ness of such judgment.

“ The record, however, further discloses 
that William T. Eustis, represented in this 
Court by his executors, had accepted and 
receipted for the money which had been awarded 
him, as his portion, under the insolvency pro­
ceedings, and that the Court below, conceding 
that his cause of action could not be taken from Jfc
him, without his consent, by proceedings under 
statutes of insolvency passed subject to the 
vesting of his rights, held that the action of 
Eustis, in so accepting and receipting for his 
dividend in the insolvency proceedings, was a 
waiver of his right to object to the validity of 
the insolvency statutes, and that, accordingly, 
the defendants were entitled to the judgment.”

The Supreme Court of the United States did not 
disturb the aforesaid ruling of the Massachusetts Court.



31

*

In the case of Wall v. Parrott Silver & Copper Co., 
244 U. S. 407, 61 L. Ed. 1229, the Court said:

“ There remains the contention that the 
statutes of Montana which we have epitomized, 
if enforced, will deprive the appellants of their 
property without due process of law because 
they provide that sale may be made of all the 
assets of the corporation when authorized by 
not less than two-thirds of the outstanding 
capital stock of the corporation, and that the 
plaintiffs must accept either the payment for 
their shares which this large majority of their 
associates think sufficient, or, if they prefer, 
the value in money of their stock, to be deter­
mined by three appraisers, or, still at the 
election of the appellants, by a court and jury.

“ This record does not call upon us to 
examine into this challenge of the validity of 
these statutory provisions, similar as they are 
to those of many other States and of a seem­
ingly equitable character, for the reason that 
the appellants, by their action in instituting a 
proceeding for the valuation of their stock, 
pursuant to these statutes, which is still pend­
ing, waived their right to assail the validity 
of them.”

In the case of Pierce Oil Corporation v. Phoenix 
Refining Company, 259 U. S. 125, 66 L. Ed. 855, 
which involved the making of a pipe line company a 
common carrier, the Court held:

“ The right of a foreign corporation to be 
secure against the imposition of conditions 
upon its right to do business which amount to 
a taking of its property without due process of 
law may be waived, or the right to claim it



32

barred, by deliberate election, or by conduct 
inconsistent with the assertion of such right.”

In the case of William Shepard, et als. v. Barron, 
194 U. S. 553, 48 L. Ed. 1115, the constitutionality of 
an act regarding assessments against abutting property 
owners for improvements was assailed because the 
act provided that the assessments should be made on a 
front foot basis and not according to the special bene­
fits derived.

The plaintiffs had by petition requested the work 
and impliedly agreed to pay for the same on the front 
foot assessment basis.

The Court held that they had waived any con­
stitutional rights they might have, and at p. 566 of the 
opinion said:

“ It is, therefore, upon these facts, im­
material that the law under which the pro­
ceedings were conducted was unconstitutional, 
because the work was done at the special re­
quest of the owners, under the provisions of 
the act, and upon a contract, both implied and 
in substance expressed, that the bonds would 
be paid, and the assessment to be imposed for 
the raising of a fund to pay them would be 
legal and proper.”

and at p. 568 said:
“ Provisions of a constitutional nature, in­

tended for the protection of the property owner, 
may be waived by him, not only by an instru­
ment in writing, upon a good consideration, 
signed by him, but also by a course of conduct 
which shows an intention to waive such pro­
vision. . .

r



One of the most sacred personal rights is that of 
trial by jury. The Seventh Amendment to the United 
States Constitution provides that in suits at common 
law the right of trial by jury should be preserved. The 
rules of civil procedure promulgated for the District 
Courts by the Supreme Court of the United States 
provide that the failure of a party to demand a jury 
as required by the Rules shall constitute a waiver by 
him of trial by jury (Rule 38). If one can waive his 
right to trial by jury by his mere inaction, surely the 
respondents can waive their rights in the Fourteenth 
Amendment, if any they have, by a contract in writing 
voluntarily executed by them.

The cases cited by respondents in the lower courts 
dealing with the question of waiver in matters of com­
pensation relate to salaries the amount of which are 
definitely fixed and prescribed by law, the Courts hold­
ing in such cases that an acceptance of any less amount 
would be contrary to public policy and place the posi­
tions for said salaries in the category of barter and 
exchange. In the instant case the salaries are not 
fixed by law but are left as a matter of contract between 
the teachers and the School Board.

III.

Differentiation of the Maryland Cases From the
Instant Case.

T h e  M a r y l a n d  C a s e s .

The two cases of Mills v. Lowndes, et al., 26 Fed. 
Supp. 792, (D. C., Md. 1939), and Mills v. Anne 
Arundel County Board of Education, et al., 30 Fed.



Supp. 245, (D. C., Md. 1939), were quoted from and 
cited with such frequency by respondents in the lower 
courts as being directly in point with the instant case 
that petitioners are prompted to deal with the same at 
some length and apply the facts and conclusions of 
those cases to the issues of constitutional rights and 
waiver as raised herein.

A. The Equal Protection Clause of the Fourteenth 
Amendment Has No. Application to the Instant Case.

The plaintiff, Mills, pursuant to Maryland school 
laws, was employed under a continuing contract which 
required an oath of office to be taken and subscribed. 
He further, after the expiration of a probationary 
period, became possessed of a right of property in his 
teaching position by virtue of tenure and could only 
be dismissed for stated cause, and after opportunity 
to be heard in his own defense. The respondent Alston, 
as are all other teachers in the public schools of Norfolk, 
on the other hand, is employed only on an annual 
basis and having no tenure of office, is possessed of 
no vested interest therein.

The case of Mootz v. Belyea, Supra, discusses 
fully the rights accruing to and the differences existing 
between a teacher with a fixed tenure of office and a 
teacher whose relationship of employment is purely 
contractual, how, if improperly dismissed, the former 
could proceed by mandamus for reinstatement but 
the latter would be relegated to an action for damages 
under the contract.

It is the contention of petitioners that respondents 
having no rights to employment (Seattle High School, 
etc. v. Sharpless, Supra) and having no vested interests



35

in their positions after employment, are therefore 
without rights to be protected by the equal protection 
clause of the Fourteenth Amendment. The plaintiff 
Mills, however, while not possessing any right to 
employment, subsequent thereto, did acquire a vested 
right in his position and consequently a fixed property 
right therein to protect.

District Judge Chestnut distinguishes between the 
^  plaintiff Mills as a public employee and as a teacher 

by occupation in holding that the action could be 
maintained for violation of constitutional rights, 
stating:

“ I conclude, therefore, that the plaintiff 
does have a status, not as a public employee, 
but as a teacher by occupation, which entitles 
him to raise the constitutional question.”

Early in his opinion, however, he recognized the 
question as being one on which there is little available 
judicial authority and makes this pertinent observa­
tion:

“ In view of the fact that the amendment 
has been in force for 75 years, the absence of 
authority on the point is itself rather significant 
in the indication that it has not heretofore been 
thought the amendment applied to such a 
case.”

It is submitted that the conclusion reached by 
Judge Chestnut is predicated upon the status of the 
plaintiff Mills and is only intended to embrace those 
teachers by occupation who possess a fixed tenure of 
office.



3 6

Correlated with the question of whether con­
stitutional rights have been violated, is the factor of 
discretion in employment and salary fixing by the 
local board in the instant case. Judge Chesnut stresses 
the Maryland statutes prescribing minimum rates of 
pay and their application, stating:

“ Each County Board in cooperation with 
the County Commissioner as to the tax rate is 
free to determine the amount and quality of 
its educational facilities and has power to 
select its teachers and determine their com­
pensation. It may, in the exercise of its lawful 
discretion, decide whether to employ white or 
colored teachers for the colored schools; nor is it 
required to employ any particular teacher, whether 
white or colored, although duly qualified. And \ 
it may be observed that if the minimum salary 
schedules were written out of the law as uncon­
stitutional, the local Boards will have unlimited 
discretion as to the amount to be paid the teachers.”  
(Italics ours.)

It is also to be noted that an injunction was denied 
to the extent prayed for that colored teachers and 
principals shall not receive less salaries than white 
teachers and principals filling equivalent positions in 
the public schools.

The State of Virginia has no statute prescribing 
rates of pay, minimum or maximum, for teachers and 
principals in the public schools, but leaves the deter­
mination thereof entirely within the discretion of the 
local board to be incorporated in voluntary contracts.



37

B. The Respondents Have Waived Any Rights to the 
Relief for Which They Pray.

In the two Mills cases the contract of employment 
does not fix or designate the rate of pay but provides 
only that it shall not be less than the minimum salary 
provided by law. There is, therefore, no agreement as 
to salary and consequently no basis for waiver therein. 
In addition the plaintiff Mills was the principal of a 
colored elementary school, the minimum salary for 
which is not prescribed by the State of Maryland’s 
minimum statutes.

In the instant case the actual rate of pay is fixed 
by agreement in the contract of employment.

Respectfully submitted,

R. M. H u g h e s , Jr .,
A l f r e d  A n d e r s o n , 
J o n a t h a n  W. O l d , J r .,
W. C . C o u p l a n d ,

Counsel for Petitioners.



0

I



£



f *

m





*
i



IN THE

Court of tfyr Unttrfo States
O ctober T e r m , 1940

No. 429

S chool  B oard of t h e  C it y  of N orfolk  and  C . W . M ason , 
^ S u p e r in t e n d e n t  of S chools of N o rfo lk ,
* Petitioners,

v.

M e l v in  0 .  A lston  and  t h e  N orfolk  T e a c h e r s ’ A ssociation ,
Respondents

MEMORANDUM BRIEF IN OPPOSITION TO PETITION  
FOR CERTIORARI

L eon  A . R an som
1512 Girard Street, N.E. 
"Washington, D. C.

T hurgood  M arsh a ll  
Baltimore, Md.

Counsel for Respondents
W il l ia m  H . H astie 

'Washington, D. C.
O liver  W . H il l  

Richmond, Va.
B e n j a m in  K a p l a n  

New York, N. Y.
AY. R obert M in g , J r .

Chicago, 111.
Of Counsel

Printed by Law Reporter Ptg. Co., 518 5th St., Washington, D. C.



t

/*



SUBJECT INDEX
PAGE

Statement of Facts-----------------------------------------------------  1

Questions Involved-----------------------------------------------------  3

Argument
I. The decision that the alleged salary discrimination

is a denial of equal protection of the laws is so 
clearly sound and consistent with precedent that 
it should not be reviewed______________________ 3

A. There is no conflict in the federal decisions
on this proposition--------------------------------  3

B. There is no conflict between the decision
of the Circuit Court of Appeals and ap­
plicable local decisions_________________ 4

C. The decision of the Circuit Court of Appeals
is consistent with the course of decisions 
of this court construing the Fourteenth 
Amendment to the Constitution of the 
United States_________________________  5

II. The issue of waiver should not be reviewed upon
the present record-------------------------------------------- 6

Conclusion ___________________________________________ 9



TABLE OF CASES
PAGE

Black v. School Board of the City of Norfolk (Unre-
ported) ------------------------------------------------------------------  5

Buchanan v. Warley, 245 U. S. 60---------------------------------- 6
Ex parte Virginia, 100 U. S. 339-----------------------------------  6
Gaines v. Missouri, 305 U. S. 337-----------------------------------  6
Gilbert v. Highfill, — Fla. —, 190 So. 813----------------------  5
Lane v. Wilson, 307 U. S. 268__________________________  6
McCabe v. A. T. & Santa Fe By. Co., 235 U. S. 151----------- 6
Mills v. Anne Arundel County Board of Education, et al.,

30 F. Supp. 245_____________________________________  4
Mills v. Lowndes, et al., 26 F. Supp. 792------------------------  4
Nixon v. Condon, 286 U. S. 73--------------------------------------- 6
Pierre v. Louisiana, 306 U. S. 354______________________  6
Strauder v. West Virginia, 100 U. S. 303------------------------  6
Truax v. Raich, 239 U. S. 33------------------------------------------  6
Yick Wo v. Hopkins, 118 U. S. 220_____________________  6
Yu Cong Eng v. Trinidad, 271U. S. 500_________________ 6

4

STATUTES AND RULES CITED

Virginia Code:
Section 664 ____________________________________  7
Section 786 ____________________________________  7

Federal Rules of Civil Procedure:
Rule No. 7 (a )_____________________________    8
Rule No. 8 (c )__________________________________  8



IN THE

^u prp m p  ( t a r t  o f  tljr lln ttrii S ta te s
O ctober T e r m , 1940

No. 429

S ch ool  B oard of t h e  C it y  of N orfolk  an d  C. W . M aso n , 
S u p e r in t e n d e n t  of S chools of N o rfo lk , 

Petitioners,

v.

M e l v in  0 .  A lsto n  an d  t h e  N orfolk  T e a c h e r s ’ A ssociation ,
Respondents

MEMORANDUM BRIEF IN OPPOSITION TO PETITION  
FOR CERTIORARI

To the Honorable, the Chief Justice, and the Associate
Justices of the Supreme Court of the United States:

In opposing the petition for certiorari filed by petitioners 
herein, respondents respectfully show:

STATEMENT OF FACTS

Petitioners seek review of a judgment rendered upon 
pleadings. The judgment does not accomplish a final dis­
position of the case but merely decides that the complaint 
is legally sufficient and orders a trial of the controversy for 
the first time on its merits.

Respondents as plaintiffs in the District Court of the 
United States for the Eastern District of Virginia filed their 
complaint against the defendant School Board and the 
defendant Superintendent of Schools seeking a permanent



2

injunction against, and a judgment declaratory of, alleged 
unconstitutional racial discrimination in administratively 
established schedules of salaries for white and colored 
teachers in the City of Norfolk and in the salaries actually 
paid pursuant to such schedules. The essence of the com­
plaint appears in paragraphs 11 and 12 thereof where it 
is alleged that:

“ 11. Defendants over a long period of years have con­
sistently pursued and maintained and are now pursuing 
and maintaining the policy, custom, and usage of pay­
ing Negro teachers and principals in the public schools 
of Norfolk less salary than white teachers and prin­
cipals in said public school system possessing the same 
professional qualifications, certificates and experience, 
exercising the same duties and performing the same 
services as Negro teachers and principals. Such dis­
crimination is being practiced against the plaintiffs and 
all other Negro teachers and principals in Norfolk, 
Virginia, and is based solely upon their race or color.”

‘ ‘ 12. The plaintiff Alston and all of the members of the 
plaintiff association and all other Negro teachers and 
principals in public schools in the City of Norfolk are 
teachers by profession and are specially trained for 
their calling. By rules, regulations, practice, usage 
and custom of the Commonwealth acting by and through 
the defendants and its agents and agencies, the plain­
tiff Alston and all of the members of the plaintiff asso­
ciation and all other Negro teachers and principals in 
the City of Noi'folk are being denied the equal protec­
tion of the laws in that solely by reason of their race 
and color they are being denied compensation from 
public funds for their services as teachers equal to the 
compensation provided from public funds for and being 
paid to white teachers with equal qualifications and 
experience for equivalent services pursuant to rules, 
regulations, custom and practice of the Commonwealth 
acting by and through its agents and agencies, the 
School Board of the City of Norfolk and the Superin­
tendent of Schools of Norfolk, Virginia.”  (Record, 
pp. 7, 8.)



3

As appears in the judgment of the District Court (Record, 
pp. 30-31), the cause came on, at the suggestion of the Dis­
trict Judge, for preliminary hearing solely upon the issue 
of the legal sufficiency of the complaint as raised by so much 
of the answer as was in the nature of a motion to dismiss. 
Upon such hearing the District Court entered a final order 
sustaining the motion to dismiss the complaint. From that 
order the respondents appealed. The Circuit Court of Ap­
peals for the Fourth Circuit reversed the judgment of the 
District Court and remanded the cause for trial (Record, 
p. 45).

QUESTIONS INVOLVED

I. THE DECISION THAT THE ALLEGED SALARY 
DISCRIMINATION IS A DENIAL OF EQUAL PRO­
TECTION OF THE LAWS IS SO CLEARLY SOUND 
AND CONSISTENT WITH PRECEDENT THAT IT 
SHOULD NOT BE REVIEWED.

II. THE ISSUE OF W AIVER SHOULD NOT BE 
REVIEWED UPON THE PRESENT RECORD.

ARGUMENT

I

The Decision That the Alleged Salary Discrimination Is a 
Denial of Equal Protection of the Laws Is So Clearly 

Sound and Consistent W ith Precedent That 
It Should Not Be Reviewed

A. There Is No Conflict in the Federal Decisions on This
Proposition

On the three other occasions that federal courts have 
passed on this question the decisions have been in accord 
with the conclusion reached by the Circuit Court of Appeals 
that:



4

“Plaintiffs, as teachers qualified and subject to employ­
ment by the state, are entitled to apply for the posi­
tions and to have the discretion of the authorities exer­
cised lawfully and without unconstitutional discrimina­
tion as to the rate of pay to be awarded them, if their 
applications are accepted.”  (Record, p. 43.)

Even the District Court conceded that:

“ The authorities are clear—that there can be no dis­
crimination in a case of this kind, if such discrimina­
tion is based on race or color alone.”  (Record, p. 24.)

The only other federal court in which the question has 
been raised is that of the United States District Court for 
the District of Maryland. That court twice reached the 
same conclusion.

Mills v. Lowndes et al., 26 F. Supp. 792 (1939);
Mills v. Anne Arundel County Board of Education et 

al., 30 F. Supp. 245 (1939).

In the latter case the Court said:

“ . . . As already stated, the controlling issue of fact 
is whether there has been unlawful discrimination by 
the defendants in determining the salaries of white 
and colored teachers in Anne Arundel County solely 
on account of race or color, and my finding from the 
testimony is that this question must be answered in the 
affirmative, and the conclusion of law is that the plain­
tiff is therefore entitled to an injunction against the 
continuance of this unlawful discrimination.”  (Italics 
supplied.) (30 Fed. Supp. at 252.)

B. There Is No Conflict Between the Decision of the Circuit 
Court of Appeals and Applicable Local Decisions

Although no question of local law is here presented since 
the right claimed by the respondents is one guaranteed by 
the Constitution of the United States, actually there is no



5

decision of a state court in conflict with that of the Circuit 
Court of Appeals here.

In the only reported state case, Gilbert v. Highfill, — Fla. 
—, 190 So. 813 (1939), mandamus was sought to compel the 
adoption of an equal salary schedule for white and Negro 
teachers. The Supreme Court of Florida held that manda­
mus would not lie to compel the adoption of any salary 
schedule, expressly stating however, at page 815:

“ We fully agree with counsel for the relator and the 
authorities cited in their brief on the question of dis­
crimination and an equal protection of the law as guar­
anteed by the 14th Amendment to the Constitution of 
the United States, U. S. C. A. We do not think either 
of these questions is presented by the r e c o r d (Italics 
supplied.)

In the unreported case of Aline Black v. The School Board 
of the City of Norfolk et al., the Circuit Court of the City 
of Norfolk considered a demurrer to a similar petition for 
mandamus and ruled that mandamus was not the proper 
remedy. No mention was made of the substantive question 
here involved. (Record, p. 23.)

Similar actions filed in the Maryland counties of Mont­
gomery, Prince Geoi'ge’s and Calvert were made moot 
before trial by equalization of salaries pursuant to agree­
ment.

Thus the state courts upon whose decisions petitioners 
rely have passed only on the procedural question and have 
not adjudicated the substantive question involved here.

C. The Decision of the Circuit Court of Appeals Is Con­
sistent With the Course of Decisions of This Court 
Construing the Fourteenth Amendment to the Con­
stitution of the United States.

It is submitted that certiorari should not be granted be­
cause the judgment of the Circuit Court of Appeals is clearly



6

sound, consistent with and follows closely a long line of 
precedents established by this Court.

A general effect of the Fourteenth Amendment to the Con­
stitution of the United States is to prohibit arbitrary and 
unreasonable classification by state agencies.

Yu Cong Eng v. Trinidad, 271 U. S. 500 (1926);
Truax v. Raich, 239 U. S. 33 (1915);
Yick Wo v. Hopkins, 118 U. S. 220 (1886).

Discrimination because of race or color is clearly arbi­
trary and unreasonable. This Court has repeatedly so held 
in cases arising out of a variety of factual situations.

Lane v. Wilson, 307 U. S. 268 (1939);
Pierre v. Louisiana, 306 U. S. 354 (1939);
Gaines v. Missouri, 305 U. S. 337 (1938);
Nixon v. Condon, 286 U. S. 73 (1932);
Buchanan v. Warley, 245 U. S. 60 (1917);
McCabe v. A. T. & Santa Fe Ry. Co., 235 U. S. 151 

(1914);
Strauder v. W. Virginia, 100 U. S. 303 (1879);
Ex parte Virginia, 100 U. S. 339 (1879).

By the motion to dismiss petitioners have admitted that 
the existing salary differentiation is based solely on the race 
and color of the respondents and that it is adopted, main­
tained and enforced by petitioners acting for the Common­
wealth of Virginia.

The Circuit Court of Appeals has logically applied the 
doctrine established by this Court to the facts of the instant 
case.

II

The Issue of Waiver Should Not Be Reviewed Upon the
Present Record

Respondents agree with petitioners that it is an impor­
tant Federal question whether Negroes who accept employ­
ment as public school teachers thereby waive their right to



7

complain that they are denied the equal protection of the 
laws by salary discrimination based solely upon race and 
imposed and required by rule, regulation and practice of 
an agency of the State. However, neither the present state 
of the record upon that issue nor the scope of the decision 
of the Circuit Court of Appeals warrants the granting of 
certiorari.

Paragraph 10 of the complaint (Record, p. 7) alleges that 
defendants, petitioners here, are under a statutory duty to 
employ teachers and to provide for the payment of their 
salaries, citing, inter alia, Section 786, of the Virginia Code 
of 1936 which provides in part that

‘ ‘ The City school board of every city shall . . . have 
the following powers and duties . . . Third. To em­
ploy teachers . . . Twelfth. To . . . provide tor the 
pay of teachers . . . ”

It is further provided in Section 664 that

“ Written contracts shall be made by the school board 
with all public school teachers before they enter upon 
their duties, in a form to he prescribed by the Superin­
tendent of Public Instruction.”

Paragraph 15 of the complaint (Record, p. 9) alleges that 
plaintiff Alston, respondent here,

)
“ is being paid by the defendants for his services this 
school year as a regular male high school teacher as 
aforesaid an annual salary of $921.”

Thus, from the complaint and the above quoted language 
of applicable Virginia statutes it seems a proper conclusion 
that respondent Alston is employed during the current year 
pursuant to a contract of hire and at an annual salary of 
$921. Moreover, in a preliminary proceeding in the nature 
of a hearing on motion to dismiss the complaint it was 
proper that the court determine whether any conclusion of



law fatal to the respondents’ case followed from the facts 
outlined above. To that extent, and to that extent only, the 
question of waiver was before the District Court and the 
Circuit Court of Appeals.

It is to be noted that so much of the “ Second Defense”  
in the answer as raises the issue of waiver is in form 
a defense in law in the nature of a motion to dismiss, but 
in substance it combines a challenge to the sufficiency of the 
complaint with an introduction of new matter in the nature 
of an affirmative defense. Thus, the sub-paragraphs num­
bered (4) and (5) (Record, p. 19) go beyond an allegation 
that acceptance of employment by the respondent is a 
waiver of the rights asserted in his complaint. These sub­
paragraphs refer to the specific contract of the respondent 
and incorporate by reference an attached document de­
scribed as a copy of his contract. In thus going beyond the 
fact of employment pursuant to a contract of hire as already 
revealed by the complaint and pertinent statutes, and in 
attempting to put in issue the terms of a particular con­
tract, the circumstances of its execution and any legal con­
clusions that may depend upon such terms and circum­
stances, the petitioners introduced an affirmative defense. 
Under Rule 8(c) of the Federal Rules of Civil Procedure, 
such new matter is deemed to be denied without reply. 
Indeed, no reply is permitted except by order of the Court. 
See Rule 7(a). Therefore, the new matter alleged in the 
answer was not before the court on a motion to dismiss 
and is not material at the present stage of this litigation.

In brief, the question before the Circuit Court of Appeals 
was whether the facts (1) that respondent’s status had been 
created by a contract of hire and (2) that he had been em­
ployed for a definite salary, operated as a matter of law to 
preclude this suit.

With the issue thus defined and restricted the Circuit 
Court of Appeals concluded that no waiver had been shown 
and remanded the case for trial.



9

The petition for certiorari neither comprehends the issue 
thus outlined nor suggests any reason for the review of the 
decision thereon. None of the parties will suffer any legal 
detriment from the order of the Circuit Court of Appeals 
requiring a trial of the entire cause on its merits. Questions 
of law can then be considered in the light of all material 
facts. Whatever the event of such a trial may be, the dis­
satisfied party or parties will be in position to ask that the 
issue of waiver be reviewed, along with any other matters in 
controversy, upon the complete record.

CONCLUSION

In such circumstances neither public interest nor the 
interests of the litigants will be served by the granting of 
certiorari as now prayed; but, on the other hand, orderly 
and complete disposition of this litigation can best be accom­
plished by remanding the cause for trial as ordered by the 
Circuit Court of Appeals.

Wherefore, we respectfully submit that the petition for 
certiorari should be denied.

L eon  A. R an som

1512 Girard Street, N.E. 
Washington, D. C.

T hubgood  M absh a ll  
Baltimore, Md.

Counsel for Respondents
W il l ia m  H . H astie  

Washington, D. C.
O liv e s  W . H il l  

Richmond, Va.
B e n j a m in  K a p l a n  

New York, N. Y.
W . R obeet M in g , J b .

Chicago, 111.
Of Counsel



*