Brown v Dent Memorandum in Support of Plaintiffs Motion for Summary Judgment

    BEFORE T H E

Interstate Cmmnrrrr Olnmmtsatnn

V ashti Brown,
L illian F alls,
M uriel H olcombe,

Complainants,
v.

S outhern R ailway Company, 
Defendant.

Docket No. 29607—
29607 Sub. 1 

and 29607 Sub. 2

EXCEPTIONS ON BEHALF OF COMPLAINANTS 
TO REPORT PROPOSED BY CHARLES BERRY, 
EXAMINER, AND BRIEF IN SUPPORT THEREOF.

Spottswood W. R obinson, III,
623 North Third Street, 
Richmond, Virginia,

T hurgood Marshall,
R obert L. Carter,

20 West 40th Street,
New York, New York,

Attorneys for Complainants.
Dated: August 21, 1947.

ORAL ARGUMENT IS REQUESTED BY THE COMPLAINANTS.



I N D E X

PAGE

Exceptions on behalf of complainants___________  1

Brief in support of exceptions ____ ____________  3

I. State Statutes Requiring the Separation 
of the Races Cannot Justify Defendant’s 
Action _______________________    3

II. Defendant Is Without Authority to Adopt 
Or Enforce a Rule Or Regulation Segre­
gating Its Passengers on the Basis of Race 7

III. The Regulation Proposed By the Exam­
iner, If Adopted By Defendant, Would Be 
Unreasonable _____    14

IV. The Facilities Afforded Colored Passen­
gers in Car S-l Were Not Equal to the 
Facilities Afforded White Passengers in 
Car S-6 __________________________   19

V. Defendant Has Violated Sections One and 
Two of the Interstate Commerce A c t____  21

Conclusion ____________________________________  23



11

. Table of Cases.

Adelle v. Beaugard, 1 Mart. 183________________  12
Britton v. Atlantic & C. A. L. Ry. Co., 88 N. C.

536 (1883) ___‘______________ ________________  14
Brumfield v. Consolidated Coach Corp., 240 Ky. 1,

40 8. W. (2d) 356 (1931) ___________________ ... 14
Chesapeake & 0. Ry. Co. v. Kentucky, 179 U. S.

388 (1900) _____..._____ ___________________  5
Chicago, R. I. & Co. Ry. Co. v. Carroll, 108 Tex.

378, 193 S. W. 1068 (1917) ___________________( 9
Chicago, R. I. & P. Ry. Co. v. Allison, 120 Ark. 54,

178 S-, W. 401 (1915) _________:____ _______ _ 13
Chiles v. Chesapeake & O. Ry. Co., 218 U. S. 71

(1910) ____ ._____________ ___________________  5
Chiles v. Chesapeake & O. Ry. Co., 125 Ky. 299,

101 S. W. 386 (1907) _________________________  5
DeBeard v. Camden Interstate Ry. Co., 62 W. Va.

41, 57 8. E. 279 (1907) ________ ______________ 9
Dunn v. Grand Trunk Ry. Co., 58 Me. 187 (1870) 9
Edwards v. Nashville, C. & St. L. Ry., 12 I. C. C.

247 (1907) _____________ ___________________ ... 16
Georgia R. & B. Co. v. Murden, 86 Ga. 434, 12 S. E.

630 (1890) ____________ __ ___ _____________ ___  9
Hall v. DeCuir, 95 U. S. 485 (1877) _____________  4
Hart v. State, 100 Md. 596, 60 A. 457 (1905) ____  5
Hickman v. International Ry. Co., 97 Misc. 53, 160

N. Y. S. 994 (1916) _________ __________________  9
Hufford v. Grand Rapids & I. R. Co., 64 Mich. 631,

31 N. W. 544 (1887) ___ ...______________________ 9
Lake Shore & M. S. R. Co. v. Brown, 123 111. 162,

14 N. E. 197 (1887) _______________________ _ 9
Lee v. New Orleans G. N. Ry., 125 La. 236, 51 S.

182 (1910)

PAGE

12



Ill

Louisville, N. O. & T. By. Co. v. Mississippi, 133
U. S. 587 (1890) ____________________________  5

Louisville, N. 0. & T. By. Co. v. State, 66 Miss.
662, 6 So. 203 (1889) _______ ________________  5

Louisville & N. B. Co. v. Biteliell, 148 Kv. 701, 147
S. W. 411 (1912) ____________________________  13

Louisville & N. B. Co. v. Turner, 100 Tenn. 213, 47 
S. W. 223 (1898) _____________________________  9

Mathews v. Southern B. Co., 157 F. (2d) 609 (App.
D. C. 1946) _____________________.:.____________ 7

McCabe v. Atchison, Topeka & Santa Fe By. Co.,
186 Fed. 966 (C. C. A. 8th, 1911)______________  5

McCabe v. Atchison, Topeka & Santa Fe By. Co.,
235 U. S. 151 (1914) ______...__________________  5

McGowan v. New York City By. Co., 99 N. Y. S.
835 (1906) _____________________ _____________  9

Missouri K  & T By. Co. of Texas v. Ball, 25 Tex.
Civ. App. 500, 61 S. W. 327 (1901) ___________  13

Morgan v. Virginia, 328 IJ. S. 373 (1946) _______  11
Ohio Valley By. ’s Beceiver v. Lander, 104 Ky. 431,

47 S. W. 344 (1898) __________________________  5
O ’Leary v. Illinois Central B. Co., 110 Miss. 46,

69 So. 713 (1915) ____________________________  5
People ex rel. Bibb v. Alton, 193 111. 301, 61 N. E.

1077 (1901) _________________________________  19
Plessy v. Ferguson, 163 U. S. 537 (1896)____ ...___  18
Benaud v. New York, N. H. & H. B. Co., 219 Mass.

553, 97 N. E. 98 (1912)_______________________  9
South Covington & C. By. Co. v. Commonwealth,

181 Ky. 449, 205 S. W. 603 (1918)_____________  5
South Covington & C. St. By. v. Kentucky, 252

U. S. 399 (1920) __________   16
Southern Kansas By. Co. v. State, 44 Tex. Civ.

App. 218, 99 S. W. 166 (1906) _______________ 5,16
Southern Pacific B. Co. v. Arizona, 325 U. S. 761 

(1945)

PAGE

2



IV

State ex rel. Abbott v. Hicks, 44 La. Ann. 770,
11 So. 74 (1892) __________1__________________  5

State v. Galveston, H. & S. A. Ry. Co. (Tex. Civ.
App.) 184 S. W. 227 (1916).____________ ______  5

State v. Jenkins, 124 Md. 376, 92 A. 773 (1914)  5
State v. Treadaway, 126 La. 300, 52 So. 500______ 12
Union Traction Co. v. Smith, 70 Ind. App. 40, 123 

N. E. 4 (1919) _______________________________  9
Virginia Elec. & P. Co. v. Wynne, 149 Va. 882, 141 

S. E. 829 (1928) _____________________________  9
Washington, B. & A. Elec. Ry. Co. v. Waller, 53

App. D. C. 200, 289 Fed. 598 (1923)________5,9,14
Westminster School District et al. v. Mendez, — F.

(2d) — (C. C. A. 9th, 1947) __________________ 19

Statutes.

Alabama
Title 1, Sec. 2, Ala. Code of 1940____________  12
Title 14, Sec. 360, Ala. Code of 1940_________  12

Georgia
Ga. Laws, 1927, p. 272______________________L 12
Gg. Code (Michie Supp.) 1928___________ ___ 12

Louisiana
La. Acts, 1910, No. 206_____________________ 12
La. Crim. Code (Dart), 1932, Art. 1128-1130__ 12

North Carolina
N. C. Gen. Stat. 1943, Sec. 51-3 and 14-181____ 12
N. C. Gen. Stat. 1943, Sec. 115-2____________  12

South Carolina
S. C. Const., Art. I ll, Sec. 33_______________  12

Virginia
Va. Code (Michie) 1942, Sec. 67____________  12

PAGE



V

Other Authorities.
PAGE

Noel T. Dowling, Interstate Commerce and State 
Power, 47 Col. L. Rev. 547____________________ 11

Gnnnar Myrdal, An American Dilemma (N. Y. 
1944), pp. 580-581 ____________________________  17

Charles Johnson, Patterns of Segregation (1943), 
pp. 4, 318 ___________________________________  17



BEFORE THE

Interstate ©mnmerre CnmnttSHtnn

V ashti B rown,
L illian F arls,
M uriel H olcombe,

Complainants,
v.

S outhern R ailway Company, 
Defendant.

EXCEPTIONS ON BEHALF OF COMPLAINANTS 
TO REPORT PROPOSED BY CHARLES BERRY, 
EXAMINER, AND BRIEF IN SUPPORT THEREOF.

Comes now the complainants, Vashti Brown, Lillian 
Falls and Muriel Holcombe, in the above-entitled pro­
ceedings and in the following particulars take issue 
with and except to the findings and conclusions in the 
report proposed by Charles Berry, Examiner.

Docket No. 29607—
29607 Sub. 1 

and 29607 Sub. 2

I.
Complainants except to finding No. 1 of the proposed 

report (Page 1, Paragraph 1) which states:

“ Accommodations furnished in the car set aside 
for occupancy by Negro passengers found to be 
substantially equal to those provided in car set 
apart for occupancy by wThite passengers.”

for the reason that complainants have shown in detail 
in their testimony that the accommodations in car S-l 
maintained for Negroes were substantially inferior in 
many respects to the accommodations in car 8-6 main­
tained for whites.



2

II.
Complainants except to finding No. 2 of the proposed 

report (Page 1, Paragraph 2) which states:
“ Maintenance and enforcement by a common 
carrier by railroad of a reasonable rule or regu­
lation requiring segregation of Negro and white 
passengers, provided substantially equal ac­
commodations are furnished, found not to be a 
violation of the Interstate Commerce Act.”  

for the reason that such a rule or regulation must in 
essence be unreasonable and for the further reason 
that a carrier is without authority to promulgate or 
enforce such a regulation.

III.
Complainants except to finding No. 4 of the proposed 

report (Page 1, Paragraph 4) which states:
‘ ‘ It is, and for the future will be, unduly preju­
dicial and preferential for the Southern Rail­
way Company to set apart separate accommo­
dations for the exclusive occupancy of white 
and Negro passengers on ‘ The Southerner’ 
running from New York to Atlanta and to re­
quire the respective races to occupy the space 
assigned to them, unless the rules and regula­
tions governing* and requiring such separation 
of the races are definite and specific and are 
published in its tariffs posted in stations from, 
to, and through which the trains run, or in some 
other manner made available to passengers at 
the time or before they purchase tickets.”  

for the reason that a regulation adopted by defendant 
to enforce the racial separation of its passengers, must 
of necessity be prejudicial and discriminatory. Fur­
ther, defendant is without power to burden interstate 
passenger travel with a regulation designed to enforce 
racial segregation.



3

BRIEF IN SUPPORT OF EXCEPTIONS.

I.

State Statutes Requiring the Separation of the 
Races Cannot Justify Defendant’s Action.

Complainants secured reserved seat accommodations 
on defendant’s train #47, the Southerner, for a trip 
from New York City to Atlanta, Georgia, on January 
7, 1945. The Southerner is a modern, streamlined, 
diesel powered, reserved seat, coach train operating 
daily between New York and New Orleans. Com­
plainants purchased their tickets at the Pennsylvania 
Station in New York and secured reservations en­
titling them to space designated as seats 52, 53 and 54 
in car S-6 on defendant’s train #47. On January 7, 
1945, complainants boarded the train in New York and 
occupied their designated space in car S-6 without 
question or protest from any train official. At about 
11:20 P. M. that night when the train was south of 
Washington, D. C., and in the vicinity of Charlottes­
ville, Virginia, they were informed by the conductor, 
W. B. McKinney, and the passenger representative, G. 
F. Lovett, both agents and employees of defendant, 
that they could no longer remain in car S-6 but would 
have to move to car S-l. The reasons given were that 
Negroes had to be segregated south of Washington and 
that since the train was then in Virginia, its laws had 
to be obeyed. Complainants pointed out that they 
were interstate passengers and that they held reserved 
seats which they were entitled to occupy until they 
reached their destination. The conductor and pas­
senger agent, however, continued to insist that com­



4

plainants move and finally threatened to eject them at 
the next stop unless they did so, whereupon complain­
ants under protest moved to car S-l (R. 9-18).

The statutes of Virginia requiring the separation of 
the races on railroad carriers cannot affect the merits 
of the instant controversy. Such statutes have been 
held to be inapplicable to interstate commerce since 
the decision of the United States Supreme Court in 
Hall v. DeCuir.1 In that case a Louisiana statute guar­
anteeing equal rights and privileges to all persons 
without regard to race or color in the use and enjoy­
ment of public facilities was declared invalid as ap­
plied to interstate commerce. The fundamental ob­
jection to such statutes was the danger that differing 
and conflicting notions of racial policy would create 
confusion and would burden interstate commerce in a 
manner which the commerce clause was intended to 
avoid.

In Southern Pacific Co. v. Arizona,2 the Court, faced 
with a related problem, defined the authority of the 
states and the nation over interstate commerce in this 
manner:

“ Although the commerce clause conferred on the 
national government power to regulate commerce, 
its possession of the power does not exclude all 
state power of regulation. ”  * * *
“ But ever since Gibbons v. Ogden, 9 Wheat. 
(U. S.) 1, 6 L. ed. 23, the states have not been 
deemed to have authority to impede substantially 
the free flow of commerce from state to state, or 
to regulate those phases of the national commerce

195 U. S. 485 (1877).
2325 U. S. 761 (1945).



a

which, because of the need of national uniformity, 
demand that their regulation, if any, be prescribed 
by a single authority. * * * Whether or not this 
long recognized distribution of power between the 
national and the state governments is predicated 
upon the implications of the commerce clause it­
self * * * or upon the presumed intention of Con­
gress, where Congress has not spoken, * * * the 
result is the same. ”  # * *
“ Similarly the commerce clause has been held to 
invalidate local ‘ police power’ enactments 
regulating the segregation of colored passengers 
in interstate trains, Hall v. DeCuir. * * *”

Although the principle announced in Hall v. DeCuir 
has become the all but universal rule of American
courts,8 no decision of the United States Supreme 
Court had nullified a state statute requiring the segre­
gation of the races as an unconstitutional burden on 
interstate commerce until its decision on June 3, 1946 
in Morgan v. Virginia.4 In that case Mrs. Morgan was

s Chesapeake & 0 . Ry. Co. v. Kentucky, 179 U. S. 388 
(1900); Chiles v. Chesapeake & 0 . Ry. Co., 218 U. S. 71 
(1910) ; McCabe v. Atchison, Topeka and Santa Fe Ry. Co., 
235 U . ' S. 151 (1914); Louisville, N. 0 . & T. Ry. Co. v. 
Mississippi, 133 U. S. 587 (1890) ; Washington, B. & A. Elec. 
R. Co. v. Walter, 53 App. D. C. 200, 289 Fed. 598 (1923); 
South Covington & C. Ry. Co. v. Commonwealth, 181 Ky. 449, 
205 S. W . 603 (1918); McCabe v. Atchison, T. & S. F. Ry. 
Co. 186 Fed. 966 (C. C. A. 8th, 1911); State v. Galveston, 
H. & S. A. Ry. Co. (Tex. Civ. App.), 184 S. W . 227 (1916) ; 
O’Leary v. Illinois Central R. Co., 110 Miss. 46, 69 S. 713 
(1915) ; State v. Jenkins, 124 Md. 376, 92 A. 773 (1914) ; 
Chiles v. Chesapeake & O. Ry. Co., 125 Ky. 299, 101 S. W . 
386 (1907) ; Southern Kansas Ry. of Tex. v. State, 44 Tex. 
Civ. App. 218, 99 S. W . 166 (1906) ; Hart v. State, 100 Md. 
596, 60 A. 457 (1905) ; Ohio Valley Ry.’s Receiver v. Lander, 
104’Ky. 431, 47 S. W . 344 (1898); Louisville, N. O. & T. Ry. 
Co. v. State, 66 Miss. 662, 6 S. 203 (1889) ; State ex  rel. 
Abbott v. Hicks, 44 La. Ann. 770, 11 S. 74 (1892).

4 328 U. S. 373 (1946).



6

convicted for violating a state statute requiring the 
segregation of the races when she had refused to move 
to the rear seat of a bus travelling in interstate com­
merce between Saluda, Virginia, and Baltimore, Mary­
land. This conviction was sustained by the Virginia 
Supreme Court of Appeals as a valid exercise of the 
state’s police power. On appeal, the United States 
Supreme Court reversed. Said the Court:

# # # * # * * * *

“ Burdens upon commerce are those actions of a 
state which directly ‘ impair the usefulness of its 
facilities for such traffic.’ That, impairment, we 
think, may arise from other causes than costs or 
long delays. A burden may arise from a state 
statute which requires interstate passengers to 
order their movements on the vehicle in accord­
ance with local rather than national require­
ments.”  # # *

“ The interferences to interstate commerce which 
arise from state regulation of racial association 
on interstate vehicles has long been recognized. 
Such regulation hampers freedom of choice in 
selecting accommodations. The recent changes in 
transportation brought about by the coming of 
automobiles does not seem of great significance 
in the problem. People of all races travel today 
more extensively than in 1878 when this Court 
first passed upon state regulation of racial segre­
gation in commerce. The factual situation set out 
in preceding paragraphs emphasizes the sound­
ness of this Court’s early conclusion in Hall v. 
DeCuir, * * * ”

There is little doubt that, although the Morgan 
decision involved bus transportation, the same rule



7

applies to any other type of interstate transportation.5 
It is certain, therefore, that state statutes cannot he 
used as justification, excuse or defense of defendant’s 
action in forcing the removal of complainants from 
their reserved space in car 8-6. The conductor and 
passenger agent in basing their action on the require­
ment of Virginia law subjected complainants to an 
unwarranted and illegal invasion of their constitu­
tional rights. Since defendants had no private rules 
or regulations in effect authorizing the action of their 
agents, and the examiner’s report so finds,* * 8 the wrongs 
herein complained of have been definitely and con­
clusively established. Without more, therefore, com­
plainants are entitled to the relief sought in their 
complaints.

II.

Defendant is Without Authority to Adopt or
Enforce a Rule or Regulation Segregating Its 

Passengers on the Basis of Race.

1.

The examiner’s proposed report, while finding that 
defendant presently has no private rule or regulation 
requiring the segregation of Negro and white passen­
gers, suggests that such a rule or regulation if “ defi­
nite and specific and properly posted so as to be avail­
able to passengers and prospective passengers at the

5 See Mathews v. Southern Railroad Co., 157 F. (2d) 609
(App. D. C. 1946).

8 See sheet 12 of examiner’s report.



8

time or before they purchase their tickets,”  provided 
equal conditions and treatment are furnished would 
satisfy the requirement of the Interstate Commerce 
Act. The report cites Hall v. DeCuir and Chiles v. 
Chesapeake & 0. By. Co.7 as authority for the con­
tention that a common carrier has power to “ adopt 
reasonable rules and regulations for the separation 
of Negro and white passengers as seems to it to the 
best interests of all concerned, and that the test of 
reasonableness is the established usages, customs and 
traditions of the people carried by it, the promotion 
of their comfort and the preservation of the public 
peace and good order.”  Continuing, the report cites 
the practice of other railroads in the South in main­
taining separate accommodations for Negro and white 
passengers and as evidence of the reasonableness and 
validity of such practices the segregation statutes of 
Virginia, North Carolina, South Carolina and Georgia. 
“ Legislatures are supposed to know the needs and 
sentiments of the people for whom they act.” 8 This 
phase of the proposed report, we contend, is errone­
ous.

Only if defendant could be said to have authority 
to adopt rules and regulations requiring the segre­
gation of the races, could the examiner’s conclusion 
that such a regulation properly posted and publicized 
would be a complete defense for the future be a cor­

7218 U. S. 71 (1910).
8 See sheets 11-12 of examiner’s report.



9

rect statement of the law.9 * * * * 14 The issue then is whether 
the defendant has authority to segregate the races 
under a future rule or regulation. We contend that 
no such authority exists.

If the examiner ’s contentions are correct, then states 
which are clearly without authority to effect such 
separation in interstate commerce by means of state 
law are now permitted to enforce such policy through 
carrier regulations. The question of the separation 
of the races in interstate commerce was settled by the 
United States Supreme Court in Morgan v. Virginia. 
In reaching its conclusion that the Virginia statute 
was an unconstitutional burden on commerce, the 
Court was neither unaware nor unmindful of local cus­
toms, usages and traditions which purportedly justify 
a policy of segregation.

“ In weighing the factors that enter into our con­
clusion as to whether this statute so burdens in­
terstate commerce or so infringes the require­
ments of national uniformity as to be invalid, we 
are mindful of the fact that conditions vary be­
tween northern or western states such as Maine

9 See Union Traction Co. v. Smith, 70 Ind. App. 40, 123
N. E. 4 (1919); Renaud v. New York, N. H. & H. R. Co., 
210 Mass. 553, 97 N. E: 98 (1912) ; Louisville & N. R. Co. v. 
Turner, 100 Tenn. 213, 47 S. W . 223 (1898) ; Washington, 
B. & A. Elec. Ry. Co. v. Waller, 53 App. D. C. 200, 289 Fed. 
598 (1923) ; Virginia Elec. & P. Co. v. Wynne, 149 Va. 882,
141 S. E. 829 (1928) ; DeBeard v. Camden Interstate Ry. Co., 
62 W . Va. 41, 57 S. E. 279 (1907) ; Chicago, R. I. & Co. Ry. 
Co. v. Carroll, 108 Tex. 378, 193 S. W .1068 (1917) ; Hickman 
v. International Ry. Co., 97 Misc. 53, 160 N. Y. S. 994 (1916) ; 
McGowan v. New York City Ry. Co., 99 N. Y. S. 835 (1906);
Georgia R. & B. Co. v. Murden, 86 Ga. 434, 12 S. E. 630
(1890); Lake Shore & M. S. R. Co. v. Brown, 123 111. 162,
14 N. E. 197 (1887) ; Hufford v. Grand Rapids & I. R. Co., 
64 Mich. 631, 31 N. W. 544 (1887) ; Dunn v. Grand Trunk 
Ry. Co., 58 Me. 187 (1870).



or Montana, with practically no colored popula­
tion; industrial states such as Illinois, Ohio, New 
Jersey and Pennsylvania with a small, although 
appreciable, percentage of colored citizens; and 
the states of the deep south with percentages of 
from twenty-five to nearly fifty per cent colored, 
all with varying densities of the white and colored 
races in certain localities. Local efforts to pro­
mote amicable relations in difficult areas by legis­
lative segregation in interstate transportation 
emerge from the latter racial distribution. As no 
state law can reach beyond its own border nor bar 
transportation of passengers across its bounda­
ries, diverse seating requirements for the races in 
interstate journeys result. As there is no federal 
act dealing with the separation of races in inter­
state transportation, we must decide the validity 
of this Virginia statute on the challenge that it 
interferes with commerce, as a matter of balance 
between the exercise of the local police power and 
the need for national uniformity in the regulations 
for interstate travel. It seems clear to us that 
seating arrangements for the different races in 
interstate motor travel require a single, uniform 
rule to promote and protect national travel. Con­
sequently, we hold the Virginia statute in contro­
versy invalid.” 10

Yet the Court in balancing local and national inter­
est's concluded that in regard to this subject matter 
there was a definite necessity for a national uniform 
policy. The silence of Congress, therefore, was not 
construed as a negative assent to state regulation but 
rather as an implied declaration that the matter be 
free of control. If this proposed report is adopted, 
however, the effect of the Morgan decision will be 10

t
10

10 328 U. S. at p. 386.



11

nullified. To say that although a state cannot di­
rectly require an interstate carrier to segregate its 
Negro and white passengers, its statutes requiring 
this practice make the regulation of a carrier designed 
to accomplish such segregation reasonable and valid 
is both illogical and irrational. If, as the Morgan de­
cision holds, Congress has exclusive authority to de­
termine policy regarding the separation of Negro and 
white passengers in interstate commerce, it clearly 
follows that neither a state by statute nor a carrier by 
regulation can invade this exclusive Congressional 
domain.”  If this is not true then, as illustrated by the 
reasoning in the proposed report, the Morgan decision 
is meaningless.

2.

The same factors which influenced the Court in de­
claring that the states are without authority to require 
the separation of races in interstate commerce are at 
work with equal force when the effect of a carrier regu­
lation enforcing such segregation is considered. In 
the Morgan case the Court found that one of the main 
vices of giving effect to local statutes enforcing segre­
gation in interstate commerce was the difficulty of iden­
tification.13 That difficulty is no less when the separa­
tion is attempted by a carrier regulation rather than 
a state statute. 11 12

11 It may well be that the states or carriers, with the affirma­
tive assent of Congress, may be permitted to impose on inter­
state commerce the regulations voided under the Morgan deci­
sion. It is not clear whether the regulation of the seating ar­
rangement of passengers is a subject from which the states are 
barred by the commerce clause itself or because of the absence 
of positive assent of Congress. See Southern Pacific Co. v. 
Arizona, supra; Dowling, Interstate Commerce and State 
Power, 47 Col. L. Rev. 547.

12 Morgan v. Virginia, 328 U. S. 373, 382, 383.



12

Defendant in order to enforce tlie regnlation which 
is proposed in the examiner’s report must define what 
is meant by the term “ Negro”  or “ colored”  person. 
From the point where they were forced to move from 
car S-6 to ear S-l until they reached their destination, 
complainants traveled through four states, Virginia, 
North Carolina, South Carolina and Georgia. In Vir­
ginia and Georgia, the term “ Negro”  or “ colored”  
person includes all persons with any ascertainable 
amount of Negro blood.13 In North Carolina this term 
embraces all persons with Negro blood to the third 
generation inclusive,14 whereas in South Carolina 1/8 
or more of Negro blood is enough to classify one as a 
“ Negro”  or “ colored person.” 15

13 Ga. Laws, 1927, p. 272; Ga. Code (Michie Supp.) 1928, 
Sec. 2177; Va. Code (Michie) 1942, Sec. 67.

14 N. C. Gen. Stat. 1943, Sec. 51-3 and 14-181 (marriage law) 
but see N. C. Gen. Stat. 1943, Sec. 115-2 (separate school law) 
for a different definition of the term.

15 S. C. Const., Art. I l l , Sec. 33 (intermarriage). Also in 
continuing the trip to New Orleans defendant train passes 
through Alabama and Louisiana. In Alabama, any ascertainable 
amount of Negro blood is sufficient to make one a Negro, see 
Ala. Code, 1940, Tit. 1, Sec. 2, and Tit. 14, Sec. 360. In Louisi­
ana, the rule is not clear. It was first held that all persons, in­
cluding Indians, who were not white were “ colored” . Adelte v. 
Beaugard, 1 Mart. 183. In 1910, it was held that anyone having 
an appreciable portion of Negro blood was a member of the 
colored race within the meaning of the segregation law. Lee v. 
New Orleans G. N. Ry., 125 La. 236, 51 S. 182. In the same 
year, however, it was decided that an octoroon was not a mem­
ber of the Negro or black race within the meaning of the con­
cubinage law (La. Act, 1908, No. 87). State v. Treadaway, 
126 La. 300, 52 So. 500. Shortly after the latter decision, the 
present concubinage statute was enacted substituting the word 
“ colored” for “ Negro” . La. Acts, 1910, No. 206, La. Crim. 
Code (Dart), 1932, Art. 1128-1130. The effect of the change 
is yet to be determined.



13

In an attempt to enforce the proposed regulation, 
defendant would have to adopt the definitions of all 
states along the route over which the suggested regu­
lation is to operate. If the carrier makes an error of 
identification, it will become subject to burdensome liti­
gation.16 Hence, it is clear that the proposed regula­
tion is as objectionable and as burdensome to com­
merce as the Virginia statute voided in the Morgan 
case. There is moreover even less reason for giving 
effect to a carrier regulation than to a state statute. 
None of the factors which are said to give validity to 
a legislative judgment which is expressed in segrega­
tion laws are operative where carrier regulations are 
involved. If defendant fears, as suggested in the ex­
aminer’s report, that the co-mingling of Negro and 
white passengers will result in breaches of the peace, 
there is no reason advanced to show that the states 
along defendant’s route are without power to handle 
or control such incidents and to protect defendant’s 
property. National interests in maintaining commerce 
free of burdens and obstructions must prevail over 
carrier regulations as well as state statutes. Hence 
under the rationale of the Morgan case, it must logi­
cally follow that neither a state nor a carrier has 
authority to burden interstate commerce by the en­
forced segregation of passengers in interstate com­
merce.

16 See Louisville & N . R. R. v. Ritchel, 148 Ky. 701, 147 
S. W . 411 (1912); Missouri K  & T  Ry. Co. of Texas v. Ball, 
25 Tex. Civ. App. 500, 61 S. W . 327 (1901) ; Chicago, R. I. & 
P. Ry. Co. v. Allison, 120 Ark. 54, 178 S. W . 401 (1915), 
where punitive damages were afforded white persons for mis­
taken placement in colored coaches.



14

III.

The Regulation Proposed By the Examiner, If 
Adopted By Defendant, Would Be Unreasonable.

In order for a regulation such as here suggested to 
be considered reasonable, it must be shown to have a 
direct relation to the efficiency of the carrier’s services, 
the comfort, convenience, safety or health of its pas­
sengers.17 The proposed regulation is allegedly rea­
sonable because in accord with customs and tradi­
tions and as essential to the preservation of peace 
and good order. As pointed out in the preceding sec­
tion of this argument, local enforcement officials have 
ample authority to control the behavior of passengers 
who utilize defendant’s facilities and to protect its 
property so that segregation is not a sine qua non of 
peace and order. In fact such practices create dissen- 
tion and resentment and are in themselves the breeders 
of conflict and racial tensions.

It is true, of course, that defendant’s route traverses 
states where racial segregation is enforced. However, 
defendant’s road is one of the main arteries connect­
ing the North and South. Its facilities are used with 
as much frequency by persons whose customs and 
traditions are opposed to racial segregation as by 
persons of contrary background. Certainly on the 
train in question, offering through service between 
New York and New Orleans and intermediate points, 
it is likely that the greater number of passengers are

17 See Brumfield v. Consolidated Coach Corp., 240 Ky. 1, 40 
S. W . (2d) 356 (1931) ; Washington B. & A . Elec. Ry. Co. v. 
Waller, 53 App. D. C. 200, 289 Fed. 598 (1923); Britton v. 
Atlantic & C. A. L. Ry. Co., 88 N. C. 536 (1883).



15

in the former category. It is admitted that complain­
ants’ presence in car S-6 neither had created nor 
threatened to create any disturbance or breach of the 
peace.

The unreasonableness of a regulation which enforces 
the separation of Negroes and whites in coaches on 
defendant’s train is conclusively demonstrated by the 
fact that no such practice is in effect or deemed neces­
sary in defendant’s Pullman cars. If the comfort, 
convenience and safety of the passengers and the pub­
lic peace require segregation in coaches, it would ap­
pear that these same considerations would make seg­
regation essential in Pullman cars. And in converse, 
if racial separation is neither necessary nor essential 
in Pullman cars, it follows that such practices are not 
essential in coaches. Neither the alleged comfort 
and convenience of passengers, the alleged danger of 
breaches of the public peace, nor local sentiment, cus­
tom or usage has constrained defendant to adopt a 
policy of segregation in its Pullman cars.

On the same train carrying coach and Pullman cars, 
defendant requires segregation in the former and per­
mits the co-mingling of the races in the latter. This 
inconsistency, as noted in the examiner’s report, is 
not explained. The truth is that carriers with routes 
in the South began practicing segregation in conform­
ity to state statutes. In fact, defendant here has no 
rule or regulation but has enforced the segregation of 
Negro and white passengers in obedience to the laws



16

of Virginia, North Carolina, South Carolina, Georgia.18 
Although it is definitely a burden to defendant in 
added costs and wasted space to maintain the segre­
gation of Negro and white passengers in coaches, the 
maintenance of separate facilities in Pullman cars ap­
parently would be prohibitive.19 Such a practice, how­
ever, which adds to the operation costs of defendant 
railroad, is not essential to same and is definitely un­
necessary as demonstrated by its policy of non-segre­
gation in defendant Pullman cars, is clearly unreason­
able and should be so declared by this Commission.

The Interstate Commerce Act prohibits discrimina­
tion as between white and colored passengers. This 
Commission has construed its provisions as prohibit­
ing only such discrimination as results in unequal fa­
cilities or treatment but not as prohibiting such dis­
crimination as results in segregation.20

To say that segregation on a public carrier is not 
discrimination is, of course, to close one’s eyes to re­
ality. The purpose of segregation is neither to pre­

18 The regulation on which defendant relies is Rule 1196 of 
its Rules of the Operating Department, effective April 1, 1943. 
This rule is for conductors on passenger service and is as 
follows:

“ They must as far as possible require passengers to 
occupy the cars or space designated for them and not to 
occupy places where their safety might be endangered.”

This rule makes no reference to segregation on the basis of race 
and supports complainants’ right to remain in the space origi­
nally assigned to them in car S-6. See examiner’s report, sheet 
12, and pages 58, 59, 91-93 of the Record.

19 See testimony of defendant’s witness, E. E. Barry, at pp. 
102-104 in Record; see also South Covington & C. St. Ry. v. 
Kentucky, 252 U. S. 399 (1920) ; Southern Kansas Ry. of Tex. 
v. State, 44 Tex. Civ. App. 218, 99 S. W . 166 (1906).

20 Edwards v. Nashville, C. & St. L. Ry., 12 I. C. C. 247 
(1907).



17

serve the peace nor good order but amounts to a value 
judgment indicating the inferiority of Negroes and the 
superiority of whites.21 It reinforces a color caste 
system which has plagued our democratic concepts

21 See Gunnar Myrdal, An American Dilemma (New York, 
1944), pp. S80-S81: “ When the federal Civil Rights Bill of 
1875 was declared unconstitutional, the Reconstruction Amend­
ments to the Constitution— which provided that Negroes are
* * * * entitled to ‘Equal benefit of all laws’ * * * could not be 
so easily disposed of. The Southern whites, therefore, in pass­
ing their various segregation laws to legalize social discrimina­
tion, had to manufacture a legal fiction of the same type as we 
have already met in the preceding discussion on politics and 
justice. The legal term for this trick in the social field, expressed 
or implied in most of the Jim Crow statutes is ‘separate but 
equal’. That is, Negroes were to get equal accommodations, but 
separate from the whites. It is evident, however, and rarely 
denied, that there is practically no single instance of segregation 
in the South which has not been utilized for a significant dis­
crimination. The great difference in quality of service for the 
two groups in the segregated set-ups for transportation and 
education is merely the obvious example of how segregation is 
an excuse for discrimination.”

See also Charles S. Johnson, Patterns of Segregation (New 
York, 1943), p. 4 : “ It is obvious that the policy of segregation 
which the American system of values proposes, merely to sepa­
rate and to maintain two distinct but substantially equal worlds, 
is a difficult ideal to achieve. Any limitation of free competition 
inevitably imposes unequal burdens and confers unequal advan­
tages. Thus, segregation or any other distinction that is im­
posed from without almost invariably involves some element of 
social discrimination as we have defined it.”

p. 318: “ The laws prescribing racial segregation are based 
upon the assumption that racial minorities can be segregated 
under conditions that are legally valid if not discriminating. 
Theoretically, segregation is merely'the separate but equal treat­
ment of equals. ' In such a complex and open society as our 
own, this is, of course, neither possible nor intended; for whereas 
the general principle of social regulation and selection is based 
upon individual competition, special group segregation within 
the broad social framework must be effected artificially and by 
the imposition of arbitrary restraints. The result is that there 
can be no group segregation without discrimination, and dis­
crimination is neither democratic nor Grristian.”



18

since the birth of this nation. Defendant introduced 
testimony to the effect that whites have been required 
to move from the Negro car in order to show the equal 
application of its practices. However, the enforce­
ment of such policy is a humiliation to Negro pas­
sengers not because they so construe it but because it 
is a fact. The doctrine of “ equal but separate”  as 
used to sustain a state statute requiring segregation in 
intrastate commerce is as fictional and unreal as such a 
doctrine when applied to a carrier regulation in inter­
state commerce.

“ The arbitrary separation of citizens, on the basis 
of race, while they are on a public highway, is a 
badge of servitude wholly inconsistent with the 
civil freedom and the equality before the law es­
tablished by the Constitution. It cannot be justi­
fied on any legal grounds. * * * The thin disguise 
of ‘ equal’ accommodations for passengers in rail­
road coaches will not mislead anyone or atone for 
the wrong done this day.” 22

This statement from Mr. Justice H ablan ’s dissenting 
opinion in Plessy v. Ferguson correctly and properly 
recognizes that any policy of enforced racial segre­
gation in a public carrier is necessarily both discrim­
inatory and undemocratic. This Commission is under 
a duty to reexamine this whole question, particularly 
in the light of the Morgan decision. Reexamination 
will reveal the unreasonableness of any practice de­
signed to separate the races on the basis of color and

22 Plessy v. Ferguson, 163 U. S. 537, 561, 562 (1896).



19

will demonstrate that such separation is not essential 
to the transportation of persons through the South.23

IV.

The Facilities Afforded Colored Passengers
in Car S-l W ere Not Equal to the Facilities 

Afforded White Passengers in Car S-6.

Complainants found from personal observation and 
experience during the course of their trip that car S-l 
which defendant maintains for the exclusive occupancy 
of Negroes was inferior in many respects to car S-6 
which was maintained for whites. These discrepancies 
were related in detail by complainants at the hearing 
of this cause on January 27, 1947, and they are set 
out in the record from pages 20-29. Most of this testi­
mony is unchallenged and remains undisputed by 
defendant.

Whereas the head rests in car S-6 were immaculate, 
those in S-l were filthy dirty (R. 20); whereas S-6 
was clean and comfortably heated, S-l was dirty and

23 Assuming the legality of a policy of segregation, the pre­
vailing view in American courts would appear to be that such 
a policy can only be adopted by legislative action, and in the 
absence of such action cannot be done by an administrative 
board. Westminster School District v. Mendez, —  F. (2d) —- 
(C. C. A. 9th, 1947); People ex rel. Bibb v. Alton, 193 111. 301, 
61 N. E. 1077 (1901).

This Commission, in approving a regulation of enforced segre­
gation in interstate commerce, would be backing the regulation 
with governmental authority. Unless approved by the Commis­
sion, the carrier regulation segregating the races has no legal 
standing whatever. Under the view cited above, it would seem 
that the Commisison cannot give its approval without express 
authorization from Congress.



2 0

cold. Whereas the seats in car S-6 had foot rests for 
the comfort and convenience of the passengers, the 
foot rests in car 8-1 were broken and unworkable (R. 
21-23); car S-l was very dirty and cold as a result of 
which complainants became ill and suffered with cold 
all night (R. 21). The women’s rest room in car S-6 
is of the size and has the appointments of a rest room 
in a Pullman car. It is located in the forward part of 
S-6 on the left side down a corridor away from passen­
gers. In this room is a large mirror, three individual 
wash basins and a separate basin for washing the 
teeth. There are three or four chairs in this room 
which constitute the lounge portion of the rest room. 
The toilets, themselves, of which there are at least 
two, are completely private and separated from the 
lounge by being in completely enclosed compartments. 
In the lounge there is hot and cold water, soap and 
towels. There is no women’s lounge in car S-l, only 
a toilet room which is located almost immediately to 
the rear of the seats therein. It is only large enough 
for occupancy of one person. By actual measurements 
it is less than four feet in width and less than seven 
feet in length. This room has one wash basin, a toilet, 
both of which were dirty, a small mirror, and no basin 
for washing teeth. There was no hot water, no soap 
and no towels (R. 23-27). There was considerable 
dirt, filth and roaches in car S-l. There was also con­
stant traffic back and forth in the car which annoyed 
complainants a great deal (R. 29-31). As a result of 
this discomforture, all three sisters became ill.

Although it is accepted as a fact in the proposed 
report (Sheet 10) that complainants were cold and un­
comfortable and that there were the inferiorities in car



21

S-l set out above, the report concludes that there was 
no substantial difference in the accommodations af­
forded whites in car S-6 as compared to those afforded 
Negroes in car S-l. The fact that complainants were 
cold and uncomfortable is explained as due to govern­
mental regulation which did not permit the defendant 
to maintain the temperature in the cars at more than 
65 degrees. Yet complainants were actually in car 
S-6 and were quite comfortable, whereas car S-l was 
cold. The only conclusion possible, therefore, is that 
car S-l was maintained at a lower temperature than 
car S-6.

The invalidity of the “ equal facilities”  rationale is 
vividly demonstrated in this case. Although complain­
ants ’ testimony is accepted in substance as to the in­
feriorities in accommodations as between the two cars, 
this report proposes a finding that no inequality exists. 
Except for absolute denial of accommodations it would 
seem to be all but impossible to show in more detail 
the unequal nature of the facilities afforded. This 
Commission should find as a fact that as between car 
S-l and car S-6 substantial inequality existed in viola­
tion of the Interstate Commerce Act.

V.

Defendant Has Violated Sections One and Two 
of the Interstate Commerce Act.

Defendant offers the “ Southerner”  to the public for 
fast coach travel to points between New York and New 
Orleans. Its advantages are speedy travel without the 
necessity of shifting or change until one reaches his



destination. Further, reserved seats may be secured 
in advance which ensures the prospective passenger of 
a seat on the train which is no mean advantage in view 
of the crowded condition of all modes of transportation 
since the war. It offers dining car facilities and the 
use of the tavern car. Space on the train may he 
secured at the regular coach fare. All the advantages 
cited above are available to white passengers. Some, 
however, are not available to Negroes.

The tavern car is maintained exclusively for white 
passengers (R. 84). Negroes are not permitted to avail 
themselves of this service. This, of course, is a viola­
tion of Section 3 of the Interstate Commerce Act, but 
we contend that it violates Sections 1 and 2 as well. 
There is no contention here that complainants were 
charged more than the regular fare, but if whites at 
that price may secure in the same train advantages 
and accommodations which Negroes cannot obtain, the 
Negro passenger is paying the same for less than the 
white passenger. Actually, therefore, he is being over­
charged and the carrier is charging, collecting and 
receiving from the Negro greater compensation for the 
service it renders than it charges, collects or receives 
from the white.

Further, the inferiority of the appointments in car 
S-l maintained for Negroes as compared to car S-6 
maintained for whites is further evidence of the fact 
that a Negro passenger using defendant’s train re­
ceives considerably less for his money than the white 
passenger. Defendant has violated, and the Commis­
sion should find, both Sections 1 and 2 of the Interstate 
Commerce Act.



23

Conclusion.

Complainants, in being ejected from car S-6 which 
they were entitled to occupy, were subjected to dis­
criminatory treatment in violation of their rights. As 
a result of their humiliating experience, complainants 
suffered a severe injustice and should be awarded com­
pensatory damages. Railroads which are public high­
ways should not be permitted to enforce practices for 
the handling of passengers which are archaic, dis­
criminatory, undemocratic and based upon a theory 
of racial superiority which has been shown to be intel­
lectually unsound and morally corrupt.

W herefore, complainants request that the Commis­
sion reject the conclusions and findings proposed in 
the examiner’s report as hereinabove referred to and 
grant to complainants the relief requested in their 
complaints.

Spottswood W . R obinson, III,
623 North Third Street, 
Richmond 19, Virginia,

T hurgood Marshall,
R obert L. Carter,

20 West 40th Street,
New York 18, New York,

Attorneys for Complainants.

Dated August 21, 1947.



Certificate of Service.

I hereby certify that I have this day served the fore­
going document upon all parties of record in this pro­
ceeding by mailing a copy thereof properly addressed 
to each party of record.

R obert L. Carter

Dated this August 20, 1947.



212 [6149]

L a w y e r s  P r ess . I n c ., 165 William St., N. Y. C. 7; ’Phone: B E ek m an  3-2300



No. 14,240

In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Geraldine I. Bruce, Minor, by her Father and next Friend, 
Elmer Bruce, et a l,

Appellants,
v.

H. W. Stilwell, As President of the Texarkana 
Junior College, et al,

Appellees.

Appeal from the United States District Court for the 
Eastern District of Texas

BRIEF FOR APPELLANTS

W. J. Durham,
Excelsior Life Building, 
2600 Flora Street,
Dallas, Texas.

U. Simpson Tate,
1718 Jackson Street,
Dallas, Texas,

Attorneys for Appellants.

W arlick Law  Prin ting  Co m pa n y  —  -Caw Hrief Printing —  Dallas —  HArwood-93JQ



I N D E X

Page
Statement of the Case.......................................................  1
Concise Statement of Fact...............................................  3-4
Specification of Errors.....................................................  5
Argument and Authorities

I. Questions of Law.................................................  6
II. Unauthorized Action .......................................... 12

III. No Administrative Remedy Provided..............  22
Decision Commissioner of Education

Appendix I ..................................................................... 31-32



11 Index to Authorities
Page

Alston, et al. v. School Board of the City of Norfolk,
112 Fed. 2d 922 (syllabus 2 ) ..................................... 14

Bandini Petroleum Company v. Superior Court o f 
California, 52 S. Ct. Rep. 3 (284 U. S. 8 ) ..............  9,17

Battle, et al. v. Wichita Falls Junior College, et al.,
101 Fed. Supp. 82.........................................................  16

Beal, et al. v. Holcombe, Mayor of the City of Hous­
ton, et al., 193 Fed. 2d 384......................................... 13

Bear v. Donna Independent School District, et al.,
74 S. W. 2d 179 19, 21

Chastain, et al. v. Mauldin, et al.,
32 S. W. 2d 235.............................................................. 20

Federal Trade Comm. v. Sinclair Refining Company,
43 S. Ct. 450 (261 U. S. 463)..................................... 6

First National Bank of Greely v. The Board of Com­
missioners o f Weld County, Colorado, 44 S. Ct. Rep.
385 (264 U. S. 450).....................................................  21

Henderson, et al. v. Miller, et al., 286 S. W. 501 24
Highland Farms Dairy Company v. Agnew,

57 S. Ct. Rep. 559 (300 U. S. 608)............................  9
Hilliard v. Brown, United States Representative,

170 Fed. 2d 397.............................................................  15
Kimmins v. Estes, 80 S. W. 2d 387................................  9
Marrs v. Abshirer, 263 S. W. 263................................  8
Missions Independent School District v. Diserens,

188 S. W. 2d 568.........................................................  8
Mitchell v. Wright, et al., 154 Fed. 2d 924.................. 15
Montana. National Bank of Billings v. Yellowstone 

County, Montgomery, et al., 48 S. Ct. Rep. 331 
(276 U. S. 499).............................................................  28

Mosley v. City o f Dallas, 17 S. W. 2d 36.................... 9



Index to Authorities— (Continued) iii
Page

Mumrae v. Marrs, 40 S. W. 2d 31 10
Palmer Publishing Company v. Smith,

109 S. W. 2d 158......................................................  8
Price v. People of the State of Illinois, 35 S. Ct, Rep.

892 (238 U. S. 446).....................................................  26
Railroad Commissioner of Texas v. Pullman Com­

pany, 61 S. Ct. Rep. 643 (312 U. S. 496)..............  7
Starkes v. Wickard, 64 S. Ct. Rep. 559

(321 U. S. 288).............................................................. 7
State Line Consolidated School District No. Six (6) 

of Parmer County, et al. v. Farwell Independent 
School District, et al., 48 S. W. 2d 616.................... 19

State v. Sanderson, 88 S. W. 2d 1069 8
Texas Jurisprudence, Volume 37, Page 918...............  8
Warren v. Sanger Independent School District,

288 S. W. 159.............................................................. 9
Williams v. White, 223 S. W. 2d 278 11
Wilson v. Abilene Independent School District,

190 S. W. 2d 406.........................................................  7
Wilson v. City of Paducah, 100 Fed. Supp. 116 16
Zucht v. San Antonio School Board, 170 S. W. 840 8
Constitution of Texas:

Article VII, Sections 1-7, Sections 10-15 11
Texas Revised Civil Statutes:

Article 2900 ................................................................ 16, 17
Article 2654-1 .............................................................. 10
Article 2654-7 .............................................................. 31
Article 2656 ..................................................................19, 20
Article 2686 ................................................... 7, 9,10,19, 20
Article 2815h ................................................................ 11



No. 14,240

In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Geraldine I. Bruce, Minor, by her Father and next Friend, 
Elmer Bruce, et  al,

Appellants,
v.

H. W. Stilwell, As President of the Texarkana 
Junior College, et al.,

Appellees.

Appeal from the United States District Court for the 
Eastern District of Texas

BRIEF FOR APPELLANTS

STATEMENT OF THE CASE

Appellants are five Negro minors who bring this appeal 
by their next friends, all of whom are citizens of the State 
of Texas and of the United States, and residents of Bowie 
County, Texas. They all, and each of them reside within 
the Texarkana Junior College District.

The original action was filed on, to wit, May 10, 1949, 
in the United States District Court for the Eastern Dis-



2

trict of Texas, as Civil Action No. 272, styled Edwardlene 
M. Fleeks, et al, v. H. W. Stilwell, et al., as officers and 
members of the Board of Trustees of the Texarkana Inde­
pendent School District and of the Texarkana College Dis­
trict, complaining that the Defendants below, Appellees 
herein, had adopted policies, practices, customs and usages 
in the operation of the Texarkana public schools and the 
Texarkana Junior College which resulted in unlawful dis­
criminations against the Appellants, because of their race 
and color. Appellants prayed for a declaratory judgment 
and injunction to restrain Appellees from further discrim­
inating against them in providing and affording educa­
tional opportunities, facilities and advantages within the 
District.

Due to the long delay in bringing the matter to trial Ap­
pellants amended their complaint several times to substi­
tute new parties plaintiff for those who had completed the 
prescribed courses in the elementary or secondary schools 
or two or more years of college. They also amended their 
complaint to drop parties defendant who had served their 
terms on the Board and to add new parties defendant as 
new members were elected to the Board.

Upon a Motion To Sever the two causes of action and an 
Order by the Court directing Appellants to sever their 
causes of action, this cause was filed on, to wit, May 19, 
1952, as Geraldine I. Bruce, et al. v. H. W. Stihvell, et al., 
as Officers and Members of the Board of Trustees of the 
Texarkana Junior College District. Appellees filed their an­
swer on, to wit, May 29, 1952, and the cause came on for



3

trial before the Court, without a jury on, to wit, June 5, 
1952.

At the opening of the trial Appellees filed their Motion 
To Dismiss the cause on the ground that Appellants had 
failed to plead that they had exhausted their administra­
tive remedy provided under Texas Law, in that there was 
no pleading that they have appealed from the decision of 
the Junior College Officials to the higher school authorities 
of the State. (R. 20.)

The Court sustained Appellees’ Motion to Dismiss, and 
issued an Order of Dismissal, on the ground that the Court 
was without jurisdiction to try the cause. (R. 20-21.)

It is from this Judgment and Order that this appeal is 
taken.

CONCISE STATEMENT OF FACT

Appellants’ Bill of Complaint alleged, in substance, that 
the Appellees, as Officers and Members of the Board of 
Trustees of the Texarkana Junior College District were 
operating the Texarkana Junior College out of public 
funds for the exclusive use and enjoyment of members of 
the Caucasian or non-Negro races and that Appellants 
were denied the use and enjoyment of the junior college 
facilities provided and afforded by Appellees because of 
the race and color of Appellants; that the management and 
control of the college were vested in Appellees by State 
laws; that the college was organized and exists pursuant to 
State laws; that it is an instrumentality of the State; that



4

Appellees are Agents and Administrative officers of the 
State; that the College District is a corporation under Texas 
laws; that Appellants are members of the colored or Negro 
race; that they had presented themselves for admission bo 
the college and demanded admission and that Appellees have 
failed and refused to admit them because of their race 
and color and in violation of the laws of the State of Texas 
and of the United States; that they were eligible to attend 
the college; that they were ready and willing to pay all law­
ful and necessary tuitions and fees and to take all reason­
able and lawful pledges and submit to all reasonable and 
lawful rules and regulations of the college, and that no 
similar or equal junior college facilities have been provided 
for Appellants by Appellees within the junior college dis­
trict.

Appellants prayed for relief by way of a declaratory 
judgment declarative of the rights and legal relations of 
the parties to the cause, and for a permanent injunction 
to restrain and enjoin Appellees from further discrimi­
nation against Appellants by refusing them the use and 
enjoyment of the available junior college facilities within 
the district because of the race and color of Appellants, 
there being no other facilities available to them within the 
district.

Appellees answered denying that they had discriminated 
against Appellants because of their race or color and deny­
ing that Appellants were entitled to attend the Texarkana 
Junior College.



5

SPECIFICATION OF ERRORS

I.

The Trial Court erred in granting Appellees’ Motion to 
Dismiss Appellants’ Bill of Complaint for the reason that 
the only material questions before the Court were ques­
tions of law.

II.

The Trial Court erred in granting Appellees’ Motion 
to Dismiss Appellants’ Bill of Complaint for the reason 
that the alleged unlawful acts on the part of the Appellees 
were done without any power or authority vested in Ap­
pellees under the laws of the State of Texas and in direct 
contravention of rights guaranteed to Appellants by the 
constitution and laws of Texas and the constitution and 
laws of the United States.

III.

The Trial Court erred in granting Appellees’ Motion to 
Dismiss Appellants’ Bill o f Complaint for the reason that 
the State of Texas has not created or provided any ad­
ministrative agency with power or jurisdiction to de­
termine or adjudicate the issues raised in Appellants’ Bill 
o f Complaint.

I.— (Restated)

The Trial Court erred in granting Appellees’ Motion to 
Dismiss Appellants’ Bill of Complaint for the reason that 
the only material questions before the Court were ques­
tions of law.



6

ARGUMENT AND AUTHORITIES DISCUSSED 
UNDER SPECIFICATION OF ERROR 

NUMBER I.

The only material questions before the trial court in this 
cause were: (1) whether Appellees, as Agents and Admin­
istrative Officers of the State of Texas, were authorized 
by Texas laws to operate and maintain a junior college for 
the sole and exclusive use and enjoyment of members of 
the Caucasian or non-Negro races out of public funds and 
refuse and deny the use and enjoyment of the facilities of 
the said junior college to Appellants because of their race 
and color, when no similar or equal junior college facilities 
had been provided for Appellants, and, (2) the question 
whether the acts of Appellees, while acting under color of 
law, as Agents and Administrative Officers of the State 
of Texas, in denying and refusing to Appellants the use 
and enjoyment of the facilities of the said junior college 
because of the race or color of Appellants, were in viola­
tion of the Constitution and laws of the United States,

It is almost universally accepted law that administrative 
agencies are creatures of the legislature; that their powers 
are derived from the statutes by which they are created and 
that they have no common law powers.

Federal Trade Comm. v. Sinclair Refining Co., 261 
U. S. U63, US S. Ct. U50.

Administrative agencies may make reasonable rules and 
regulations for carrying out their proper functions, but



7

when the question of the construction of their own enabling 
statute arises, for the purpose of determining their own 
powers and the limitations on their powers, a judicial ques­
tion immediately arises, which is beyond the limits of their 
operations.

Railroad Comm, of Texas v .  Pullman Co., 812 U. S. 
U96, 61 S. Ct. 6AS;

Starks v. Wickard, 821 U. S. 288, 6U S. Ct. 559.

In Wilson v. Abilene Independent School District, 190 
S. W. 2d 406, where parents of school age children sought 
to enjoin the enforcement of an order by the School Trus­
tees which prohibited students of the junior and senior high 
schools of the district from joining fraternities not ap­
proved by the principal of the school, on the ground that 
the order was unreasonable, arbitrary and discriminatory, 
the defendants moved to dismiss the action saying that 
plaintiffs had not exhausted their administrative reme­
dies under Article 2686 of the Revised Civil Statutes of 
Texas and that this ousted the jurisdiction of the Court. 
The trial court took jurisdiction and denied the petition for 
injunction. Affirmed on appeal. The Court said: Our 
Courts have pointed out when a direct appeal to the Courts 
is proper procedure. The Rule is that where the questions 
involved are purely questions of fact the appeal should be 
made through the school authorities. But, if they be ques­
tions of law, then an appeal direct to the Courts should be 
made. (Emphasis added.)



8

Missions Ind. School Dist. v. Diserens, 188 S. W. 2d 
568;

Palmer Publishing Co. v. Smith, 109 S. W. 2d 158;

37 Texas Jurisprudence, 918-23, Secs. 53-55.

In Zucht v. San Antonio School Board, 170 S. W. 8JO, 
where the action was to enjoin a rule of the board which 
required all children to be vaccinated and for mandamus 
to compel the admission of the children, the Court said:

“ As the legislature did not expressly empower the 
school board to adopt the regulation in question, it 
must be determined whether the same is reasonable. 
Whether an ordinance or regulation is reasonable is 
a question of law for a court * * (Emphasis added.)

Mam's v. Abshirer, 263 S. W. 263;

56 C. J. 853, Sec. 1091;

37 Tex. Jur. 1059, Sec. 173.

In Missions Ind. School Dist. v. Diserens, 188 S. W. 2d 
568, where the school board was seeking specific perform­
ance under a contract between a teacher and the board, the 
defendant teacher moved to dismiss on the ground that the 
board had not exhausted the administrative remedy open 
to it under State law. Quoting State v. Sanderson, 88 S. W. 
2d 1069, the Court said:

“ It is well settled that in all matters pertaining to 
the administration of school laws involving questions 
of fact as distinguished from pure questions of law, 
resort must first be had to the school authorities and



9

the method of appeal there provided for exhausted be­
fore the court will entertain jurisdiction of a complaint 
with reference to such matters.”

Warren v. Sanger Ind. School Dist., 288 S. W. 159; 

Mosley v. City of Dallas, 17 S. W. 2d 36.

In construing state statutes, federal courts will be per­
suaded by the construction put on such statutes by the 
State’s highest court.

Highland Farms Dairy Co. v. Agnew, 300 U. S. 608, 
57 S. Ct. 559;

Bandini Petroleum Co. v. Superior Court of Calif., 
28i U. S. 8, 52 S. Ct. 3.

Article 2686 of the Revised Civil Statutes of Texas, which 
is the Appeals Statute in question, provides :

“ All appeals from the decision of the County Super­
intendent of public instruction shall lie to the County 
Board of School Trustees, and should either party de­
cide to further appeal such matters, they are here given 
the right to elect to appeal to any court having proper 
jurisdiction of the subject matter; or to the State 
Superintendent of Public Instruction as now provided 
by law, * *

In Kimmins v. Estes, 80 S. W. 2d 387, where Article 
2686 is construed by the Court of Civil Appeals of Texas, 
the Court said: “ * * * under the appeals statute, Article 
2686, as amended in 1927, the aggrieved party is given 
an option, after he has had a hearing before the trustees



10

of the independent district or county trustees to : (a) ap­
peal to the state superintendent of public instruction (now 
Commissioner of Education), or (2) go into any court hav­
ing proper jurisdiction of the subject matter.

If the aggrieved party elects to take his appeal to the 
Commissioner of Education, Article 2654-7, defines the 
procedure therefor, but adds: “ * * * nothing contained 
in this Section shall deprive any party of a legal remedy.”

JUNIOR COLLEGES

Article 2686 relates to controversies and disputes that 
arise under the public school laws of the State of Texas. 
This being true, a very serious question may be raised as 
to whether it has any application to the management and 
control of junior colleges.

Article 2654-1, Section 2, provides, in part:

“ The Central Education Agency shall exercise, un­
der the acts of the legislature, general control of the 
system of public education at the State level. Any 
activity with persons under twenty-one (21) years of 
age, which is carried on within the State by other 
State or Federal agencies, except higher education in 
approved colleges, shall in its educational aspects be 
subject to the rules and regulations of the Central 
Education Agency.”  (Emphasis added.)

In Mumme v. Marrs, M) S. W. 2d 31, a clear distinction 
is drawn between our system of public free schools, as pro­
vided for in the Constitution of Texas, Article VII, Sec­
tions 1 to 7 inclusive, and our system of higher education



Court and Jim Crow
The Monday decision of the United 

States Supreme Court banishing Jim 
Crow from our transport facilities is 
doubtless historic. Whether the principle 
enunciated can or should be extended to 
the entire field of segregation constitu­
tionally is another question. Racial preju­
dices are as deeply ingrained as racial 
differences. When you consider them, it 
seems to The News that one principle re­
mains crystal clear:

Involuntary association should not be j 
act up by law any more than should in­
voluntary segregation.

Where, then, is the dividing line? That 
is a fair question, but not one difficult 
to solve. In some respects a solution is 
expensive, but if the citizenry of any 
commonwealth is willing to pay the price, 
that should be its right.

If the Constitution means what it says, 
the Negro citizen can not be segregated 
rightfully in public services rendered 
under franchise, in public employment, in 
open market purchase of his home site or 
other property.

Nor, if the Constitution means what 
it says, can the white citizen be rightfully 
compelled to make his private business 
or employment open to anyone whom he 
does not wish to serve or hire.

Public Schooling furnishes the border­
line case with its expensive solution. 
But, since this necessarily involves the 
social relationship of the two races, The 
News believes firmly that the majority

THE DALLAS MORNING NEWS
N O V E M B E R  12, l » g g

have the right to segregate so long as 
equal educational facilities are provided.

The Constitution can not alter human 
nature. There is a fatal flaw in the other­
wise laudable program of the National 

e Association for the Advancement of 
Colored Peoples. This is the simple fact 

' that in contending rightly against the in 
voluntary segregation of the Negro, they 
insist that the white must be forced in­
voluntarily into association.



11

as provided for in Sections 10 to 15 inclusive of Article VII 
o f the Constitution of Texas.

The Court said that the authority granted to the legis­
lature in Article VII, Sections 10 to 15 inclusive, to create 
the institutions mentioned therein was not a limitation 
on its powers to create other similar institutions of higher 
learning and that the legislature had already created ten 
or more institutions of similar character without the con­
sent of the Constitution.

The legislature enacted Article 2815h which specifically 
authorizes the establishment of a system of junior colleges 
throughout the State and arranged for the procurement of 
lands and the construction of buildings by special bond is­
sues and vested these college districts with taxing power to 
raise revenue for operations, and the legislature, by spe­
cial appropriation acts, provides other revenue for them, 
that is different from the revenue sources of public free 
schools.

In William v. White, 223 S. W. 2d 278, the Court held as 
a conclusion of law, that junior colleges are institutions of 
higher learning in Texas and that the provisions of Section 
3 of Article VII of the Constitution of Texas are not appli­
cable to junior colleges.

The premises considered, Appellants respectfully submit 
that the Trial Court erred in granting Appellees’ Motion 
to Dismiss Appellants’ Bill of Complaint and the judgment 
and order of the Trial Court should be reversed.



12

II.— (Restated)

The Trial Court erred in granting Appellees’ Motion 
to Dismiss Appellants’ Bill of Complaint for the reason 
that the alleged unlawful acts on the part of the Appellees 
were done without any power or authority vested in Ap­
pellees under the laws of the State of Texas and in direct 
contravention of rights guaranteed to Appellants by the 
constitution and laws of Texas and the constitution and 
laws of the United States.

ARGUMENT AND AUTHORITIES DISCUSSED 
UNDER SPECIFICATION OF ERROR 

NUMBER II.

The appellants alleged that at State expense and out of 
public funds, the Appellees, as administrative officers of 
the State of Texas, were making available educational op­
portunities, advantages and facilities in the Texarkana 
Junior College, to white citizens, and were refusing equal 
educational opportunities, advantages and facilities to mi­
nor Appellants in such junior college district on account 
of their race and color; in fact, Appellants allege that the 
Appellees had failed and refused any such facilities, ad­
vantages and opportunities at all to minor Appellants on 
account of race and color (Tr., p. 13, Allegation 11). They 
further allege that such acts on the part of the Appellees 
were unlawful, unconstitutional, and in violation of rights 
guaranteed to the Appellants under the Constitution of the 
United States— equal protection of laws.



13

The Appellants therefore contend, that they were en­
titled to complain to the Court that their constitutional 
rights to equal protection of laws had been invaded, and 
that such constitutional rights having been violated, the ap­
pellants were entitled to go directly to the court for relief.

The above proposition appears to be sustained in the 
opinion in the case of Beal, et al. v. Holcombe, Mayor of the 
City of Houston, et al, 193 Federal 2d 38k- In that case 
the facts were identical to the facts in this case, except 
the Beal case was a golf case and there was no alleged ad­
ministrative remedy, and this case affects a junior col­
lege. In the Beal case, at public expense, the City had fur­
nished to non-Negro citizens, golf facilities which were re­
fused and denied to Negro citizens on account of race and 
color, and Chief Judge Hutcheson speaking for the court 
said (193 Fed. 2d 387):

“ He erred in law because his conclusion is contrary 
to the general principles established by the authorities, 
‘It is the individual who is entitled to the equal protec­
tion of the laws, and if he is denied * * * a facility or 
convenience * * * which, under substantially the same 
circumstances, is furnished to another * * * he may 
properly complain that his constitutional privilege has 
been invaded’.”

The Appellees, as administrative officers of the State of 
Texas, having made available educational advantages, 
training facilities, and opportunities on the Junior College 
level to non-Negro citizens, and under identical circum­
stances having refused to make such available equal facil­
ities to the minor Appellants on account of race and color,



14

the Appellants contend that they were entitled to go di­
rectly to the Court for relief, unless they were compelled 
to first resort to an administrative agency set up under 
the laws of the State of Texas, before resorting to the 
Court. Appellants contend that under the Texas Statute, 
their alleged cause of action was the type of cause of action 
that they could maintain in the Court without applying to 
the administrative agency and exhausting the adminis­
trative remedies for the reason, that the administrative 
agency had no jurisdiction or power to determine the is­
sues involved in this lawsuit within the meaning of the 
Texas Statutes; and that the alleged acts of the Appellees 
complained of, were in direct violation of the clear and 
express provisions of the State Statutes of the State of 
Texas, the Constitution of the State of Texas, and in direct 
contravention of the plain provisions of the Federal Con­
stitution to equal protection of laws, and that having al­
leged such cause of action, they were thereby relieved of 
any duty to apply to the administrative agency for relief.

The Appellees first filed an answer (Tr., page 16) in 
which the Appellees admitted a part of the facts alleged by 
the Appellants. Thereafter (Tr., page 20), Appellees filed 
their motion to dismiss Appellants’ petition, such motion, 
not withstanding the Appellees had filed an answer deny­
ing in part the facts alleged in Appellants’ petition, ad­
mitted every fact well pleaded in Appellants’ bill of com­
plaint. This position of the Appellants appears to be sus­
tained in the opinion of the Court in the case of Alston, 
et al. v. School Board of the City of Norfolk, 112 Federal



15

2d 992 (Syl. 2), as well as in the following cases decided 
by this Honorable Court:

Mitchell v. Wright, et al., 15 k Federal 2d 92k;

Hilliard v. Brown, United States Representative, 170 
Federal 2d 397.

In the last case cited, 170 Federal 2d 398, Judge Sibley 
writing for the court said:

“ The facts stated in the petition, however, rash and 
improbable they may seem, must on motion to dismiss 
be taken as true.”

With the filing of Appellees’ Motion to Dismiss, Appel­
lees admitted the following facts:

(a) That Appellees were administrative officers of the 
State of Texas performing an essential governmental func­
tion.

(b) That they were, as such officers, enforcing and 
maintaining a rule, policy, custom and usage in maintain­
ing a junior college out of public funds for the use of non- 
Negro students, and were denying such facilities, privi­
leges and educational advantages to the minor Appellants 
on account of race and color (Tr., page 4).

(c) That they were operating the Junior College under 
the aforesaid rule, custom and practice by virtue of their 
position under State law. (Tr., page 6.)

(d) That the minor Appellants were eligible and pos­
sessed the qualifications for entrance to the Junior Col­



16

lege, but were excluded therefrom on account of race and 
color. (Tr., pages 8, 9, 10, 11 and 12.)

(e) That no facilities on the Junior College level were 
furnished the minor Appellants on account of their race 
and color, and the same violated the constitutional rights 
of minor Appellants. (Tr. 13, Allegation 11 in Appellants’ 
Petition.)

With the above facts admitted, Appellants submit, that 
their constitutional rights to equal protection of laws had 
been violated by the alleged and admitted acts of the Ap­
pellees, and that the Appellees had acted in direct contra­
vention of the plain meaning and language of Article 
Tiventy-Nine Hundred (2900) of the Revised Civil Stat­
utes of Texas, and Article Seven (7), Section Seven (7) 
of the Constitution of Texas, and had denied to minor Ap­
pellants, equal protection of laws guaranteed to them by 
the Federal Constitution.

The above position, on the part of the Appellants, we con­
tend, finds support in the following authorities:

Wilson v. City of Paducah, 100 Federal Supplement 
116; Petition for writ of error denied, 71 Su­
preme Covirt Reporter 609 (341 U. S. 902);

Battle, et al. v. Wichita Falls Junior College, et al, 
101 Federal Supplement 82, and the authorities 
therein cited (which case is now on appeal before 
this Honorable Court).



17

The highest court of the State of Texas having previous­
ly construed and determined the meaning of Article 2656 
and Article 2686, then such judicial construction of said 
articles of the statute was binding upon the Trial Court 
in this case, for it appears from the decisions on this ques­
tion, that the Federal Court, in passing upon the meaning 
of a State Statute, will read such statute with the same 
construction and meaning as placed upon it by the highest 
court of the State. This proposition seems to be sustained 
by the decision of the Supreme Court in the case of Ban- 
dini Petroleum Company, et, al. v. Superior Court of the 
State of California in and for Los Angeles County, et al., 52 
Supreme Court Reporter 103 (281± U. S. 8). We will dis­
cuss and analyze a few of the decisions of the highest court 
of the State of Texas, construing the meaning and power 
of school authorities under the two articles of the Statute 
cited above, and to show that the pleadings of the Appel­
lants bring this case squarely within the exceptions, giving 
the Appellants the right to go directly to the Court as they 
did in this case. Article Twenty-Nine Hundred (2900) of 
the Revised Civil Statutes of the State of Texas, provides 
for a fair and impartial provision of school funds and fa­
cilities. Article Seven (7), Section Seven (7) of the Texas 
Constitution, provides likewise for a fair and impartial 
provision of school funds and facilities between non-Negro 
and Negro citizens. The article of the Constitution, as well 
as the provision of the Statute above cited have therein a 
prohibition against a partial distribution and furnishing 
of educational facilities, opportunities and conveniences to 
non-Negro and Negro citizens in Texas.



18

Since there was a prohibition in both the Statutes and 
Constitution of Texas, against the acts of the Appellees 
in discriminating against the Appellants because of race 
and color, in the furnishing of educational facilities, op­
portunities, and conveniences, then the Appellees acted in 
direct contravention of the plain mandate of a Texas Stat­
ute, and a provision of the Texas Constitution and in vio­
lation of the rights guaranteed to the Appellants under the 
Fourteenth Amendment to the Federal Constitution. This 
is not a case where the Appellants complained of any act 
committed by the Appellees, which they could find a lawful 
way to do under the laws of the State of Texas, Constitu­
tion of the State of Texas, or the Constitution of the United 
States. It is the contention of the Appellants, no matter 
what method the Appellees might have pursued to commit 
the acts charged against them; that is, to make available 
such educational facilities to non-Negro citizens and to 
have denied equal educational facilities to Negro citizens, 
they could have found no lawful way to have committed 
such acts.

Therefore, this case is not one in which the Appellees 
were acting lawfully under State Statutes, or had abused 
their discretion or were doing acts which they were au­
thorized to do in an unlawful way. They were not charged 
with an abuse of discretion, or that they had authority 
to do what they are charged with doing, but because of an 
error in judgment they were not following the letter of the 
law.



19

In the case of State Line Consolidated School District 
No. Six (6) of Parmer County, et al. v. Farwell Indepen­
dent School District, et a l, 18 S. W. 2d 616, the Court had 
before it the construction of Article 2656 and Article 2686 
and the court determined in that case whether a litigant 
was required, under such statute, to apply to the admin­
istrative agency and prosecute his claim before such ad­
ministrative agency when it was charged that the acts of 
the members of the School Board were void because unlaw­
ful and contrary to State Statutes, and upon such ques­
tion, Mr. Justice Critz speaking for the Court said (U8 
S. W. 2d 617):

“ It is true that our laws provide in certain instances 
that the orders and proceedings of county school boards 
can only be questioned by appeal to higher school au­
thorities, but, when a school board acts without au­
thority of law and contrary to express statute, and in 
such a manner that its act is void, then the courts of 
the land may be appealed to directly without first ex­
hausting the remedy of appeal through the school au­
thorities.”

Again the question of whether a litigant who alleged 
a cause of action, by alleging that the acts of the members 
of the school board were contrary to a state statute, thereby 
rendering such acts void, were compelled to exhaust his 
administrative remedies by appealing to the school authori­
ties set up in the form of an administrative agency before 
resorting to the court, in Bear v. Donna Independent School 
District, et al, 7J S. W. 2d 179 (writ of error refused by 
the Supreme Court). The Court, speaking through Justice



20

Murray, disposed of this question in the following lan­
guage :

“ However, appellant contends that where a school 
board acts without authority of law and contrary to 
express statutes, and in such manner that its act is 
void, then the courts of the land may be appealed to 
directly without first exhausting the remedy of appeal 
to the school authorities.

“ This is unquestionably correct, and was so held in 
State Line Consolidated School District v. Farwell 
Independent School District (Tex. Com. App.), 48 S. 
W. 2d 616.”

Again in the case of Chastain, et al. v. Mauldin, et at, 
32 S. W. 2d 235, the Court of Civil Appeals had before it 
the same question as the question presented in this case; 
that is, the construction and meaning of Article Two 
Thousand Six Hundred Fifty-six (2656) and Article Tivo 
Thousand Six Hundred Eight-six (2686) of the Texas Civil 
Statute. A writ of error was refused in such case by the 
Supreme Court. The Court specifically set out the excep­
tions under the above articles of the statute, when an ag­
grieved party was not required to appeal to the admini­
strative agency set up in the statute :

1. Those involving the constitutionality of some statute 
under which a school board purports to act.

2. Those in which no statutory authority is given for 
the act sought to be enjoined; and

3. Those in which property or funds belonging to the 
School District are about to be diverted from their proper 
use and purpose.



21

In the case of Bear v. Donna Independent School District, 
et al., 7U S. W. 2d 179, cited before in this brief, the Court 
stated the further additional exception:

When the acts complained of were in plain contravention 
of the express language of the statute or the Constitution 
and were alleged to be void.

The Supreme Court of Texas in fixing by construction 
the meaning of the above articles of the statute and the 
requirement of a litigant thereunder, has given a mean­
ing to such articles of the statute which relieved the ap­
pellants in this case from applying to the administrative 
agency set up under the above quoted articles of the statute 
or to exhaust the administrative remedies therein provided 
for. The appellants submit that a reading of the applicable 
statutes and the decisions of the Supreme Court of Texas, 
together with the record in this case, will reveal the error 
of the trial court in sustaining Appellees motion and dis­
missing Appellants’ petition.

It appears that whenever the State’s highest court de­
termines that there is an administrative remedy open to 
the litigant, the Federal Court is bound by such holding. 
We believe this proposition finds support in the opinion 
of the Supreme Court of the United States in the case of 
First National Bowk of Greely v. The Board of Commis­
sioners of Weld Comity, Colorado, J+U Sup. Ct. Rep. 385 
(26J, U. S. U50).

It would occur that by the same token where the highest 
court of the State of Texas has held that the litigant is not 
compelled to apply to the administrative agency where the



22

acts sought to be enjoined are done without any statutory 
authority, or in plain contradiction of the express language 
of the statute and Constitution, or where only a question 
of law is before the Court, the Federal Court would like­
wise be bound to follow such ruling.

III.— (Restated)

The Trial Court erred in granting Appellees’ Motion to 
Dismiss Appellants’ Bill of Complaint for the reason that 
the State of Texas has not created or provided any ad­
ministrative agency with power or jurisdiction to de­
termine or adjudicate the issues raised in Appellants’ Bill 
of Complaint.

ARGUMENT AND AUTHORITIES DISCUSSED 
UNDER SPECIFICATION OF ERROR 

NUMBER III.

The Texas Legislature has not expressly or by implica­
tion through the enactment of any statutory provision 
giving power or jurisdiction to the Commissioner of Educa­
tion or the State Board of Education to determine the con­
stitutionality of any state statute, or the question whether 
any action by any board of school trustees is violative of 
a constitutional right guaranteed to a citizen of Texas 
under the Federal Constitution.

The administrative agency and administrative remedy 
which the Appellees claim Appellants were compelled to 
apply to first and follow before resorting to the Court for 
relief is purely statutory, such administrative agency has



23

no common law powers and whatever power, authority or 
jurisdiction that such administrative agency has must be 
found in the statute creating and establishing such adminis­
trative agency. There is no language in the Articles of 
the Statute of the State of Texas giving the administrative 
agency and particularly Article 2656 and Article 2686, 
power or jurisdiction to construe and determine the con­
stitutionality of a statute o f the state when assailed by a 
complaining party as being unconstitutional, in that it 
violates certain basic fundamental rights,— equal protec­
tion of laws as guaranteed by the Federal Constitution and 
no jurisdiction can be found in the plain language of the 
Statute which vests jurisdiction in such agency to determine 
whether action taken by a board of school trustees is vio­
lative of constitutional rights asserted by the litigant. Here 
the Appellants asserted in their Bill of Complaint the viola­
tion of constitutional rights guaranteed to them of equal 
protection of laws under the Federal Constitution and that 
the Appellees’ acts in excluding and denying the minor 
Appellants the educational facilities in the Texarkana 
Junior College District on account of race and color, while 
making the same facilities available to non-Negro citizens 
under identical circumstances and out of public funds, 
violated rights guaranteed to minor Appellants, for the 
reason that no facilities at all were made available to Ap­
pellants. The issues presented call for a judicial determina­
tion of a legal question which the administrative agency, 
set up under the Texas law, had absolutely no power or 
jurisdiction to determine.



24

This is not an open question in Texas. In the case of 
Henderson, et al. v. Miller, et al., 286 S. W. 501, the Fort 
Worth Court of Civil Appeals had before it the same issue 
as the issue here presented; that is, the construction of the 
Statute of the State of Texas upon which the Appellees 
relied in the Trial Court to sustain the Trial Court’s action. 
In the Henderson case, a writ of error was refused by the 
Supreme Court of Texas, which action by the Supreme 
Court made such decision the decision and final word of 
the Supreme Court of Texas on the construction and mean­
ing of said statutory provisions and the Court in disposing 
of such issue, used the following language:

“ It is manifest that neither the board of county 
school trustees, nor the state superintendent, nor the 
state board of education, is vested with any jurisdic­
tion to determine the constitutionality of any statute, 
or the question whether or not any action by any board 
of school trustees is violative of constitutional rights. 
Authority to determine such questions is exclusively 
the function of the judiciary, and therefore the court 
did not err in overruling the exception to the juris­
diction of the trial court.

“ As noted above, one of the grounds for the relief 
prayed for was the contention that the act of the Legis­
lature was void because in violation of section 35, art. 
3, of the Constitution, which requires the subject o f an 
act of the Legislature to be expressed in the title of the 
act, and that the act was further violative of the con­
stitutional provision guaranteeing citizens equal pro­
tection of the law.”

The highest court of the State of Texas having placed its 
construction and meaning on the Articles o f the Texas



25

statute here involved and having held and construed such 
provisions of the Texas statute to the effect that the ad­
ministrative agency set up by said Articles of the Statute 
did not have power or jurisdiction to determine the issues 
of the constitutionality of a state statute or power or juris­
diction to determine whether the actions of a board of school 
trustees were violative of constitutional rights; then Ap­
pellants submit that since the main issue raised in this 
law suit; that is, whether the action of the members of 
the board of trustees of the Texarkana Junior College 
District in denying minor Plaintiffs’ rights guaranteed to 
them under the Federal Constitution because of race and 
color was violateive of rights guaranteed to them under 
the Federal Constitution, was a question beyond the power 
or jurisdiction of the Commissioner of Education and the 
State Board of Education to determine.

In all of the cases that we have been able to find where 
the Court has sustained the proposition that a litigant must 
first apply to the administrative agency and exhaust his ad­
ministrative remedies before applying to the Court, have 
been where there was an administrative agency set up with 
jurisdiction to determine the issues involved and that- in 
these cases the Court held that the Court will not presume 
that the administrative agency, if  properly applied to, will 
not correct the alleged wrong. This presumption in favor 
of the proper and correct action of the administrative 
agency is based upon and must be based upon, the propo­
sition that the administrative agency has power, jurisdic­
tion and authority to correct such alleged wrong; but in



26

this case there can be no such presumption, for the con­
struction placed upon such statute by the highest court of 
Texas holds specifically that such administrative agency 
has no power to determine the very issue presented to the 
Court in this case, by the Appellants; that is, whether the 
acts of the members of the trustee board of the Texarkana 
Junior College District are violative of their constitutional 
rights— equal protection of laws.

The Appellees did not challenge the correctness of the 
above construction placed upon the Texas statute in the 
Trial Court and we presume that they will not attempt 
to challenge the construction and meaning placed upon such 
statute by the highest court of Texas in this case, but if 
they choose to do so, we do not believe that the Court will 
entertain or give any credence to such position, for we sub­
mit that a Federal Court will accept the decision of the 
highest court of the State of Texas as to the meaning of 
the state statute here involved and in the light of such 
construction, will determine the issues here involved. We 
believe that this position of the Appellants is supported by 
the decision of the Supreme Court of the United States in 
the case of W. T. Price v. People of the State of Illinois, 
35 Sup. Ct. Rep. 892 (238 U. S. U-b6), and upon the posi­
tion here taken by the Appellants, the Supreme Court of 
the United States speaking through Mr. Justice Hughes 
says:

“ The plaintiff in error challenges the correctness of 
this construction, but this question is simply one of 
local law with which we are not concerned. We accept



27

the decision of the supreme court of the state as to the 
meaning of the statute, and, in the light of this con­
struction, the validity of the act under the Federal 
Constitution must be determined.”

If the administrative agency to which Appellees claim 
the Appellants must first apply before applying to the 
Court for relief, had no jurisdiction or power to determine 
whether the alleged acts of the members of the board of 
trustees of the Texarkana Junior College District were 
violative of the constitutional rights of the minor Appel­
lants, then the Appellants submit that they were not. re­
quired to apply to such administrative agency and that 
they were entitled to go directly to the Trial Court as they 
did in this case and they were entitled to have the Court 
determine the issue as to whether the alleged acts of the 
members of the board of trustees of the Texarkana Junior 
College District were in violation of their constitutional 
rights— equal protection of laws. The Supreme Court of 
Texas, having determined that such agency had no juris­
diction, would have rendered any such application to said 
administrative agency absolutely and utterly futile and 
valueless, for the highest court of the State of Texas had 
already determined that such administrative agency was 
powerless to grant any appropriate relief sought by the 
Appellants.

We believe that this position of the Appellants is sus­
tained by the opinion of the Supreme Court in the case of



28

Montana National Bank of Billings v. Yellowstone County, 
Montgomery, et al., 48 Swp. Ct. Rep. 331 (276 U. S. 499);  
Mr. Justice Sutherland, speaking for the Court, stated 
the rule of law supporting Appellants’ position here in 
the following language:

“Finally, it is urged that plaintiff in error may not 
maintain this action because of its failure to apply 
to the county board of equalization for an administra­
tive remedy. We do not stop to inquire whether under 
any circumstances such remedy was open to the tax­
payer, for the short answer is that the decision of the 
Supreme Court of Montana in the Rogers Case would 
have rendered any such application utterly futile since 
the county board of equalization was powerless to 
grant any appropriate relief in the face of that con­
clusive decision.”  (See Appendix I.)

Therefore, Appellants urge upon this Honorable Court 
the proposition that the learned Trial Court erred in sus­
taining Appellees’ motion to dismiss their Bill of Com­
plaint and entering his order dismissing Plaintiffs’ peti­
tion.

WHEREFORE, because of the many errors manifested 
in this case, the Appellants respectfully pray the Court 
that the judgment of the Trial Court dismissing plaintiffs’ 
petition be reversed, with instructions to the Trial Court 
to reinstate said petition and cause of action upon the 
docket of said Court for trial in its regular order, and, 
for such other orders and decrees, as the law and the facts 
in this case require; and, upon the brief and the record



29

in this case, the Appellants respectfully submit this case 
for a reversal of the judgment of the Trial Court.

Respectfully submitted,

W. J. Durham,
Excelsior Life Building,
2600 Flora Street,
Dallas, Texas.

U. Simpson T ate,
1718 Jackson Street,
Dallas, Texas,

By.....................................................
Attorneys for Appellants.

I do hereby certify that I, W. J. Durham, one of the at­
torneys for the Appellants herein have this the ...........
day of October, 1952, placed a copy o f this Brief in the 
hands of Robert S. Vance, Esq., one of the attorneys of 
record for the Appellees herein, at his office, Room 304, 
Texas City Hall, Texarkana, Texas.

W . J. Durham.



31

APPENDIX I.
TEXAS EDUCATION AGENCY 

Austin, Texas 
September 15, 1952

Commissioner o f Education

Wilma Dean Whitmore, et al. 
v.

Board of Trustees of the 
Texarkana Junior College District

Mr. U. Simpson Tate 
1718 Jackson Street 
Dallas, Texas

Dear Mr. Tate:

We wish to advise you and the appellants in this cause 
that we do not believe the Commissioner o f Education is 
authorized by law to take jurisdiction in appeals from de­
cisions of junior college governing boards.

We base this dedision on our interpretation of Article 
2654-7, Sec. 1 and Article 2656, Revised Civil Statutes. 
We believe these articles refer to appeals taken from the 
decisions of governing boards of the public schools o f ele­
mentary and/or secondary classification. We direct your 
attention also to Article 2654-1, Sec. 2, which states in part:

“ The Central Education Agency shall exercise, un­
der the acts of the Legislature, general control of the 
system of public education at the State level. Any 
activity with persons under twenty-one (21) years of 
age, which is carried on within the State by other State 
or Federal agencies, except higher education in ap­
proved colleges, shall in its educational aspects be sub­
ject to the rules and regulations of the Central Edu­
cation Agency.”  (Emphasis supplied.)



32

Since this Act was passed by the 50th Legislature in 
1949 which is subsequent to the enactment o f Article 2815h, 
Sec. 5 and further, since the courts in the cases o f Foley v. 
Benedict, 55 S. W. 2d 805, and Williams v. White, 223 S. 
W. 2d 278, and others, have held that junior college educa­
tion is higher education, we believe that we are justified in 
our conclusion. Additional support of this position can be 
had by reviewing the case of Randolph Junior College v. 
Isaacks, 113 S .W . 2d 628 Tex. Civ. App., 1938, which sub­
stantiates the proposition that the appeal from the ruling 
of a junior college board goes directly to the courts rather 
than to the Commissioner.

We believe the Commissioner should not refuse to hear 
an appeal where any reasonable basis for taking jurisdic­
tion appears ; on the other hand, he should not attempt to 
exercise jurisdiction where the ground for doing so is 
tenuous. The court, in State ex rel. Marts, State Superin­
tendent v. Abshier, 263 S. W. 263 (Tex. Comm-, App., 192U), 
frowned upon any attempted extension of jurisdiction by 
the State Superintendent and indicated that the court would 
not hesitate to overrule any unwarranted assumption of 
jurisdiction. The court used the following language:

“ It was, of course, not the intention of the Legis­
lature to confer on the State Superintendant and the 
State Board o f Education, discharging quasi-judicial 
functions, exclusive authority to determine questions 
pertaining to their jurisdiction and the extent of their 
power. All such questions are subject to inquiry by 
the courts.”

Very truly yours,
/ s /  J. W. Edgar 
J. W. Edgar
Commissioner of Education

BH*hb