Clark v. Flory Brief for Petitioners

    £§>tate of Carolina
in ttje

Supreme Court
COLUMBIA, SOUTH CAROLINA

MRS. ETTA CLARK, ET AL.,
Plaintiffs, 

vs.
C. H. FLORY, ET AL.,

Defendants.

BRIEF FOR PETITIONERS

John H. W righten,
230 Coming Street,

Charleston, South Carolina,

W. Newton Pough,
P. 0 . Box 31,
S. C. State College,

Orangeburg, South Carolina

Attorneys for Petitioners



I N D E X

Statement .................

Statutes Involved....

Questions Presented

Argument.................

Conclusion ..............

Index to Cases ........

PAGE

la

2a

3 a

4a tO' 8a

9a

.10a



BRIEF FOR PETITIONERS

STATEMENT

Petitioners are Negro Citizens of the County of Charles­
ton, State of South Carolina and citizens of the United 
States of America, brought an action in the Federal Dis­
trict Court, the Eastern District of South Carolina, Char­
leston Division, for the use of the Edisto State Park Beach, 
Edisto Island, Charleston County. The same was brought 
against C. H. Flory, et al., and the State Commission of 
Forestry, Defendants named herein. The Petitioners’ Com­
plaint alleges that the denial by the Defendants of the 
Petitioners, the use of the Edisto State Park Beach is 
unconstitutional and discriminatory; which denied them 
of their constitutional rights as citizens of Charleston 
County, State of South Carolina and the United States of 
America. Under the laws of South Carolina, Section 51- 
181 through 51-184 of the Code of Laws of South Carolina, 
1952, segregation of the races at the Edisto State Park 
Beach is required, and violators are subject to fine, there­
fore, the Petitioners brought this action in this Honorable 
Court for the interpretation of Section 51-181 through 
51-184. The same is believed by the Petitioners, to be 
unconstitutional, based on the 14th Amendment, United 
States Constitution and Article 1, Section 5 of the Consti­
tution of South Carolina.



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STATUTES INVOLVED

SECTIONS:

51-181— Joint use prohibited in Cities over 60,000, 1930 
census.

51-182— Posting of signs required.

51-183— Unlawful to use contrary to posting.

51-184— Penalties.



QUESTIONS PRESENTED

1. Whether or not Sections: 51-181, 51-182, 51-183 and 
51-184 of the Code of Laws of South Carolina, and the 
policy, custom and practice of the Defendants under au­
thority and color of said statutes, and otherwise, in deny­
ing on account of race and color to Petitioners and other 
Negro Citizens similarly situated, rights and privileges of 
attending and making use of the bathing beach and bath­
house facilities at the Edisto State Park Beach, are repug­
nant to the 14th Amendment of the United States Constitu­
tion and Article 1, Section 5 of the Constitution of South 
Carolina?

2. Whether or not Sections: 51-181, 51-182, 51-183 and 
51-184 are repugnant to Article 3 of the Constitution of 
South Carolina Section 34, Paragraph 9?

3. Whether or not Sections: 51-181, 51-182, 51-183 and 
51-184, violate the Equal Protection Clause of the 14th 
Amendment to the United States Constitution and Article 
1, Section 5 of the Constitution of South Carolina?

4. Whether or not Sections: 51-181, 51-182, 51-183 and 
51-184, are violative of the Due Process of Law under the 
5th Amendment of the United States Constitution and the 
Constitution of South Carolina, Article 1, Section 5?



4a

ARGUMENT

I

Our view is that on the authority of the McLaurin vs. 
Okla., State Regents, 339 U.S. 637, the Supreme Court 
had held that it was a denial of the equal protection guar­
anteed by the 14th Amendment for a State to segregate 
on the grounds of race, a student who had been admitted 
to an institution of higher learning. We feel that based on 
authority cited, the denial of the defendants in admitting 
the Colored People to the use of the Edisto State Park 
Beach is also a denial of the Equal Protection Clause of the 
14th Amendment and also a denial of their rights under 
the Constitution of South Carolina as cited.

If a State cannot segregate at Colleges and Universities, 
where individuals must come into close contact of necessity, 
then it cannot segregate at bathing beaches where coming 
into contact is optional.

II

Article 4, Section 51-181 of the 1952, Code of Laws of 
South Carolina provides that “Joint use prohibited in Cities 
over 60,000, 1930 census,” under the heading, “ Use of 
certain parks, etc., White and Colored Races jointly pro­
hibited.”

The title of the Acts in question specifies its purpose to 
be that of separating the Races in joint use of public parks, 
etc., yet while at the same time it only excluded the joint 
use of public parks in certain areas, while in other areas 
there is no such restriction.



5a

Moreover, the provisions of the act make its applicable 
use to about three Counties, at present, and when it was 
passed by the Legislature or General Assembly in 1935, its 
application was directed to Charleston County; for at that 
time Charleston was the only County that had a City in it 
with a population of 60,000 people, based on the 1930 cen­
sus; therefore, not only do we believe that the aforemen­
tioned Statutes discriminate against them as taxpayers and 
Citizens, both White and Colored, in the State of South 
Carolina, but that the said Statutes are Special in nature, 
and that the passage of these Statutes on the part of 
the General Assembly violated the very thing that the 
Constitution was designed to prevent.

Many cases analogous to the present have been decided 
by this Honorable Court. Thus, it has been held that the 
purpose of Article 3, Section 34, Paragraph 9 of the Con­
stitution of South Carolina, “ is to make uniform the Stat­
utes of like subject” , Carroll vs. Town of York, 109 S. C. 
1, 95 S.E. 121.

In Webster vs. Williams, 183 S. C. 368, 191 S. E. 51, 111 
A.L.R. 1348, a special act was condemned in which an at­
tempt was made to increase the penalty upon delinquent 
taxes in a single County despite a general law thereabout.

Further, this Court has held that where a general law 
can be had on a subject special Statute on the subject will 
be declared null and void.

In Gaud vs. Walker, 53 S.E. 2d 316, 214 S. C. 451, it was 
said that; “ under constitutional provision the General As­
sembly is to provide by general laws for organization and 
classification of municipal corporations, with powers of



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each class to be defined so that no such corporation has 
powers or is subject to restriction other than all other 
corporations of the same class, the police power cannot be 
delegated as to one town or city and withheld as to others.”

AS TO SPECIAL LAWS:

Under the constitutional provision that no special law 
shall be enacted where a general law can be made appli­
cable, acts imposing one-year limitation on action by State 
or City officer or employee for salary, fees, or other obli­
gation of service, or six months limitation if cause of action 
assured prior to effective date of act, which act does not 
apply to Counties having a population of over 85,000, is 
unconstitutional as a whole and cannot be sustained in part 
by striking out provisions making act applicable as to such 
Counties. Gillespie vs. Pickens County, 14 S.E. 2d 900, 197,
S. C. 217.

Legislative discretion in enacting special laws cannot be 
extended beyond limits marked out in organic law. Sirrin 
vs. State, 128 S.E. 172, 132 S. C. 241.

Under constitutional provisions limiting purpose of local 
or special laws, Legislature cannot adopt a mere arbitrary 
classification to apply different rules to different subjects. 
Thomas vs. Macklen, 195 S.E. 539, 186 S. C. 290.

A law is general in the constitutional sense if applicable 
uniformly to all members of any class of persons, places, 
or things requiring peculiar legislation in matters covered 
by it; “ General Law.” McKiever vs. City of Sumter, 135 
S.E. 60, 137 S. C. 266.

Constitutional inhibition against special law, where gen­



7a

eral law can be made applicable, prohibits enactment of 
special laws relating to a particular county, no particular 
local conditions require special treatment, and statute of 
State-wide operation on the subject is in force. Webster 
vs. Williams, 191 S.E. 51, 183 S. C. 368, 111 A.L.R. 1348.

We think that the leading case on the subject of special 
and general law and the prohibiting of special laws, with a 
full discussion of the constitutional restraint thereon is 
found in Owens vs. Smith, et al., (1950), 216 S. C. 382, 58
S.E. (2d) 332. There the Court said, “ Where subject of 
legislation is reasonably susceptible of general treatment, 
a special enactment thereon is invalid under constitutional 
provision prohibiting special law where general law can be 
made applicable, and enactment is not authorized by an­
other provision authorizing enactment of special provisions 
respecting municipal government.”

III

In Brown vs. Board of Education, 347 U. S. 483, segre­
gation of White and Colored Children in the public'schools 
of the State was held to be a denial of the Equal Protection 
Clause of the 14th Amendment. We feel that the above 
cited case is applicable in the Beach Case, also.

IV

_ In Bolling vs. Sharpe, 347 U. S. 497, segregation in pub­
lic ^schools of the District of Columbia was held to be vio­
lative of the Due Process Clause of the 5th Amendment.
In the same case the Court said: at (P.P. 499-500).

Classification based solely upon race must be scrutinized 
with particular care, since they are contrary to our tradi­
tions and hence constitutionally suspect. As long as 1896,



8a

this Court declared the principle, that the Constitution of 
the United States in its present form, forbids so far as 
Civil and Political rights are concerned, discrimination by 
the general government or by the States, against any citi­
zen because of race. And, in Buchanan vs. Warley, 245 
U. S. 60, the Court held that a statute which limited the 
rights of property owners to convey his property to a per­
son of another race was held as unreasonable discrimina­
tion, a denial of due process of the law.”

EQUAL PROTECTION DEN IED:

In Gillespie vs. Pickens County, 197 S. C. 217, 14 S.E. 
(2d) 900, where an act fixed a period of limitation for ac­
tions against Counties for salaries, fees, etc., but which 
excluded from its operation claims against four Counties 
of the State, violated the Equal Protection and Due Process 
Clause of the State and Federal Constitution.

DUE PROCESS CLAUSE DENIED:

Sections 5 and 6 of Act No. 502, 1944 Acts, which per­
mitted School District to acquire the absolute ownership of 
property and required the citizens of other School Districts 
to help pay for it without acquiring any legal interest 
whatever, therein, constituted a denial of Due Process and 
Equal Protection of the laws. Moseley vs. Welch, 209 S. C. 
19, 39 S.E. (2d) 133.



9a

CONCLUSION

FOR THE REASONS HEREINABOVE STATED 
AND CASES CITED, IT IS RESPECTFULLY SUBMIT­
TED THAT THE STATUTES IN QUESTION ARE UN­
CONSTITUTIONAL AND THAT THE RELIEF 
PRAYED FOR BY THE PETITIONERS SHOULD BE 
GRANTED.



10a

IN D EX TO CASES

PAGE

1. McLaurins vs. Okla., State Regents
339 U.S. 637 ..........................................................................  4a

2. Carroll vs. Town o f York
109 S.C., 1, 95 S.E. 121 ....................................................... 5a

3. Webster vs. Williams
18 183 S.C. 368, 191 S.E. 51, 111 A.L.R. 1348.... 5a & 7a

4. Gaud vs. Walker
53 S.E. (2d) 316, 214 S.C. 451 .............................  5a & 6a

5. Gillespie vs. Pickens County
14 S.E. (2d) 900, 197 S.C. 217...............................  6a & 8a

6. Serrins vs. State
128 S.E. 172, 132 S.C. 241..................................................  6a

7. Thomas vs. MacKlen
195 S.E. 539, 186 S.C. 290..................................................  6a

8. McKiever vs. City o f Sumter
135 S.E. 60, 137 S.C. 266..................................................... 6a

9. Owens vs. Smith, et al.
216 S.C., 382, 58 S.E. (2d) 332..........................................  7a

10. Brown vs. Board of Education
347 U.S. 483 ............................. -...................................- ...... 7a

11. Bolling vs. Sharpe
347 U.S. 4 9 7 ............................................................................  7a

12. Buchanan vs. Warley
245 U.S. 6 0 ........................ -................-................................. 8a

13. Moseley vs. Welch
209 S.C. 19, 39 S.E. (2d) 133............................................  8a