Carson v. Warlick Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit
Public Court Documents
February 2, 1957

42 pages
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Brief Collection, LDF Court Filings. Carson v. Warlick Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit, 1957. ce411413-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ae404c59-97ed-41a7-a68c-6e547451e8db/carson-v-warlick-petition-for-a-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-fourth-circuit. Accessed July 10, 2025.
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c riw a * supreme u atin , u .a . F I L E D F E B 2 1957 NO. 748 || JOBfl I . FEY, Clark }; SUPREME COURT OF THE UNITED^STATES October Term, 1956 LION EL C. CARSON, I n f a n t , By H is N e x t E rien d , M A R T IN A. CARSON, E t A ls ., Petitioners, versus HONORABLE W ILSON W ARLICK, U n it e d S tates D is t r ic t J udge for t h e 'Western D is tr ic t of N o rth Car o l in a , Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. T ay lo r and M it c h e l l Raleigh, North Carolina 125 E. Hargett Street Of Counsel H erm an L . T ay lo r Sa m u e l S. M it c h e l l , 125 E. Hargett Street Raleigh, North Carolina Counsel for Petitioners INDEX OPIN IO N BELOW ........................... ............................. J U R IS D IC T IO N .... .......................................................... QUESTIONS PR E SE N TE D ......................................... STATU TES IN V O LV E D ................................................ STATEM EN T ................................... ................................. REASONS FOR GRAN TIN G TH E W R IT ............ 1. The decision of the Court below is in conflict with decisions of other United States Courts of Appeals 2. The decision of the Court below is in conflict with the decision of this Court in Brown et al. vs. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 99 L. ed. 653.......................................................................... 3. The Court below has reached an erroneous and monstrous conclusion by pyramiding a series of inapplicable and conflicting principles of federal law ................................................................................ 4. The questions presented herein are of such great and recurring significance in the matter of public school education throughout the Fourth Circuit, as well as throughout other Circuits, as to make this a case peculiarly appropriate for the exercise of this Court’s discretionary jurisdiction................ C O N C LU SIO N ............................................................ ...... A P P E N D IX “ A ” : Opinion of the Court of Appeals......................... “ B ” : Order of the Court of Appeals............................ “ C” : Order of the District Court.................................. “ D” : North Carolina General Statutes 115-176 as amended............ ....... ..................................... . “ E” : Opinion of North Carolina Supreme Court in Joyner et al. vs. McDowell County Board of Education, 244 N.C. 164, 92 S.E. 2d 795........ “ F ” : Administrative Ruling (Communications be tween counsel for Petitioners and the Board of Education of McDowell County)................ 1 2 2 3 3 thru 4 5 thru 11 5 PAGES 6 and 7 7 thru 10 10 and 11 11 12 thru 20 21 22 thru 24 25 thru 27 28 thru 34 35 and 36 ii INDEX -PAGES ST A T U T E S: 18 U.S.O. 242.................................................................. 10 42 U.S.C. 1983................................................................ 10 28 U.S.O. 1254(1)......................................................... 2 28 U.S.C. 2 1 0 1 (c )..................................................... 2 North. Carolina General Statutes: 115-176 through 115-179.............. 3, 4, 5, 6, 8, 9 and 13 thru 16 115-176 through 115-179 (amended).............. 3 and 25 thru 27 M ISCELLAN EO U S: Federal Rules of Civil Procedure— Rule 23(a) (3).... 6 42 Am. Jur. (Public Administrative Law) Sec. 29.... 9 42 Am. Jur. (Public Administrative Law) Sec. 36.... 9 CASES: Brown et al. vs. Board of Education, 1954— 347 U.S. 483, 74 S. Ct. 686, 98 L. ed. 873... 6 and 10 1955— 349 U.S. 294, 75 S. Ct. 753, 99 L. ed. 653...3, 6 and 10 Brown et al. vs. Edwin L. Bippy, (C.A., 5th) 233 E. 2d 796........................................... 5 and 10 Bush vs. Orleans Parish School Board, U.S.D.C., La. 138 F. Supp. 336................................ 5 Carson et al. vs. Board of Education of McDowell County, 227 E. 2d 789................................................ 4 and 11 Clemons et al. vs. Board of Education of Hillsboro, Ohio, et al. (C.A., 6th) 228 E. 2d 853...................... 5 and 10 Carter et al. vs. School Board of Arlington County, Virginia (C.C.A., 4th) 182 F. 2d 531....................... 7 Chung Yim vs. United States (C.C.A., 8th), 78 E. 2d 43, 296 U.S. 627, 56 S. Ct. 150, 80 L. ed. 446........ 9 Conally vs. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. ed. 322....................... ............... 9 County School Board of Arlington County, Virginia, vs. Clarissa S. Thompson et al., No. 7310 (O.A., 4th), ..... E. 2d............................................................ 11 Drumheller vs. Local Board No. 1 et al. (O.C.A., 3rd) 130 E. 2d 610................................................................ 9 PAGES Herbert Brewer et al. vs. Hoxie School District No. 16 (C.A., 8th), 238 F. 2d 91................................. 5 and 10 Hood vs. Board of Trustees of Sumter County School District No. 2, Sumter County, South Carolina, et al. (C.A., 4th), 232 F. 2d 626............................. U Joyner et al. vs. Board of Education of McDowell County, 244 H.O. 164, 92 S.E. 2d 795..................... 4 and 7 Jackson et al. vs. 0 . C. Rawdon as President of the Board of Trustees, Mansfield Independent School District, et al (C.A., 5th), Civ. Ho. 15927, 235 F. 2d 93, 1 Race Rel. L. Rep. 655.................................. 5 and 10 Lane vs. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. ed. 1281.,................................................................... 8 Lowell vs. Griffith, 303 U.S. 444, 58 S. Ct. 666, 82 L. ed. 949................................................................ 9 Morgan vs. Tenn. Valley Authority (C.C.A., 6th), 115 F. 2d 990.......... 9 Hotter vs. Derby Oil Co. (O.C.A., 8th), 16 F. 2d 717, 273 U.S. 762, 47 S. Ct. 477, 71 L. ed. 879............ 9 McKissick vs. Carmichael (C.C.A., 4th), 187 F. 2d 949 ......................................................................................... 10 New Jersey State Board of Optometrists et al., 5 FT. J. 412, 75 A. 2d 867, 22 A.L.R. 2d 929....................... 9 Opp. Cotton Mills vs. Administrator of Wage and Hour Division of Department of Labor, 312 U.S. 126, 61 S. Ct. 524, 85 L. ed. 624................................ 8 Procter & Gamble Distributing Co. vs. Sherman et al. (D.C., S.D .H .Y .), 2 F. 2d 165.................................. 7 and 8 Panama Refining Co. vs. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. ed. 446............................................. 8 People use of Moore vs. J. 0 . Beekman and Com pany, 347 111. 92, 179 H.E. 435............... ................ 8 Robinson et al. vs. Board of Education of St. Mary’s County et al. (U.S.D.O., M d.), Civil Aetion Ho. 8780, 143 F. Supp. 481............................................... 11 index iii iv INDEX PAGES School Board of the City of Charlottesville et al. vs. Doris Marie Allen et al., No. 7303 (C.A., 4th), ......F. 2 d ........................................................................ 11 United States vs. Coplan (C.A., 2nd), 185 F. 2d 629, 28 A.L.K. 2d 1041, 342 U.S. 920, 72 S. Ct. 362, 96 L. ed. 690................................................................ 10 Yick Wo. vs. Hopkins, 118 U.S. 358, 30 L. ed. 356, 6 S. Ct. 1064.................................................. 9 IN THE SUPREME COURT OF THE UNITED STATES O ctober T e r m , 1956 N o- L io n el C. Carson , Infant, By His Next Friend, M a r t in A. Carson , E t A l s ., Petitioners, verms H onorable W ilso n W a r l ic k , United States District Judge for the Western District of North Carolina, Respondent. PETITION FOB A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT The Petitioners pray that a writ of certiorari issue to review the Order and Decision of the United States Court of Appeals for the Fourth Circuit entered in the a,hove case on November 14,1956. OPINION BELOW The opinion of the Court of Appeals for the Fourth Circuit, (R., Opinion of the Court), is reported a t ..... F. 2d ......, and is copied in the Appendix to this Petition as Appendix “ A .” The Order of the District Court for the Western District of North Carolina is copied in the Appendix to this Petition as Appendix «C .” The Administrative Ruling which precipitated the instant controversy is copied herein as Appendix F to this Petition. 2 JURISDICTION The Order and Opinion of the Court of Appeals for the Fourth Circuit are dated November 14, 1956, and both were entered on the day abovementioned. Copies of both the Order and the Opinion of said Court are copied in the Appendix to this Petition as Appendix “ A ” and “ B ” respectively. The jurisdiction of this Court is invoked under 28 TT.S.C. 1254(1) and under 28 U.S.C. 2101(c). QUESTIONS PRESENTED In the Court of Appeals below, petitioners sought a writ of mandamus, which petitioner prayed to he directed to the United States District Court for the Western District of North Carolina, under the terms of which, among other things, the District Court would he directed to vacate an order of stay of proceedings which it had entered and to proceed with petitioners’ cause as though petitioners had either exhausted all administrative remedies or had no such remedies to exhaust as a prerequisite to obtaining federal injunctive relief. The Court of Appeals denied the peti tion for writ of mandamus. The questions presented are: 1. Whether the North Carolina General Statutes 115-178 et seq. provide an adequate administrative remedy which petitioners are required to exhaust prior to seeking federal injunctive relief ? 2. Whether petitioners have in fact exhausted such adminis trative remedies as are applicable to them ? 3. Whether the public school authorities have a subsisting duty, prior to the entry of judicial decrees, to provide Negro public school children with public school education on a racially non- segregated basis ? 4. Whether the Court of Appeals should have entered a writ of mandamus directing the District Court to vacate its stay of proceedings and to proceed to judgment in petitioners’ cause? 3 STATUTES INVOLVED The pertinent portions of North Carolina General Statutes 115-176 through 115-179 are set forth and copied in the Appendix to this Petition as a footnote to the Opinion of the Court below in Appendix “ A.” North Carolina General Statutes 115-176 through 115-179, as amended July 27, 1956, during the pendency of the instant cause, are set forth and copied as Appendix “ D.” How ever, the amendments make no changes relevant to this Petition. STATEMENT The instant action was filed in the United States District Court for the Western District of North Carolina on August 10, 1953, because of alleged racial segregation and discrimination in the matter of public education in McDowell County, North Carolina. Tour infant petitioners alleged that they “ are residents of and domiciled in and around the Town of Old Port, McDovrell County, North Carolina.” Your petitioners also alleged that they were required by the school authorities, because of their race and color, to attend public school at Marion, North Carolina, which is some fourteen or fifteen miles away, while children of the Caucasian or white race, who were residents of and domiciled in and around the Town of Old Port, McDowell County, North Carolina, were provided public school education in the Town of Old Fort. Your petitioners also particularly alleged that the defendant County Board of Education maintained and operated its public school system “ on a separate segregated basis, with white children attend ing some schools exclusively, and Negro children forced to attend one school maintained for them exclusively.” These allegations were admitted in the defendant board’s answer to the original com plaint, (Record, Exhibit “B,” Pages 26 and 27). After the 1955 decision by this Court in Brown et al. vs. Board of Education and allied cases, 349 U.S. 294, 75 S. Ct. 753, 99 . L. ed. 653, the District Court presumed to dismiss your petitioners’ action as being moot. On appeal to the Court of Appeals for the Fourth Circuit the Judgment of dismissal -was vacated and the 4 cause remanded with directions, Carson et al. vs. Board of Educa tion of McDowell County, 227 F. 2d 789. The directions given to the District Court by the Court of Appeals for consideration of your petitioners’ cause was that the District Court “ consider it in the light of the decision of the Supreme Court, in the school segre gation case and of the North Carolina statute above mentioned and with power to stay proceedings therein pending the exhaustion of administrative remedies under the statute and to order a repleader if this may seem desirable,” 227 F. 2d 789, at Page 791. The “ statute” mentioned in the Court of Appeals’ directions is North Carolina 115-178 et seq. which appears in the Appendix to this Petition as Appendix “ D .” On the 26th day of July, 1956, when the instant cause was before the District Court on motion for leave to file supplemental pleading, the District Court entered a stay of proceeding, holding that your petitioners had not exhausted administrative remedies under North Carolina General Statutes 115-178 et seq. Shortly thereafterwards, to wit, on the 15th day of August, 1956, your petitioners filed a petition in the Court of Appeals for the Fourth Circuit in which they alleged, among other things, that they were still aggrieved by the matters shown in their original complaint, that they had exhausted such administrative remedies as were available to them and, in the alternative, that North Carolina Gen eral Statutes 115-178 et seq. provided no adequate remedy for them, (R ., Application for Writ of Mandamus, Pages 1 to 18). To their petition for Writ of Mandamus your petitioners attached a copy of the Record in Joyner et al. vs. Board of Education of McDowell County, 244 N.C. 164, 92 S.E. 2d 795, in which their protracted but futile attempt to secure relief via North Carolina General Statutes 115-178 et seq. is chronicled, (R., Exhibit “ A ” to Application for Writ of Mandamus). See Appendix “ E ” of this Petition. Upon denial of the Writ of Mandamus, your peti tioners now petition this Court to issue the Writ of Certiorari to review the Order and Decision of the United States Court of Ap peals for the Fourth Circuit. 5 REASONS FOR GRANTING THE WRIT The decision below should be reviewed by this Court because of numerous impelling reasons, all of which are obvious from a reading of the text and some of which are enumerated immediately below: 1. The decision of the Court of Appeals for the Fourth Circuit has answered two important questions of federal law in a manner directly in conflict with decisions of the Courts of Appeals for the Fifth, Sixth and Eighth Circuits, viz., Broivn et al. vs. Edwin L. Rippy, (C.A., 5th) 233 F. 2d 796; Jackson et al. vs. 0 . G. Rawdon as President of the Board of Trustees, Mansfield Inde pendent School District, et al., (C.A. 5th) Civ. No. 15927, 235 F. 2d 93, 1 Race Eel. L. Rep. 655; Clemons et al. vs. Board of Education of Hillsboro, Ohio, et al., (C.A. 6th) 228 F. 2d 853; Herbert Brewer et al. vs. Hoxie School District No. 46 (C.A. 8th), 238 F. 2d 91, decided October 25, 1956. The decision below is grounded upon two fallacious notions: (1 ) that the doctrine of exhaustion of administrative remedies has the same vigor in public school desegregation actions as in other actions and, (2 ) that the school boards have no pre-existing and peremptory duty, apart, from and prior to the entry of judicial decrees, to provide Negro public school pupils with public school education on a non-segregated basis. In Brown et al. vs. Edwin L. Puppy, supra; Clemons et al. vs. Board of Education of Hillsboro, Ohio, et al., supra; and Jack- son et al. vs. 0 . C. Rawdon, supra, the Courts of Appeals of the Fifth, and Sixth Circuits have declined to give vigor or notice to the doctrine of exhaustion of administrative remedies, and in those cases, as well as in Herbert Brewer et al. vs. Hoxie School District No. 46, supra, the Courts of Appeals of the Fifth, Sixth and Eighth Circuits have recognized and applied to the factual situations involved a pre-existing and peremptory duty on the part of the defendant school boards to de-segregate the public schools in their charge. Again, the instant decision is diametrically in con flict with the well reasoned opinion of the United States District Court in the Fifth Circuit upon a similar set of facts. (Bush vs. Orleans Parish School Board, U. S. D. C,, La. 138 F. Supp. 336). 6 2. The decision of the Court of Appeals for the Fourth Circuit is in irreconcilable conflict with the decisions of this Court in Brown et al. vs. Board of Education and allied cases, 1954: 347 U.S. 483, 74 S. Ct. 686, 98 L. ed. 873; 1955: 349 U.S. 294, 75 S. Ct. 753, 99 L. ed. 653. In the abovementioned decisions this Court has (1 ) enjoined school authorities to de-segregate public schools with “ all deliberate speed,” (2) sanctioned the application of class action under F.E.C.P., Eule 2 3 (a )(3 ), (3 ) allowed some leeway for statutory changes designed to solve the problems necessitated by the decisions in the so-called Segregation Cases and (4 ) declared the right of Negro complainants to be admitted “ to public schools as soon as practicable on a non-discriminatory basis.” On the other hand and by way of contrast and distortion of the above enumerated principles, the opinion of the Court of Appeals for the Fourth Circuit has (1 ) not enjoined the school authorities to de-segregate with “ all deliberate speed,” but, through the medium of a nugatory, wearisome and cumbersome state enacted administrative procedure, placed the burden of desegregating public schools upon each Negro child involved rather than upon school authorities, (2 ) emaciated the class action under F.K.C.P., Eule 2 3 (a )(3 ) by reducing the class in federal court- to include only those complainants who have personally exhausted the so-called state administrative remedies, (3 ) sanctioned a statutory innovation, the necessary and inevitable operation of which is to thwart and delay desegregation of the public schools in North Carolina, and (4 ) denied to Negro com plainants the right to be admitted “ to public school as soon as prac ticable on a nondiscriminatory basis” by requiring that each plain tiff, before seeking federal injunctive relief, individually tread the fruitless and squirrel-cage like procedure provided under North Carolina General Statutes 115-178 et seq. In short, while this Court in the Brown and allied cases cited above has declared that the practice of racial segregation in public school education is illegal and a deprivation of the “ equal protection of the laws guaranteed by the Fourteenth Amendment,” the Court below has attempted to narrow this constitutional proposition to the bare “ right of these school children to be admitted to the schools of 7 North Carolina without discrimination on the ground of race,” without taking notice of the correlative duty of school authorities. 3. The Court of Appeals for the Fourth Circuit, by entry of the opinion and order below, has reached a monstrous conclusion of circuit-wide impact in an important area of American life— the field of education— by pyramiding a series of inapplicable and conflicting principles of federal law. (a) The opinion below applies the doctrine of exhaustion of administrative remedies to a civil rights action. In doing this it has passed upon a question heretofore not passed upon by this Court. It has also sub silentio reversed itself. See Carter et al. vs. School Board of Arlington County, Virginia, (C.C.A. 4th), 182 F. 2d 531. More importantly, in applying this doctrine to the facts of the instant case the Court below has done so in a ritual istic and formalistic manner, inasmuch as the entire record is ample attestation of the fact that your petitioners did substantially, real istically and actually exhaust so much of the purported administra tive remedy as the Court below has held to he applicable to them. See Joyner vs. McDowell County Board of Education, 244 N.C. 164, 92 S.E. 2d 195; Exhibit “ A ,” “ C -l” and “ C-2” of the Record before this Court and Appendices “ E ” and “ F ” to this Petition. Compare Procter & Gamble Distributing Company vs. Sherman et al., (D. C., S.D.N.Y.) 2 E. 2d 165. The opinion below reads in part: “ While the presentation of the children at the Old Fort school appears to have been sufficient as the first step in the admin istrative procedure provided by statute, the prosecution of a joint or class proceeding before the school board was not sufficient under the North Carolina statute as the Supreme Court of North Carolina pointed out in its opinion; and not until the administrative pro cedure before the hoard had been followed in accordance with the interpretation placed upon the statute by that court would appli cants be in position to say that administrative remedies had been exhausted.” Again, the Court below has erroneously held that the question of whether a state administrative remedy has been ex hausted is a question of state law and that the federal courts, on 8 this question, are bound by the decisions of the state courts. Com pare Lane vs. Wilson, 307 U.S. 268, 59 S. Ct. 872, 83 L. ed. 1281; Procter & Gamble Distributing Company vs. Sherman, supra. (b) The opinion below has apparently confused the principles of legitimate exercise by administrative agencies of delegated legisl ative process with the principles of the doctrine of exhaustion of administrative remedies. The opinion states: “ The authority given the boards ‘is of a fact finding and administrative nature and hence is lawfully conferred.’ ” The eases cited in the opinion for this proposition are cases wherein this Court has sanctioned ruling making by the administrative agencies, or finding o f fact by admin istrative agencies preparatory to putting a previously declared law into effect, or legitimate exercise of police power by legislatures through administrative agencies. See Opp. Cotton Mills vs. Ad ministrator of Wage and Hour Division of Dept, of Labor, 312 U.S. 126, 61 S. Ct. 524, 85 L. ed. 624, which is principally relied upon by the Court below. None of the cases cited are cases wherein the constitutional rights of an applicant to a hearing and of pro cedural due process were involved, but all were cases of approved delegation of legislative power. But if the Court below is correct in holding that the school boards are exercising delegated legislative power in hearings on application by complainants in the enrollment or assignment of public school pupils, and are merely finding facts preparatory to putting a statute into effect, then North Carolina General Statutes 115-178, et seq., is no administrative remedy at all, and talk of exhaustion of administrative remedies under North Carolina General Statutes 115-178 et seq. is totally irrelevant. Compare Opp. Cotton Mills v. Administrator of Wage and Hour Division of Dept, of Labor, supra. Moreover, the standards set out in North Carolina General Statutes 115-178 et seq. are too vague, subjective and arbitrary to support the exercise of delegated legislative power, assuming that the Court below is correct in this legal conclusion. Compare Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. ed. 446; People use of Moore vs. J. 0. Beekman S Co., 347 Tib 92, 179 N.E. 435. 9 (c ) Nevertheless, it is abundantly clear* that North Carolina General Statutes 115-178 et seq. purports to endow and could only endow the school boards with administrative pow*er in the matter of enrollment and assignment of pupils to public schools as con trasted with delegated legislative power. See Chung Yim vs. United States, (C.C.A. 8th), 78 F. 2d 43, Cert, denied 296 U.S. 627, 56 S. Ct. 150, 80 L. ed. 446; Matter vs. Derby Oil Go., (C.C.A. 8th), 16 F. 2d 717, Cert, denied 273 TT.S. 762, 47 S. Ct. 477, 71 L. ed. 879. The business of assigning and enrollment of public school children in school is merely a matter of school man agement and of execution of school law and has none of the attri butes of legislation, 42 Am. Jur. (Public Administrative Law) Sections 29 and 36; Chung Yim vs. United States, supra; Matter vs. Der-by Oil Go., supra; Drumheller vs. Local Board No. 1 et al., (C.C.A. 3rd), 130 F. 2d 610; Morgan vs. Tenn. Valley Authority, (C.C.A. 6th), 115 F. 2d 990. Hence, complainants under the assignment plan are entitled to all of the rights of procedural due process. (d) The Court below has erroneously declined to weigh North Carolina General Statutes 115-178 et seq. for procedural due process, presumably because of its mistaken notion that the enact ment clothed the school authorities with delegated legislative power as contrasted with administrative power. But if the power given to the board is administrative, as herein contended, and if the North Carolina enactment purports to provide an administrative remedy, then the enactment is void on its face, in that it is a grant on its face of arbitrary power to the administrative agencies in volved, Lowell v. Griffith, 303 U.S. 444, 58 S. Ct. 666, 82 L. ed. 949 ; New Jersey State Board of Optometrists et al., 5 N.J". 412, 75 A. 2d 867, 22 A.L.R. 2d 929; Yick Wo. vs. Hopkins, 118 U.S. 358, 30 L. ed. 356, 6 S. Ct. 1064; Connolly vs. General Construc tion Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. ed. 322. Moreover, the purported standards, as presumably provided in the statute, allow for and require the consideration by the school boards of illegal matters in passing upon the complainants’ constitutional rights in so far as the statute speaks of “ the best interests of such 10 child,” United States vs. Coplan, (G.A. 2d) 185 F. 2d 629, 28 A.L.K. 2d 1041, Cert, denied, 842 TT.S. 920, 72 S. Ct. 362, 96 L. ed. 690; McKissick vs. Carmichael, (C.C.A, 4th) 187 F. 2d 949; in so far as the statute forbids the applicant’s admission to a school i f it would interfere “ with the proper administration of such school or with the proper instruction of pupils there enrolled,” Jackson et al. vs. 0. C. Rawdon, supra; Clemons vs. Board of Education of Hillsboro Ohio, supra; Hoxie School District No. 46 of Lawrence County et al. vs. Herbert Brewer, et als., supra; and in so far as the statute forbids the applicant’s admission to a school if it would endanger the “ health or safety of the children there enrolled.” See the Hoxie, Jackson and Clemons cases cited above and also Yick Wo. vs. Hopkins, supra; Brown vs. Board of Education, supra, and allied cases. (e) Finally, the Court below seems to be oblivious to the fact that the scecalled administrative remedy must, in petitioners’ action, be administered by the very authorities against whom your peti tioners complain of illegal racial segregation and discrimination. See North Carolina General Statutes 115-178 et seq. At the very instance of complaint of racial segregation and discrimination, if petitioners’ allegations are true, the administrative agencies who are commissioned to administer the remedy, are already in flagrant violation of petitioners’ constitutional rights and of their rights under 42 TT.S.C. 1983. The administrative agencies are also, under conditions mentioned above, in open violation of 18 U.S.C. 242. To hold, as the Court below has held, that petitioners are to be remitted to a remedy administered by the confiseators of their constitutional rights and by violators of 18 U.S.C. 242 is to judi cially remit petitioners to the very abuses which are interdicted by the Fourteenth Amendment to the United States Constitution and to sheer legal formalism, Procter & Gamble Distributing Co. vs. Sherman et al., supra. 4. The questions presented by this case are of great and recur ring significance in the matter of interpreting this Court’s decisions in the so-called public school segregation cases in the Fourth Cir cuit, as well as in other Circuits. A “ dictum” of the Court of 11 Appeals for the Fourth Circuit, when this instant cause was pre viously before that Court during the Fall Term, 1955, ( Carson et al. vs. Board of Education, 227 F. 2d 789), relative to the appli cability of the doctrine of exhaustion of administrative remedies to cases such as this, has been made the law of the case in Hood vs. Board of Trustees of Sumter County School District No. 2, Sumter County, South Carolina, et al., (C.A. 4th) 232 F. 2d 626; Robin son et al. vs. Board of Education of St. Mary’s County et al., (TT.S.D.C., Md.) Civil Action No. 8780, 143 F. Supp. 481. This same “ dictum” has been applied with formalistic vigor to the instant proceeding*. Again, the Court of Appeals for the Fourth Circuit has recently approved of an extension of its formalistic application of the doctrine of exhaustion of administrative remedies to pro ceeding aimed at enforcement of injunctive decrees already entered, School Board of the City of Charlottesville et al. vs. Doris Marie Allen et al., No. 7303, and County School Board of Arlington County, Virginia, vs. Clarissa S. Thompson et al., FTo. 7310, (C.A. 4th) ..... F. 2d ....... The serious questions of the interpretation of the Fourteenth Amendment in school cases and of the applica bility of the doctrine of exhaustion of administrative remedies to this and other civil rights actions of similar import make this a case peculiarly appropriate for the exercise of this Court’s discre tionary jurisdiction. CONCLUSION For the reasons set forth above, it is respectfully submitted that this Petition for a Writ of Certiorari should be granted. H e e m a s L. T ay lo b Sa m u e l S. M it c h e l l 125 East Hargett Street Raleigh, North Carolina Attorneys for Petitioners T aylo b & M it c h e l l , Of Counsel 12 APPENDIX “A” L io n el C. Carson-, Infant, By His Next Friend, M a r t in A. Carson , Et Als., Petitioners, verms H onorable W ilso n W a r l ic k , United States District Judge for the Western District of North Carolina, Respondent. ON PETITION FOR WRIT OF MANDAMUS United States Court of Appeals, Fourth Circuit. (Argued October 1, 1956. Dated November 14, 1956.) P arker , Chief Judge: This is an application for a writ of mandamus in the case wherein Negro children of Old Fort in McDowell County, North Carolina, allege that the Board of Education of that county is exercising discrimination on the grounds of race in refusing to admit them to schools maintained in the town of Old Fort. When the case was before us on appeal, we held that the court below erred in dismissing the case as moot, but ruled that, in further proceedings therein, the court below should give consideration to whether administrative remedies provided by the North Carolina statute of March 30, 13 1955, * had been exhausted. Carson v. Board of Education of McDowell County, 4 Cir. 227 F. 2d 789. After our decision, the Supreme Court of North Carolina, in an action to which two of the applicants here were parties, rendered a decision on May 23, 1956, construing the act of March 30, 1955 (Joyner v. McDowell County Board of Education, 244 N.C. 164, 92 S.E. 2d 795) in which it said: “ With respect to the provisions of Gr.S. sec. 115-178, this Court construes them to authorize the parent to apply to the appro priate public school official for the enrollment of his child or children by name in any public school within the county or city administrative unit in which such child or children reside. But such parent is not authorized to apply for admission of any child or children other than his own unless he is the guardian of such child or children or stands in loco parentis to such child or children. In the event a parent, guardian or one standing in loco parentis of several children should apply for their admission to a particular school, it is quite possible that b-y reason of the difference in the ages of the children, the grades previously completed, the teacher load in the grades involved, etc., the school official might admit one or more of the children, and reject the others. The factors involved See General Statutes of North Carolina as follows: *'Sec. 115-176. County and city boards authorized to provide for enrollment of pupils.— The county and city boards of education are hereby authorized and directed to provide for the enrollment in a public school within their respective administrative units of each child residing within such administrative unit qualified under the laws of this State for admission to a public school and applying for enrollment in or admission to a public school in such administrative unit. Except as otherwise pro vided in this article, the authority of each such board of education in the matter of the enrollment of pupils in the public schools within such ad ministrative unit shall be full and complete, and its decision as to the enrollment of any pupil in any such school shall be final. No pupil shall be enrolled in, admitted to, or entitled or permitted to attend any public school in such administrative unit other than the public school in which such child may be enrolled pursuant to the rules, regulations and decisions of such board of education. (1955, c.366, s .l.) 14 necessitate the consideration of the application of any child or children individually and not en masse. Any interested parent, guardian or person standing in loco parentis to such child or children, whose application may he rejected, may appeal to the appropriate board for a hearing in accordance with the rules and regulations established by such board. Furthermore, if the board denies the application for admis sion of such child or children, the aggrieved party may appeal in the manner prescribed by statute, G.S. sec. 115-179, to the superior court, where the matter shall he heard de novo before a jury in the same manner as civil actions are tried therein. “ Therefore, this Court holds that an appeal to the superior court from the denial of an application made by any parent, guardian or person standing in loco parentis to any child or children for the admission of such child or children to a par ticular school, must he prosecuted in behalf of the child or children by the interested parent, guardian or person standing in loco parentis to such child or children respectively and not collectively. * * * * “ An additional reason why this proceeding was properly dis missed is that while it purports to have been brought pursuant to the provisions of our school enrollment statutes, it is not Sec. 115-177. Authority to be exercised for efficient administration of schools, etc .; rules and regulations.— In the exercise of the authority con ferred by sec. 115-176 upon the county or city boards of education, each such board shall provide for the enrollment of pupils in the respective public schools located within such county or city administrative unit so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, and general welfare of such pupils. In the exercise of such authority such board may adopt such reasonable rules and regulations as in the opinion of the board shall best accomplish such purposes. (1955, c.366, s.2.) 15 based oil an application for assignment relating to named individuals as contemplated by the enrollment statutes, but is in reality a class suit. It is in effect an application for man damus, requiring the immediate integration of all Negro pupils residing in the administrative unit in which the Old Fort school is located, in the Old Fort school. Such a pro cedure is neither contemplated nor authorized by statute. Therefore, the appeal is dismissed.” The applicants did not attempt to comply with the provisions of the statute as so interpreted by the Supreme Court of North Carolina, but on July 11, 1956, counsel who are representing them before this court wrote a letter to the secretary of the Board of Education, inquiring what steps were being taken for the admis sion of Negro children to the Old Fort school. The secretary re plied that “ inasmuch as no Negro pupil has made application, nor has any parent or person standing in loco parentis made application for any Negro child to attend school in the town of Old Fort for Sec. 115-178. Hearing before board upon denial of application for enrollment.— The parent or guardian of any child, or the person standing in loco parentis to any child, who shall apply to the appropriate public school official for the enrollment of any such child in or the admission of such child to any public school within the county or city administrative unit in which such child resides, and whose application for such enroll ment or admission shall be denied, may, pursuant to rules and regulations established by the county or city board of education apply to such board for enrollment in or admission to such school, and shall be entitled to a prompt and fair hearing by such board in accordance with the rules and regulations established by such board. The majority of such board shall be a quorum for the purpose of holding such hearing and passing upon such application, and the decision of the majority of the members present at such hearing shall be the decision of the board. If, at such hearing, the board shall find that such child is entitled to be enrolled in such school, or if the board shall find that the enrollment of such child in such school will be for the best interests of such child, and will not interfere with the proper administration of such school, or with the proper instruction of the pupils there enrolled, and will not endanger the health or safety of the children there enrolled, the board shall direct that such child be enrolled in and admitted to such school. (1955, c.366, s.3.) 16 the school year 1956-57, the Board had had no cause to take any action in this connection.” Upon receiving this reply, applicants here, plaintiffs in the court below, on the 12th day of July 1956 moved in the action there pending to file a supplemental complaint in which, without alleging compliance with the requirements of the North Carolina statute as interpreted by the Supreme Court, they asked a declaratory judg ment and injunctive relief with respect to their right to attend the Old Fort school. The District Judge denied the motion on the ground that plaintiffs had not exhausted their administrative reme dies and stayed proceedings in the cause until same should he exhausted, hut stated that, as soon as it was made to appear that they had been exhausted, he would grant such relief as might he appropriate in the premises, saying: “ (1 ) That obedient to the per curiam decision of the Court of Appeals for the Fourth Circuit, 227 F. 2d 789, this Court has up until this time and will consistently hereafter consider this case in the light of the decision of the Supreme Court of the United States in the so-called School Segregation Case, and of the North Carolina statute chapter 366 Laws 1955, Sec. 115-179. Appeal from decision of board.-—Any person aggrieved by the final order of the county or city board of education may at any time within ten (1 0 ) days from the date of such order appeal therefrom to the superior court of the county in which such administrative school unit or some part thereof is located. Upon such appeal, the matter shall be heard de novo in the superior court before a jury in the same manner as civil actions are tried and disposed of therein. T he record on appeal to the superior court shall consist of a true copy of the application and decision of the board, duly certified by the secretary of such board. If the decision of the court be that the order of the county or city board of education shall be set aside, then the court shall enter its order so provid ing and adjudging that such child is entitled to attend the school as claimed by the appellant, or such other school as the court may find such child is entitled to attend, and in such case such child shall be admitted to such school by the county or city board of education concerned. From the judgment of the superior court an appeal may be taken by any inter ested party or by the board to the Supreme Court in the same manner as other appeals are taken from judgments of such court in civil actions. 17 G.S. 115, 176-179, set out in the opinion in the 227 Fed. Reporter 2d 789, and has consistently asserted and now re affirms that it is the duty under the authority granted to stay all proceedings herein and to cause the matter to remain con tinuously at issue on the docket until it should be made to appear that the plaintiffs herein or some of them have ex hausted the administrative remedies which are provided for them or some of them or any of them under the above statute, and that when such is made to appear the Court will imme diately entertain a motion by counsel for the plaintiffs or some of them or any of them to file amendment to the complaint or to replead, indicating that the rights to which they are entitled have been denied them on account of their race or color, and immediately thereafter, and within twenty days, will require an answer to be filed thereto and will set the case down with a peremptory setting as the first cause to be disposed of, either at the regular term or some other called term of this court, dependent upon the requests of the parties or those who appear for them as counsel in said cause.” Upon the denial of the motion, application for writ of mandamus was filed here to require the District Judge to vacate the order staying proceedings, to allow the supplemental pleading to be filed and to proceed with the cause “ as though the Pupil Enrollment Act had never been enacted.” We think it clear that applicants are not entitled to the writ of mandamus which they ask, for the reason that it nowhere appears that they have exhausted their administrative remedies under the North Carolina Pupil Enrollment Act, and are not entitled to the relief which they seek in the court below until these administrative remedies have been exhausted. (See 227 F. 2d at 790.) In the supplemental complaint which they proposed to file in the court below they did, indeed, allege that on August 24, 1955, they had presented their children at the Old Fort school for admission, that they were denied admission on the ground of race and that on August 27 they and certain other Negroes had filed a joint petition 1 8 with the school hoard asking -that their children he admitted to the school. This petition was denied by the Board in January 1956 and it was an appeal from this order of the Board to the Superior Court and thence to the Supreme Court of the State in which the decision of the Supreme Court of May 23, 1956 was rendered. While the presentation of the children at the Old Tort school ap pears to have been sufficient as the first step in the administrative procedure provided by statute, the prosecution of a joint or class proceeding before the school board was not sufficient under the North Carolina statute as the Supreme Court of North Carolina pointed out in its opinion; and not until the administrative pro cedure before the board had been followed in accordance with the interpretation placed upon the statute by that court would appli cants be in position to say that administrative remedies had been exhausted. It is argued that the Pupil Enrollment Act is unconstitutional; but we cannot hold that that statute is unconstitutional upon its face and the question as to whether it has been unconstitutionally applied is not before us, as the administrative remedy which it provides has not been invoked. It is argued that it is unconstitu tional on its face in that it vests discretion in an administrative body without prescribing adequate standards for the exercise of the discretion. The standards are set forth in the second section of that act, G.S. 115-177, and require the enrollment to be made “ so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils enrolled, and the health, safety and general welfare of such pupils.” Surely the standards thus prescribed are not on their face insufficient to sustain the exercise of the administrative power conferred. As said in Opp Cotton Mills v. Administrator of the Wage and Hour Division of the Department of Labor, 312 TT.S. 126, 145: “ The essentials of the legislative function are the determination of the legislative policy and its formulation as a rule of conduct. Those essentials are preserved. when Congress specifies the basic conclu sions; of fact upon ascertainment of which, from relevant data by a designated administrative agency, it ordains that its statutory n command is to be effective,” The authority given the boards “ is of a fact finding and administrative nature, and hence is lawfully con ferred.” Sproles v. Binford, 286 TJ.S. 374, 397. See also Douglas v. N olle, 261 TJ.S. 165, 169-170; Hall v. Geiger Jones Co., 242 TJ.S. 539, 553-554; Mutual Film Corp. v. Hodges, 236 TJ.S. 248; Mutual Film Corp. v. Ohio Industrial Com’n, 236 TJ.S. 230, 245- 246; Bed “ C” Oil Mfg. Co. v. North Carolina, 222 TJ.S. 380, 394. Somebody must enroll the pupils in the schools. They cannot enroll themselves; and we can think of no one better qualified to undertake the task than the officials of the schools and the school boards having the schools in charge. It is to be presumed that these will obey the law, observe the standards prescribed by the legisla ture, and avoid the discrimination on account of race which the Constitution forbids. Hot until they have been applied to and have failed to give relief should the courts be asked to interfere in school administration. As said by the Supreme Court in Brown et al. v. Board of Education, et al., 349 TJ.S. 294, 299: “ School authorities have the primary responsibility for eluci dating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.” It is argued that the statute does not provide an adequate admin istrative remedy because it is said that it provides for appeals to the Superior and Supreme Courts of the State and that these will consume so much time that the proceedings for admission to a school term will become moot before they can be completed. It is clear, however, that the appeals to the courts which the statute provides are judicial, not administrative remedies and that, after administrative remedies before the school boards have been ex hausted, judicial remedies for denial of constitutional rights may be pursued at once in the federal courts without pursuing state court remedies. Lane v. Wilson, 307 TJ.S. 268, 274. Furthermore, if administrative remedies before a school board have been ex- 20 hausted, relief may be sought in the federal courts on the basis laid therefor by application to the board, notwithstanding time that may have elapsed while such application was pending. Applicants here are not entitled to relief because of failure to exhaust what are unquestionably administrative remedies before the board. There is no question as to the right of these school children to be admitted to the schools of North Carolina without discrimination on the ground of race. They are admitted, however, as indi viduals, not as a class or group; and it is as individuals that their rights under the Constitution are asserted. Henderson v. United States, 339 U.S. 816, 824. It is the state school authorities who must pass in the first instance on their right to be admitted to any particular school and the Supreme Court of North Carolina has ruled that in the performance of this duty the school board must pass upon individual applications made individually to the board. The federal courts should not condone dilatory tactics or evasion on the part of state officials in according to citizens of the United States their rights under the Constitution, whether with respect to school attendance or any other matter; but it is for the state to prescribe the administrative procedure to be followed so long as this does not violate constitutional requirements, and we see no such violation in the procedure here required. We are dealing here, of course, with the administrative procedure of the state and not with the right of persons who have exhausted administrative reme dies to maintain class actions in the federal courts in behalf of themselves and others qualified to maintain such actions. Mandamus Denied. 21 UNITED STATES COUBT OF APPEALS FOR THE FOURTH CIRCUIT No. 7281. L io n el C. Carson , Infant, By His Next Friend, M a r t in A. C arson , Et Als., Petitioners, APPENDIX “B” vs. H onorable W ilso n W a r l ic k , United States District Judge for the Western District of North Carolina, Respondent. ON PETITION FOR A WRIT OF MANDAMUS This cause came on to be heard on the petition of Lionel C. Carson, infant, by his next friend, Martin A. Carson, and others, for a writ of mandamus; answer of McDowell County Board of Education; brief and supplement to brief in support of petition; and the cause was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, for the reasons set forth in the opinion of the Court filed herein, that the petition for a writ of mandamus be, and it is hereby, denied. November 14, 1956. J ohn J. P a r k e r , Chief Judge, Fourth Circuit. A true copy, Teste: R ichard M. F. W il l ia m s , J r., Clerk, U. S. Court of Appeals for the Fourth Circuit. 22 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA A sh e v il le D iv is io n APPENDIX “0” L io n el C. Carson , An Enfant, by bis Next Friend, M a b t in A. Carson , et al., Plaintiffs, C IV IL No. 1341. v. B oard oe E ducation of M cD o w ell C o u n ty , a body Corporate, Defendant. July 26, 1956. T h e C o u r t : From the bench the Court dictates the following to be considered along with that which has already been said by counsel for the plaintiffs and counsel for the defendant, Board of Education of McDowell County, and by the Court, in discussing the position of the Court and counsel at this time with respect to this case: (1 ) That obedient to the per curiam decision of the Court of Appeals for the Fourth Circuit, 227 Fed. 2. 789, this Court has up until this time and will consistently hereafter consider this case in the light of the decision of the Supreme Court of the United States in the so-called School Segregation Case, and of the North Caro lina Statute Chapter 366 laws 1955, G.S. 115, 176-179, set out in the opinion in the 227 Fed. Reporter 2d 789, and has consistently asserted and now reaffirms that it is the duty under the authority 28 granted to stay all proceedings herein and to cause the matter to remain continuously at issue on the docket until it should be made to appear that the plaintiffs herein or some of them have exhausted the administrative remedies which are provided for them or some of them or any of them under the above statute, and that when such is made to appear the Court will immediately entertain a motion by counsel for the plaintiffs or some of them or any of them : o file amendment to the complaint or to replead, indicating that the rights to which they are entitled have been denied them on account of their race or color, and immediately thereafter, and within twenty days, will require an answer to he filed thereto and will set the case down with a peremptory setting as the first cause to be disposed of, either at the regular term or some other called term of this court, dependent upon the requests of the parties or those who appear for them as counsel in said cause. (2) This Court is of the opinion that Eaymond Greenlee and James Bryson, who are parties plaintiff to the action, in this court, and Albert Joyner and Lucille Lytle, who joined them in the action against the Board of Education of McDowell County in the civil action which was decided in the opinion appearing in 244 1ST. C. page 164, have not exhausted their administrative remedies and therefore are not now in a position to do other than to proceed to have their cause heard and thereby exhaust their remedies, and that when such has come about, those things stated above will he immediately set into motion and this cause of action heard. (3 ) The Court finds as a fact that Eaymond Greenlee and James Bryson, two of the plaintiffs appearing as such in this court, and their associate plaintiffs, Albert Joyner and Lucille Lytle, insti tuted such action, after having made their request of the School Board in the Superior Court of McDowell County, and that the same was heard by Judge George B. Patton, on a demurrer, and probably other motions. The demurrer was filed for that “ There is a defect of parties plaintiff and causes of action.” (G.S. 1-127, Secs. 4, 5.), amounting to a misjoinder of both parties and causes of action. This was sustained and such was affirmed by the Su 24 preme Court (244 N.C. 164.) for that, “ Where there is a mis joinder of both parties and causes of action, the court is not author ized to direct a severance, but must dismiss the action upon demur rer,” (G.S. 1-132.) It would therefore appear that i f plaintiffs or any of them decide to pursue their remedy further, it would be incumbent upon them to file anew their request with the School Board, and upon it being given an unfavorable consideration, for each to carry his cause to the Superior Court and there, with the privilege of a jury trial, have their cause determined, with the right of an appeal to the Supreme Court of North Carolina if con fronted with an adverse verdict; and that if it should then be made to appear that having exhausted their administrative remedies under the North Carolina law, each would then be entitled to have this Court permit an amendment to the complaint or to replead if such seems desirable and to entertain their motion for relief as is prescribed by law. W h er eu po n , the Court, being of the opinion that the adminis trative remedies thus provided for have not been exhausted, an nounces that it will stay proceedings herein until such comes about, and on that being made to appear will order an immediate trial to the end that the deprivation allegedly brought about will be in quired into and the rights of the plaintiffs fully and completely protected. / S / W ilso n W a r lic k U. S. District Judge 25 AN ACT TO AMEND ARTICLE 21, CHAPTER 115 OF THE GENERAL STATUTES, RELATING TO ASSIGNMENT AND ENROLLMENT OF PUPILS IN PUBLIC SCHOOLS. The General Assembly of North Carolina do enact: Sec tio n 1. G.S. 115-176 is hereby amended to read as follows: “ Each comity and city hoard of education is hereby authorized and directed to provide for the assignment to a public school of each child residing within the administration unit who is qualified under the laws of this State for admission to a public school. Except as otherwise provided in this Article, the authority of each hoard of education in the matter of assignment of children to the public schools shall be full and complete, and its decision as to the assign ment of any child to any school shall he final. A child residing in one administrative unit may he assigned either with or without the payment of tuition to a public school located in another adminis trative unit upon such terms and conditions as may he agreed in writing between the boards of education of the administrative units involved and entered upon the official records of such hoards. No child shall be enrolled in or permitted to attend any public school other than the public school to which the child has been assigned by the appropriate board of education. In exercising the authority conferred by this Section, each county and city board of education shall make assignments of pupils to public schools so as to provide for the orderly and efficient administration of the public schools, and provide for the effective instruction, health, safety, and general welfare of the pupils. Each board of education may adopt such reasonable rules and regulations as in the opinion of the hoard are necessary in the administration of this Article.” Sec . 2. G.S. 115-177 is hereby amended to read as follows: “ In exercising the authority conferred by §115-176, each county or city board of education may, in making assignments of pupils, give individual written notice of assignment, on each pupil’s report card or by written notice by any other feasible means, to the parent APPENDIX “D” 26 or guardian of each child or the person standing in loco parentis to the child, or may give notice of assignment of groups or categories of pupils by publication at least two times in some newspaper having general circulation in the administrative unit.” Sec. 3. Gr.S. 115-178 is hereby amended to read as follows: “ The parent or guardian of any child, or the person standing in loco parentis to any child, who is dissatisfied with the assignment made by a board of education may, within ten (10) days after notification of the assignment, or the last publication thereof, apply in writing to the board of education for the reassignment of the child to a different public school. Application for reassignment shall be made on forms prescribed by the board of education pur suant to rules and regulations adopted by the board of education. I f the application for reassignment is disapproved, the board of education shall give notice to the applicant by registered mail, and the applicant may within five (5 ) days after receipt of such notice apply to the board for a hearing, and shall be entitled to a prompt and fair hearing on the question of reassignment of such child to a different school. A majority of the board shall be a quorum for the purpose of holding such hearing and passing upon application for reassignment, and the decision of a majority of the members present at the hearing shall be the decision of the board. If, at the hearing, the board shall find that the child is entitled to be reas signed to such school, or if the board shall find that the reassignment of the child to such school will be for the best interests of the child, and will not interfere with the proper administration of the school, or with the proper instruction of the pupils there enrolled, and will not endanger the health or safety of the children there enrolled, the board shall direct that the child be reassigned to and admitted to such school. The board shall render prompt decision upon the hearing, and notice of the decision shall be given to the applicant by registered mail.” Sec . 4. All laws and clauses of laws in conflict with this Act are hereby repealed. •27' Se c . 5. This Act shall be effective upon its ratification. In the General Assembly read three times and ratified, this the 27th day of July, 1956. 28 IN TH E SUPREM E COURT OF N ORTH CAROLINA A lb er t J o yn er , L u c il l e L y t l e , J am es B ryson and T h u rm a n Green lee v . T h e M cD o w e ll C ounty B oard oe E d u ca tio n . (Filed 23 May, 1956) A pp e a l by petitioners from Patton, Special Judge, February Term, 1956, of M cD o w e l l . This is a proceeding brought on 27 August 1955 by petitioners who filed with the Board of Education of McDowell County, here inafter called the Board, a petition “ on behalf of their children and themselves, and on behalf of other Negro children and parents similarly situated,” in which, in sum and substance, they assert: (1) That the (unnamed) children for whom they were speaking were eligible to attend public schools in McDowell County, North Carolina, and particularly the school at Old Fort. (2 ) That the petitioners carried their children to the Old Fort school on 24 August 1955 and demanded that they then be enrolled in said school; that the principal of said school, acting in conjunc tion with and under the direction of the Superintendent of Schools of McDowell County, then and there denied to children of peti tioners admission to the said Old Fort School. (3 ) That the children were denied admission for the reason that school children were “ not to be assigned in the schools of McDowell County during the school year 1955-56 on any basis other than that which has previously existed.” (4 ) That “ the primary if not the sole basis upon which children in McDowell County have been assigned to schools has been race or color.” (5 ) That the Supreme Court of the United States has declared enforced racial segregation in public schools illegal. APPENDIX “E” 29 (6 ) That the refusal to admit children of petitioners to the Old Fort school “ was based solely and wholly upon race or color.” The petition, following the foregoing allegations sought redress in the following language: “ The undersigned, on behalf of their own children and on behalf of other Negro children and parents similarly situated, petition your Board that you forthwith issue a directive, order or mandate to the aforesaid Superintendent and Principal requiring them forthwith to admit children of petitioners and other Negro children similarly situated to the school and school facilities maintained by vour Board in the Town of Old Fort.” The petitioners appeared before the Board on 3 October 1955 in support of their request. In a letter dated 5 January 1956, the petitioners were informed by the secretary of the respondent Board of the Board’s denial on 2 January 1956 of petitioners’ request to have their children enrolled in the public school in Old Fort, North Carolina. The denial was in the following language: “ A request on the part of Taylor & Mitchell on behalf of the Negroes at Old Fort to allow Negroes to attend school at Old Fort rather than to be transported to Marion to attend school at Hudgins High, was formally denied by virtue of necessity in that facilities and room are available a Hudgins High and are not available at Old Fort. The motion was made by Mr. Boss, seconded by Mr. Greenlee and duly passed.” The petitioners, through their counsel, gave notice of appeal to the Board by telegram on 13 January 1956 and requested the im mediate certification of the record to the Superior Court. The record was duly certified as requested. In apt time, in the Superior Court, the respondent moved to dis miss the appeal on the ground that the notice of appeal was not given or filed within ten days as required by statute. In addition thereto, the respondent filed a demurrer to the petition and assigned as grounds therefor: (1 ) that the petition failed to state a cause of action; and (2 ) that there was a misjoinder of both parties and causes of action. After hearing argument of counsel for respondent and counsel for petitioners, the court being of the opinion that the motion to dismiss should he denied and that the demurrer should be overruled in so far as it pertains to the failure to state a cause of action, but, that the demurrer as it relates to the misjoinder of parties and causes of action should be sustained, entered judgment accordingly. The petitioners appeal to the Supreme Court, assigning error. Taylor & Mitchell for petitioners. Boy W. Davis for respondent. Attorney-General Rodman, Amicus Curiae, for the State. D e n n y , J . At the threshold of this appeal the Court is con fronted with the fact that the questions presented are now academic as to the school year 1955-56. Even so, Chapter 366 of the Session Laws of 1955, codified as G.S. 115-176 through G.S. 115-179, governing the enrollment of pupils in the public schools of North Carolina is of such public importance that the Court deems it appropriate to clarify the procedure thereunder. The appellants’ pertinent assignments of error are directed to the ruling of the court below in sustaining the respondent’s demur rer on the grounds of a misjoinder of parties and causes of action and to the failure of the court to order a severance of the causes of action, if the court was correct in its ruling as to such misjoinder. A demurrer should be sustained and the action dismissed where there is a misjoinder of parties and causes of action, and the court is not authorized in such cases to direct the severance of the respec tive causes of action for trial under the provisions of G.S. 1-132. Perry v. Doub, 238 N.C. 233, 77 S.E. 2d 711; Sellers v. Ins. Go., 233 N.C. 590, 65 S.E. 2d 21; Erickson v. Starling, 233 N.C. 539, 64 S.E. 2d 832; Teague v. Oil Co., 232 N.C. 469, 61 S.E. 2d 345; SI s.c. 232 N.C. 65, 59 S.E. 2d 2 ; Moore County v. Bums, 224 N.C. 700, 32 S.E. 2d 225; Wingler v. Miller, 221 N.C. 137, 19 S.E. 2d 247. The Court deems it unnecessary to enter into a discussion of the question of misjoinder in this proceeding. The question is settled by the statutes governing the enrollment of pupils in the public schools of North Carolina and, in the opinion of the Court, they do not authorize the institution of class suits upon denial of an appli cation for enrollment in a particular school. The provisions of G.S. 115-176 read as follows: “ The county and city boards of education are hereby authorized and directed to provide for the enrollment in a public school within their respective administrative units of each child residing within such adminis trative unit qualified under the laws of this State for admission to a public school and applying for enrollment in or admission to a public school in such administrative unit. Except as otherwise provided in this article, the authority of each such hoax’d of educa tion in the matter of the enrollment of pupils in the public schools within such administrative unit shall be full and complete, and its decision as to the enrollment of any pupil in any such school shall be final. No pupil shall be enrolled in, admitted to, or entitled or permitted to attend any public school in such administrative unit other than the public school in which such child may be enrolled pursuant to the rules, regulations and decisions of such board of education.” It is provided in G.S. 115-178 that, “ The parent or guardian of any child, or the person standing in loco parentis to any child, who shall apply to the appropriate public school official for the enrollment of any such child in or the admission of such child to any public school within the county or city administrative unit in which said child resides, and whose application for such enrollment or admission shall be denied, may, pursxxant to rules and regulations established by the county or city board of education apply to such board for enrollment in or admission to such school, and shall be entitled to a prompt and fair hearing by such board in accordance 82 with the rules and regulations established by such board. The majority of such board shall be a quorum for the purpose of holding such hearing and passing upon such application, and the decision of the majority of the members present at such hearing shall be the decision of the board. If, at such hearing, the board shall find that such child is entitled to be enrolled in such school, or if the board shall find that the enrollment of such child in such school will he for the hest interests of such child, and will not interfere with the proper administration of such school, or with the proper instruction of the pupils there enrolled, and will not endanger the health or safety of the children there enrolled, the board shall direct that such child he enrolled in and admitted to such school.” The provisions of Gr.S. 115-179 are as follows: uAny person aggrieved by the final order of the county or city board of education may at any time within ten (10) days from the date of such order appeal therefrom to the superior court of the county in which such administrative school unit or some part thereof is located. Upon such appeal, the matter shall be heard de novo in the superior court before a jury in the same manner as civil actions are tried and disposed of therein. The record on appeal to the superior court shall consist of a true copy of the application and decision of the hoard, duly certified by the secretary of such board. I f the decision of the court be that the order of the county or city board of educa tion shall be set aside, then the court shall enter its order so provid ing and adjudging that such child is entitled to attend the school as claimed by the appellant, or such other school as the court may find such child is entitled to attend, and in such case such child shall be admitted to such school by the county or city board of education concerned. From the judgment of the superior court an appeal may be taken by any interested party or by the hoard to the Supreme Court in the same manner as other appeals are taken from judg ments of such eoiirt in civil actions.” With respect to the provisions of G.S. 115-178, this Court con strues them to authorize the parent to apply to the appropriate public school official for the enrollment of his child or children by S3 name in any public school within the county or city administrative unit in which such child or children reside. But such parent is not authorized to apply for admission o f any child or children other than his own unless he is the guardian of such child or children or stands in loco parentis to such child or children. In the event a parent, guardian or one standing in loco parentis of several children should apply for their admission to a particular school, it is quite possible that by reason of the difference in the ages of the children, the grades previously completed, the teacher load in the grades involved, etc., the school official might admit one or more of the children, and reject the others. The factors involved necessitate the consideration of the application of any child or children indi vidually and not en masse. Any interested parent, guardian or person standing in loco parentis to such child or children, whose application may be rejected, may appeal to the appropriate board for a hearing in accordance with the rules and regulations estab lished by such board. Furthermore, i f the board denies the appli cation for admission of such child or children, the aggrieved party may appeal in the manner prescribed by statute (G.S. 115-179) to the superior court, where the matter shall be heard de novo before a jury in the same manner as civil actions are tried therein. Therefore, this Court holds that an appeal to the superior court from the denial of an application made by any parent, guardian or person standing in loco parentis to any child or children for the admission of such child or children to a particular school, must be prosecuted in behalf of the child or children by the interested parent, guardian or person standing in loco parentis to such child or children respectively and not collectively. The Court notes that the petitioners did not apply for the admis sion of their children and other FTegro children similarly situated to the school in Old Fort until the 24-th day of August 1955, the day the school opened. It would seem that some rule or regulation might well be promulgated by the county and city boards of educa tion fixing a date reasonably in advance of the opening of school for filing such applications. Judicial notice will be taken of the fact 84 that boards of education must of necessity employ teachers* in advance of the opening of school. Teachers are assigned to their particular schools on the basis of the enrollment information in the hands of the respective boards at the time the assignments are made. Hence, it would seem to be extremely desirable i f not imperative for the orderly operation of the schools that applications for admis sion to schools other than those theretofore designated by the board of education or city administrative unit, be made reasonably in advance of the opening of school. In addition to the assignment of pupils in the manner authorized in the above cited statutes, pupils residing in one administrative unit may be assigned to a school in another administrative unit, pursuant to the provisions contained in Chapter 1372, Session Laws of 1955, sub-chapter V III , Art. 19, sec. 3, codified as G.S. 115-163. In re Assignment of School Children, 242 N.C. 500, 87 S.E. 2d 911. An additional reason why this proceeding was properly dis missed is that while it purports to have been brought pursuant to the provisions of our school enrollment statutes, it is not based on an application for assignment relating to named individuals as contemplated by the enrollment statutes, but is in reality a class suit. It is in effect an application for mand.amus, requiring the immediate integration of all Negro pupils residing in the adminis trative unit in which the Old Fort school is located, in the Old Fort school. Such a procedure is neither contemplated nor authorized by statute. Therefore, the appeal is dismissed. Appeal dismissed. D e v in , J ., took no part in the consideration or decision o f this case. 35' APPENDIX “F” T aylo e & M it c h e l l Attorneys at Law 125 E. Hargett Street Raleigh, 1ST. 0. Telephone: 3-3171 Herman L. Taylor Samuel S. Mitchell •July 11, 1956 Mr. Melvin H. Taylor, Superintendent McDowell County Schools Marion, North Carolina Dear Sir: On behalf of the Negro citizens in and around Old Fort, whom we represent, we write to inquire as to what specific steps the McDowell County Board of Education has taken and is taking with reference to making provision for the admission of qualified Negro children to the public school maintained in the Town of Old Fort for the school year 1956-57, pursuant to the decisions of the United States Supreme Court. An immediate reply to this inquiry will be appreciated. H LT :lhj Very truly yours, T aylo e & M it c h e l l , B y: Herman L. Taylor 36 C o u n ty o f M cD o w e ll Superintendent of Public Instruction Marion, 1ST. C. July 13, 1956 Taylor & Mitchell 125 East Hargett St. Raleigh, ISTorth Carolina Re: Old Fort Negro Citizens and Pupils Gentlemen: In reply to your letter of July 11, 1956 in which you “ inquire as to what specific steps the McDowell County Board of Education has taken and is taking with reference to making provision for the admission of qualified Negro children to the public school main- tained in the Town of Old Fort for the school year 1956-57, pur suant to the decisions of the United States Supreme Court.” , please allow me to advise you that inasmuch as no Negro pupil has made application, nor has any parent or person standing in loco parentis made application for any Negro child to attend school in the town o f Old Fort for the school year 1956-57, the Board has had no cause to take any action in this connection. Sincerely, M e l v in H. T aylo k , Superintendent M E T :zj cc: Mr. Roy Davis Mr. E. P. Dameron Irving-Swain Press, Inc., Raleigh, N. C.