Alston v. School Board of the City of Norfolk Brief of Appellants
Public Court Documents
February 29, 1940

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Brief Collection, LDF Court Filings. Alston v. School Board of the City of Norfolk Brief of Appellants, 1940. cd3c90a4-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cdd4f881-71ce-4cfc-91cb-a5f172dacd3b/alston-v-school-board-of-the-city-of-norfolk-brief-of-appellants. Accessed June 17, 2025.
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United States Circuit Court of Appeals for the Fourth Circuit M el v in 0 . A lsto n , and the N orfolk T e a c h e r s ’ A ssociation , an Unincorpo rated Association, Appellants, vs. File No. 4623 S chool B oard of t h e C it y of N orfo lk , a Body Corporate, and C. W. M ason , Superintendent of Schools of Norfolk, Appellees. BRIEF OF APPELLANTS Oliv er W . H il l , T hurgood M a r sh a ll , L eo n A . R a n so m , W il l ia m H . H a stie , Counsel for Appellants. 117 E. Leigh Street, Richmond, Va. P rin ted by L aw R eporte r P tg . Co., 518 5 th St., W ashington, D. C. SUBJECT INDEX PAGE Statement of the Case_______ __________ _________ 1 Questions Involved________ _______ ____ ________ 2 Statement of Facts___ __________________________ 3 Pabt Owe : Legislative Background of Appellants ’ Case 5 I. Virginia Has Undertaken the Duty of Providing Free Public Education as a State Function_____ 5 A. . General Supervision of the Virginia Public School System is Vested in the State Board of Education_______ ____________________ 5 B. The Counties and Cities are the Units for Edu cation in Virginia__________ ___________ ___ 5 C. The Public School System of Virginia is Fi nanced Jointly by State and Local Public Funds 5 Part Two: Appellants’ Substantive Case__________ 8 I. The Racial Discrimination in Salary Schedules and in Actual Salaries as Alleged in the Complaint is a Denial of Constitutional Bight to the Equal Protec tion of the Laws__________ :_________________ 8 A. The Teachers’ Salary Schedule Being Enforced by Appellees on its Face Provides and Requires a Differential in Teachers ’ Salaries Based Solev on Race or Color _____________________ 10 B. The Salaries Paid to All Teachers and Princi pals Reveal a Racial Differential Imposed Pur suant to a General Practice of Unconstitutional Discrimination__________________________ 13 C. The Equal Protection Clause of the Fourteenth Amendment Prohibits Such Racial Discrimina tion Against Appellants as Teachers by Occu pation and Profession___ i________________ 14 II PAGE 1. The Fourteenth Amendment Prohibits All Arbitrary and Unreasonable Classifica tions by State Agencies____________ -__ 14 2. Discrimination Because of Race or Color is Clearly Arbitrary and Unreasonable With in the Meaning of the Fourteenth Amend ment..._____________________________ 15 D. The Equal Protection Clause of the Fourteenth Amendment Prohibits Such Discrimination Against Appellant Alston as a Taxpayer_____ 19 II. The Facts Alleged in Appellant Alston’s Pleading Do Not Constitute a Waiver of His Right to the Relief for Which He Prays__________________ 22 Scope of Present Waiver Issue_______________ 22 A. The Contract of Hire is not Affected by the Re lief Sought____________ 24 B. The Doctrine of Waiver Has Been Held Inap plicable to Analogous Dealings with Public Authorities________ ___ __ _______ _____ 26 Rationale of the Decisions ... ...._________ ........ 28 C. Decision on the Waiver Was Erroneously Based Upon Facts not Before the District Court—.... 32 III. There Is No Merit in the Other Purported De fenses of Law Raised by the Answer and Not Relied Upon in the Argument________________ 35 A. An Amount in Controversy to Exceed $3,000 Is Not Required to Confer Jurisdiction in This Case--------------------- ----------------- ----- -- 35 B. Appellants Have No Full, Adequate and Com plete Remedy at Law__________ _________ 37 C. The Plea of lies Judicata Is an Affirmative Defense and Not Now Before the Court___ _ 38 Conclusion 39 I l l TABLE OF CASES PAGE American Union Telegraph Co. v. Bell Telephone Co., 1 Fed. 698___________________________________ 38 Anderson v. Fuller, 51 Fla. 380, 41 So. 684___________ 21 Black v. Ross, 37 Mo. App. 250____________ _________ 22 Board of Education v. Arnold, 112 111. 11____________ 21 Broom v. Wood, 1 F. Supp. 134, 136_____________ __ 36 Buchannan v. Warley, 245 U. S. 60_________ .________ 17 Chaires v. City of Atlanta, 164 G-a. 755,139 S. E. 559___ 17 Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 27----- - 27 City of Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197, 65 N. E. 885____ __ ____ ________ 28 Claybrook v. City of Owensboro, 16 F. 297___ _______ 20 Davenport v. Cloverport, 72 Fed. 689______ ____ 17-20-36 Di Giovanni v. Camden Ins. Association, 296 IT. S. 64___ 37 Ex parte Virginia, 100 U. S. 339_____________ __— 12-16 Frost Trucking Co. v. Railroad Commission, 271 U. S. 583__________________________________________ 29 Gaines v. Missouri, 305 U. S. 337____ _____________ 17 Gibbs v. Buck, 307 U. S. 66________________________ 34 Glavey v. United States, 182 U. S. 595______________ 27 Glenwood Light and Water Co. v. Mutual Light, Heat and Power Co., 239 U. S. 121 _________________ Gulf C. & S. F. R. Co. v. Ellis, 165 U. S. 150__________ Hague v. Committee for Industrial Organization, 307 U. S. 496___________________________________ Hanover Fire Ins. Co. v. Harding, 272 U. S. 494___...... . Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E. 109—_______________________________________ _ 36 15 36 29 27 Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818-_______ 18-26 International News Service v. Associated Press, 248 U. S. 215___________________________________ 36 Joyner v. Browning, 30 F. Supp. 512______________ 34 Juniata Limestone Co. Ltd. v. Fagley, et ah, 187 Pa. 193, 40 Atl. 977___________________________________ 15 Knapp v. Lake Shore, etc. Ry Co., 197 U. S. 536_______ 38 Lane v. Wilson, 307 U. S. 268_____________________ _ 17 IV PAGE Luke ns v. Nye, 156 Cal. 498,105 Pac. 593___________ 28 McCabe v. Atchison, Topeka & Santa Pe Ry. Co., 235 U. S. 151____________________________________ 17 Miller v. United States, 103 Fed. 413_____________ ___ 27 Mills v. Anne Arundel County Board of Education, et al, 30 Fed. Supp. 245______ _____ ____ _______ 13-25-36 Mills v. Lowndes, et al 26 Fed. Supp. 792____________ 12 Minnesota ex rel Jennison, v. Rogers, 87 Minn. 130, 91 N. W. 438__________________________ ____ ____ 28 M’Intire v. Wood, 7 Cranch. 504___________________ 38 Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S. 265, rev’d, 245 N. Y. 106___________________ ____ 26 Nixon v. Condon, 286 U. S. 73______________________ 17 O ’Brien v. Moss, 131 Ind. 99, 30 N. E. 894____________ 22 Oehler v. City of St. Paul, 174 Minn. 410, 219 N. W. 760 . 21 Opinion of the Justices, In re, — Mass. —, 22 N. E. (2d) 49___ ___1_____ ____ _ ____________ _____ 18 Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 1031____ _ 27 People ex rel Fursman, v. Chicago, 278 111., 318, 116 N. E. 158 ___________________________________ 18 People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716.... 28 People ex rel Satterlee v. Board of Police, 75 N. Y. 38__ 27 Petroleum Exploration Inc. v. Public Service Commis sion, 304 U. S. 209____________________________ 38 Pierre v. Louisiana, 306 U. S. 354_________________... 17 Polk v. Glover, 305 IT. S. 5_____ . _________ ___ ______ 34 Puitt v. Commissioner of Gaston County, 94 N. C. 709, 55 Am. Rep. 638______ _________ ______________ 20 Railroad Tax Cases, 13 Fed. 722___________________ 15 Rockwell v. Board of Education, 125 Misc. 136, 210 N. Y. S. 582; rev’d, 214 App. Div. 431, 212 N. Y. S. 281 26 Roper v. McWhorter, 77 Va. 214______________ ___ 20 School District v. Teachers’ Retirement Fund Assn., — Ore —, 95 P. (2d) 720; 96 P. (2d) 419.-.,..._______ 27-31 Seattle High School, etc. v. Sharpless, 159 Wash. 424, 293 Pac. 994________________________________ ___18 Settle v. Sterling, 1 Idaho, 259 _________________ 27 Simpson v. Geary, et al 204 Fed. 507________________ 15 V PAGE Smith v. Bourbon County, 127 U. S. 105-------------------- 38 Southern Railway Co. v. Greene, 216 IT. S. 400------------- 15 Strauder v. West Virginia, 100 IT. S. 303_______ 15-16-17 Swafford v. Templeton, 185 IT. S. 487--------- .------------- 36 Truax v. Raich, 239 IT. S. 33----------------------------------- 15 Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 12___________ 21 Union Pacific Railway v. Public Service Corporation, 248 IJ. S. 67.___________ ___ _______ __ __ _____ 30 Whiteley County Board of Education v. Rose, 267 Ky. 283, 102 S. W. (2d) 28______________ _____ ___ 27-29 Wiley v. Sinkler, 179 U. S. 58___________________ - 36 Yu Cong Eng v. Trinidad 271 U. S. 500______________ 15 CONSTITUTIONS, STATUTES AND RULES CONSTITUTIONS CITED United States Constitution, Amendment Fourteen------- 2 Virginia Constitution, Article IX : Section 129_______________________ 5-31 131_________________________________ 6 133______________ 6 135 _______ 7 136 ________________________ 7 PRINCIPAL STATUTES CITED United States Code: Title 28, Sec. 41 (1) ... ...... . ..................... ....- - ... . 36 Title 28, Sec. 41 (14)________ _-_____ ______ _ 36 Virginia Code: Sections 611-718-649-653-777______ 6 Section 786 ...____________________ ___ 7-22-31 Section 646 ____ _________ ___________.......— ... 7 Section 664 _______________________ __— 22-23 Section 680 __________ 32 Virginia Acts of 1928, eh. 471, p. 1186 .................... ...... . 5 RULES CITED Federal Rules of Civil Procedure: Rule No. 7 (a)________ 24-34 United States Circuit Court of Appeals for the Fourth Circuit M e l v in 0 . A l st o n , and the N orfolk T e a c h e r s ’ A ssociation , an Unincorpo rated Association, Appellants, vs. File No. 4623 S chool B oard op t h e C it y op N orfo lk , a Body Corporate, a n d C. W. M a son , Superintendent of Schools of Norfolk, Appellees. BRIEF OF APPELLANTS STATEMENT OF THE CASE This is an appeal from a final judgment of the District Court of the United States for the Eastern District of Virginia in a case arising under the Constitution and laws of the United States, wherein appellants, plaintiffs below, are seeking a declaratory judgment and a permanent injunction. On November 2, 1939, appellants filed a complaint chal lenging the system, practice and custom of the School Board of the City of Norfolk, (1) of establishing schedules and rates of pay for all Negro public school teachers substan tially lower than those established for white public school 2 teachers similarly situated, and (2) in actually paying to all Negro teachers, pursuant to such schedules, substan tially less than is paid to white teachers similarly situated, all solely because of race or color and in violation of the equal protection clause of the Fourteenth Amendment and paragraph 14 of Section 41 of Title 28 of the United States Code. Appellants prayed for a declaratory judgment assert ing the existence and unconstitutionality of this racial discrimination and for an injunction restraining its con tinuance. On November 21, 1939, the appellees, defendants below, filed an answer containing four separate defenses. There after, the Court suggested that inasmuch as defenses in law were raised in the portions of the answer denominated “ First Defense”, “ Second Defense” and “ Third Defense” , the hearing and disposition of the case might be facilitated if argument could be made upon these defenses in advance of trial, treating the said defenses as a motion to dismiss the bill of complaint for alleged legal insufficiency. Thereafter, pursuant to the said suggestion of the Court, the case was argued on February 12, 1940, as upon the ap pellees’ motion to dismiss the bill of complaint. No testi mony was taken. On February 29, 1940, the Court entered a final order dismissing the complaint. QUESTIONS INVOLVED 1. Is the racial discrimination in salary schedules and in actual salaries as alleged in the complaint a denial of con stitutional right to equal protection of the laws? 2. Has the appellant Alston, by accepting employment as a matter of law on the facts alleged by his pleading, waived his right to the relief for which he prays? 3. Is there any substance to the defenses of res judicata, lack of jurisdiction, and adequacy of remedy at law, pleaded by the defendants but not relied upon in the argument or in the decision of the District Court? 3 m STATEMENT OF FACTS ■ At the hearing on the motion to dismiss the only facts before the Court were the facts as alleged in the complaint. Briefly summarized, the basic facts set out in the complaint are as follows: Appellant, Melvin O. Alston, is a citizen of the United States, and a citizen and resident of the State of Virginia. He is a Negro, a taxpayer of the City of Norfolk and the State of Virginia, and is a regular teacher in a public high school maintained and operated by the School Board of the City of Norfolk. Appellant Alston brings this action (1) as a teacher by profession and occupation, (2) as a taxpayer, and (3) as a representative of all other Negro teachers and principals in the public schools of Norfolk, Virginia, simi larly situated and affected. (Appendix, p. 41.) Appellant, Norfolk Teachers’ Association, a voluntary unincorporated association, is composed of Negro teachers and principals in the public schools of Norfolk, Virginia, organized for the mutual improvement and protection of its members in their profession as teachers and principals in the public schools of Norfolk, Virginia. (Appendix, p. 41.) Appellant Alston and all of the members of the appellant association and all other Negro teachers and principals in the public schools of the City of Norfolk are teachers by profession and are specially trained for their calling. (Appendix, p. 44.) The appellee, School Board of the City of Norfolk, is an administrative department of the Commonwealth of Vir ginia having the direct control and supervision of the public schools of Norfolk, Virginia, and is charged with the duty of maintaining an efficient system of public schools includ ing the employment of teachers and the fixing of teachers’ salaries. Appellee, C. W. Mason, is the administrative and executive official of the public school system in Norfolk and is sued in his official capacity. (Appendix, pp. 41, 43.) 4 All public school teachers in Virginia, including appel lants and all other teachers in Norfolk, are required to hold teaching certificates in accordance with the rules of cer tification established by the State Board of Education. Negro and white teachers and principals alike must meet the same requirements to receive teachers’ certificates from the State Board of Education, and upon qualifying do re ceive identical certificates. (Appendix, pp. 42, 43.) The appellees over a long period of years have consist ently pursued and maintained and are now pursuing and maintaining the policy, custom, and usage of paying Negro teachers and principals in the public schools of Norfolk less salary than white teachers and principals possessing the same professional qualifications, certificates and experience, exercising the same duties and performing the same serv ices as Negro teachers and principals. Such discrimination is being practiced against the appellants and all other Negro teachers and principals in Norfolk solely because of their race or color. (Appendix, p. 43.) Pursuant to the policy, custom and usage, set out above, the appellees acting as agents and agencies of the Common wealth of Virginia have established and maintained a salary schedule used by them to fix the amount of compensation for teachers and principals in the public schools of Norfolk. This salary schedule (set out in full in the complaint— Appendix, p. 46), on its face, provides and requires a dif ferential in teachers’ salaries based solely on race or color. The practical application of this salary ■ schedule has been, is, and will be to pay Negro teachers and principals of qualifications, certification and experience equal to that of white teachers and principals, less salary than is paid white teachers and principals solely because of race or color. (Appendix, p. 46.) In order to qualify for his position as teacher, appellant Alston has satisfied the same requirements as those exacted of all other teachers, white as well as Negro, qualifying for similar positions, and he is charged with the same duties and performs services equivalent to those of all other teach ers holding these certificates, white as well as Negro. Never theless, all white male teachers receive salaries much larger than the salary paid this appellant. White male high school teachers employed by appellees whose qualifications, cer tification, duties and services are the same as appellant’s are paid a minimum annual salary of $1200 while appellant Alston is paid $921. (Appendix, p. 45.) As a taxpayer, appellant Alston has contributed to the fund set out of which all teachers ’ salaries are paid. As a taxpayer he complains of discrimination against him, solely on account of race or color in the distribution of the public fund to which he contributes. (Appendix, pp. 48-49.) PART ONE LEGISLATIVE BACKGROUND OF APPELLANTS’ CASE I Virginia Has Undertaken the Duty of Providing Free Public Education as a State Function The Commonwealth of Virginia realizing that free public education was an essential function of government author ized the establishment of an adequate educational system by placing the following mandate in the Constitution of Virginia: “ Free schools to be maintained.—The general assembly shall establish and maintain an efficient system of public free schools throughout the State. ’ ’ Article IX, Section 129, Virginia Constitution. Chapter 471 of the Acts of 1928, page 1186, revised, con solidated, amended and codified the school laws and certain laws relating to the State Board of Education; the act 6 repealed certain sections and substituted others in their place; and the new school code is codified as sections 611-718, inclusive, of the Virginia Code. Section 611 provides that: “ An efficient system of public schools of a minimum school term of one hundred and sixty school days, shall be established and maintained in all of the cities and counties of the State. The public school system shall be administered by the following authorities, to-wit: A State board of education, a superintendent of public instruction, division superintendent of schools and county and city school boards.” A. General Supervision of the Virginia Public School System Is Vested in the State Board of Education Article IX of the Constitution of Virginia established a State Board of Education and defined its powers and duties. General supervision is vested in this board and the members thereof are appointed by the Governor subject to the approval of the General Assembly. Section 131 of Article IX of the Constitution provides for the appointment of a Superintendent of Public Instruc tion by the Governor subject to confirmation of the General Assembly. B. The Counties and Cities Are the Units for Education in Virginia Section 133 of Article IX of the Constitution provides that: “ The supervision of schools in each county and city shall be vested in a school board, to be composed of trustees to be selected in the manner for the term and to the number provided by law.” The local school boards are declared to be bodies corporate with power to sue and be sued in their corporate names (Va. Code, Sections 653, 777). By Section 649 of the Virginia Code each school board is authorized and required to appoint a division superin- 7 tendent of schools. By Section 786, the city school boards are required to : . . establish and maintain therein a general system of public free schools in accordance with the require ments of the Constitution and the general educational policy of the Commonwealth for the accomplishment of which purpose it shall have the following powers and duties . . . : “ Third. To employ teachers from a list or lists of eligibles to be furnished by the division superintendents and to dismiss them when delinquent, inefficient or in anywise unworthy of the position . . . . ‘ ‘ Twelfth. To manage and control the school funds of the city, to provide for the pay of teachers and of the Clerk of the board, C. The Public School System of Virginia is Financed Jointly by State and Local Public Funds Section 135 of Article IX of the Virginia Constitution provides for the distribution of state funds for school pur poses and Section 136 authorizes each county, city and town to raise additional funds for local school purposes. Section 646 of the Virginia Code provides: “ Of what school fund to consist.—The fund applicable annually to the establishment, support and maintenance of public schools in the Commonwealth shall consist of: “ First. State funds embracing the annual interest on the literary fund; all appropriations made by the general assembly for public school purposes; that por tion of the capitation tax required by the Constitution to be paid into the State treasury and not returnable to the localities, and such State taxes as the general assembly, from time to time, may order to be levied. “ Second. Local funds embracing such appropriations as may be made by the board of supervisors or council for school purposes, or such funds as shall be raised by levy by the board of supervisors or council, either 8 or both, as authorized by law, and donations or the income arising therefrom, or any other funds that may be set apart for local school purposes.” Realizing that the efficiency of the school system depended upon an efficient teaching staff which can only be secured by adequate pay, the General Assembly, by Section 701, provided: “ All moneys appropriated by the State for local schools, unless otherwise specifically provided, shall be used exclusively for teachers’ salaries.” PART TWO APPELLANTS’ SUBSTANTIVE CASE I The Racial Discrimination in Salary Schedules and in Actual Salaries as Alleged in the Complaint Is a Denial of Constitutional Right to the Equal Protection of the Laws The gravamen of this action is clearly set out in the eleventh and twelfth paragraphs of the complaint which allege that: “ Defendants over a long period of years have consist ently pursued and maintained and are now pursuing and maintaining the policy, custom, and usage of paying Negro teachers and principals in the public schools of Norfolk less salary than white teachers and princi pals in said public school system possessing the same professional qualifications, certificates and experience, exercising the same duties and performing the same services as Negro teachers and principals. Such dis crimination is being practiced against the plaintiffs and all other Negro teachers and principals in Norfolk, Virginia, and is based solely upon their race or color. (Italics added.) 9 % “ The plaintiff Alston and all of the members of the plaintiff association and all other Negro teachers and principals in public schools in the City of Norfolk are teachers by profession and are specially trained for their calling. By rules, regulations, practice, usage and custom of the Commonwealth acting by and through the defendants as its agents and agencies, the plaintiff Alston and all of the members of the plaintiff associa tion and all other Negro teachers and principals in the City of Norfolk are being denied the equal protection of the laws in that solely by reason of their race and color they are being denied compensation from public funds for their services as teachers equal to the compen sation provided from public funds for and being pai d to white teachers with equal qualifications and experi ence for equivalent services pursuant to rules, regu lations, custom and practice of the Commonwealth acting by and through its agents and agencies, the School Board of the City of Norfolk and the Superin tendent of Schools of Norfolk, Virginia.” (Appendix, pp. 43-44.) The District Judge, in his opinion, recognized the prin ciple that these allegations, accepted as true on a motion to dismiss, established unconstitutional discrimination against Negroes. It is readily apparent from the opinion that he had no doubt that the practice, custom, and usage of pay ing Negro teachers and principals less salary than white teachers and principals of the same professional qualifi cations, certification, and experience solely because of race or color violates the Fourteenth Amendment. We quote: . The authorities are clear, I think however, that there can be no discrimination in a case of this kind, if such discrimination is based on race or color alone. Under our constitution, particularly the fourteenth amendment, all citizens stand upon equal footing before the law and are entitled to equal benefits and privileges where state action is involved; or, to state the propo sition another way, a state can not, through its consti tution, statutes, or rules and regulations, or through one of its administrative bodies, arbitrarily discrimi- 10 nate against persons within its jurisdiction. In the words of the fourteenth amendment, a state cannot deny to any person within its jurisdiction the equal protection of the law. That principle is firmly estab lished, and, if and when a case of discrimination based on race or color is presented, the person discriminated against will be granted appropriate relief. ‘ ‘ The view that I take of the plaintiff’s case, with some hesitation I will admit, does not render it necessary for the Court to pass on the unconstitutional discrimi nation charged in the complaint to have been practiced against the plaintiff, other than to observe that the complaint charges in clear and explicit language that the discrimination in compensation is based on race or color alone.” (Italics added.) (Appendix pp. 60-61.) This cause of action is based upon a system of racial dis crimination set up by administrative rulings of the appellees acting as administrative agencies of the Commonwealth of Virginia. It involves the question of the distribution of public funds by state agencies pursuant to a system which discriminates against Negroes solely because of race or color. The discriminatory practice, usage and custom of the appellees consist of: (1) a salary schedule which on its face provides and requires a differential in teachers’ sal aries based solely on race or color, and, (2) the practice of fixing teachers ’ salaries pursuant to this schedule in such a manner as to provide less salary for Negro teachers and principals than for white teachers and principals with equal qualifications and experience solely because of race or color. A. The Teachers’ Salary Schedule Being Enforced by Ap- lees on Its Face Provides and Requires a Differential in Teachers’ Salaries Based Solely on Race or Color Pursuant to the policy, custom and usage set out above the appellees acting as agents and agencies of the Common wealth of Virginia have established and maintained a salary 11 schedule used by them to fix the amount of compensation for teachers and principals in the public schools of Norfolk. This salary schedule provides as follows: Negro— Elementary Salaries now being paid teachers new to the system Maximum salary being paid (affecting only those in system before increment plan was discontinued) Normal Certificate $ 597.50 $ 960.10 Degree High School 611.00 960.00 Women 699.00 1,105.20 Men White Elementary 784.50 1,235.00 Normal Certificate 850.00 1,425.00 Degree High School 937.00 1,425.00 Women 970.00 1,900.00 Men 1,200.00 (Appendix, 2,185.00 p. 46.) This salary schedule is a basic factor of the discrimina tory system. The evil in the schedule is two-fold: first, it provides a lower minimum for Negro teachers new to the system than for white teachers with equal professional qualifications and new to the system; and, second, it pro vides a higher maximum for white teachers than for Negro teachers. Under this schedule appellant Alston and other Negro teachers can never receive more than the maximum of $1235 for Negroes which is but $35 more than the mini mum for white male high school teachers, and $950 less than the maximum for white male high school teachers. Under this schedule a Negro teacher must start at a lower salary than a white teacher and no matter how long he teaches or how well, how many degrees he obtains at college or how proficient he may become he can never re ceive as much as the maximum for white teachers solely 12 because of Ms race or color. TMs system of racial dis crimination destroys the opportunity of Negro teachers to bargain freely for their salaries. Their freedom of con tract is limited to the figures on the schedule which are lower than the corresponding figures for white teachers. Two decisions of similar cases in this circuit clearly rec ognize that such discrimination as this is a denial of con stitutional rights. In the first case, Mills v. Lowndes, et al., 26 Fed. Supp. 792 (D. C. Md. 1939), a Negro public school teacher in Maryland challenged the constitutionality of a state statute which provided a higher minimum salary for white teachers than for colored teachers. The Court de clared that this type of schedule was unconstitutional: “ . . . The plaintiff is a qualified school teacher and has the civil right as such to pursue his occupation without discriminatory legislation on account of his race or color. While the State may freely select its employees and determine their compensation it would, in my opinion, be clearly unconstitutional for a state to pass legislation which imposed discriminatory bur dens on the colored race with respect to their qualifi cations for office or prescribe a rate of pay less than that for other classes solely on account of race or color . . . ” (26 Fed. Supp. at 801.) In the Mills case, supra, the schedule provided for mini mum salaries only—in the instant case the discrimination is not only as to minimum salaries but maximum salaries as well. In the Mills case there was a statutory salary schedule—in the instant case there is a salary schedule established by administrative ruling of an administrative agency of the state. There can be no question but that the prohibitions of the Fourteenth Amendment apply with full vigour to the acts of such agencies. Ex parte Virginia, 100 U. S. 339 (1879). 13 H B. The Salaries Paid to all Teachers and Principals Reveal a Racial Differential Imposed Pursuant to a General Practice of Unconstitutional Discrimination Using the salary schedule set out above as a basis, the appellees fix the salaries of the Negro teachers in the public schools of Norfolk who are new to the system at a lower rate than white teachers new to the system who have identi cal state teachers’ certificates, years of experience, exer cising the same duties and performing essentially the same services (Appendix, p. 46). Similarly Negro teachers in intermediary salary status are paid less than white teachers with equivalent intermediate status (Appendix, p. 46). The discrimination in maximum salaries had already been set forth. It is further alleged in the complaint that the dis crimination in salaries is based solely on race or color (Ap pendix, p. 47). White male high school teachers employed by appellees whose qualifications, certification, duties and services are the same as appellants’ are paid a minimum annual salary of $1200 while appellant Alston is paid $921. The second Mills case, Mills v. Anne Arundel County Board of Education, et al., 30 Fed. Supp. 245 (D. C. Md. 1939), involved the policy, custom and usage of paying Negro teachers in Anne Arundel County, Maryland, less salary than white teachers solely because of race or color. In granting a declaratory judgment and an injunction to the Negro teacher, District Judge Chestnut stated: “ . . . . As already stated, the controlling issue of fact is whether there has been unlawful discrimination by the defendants in determining the salaries of white and colored teachers in Anne Arundel County solely on account of race or color, and my finding from the testi mony is that this question must be answered in the affirmative, and the conclusion of law is that the plaintiff is therefore entitled to an injunction against the contin uance of this unlawful discrimination. (Italics added.) (30 Fed. Supp. at 252.) 14 C. The Equal Protection Clause of the Fourteenth Amend ment Prohibits Such Racial Discrimination Against Apel- lants as Teachers by Occupation' and Profession Virginia has no tenure of office statute covering teachers and there are no civil service provisions applicable to them. The question in this case is not of the right to teach but of the right of Negroes, teachers by training and occupation not to be discriminated against because of color in the fixing of salaries for public employment by the appellees. In the employment of teachers and the fixing of salaries the appellees are acting as an administrative department of the Commonwealth of Virginia distributing public funds and not as a private employer distributing his own funds. A significant difference between the individual employer and the state at once suggests itself. The federal Constitu tion does not require individuals to accord equal treatment to all. It does not forbid individuals to discriminate against individuals. It does, however, expressly declare that no state shall deny to any person within its jurisdiction the equal protection of the laws. Thus state action is prohibited by the federal Constitution where individual action is not prohibited. (1 ) T h e F o u r t e e n t h A m e n d m e n t P r o h ib it s all A rbitrary and U nreasonable Cla ssific a tio n s by S tate A g en cies While a state is permitted to make reasonable classifica tions without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just rela tion to the things in respect to which such classification is imposed; and classification cannot be arbitrarily made with out any substantial basis. This protection of the Fourteenth Amendment has been applied in numerous types of cases in which the courts con cluded that unreasonable classification and resultant dis crimination were held to be arbitrary and unlawful. 15 % Railroad Tax Cases, 13 Fed. 722 (1882); Southern Railway Co. v. Greene, 216 U. S. 400 (1910); Gulf C. and S. F. R. Co. v. Ellis, 165 IT. S. 150 (1896); Juniata Limestone, Ltd. v. Fagley, et al., 187 Pa. 193, 40 Atl. 977, (1898) ; Yu Gong Eng v. Trinidad, 271 U. S. 500 (1926). This doctrine has been invoked to prohibit unlawful dis crimination in employment. An Arizona statute which pro vided that all employers of more than five employees must employ not less than eighty percent qualified electors or native-born citizens of the United States was held unconsti tutional in a suit by an alien. Truax v. Raich, 239 U. S. 33 (1915). “ The right to contract for and retain employment in a given occupation or calling is not a right secured by the Constitution of the United States, nor by any Constitution. It is primarily a natural right, and it is only when a state law regulating such employment discriminates arbitrarily against the equal right of some class of citizens of the United States, or some class of persons within its jurisdiction, as, for example, on account of race or color, that the civil rights of such persons are invaded, and the protection of the federal Constitution can he invoked to protect the individual in his employment or calling.” Simpson v. Geary, et al., (D. C. Ariz. 1913) 204 Fed. 507, 512. (2 ) D isc r im in a t io n B ecause of R ace or C olor I s Clearly A rbitrary and U nreasonable W it h in t h e M ea n in g of t h e F o u r t e e n t h A m e n d m e n t It is clear that, under the Fourteenth Amendment, officers of a state cannot discriminate against Negro citizens solely because of race or color. The purpose of the Fourteenth Amendment has been clearly set out by Mr. Justice Strong of the United States Supreme Court in the case of Strauder v. West Virginia, 100 U. S. 303 (1879): 16 “ . . . What is this (amendment) but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States and, in regard to the colored race, for whose protection the Amendment was primarily designed, that no dis crimination shall be made against them by law because of their color? The words of the Amendment, it is true, are prohibitory, but they contain a necessary implica tion of a positive immunity, a right, most valuable to the colored race—the right to exemption from un friendly legislation against them distinctively as col ored; . . . ” Strauder v. West Virginia (supra, at p. 307). The Fourteenth Amendment is in general terms and does not enumerate the rights it protects: “ The Fourteenth Amendment makes no attempt to enumerate the rights it is designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every pro hibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either of life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.” Strauder v. West Virginia (supra, at p. 310.) The United States Supreme Court in the case of Ex parte Virginia, 100 U. S. 339, 344 (1879), declared: “ One great purpose of the Amendment was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood into perfect equality of civil rights with all other per sons within the jurisdiction of all the States. They were intended to take away all possibility of oppression by law because of race or color . . .” In consistent application of this interpretation to a great variety of situations the courts have condemned all forms of state action which impose discriminatory treatment upon Negroes because of their race or color. 17 Exclusion from petit jury—Strauder v. West Virginia, supra. Exclusion from grand jury—Pierre v. Louisiana, 306 IT. S. 354 (1939). Exclusion from voting at party primary—Nixon v. Con don, 286 U. S. 73 (1932). Discrimination in registration privileges—Lane v. Wil son, 307 U. 8. 268 (1939). Ordinance restricting ownership and occupancy of property—Buchannan v. Warley, 245 IT. S. 60 (1917). Ordinance restricting pursuit of vocation—Chaires v. City of Atlanta, 164 Ga. 755,139 8. E. 559 (1927). Refusal of pullman accommodations—McCabe v. At. chison, Topeka & Sante Fe By. Co., 235 U. S. 151 (1914). Discrimination in distribution of public school fund— Davenport v. Cloverport, 72 Fed. 689 (D. C. Ky. 1896). Discrimination in public school facilities—Gaines v. Missouri, 305 IJ. S. 337 (1938). % It is clear from the cases set out above that: (1) state agencies, such as appellees, cannot make classifications on an arbitrary or unreasonable basis, and (2) race or color alone cannot be used as a basis for discrimination against Negroes. There is, therefore, complete legal justification for the decisions in the two Mills cases, supra, and the con clusion of the District Judge on this point in this instant case that: ‘ ‘. . . there can be no discrimination in a case of this kind, if such discrimination is based on race or color alone” . (Appendix, p. 60.) As a general proposition, local school boards, in employ ing teachers, may make reasonable classifications which can be justified as having a direct connection with the proper administration of the school system. There is even some authority that local school boards have the power to require all new teachers to take an oath that they are not members 18 of a teachers’ union. (Seattle High School, etc. v. Sharpless, 159 Wash. 424, 293 Pac. 994 (1930), and People ex rel. Fursman v. Chicago, 278 111. 318, 116 N. E. 158 (1917)). However, this power of local school boards must be con sidered in connection with the concurring opinion of two Justices in the Fursman case, supra, that: . This power does not, however, include the power to adopt any kind of an arbitrary rule for the employment of teachers it chooses to adopt; for a rule can easily be imagined the adoption of which would be unreasonable, contrary to public policy, and on the face of it not calculated to promote the best interests and welfare of the schools. In our opinion, courts would have the power, in the interest of the public good, to prohibit the enforcement of such an arbitrary rule . . .” . The correctness of the limitation thus declared by the con curring justices is well illustrated by two other cases in which discriminations against public employees upon the basis of unreasonable classifications have been held to be invalid. In In re Opinion of the Justices,—Mass.-—, 22 N. E. (2d) 49 (1939), the Supreme Judicial Court of Massachusetts held that discrimination against married women in the pub lic service, solely because of their marital status, is invalid as a denial of equal protection of the laws guaranteed by the State Constitution: ‘ ‘ . . . the General Court cannot constitutionally enact a law, even with respect to employment, in the public service, that arbitrarily discriminates against any class of citizens by excluding it from such service. This con clusion results from . . . the guarantees in Articles 1, 6 and 7 of the Declaration of Rights ‘for equal protec tion of equal laws without discrimination or favor based upon unreasonable distinctions.’ ” (22 N. E. (2d) at 58). In Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937), a salary differential between married and unmarried teachers was held to be an unreasonable classification, and thus to 19 % be void. The situation in that case was closely analagous to that in the case at bar, and the language of the Indiana Court is directly applicable here: “ So, if the legislative intent, . . . was to authorize the School Board to classify its teachers, it necessarily fol lows that such classification must be reasonable, nat ural, and based upon substantial difference germane to the subject . . . The compensation of appellee was fixed by the board, partly at least upon the fact that she was married. This, in our opinion, was unlawful and arbitrary, and formed no rational basis of classifica tion. It had no reasonable relation to the work assigned to her, as the fact that appellant was a married woman did not affect her ability to impart knowledge or per form her duties in the school room. It is conceded that her marriage status has no such effect and, if not, there could be no just or reasonable basis for the school board classifying her as far as compensation is concerned, in a different and lower class than an unmarried female teacher having like qualifications and doing like work. ’ ’ (8 N. E. (2d) at 820.) A fortiori, discrimination based on race or color is arbi trary and unreasonable, and therefore is unconstitutional. D. The Equal Protection Clause of the Fourteenth Amend ment Prohibits Such Discrimination Against Appellant Alston as a Taxpayer In addition to his right as a citizen of the United States and a teacher by occupation and profession to maintain this action, appellant Alston also bases his right to the relief prayed for upon the fact that he is a taxpayer. As a tax payer he is required to contribute to the public tax fund, a portion of which is used for public schools. As a teacher in the public schools he has a right to share in this fund without discrimination because of his race or color. Any illegal action on the part of the appellees in the distribution of this fund directly affects appellant Alston and is an injury peculiar to him as a taxpayer who is also a teacher. 20 The right of a citizen, resident and taxpayer to attack the unconstitutional distribution of public funds has been clearly established. In the case of Claybrook v. City of Owensboro, 16 F. 297 (D. C. Ky., 1883), the General As sembly of Kentucky passed an act authorizing a municipal corporation to levy taxes for school purposes and to dis tribute taxes from white people to the white schools, and taxes from the colored people to colored schools. Residents of the City of Owensboro filed a petition for an injunction in the District Court restraining the distribution of these taxes on this basis. The Court in granting the injunction prayed for stated that: “ The equal protection of the laws guaranteed by this Amendment means and can only mean that the laws of the states must be equal in their benefit as well as equal in their burdens, and that less would not be ‘ equal pro tection of the laws.’ This does not mean absolute equal ity in distributing the benefits of taxation. This is im practicable; but it does mean the distribution of the benefits upon some fair and equal classification or basis.” (16 Fed. at 302) See also: Davenport v. Cloverport, 72 Fed. 689, (D. C. Ky. 1896); Puitt v. Commissioner of Gaston County, 94 N. C. 709, 55 Am. R. 638 (1886). The law sustaining this case is well established and was recognized in Virginia in 1883 by the case of Roper v. Mc Whorter, 77 Va. 214 (1883) : ” . . . In this country the right of property-holders or taxable inhabitants to resort to equity to restrain mu nicipal corporations and their officers, and quasi cor porations and their officers from transcending their lawful powers or violating their legal duties in any way which will injuriously affect the taxpayers, such as making an unauthorized appropriation of the cor porate funds, or an illegal disposition of the corpo rate property, . . . has been affirmed or recognized in numerous cases in many of the states. It is the prevail ing doctrine on the subject.” (77 Va. at p. 217.) % 21 This rule of law as applied in Virginia is the prevailing doctrine today as to public schools: “ Except as relief may be denied where the act com plained of does not affect the taxpayer with an injury peculiar to himself, it has been held that the authorities of a school district may be enjoined at the suit of tax payers from making any illegal or unauthorized appro priation, use, or expenditure of the district funds, as where there is a threatened use or expenditure of funds for an illegal or unauthorized purpose, or a threatened diversion of funds.” 56 C. J., Schools and School Dis tricts, sec. 906, page 764. In the case of Oehler v. City of St. Paul, 174 Minn. 410, 219 N. W. 760 (1928), the court upheld an injunction restraining the appointment to a civil service position without meeting civil service requirements, stating: “ It is well settled that a taxpayer may, when the situ ation warrants, maintain an action to restrain unlawful disbursement of public moneys . . . as well as to restrain illegal action on the part of public officials.” (219 N. W. at p. 763.) In the case of Tuttle v. Beem, 144 Ore. 145, 24 P. (2d) 12 (1933), taxpayers were granted an injunction to enjoin the local school district from unauthorized use of public funds for digging a well. In the case of Anderson v. Fuller, 51 Fla. 380, 41 So. 684 (1906), it was held that taxpayers may sue to enjoin public officers from paying money under an illegal contract. In this case the contract was let without competitive bidding. In Board of Education v. Arnold, 112 111. 11 (1884), an action by a taxpayer, an injunction was granted preventing the payment of a teacher who had no certificate from the county superintendent. And a taxpayer was held entitled to an injunction against a school district to prevent the employment of a teacher whose employment was voted down by a majority of the 22 district. O’Brien s. Moss, 131 Ind. 99, 30 N. E. 894, (1892). A taxpayer was held entitled to maintain an injunction to restrain the payment of a warrant for a school teacher’s salary which was illegal. Black v. Ross, 37 Mo. App. 250 (1889). The court said: “ If the defendants, as directors of the school dis trict, were about to make an unlawful and unauthorized disposition of the public school fund, an injunction was the only adequate remedy afforded the individual tax payer, to prevent the illegal diversion.” II The Facts Alleged in Appellant Alston’s Pleading Do Not Constitute a Waiver of His Right to the Relief for Which He Prays In considering the issue of waiver it is and must be as sumed that racial discrimination in fixing the salaries of public school teachers violates the equal protection clause of the Fourteenth Amendment. But admitting such un constitutionality the District Court concluded that appellant Alston had waived his right to complain of the unconstitu tional discrimination. Scope of Present Waiver Issue Paragraph 10 of the complaint (Appendix, p. 43) alleges that appellees are under a statutory duty to employ teachers and to provide for the payment of their salaries, citing, inter alia, Section 786 of the Virginia School Laws which provides in part that, “ The City school board of every city shall . . . have the following powers and duties. . . . Third. To em ploy teachers . . . Twelfth. To . . . provide for the pay of teachers . . .” It is further provided in Section 664 that 23 “ Written contracts shall be made by the school board with all public school teachers before they enter upon their duties, in a form to be prescribed by the Super intendent of Public Instruction.’.’ Paragraph 15 of the complaint (Appendix, p. 45) alleges that appellant Alston “ is being paid by the defendants for his services this school year as a regular male high school teacher as aforesaid an annual salary of $921.” Thus, from the complaint and the above quoted language of applicable Virginia statutes it seems a proper conclusion that appellant Alston is employed during the current year pursuant to a contract of hire and at an annual salary of $921. Moreover, in a preliminary proceeding in the nature of a hearing on motion to dismiss the complaint it seems proper that the court determine whether any conclusion of law fatal to the plaintiff’s case follows from the facts out lined above. To that extent, and to that extent only, the question of waiver was before the District Court and is in issue upon the present appeal. It is to be noted that so much of the “ Second Defense” in the answer as raises the issue of waiver is in form a defense in law in the nature of a motion to dismiss, but in substance it combines a challenge to the sufficiency of the complaint with an introduction of new matter in the nature of an affirmative defense. Thus, the sub-paragraphs num bered (4) and (5) (Appendix, p. 55) go beyond an allega tion that acceptance of employment by the appellant is a waiver of the rights asserted in his complaint. These sub-paragraphs refer to the specific contract of the appellant and incorporate by reference an attached document de scribed as a copy of his contract. In thus going beyond the fact of employment pursuant to a contract of hire as already revealed by the complaint and pertinent statutes, and in attempting to put in issue the terms of a particular contract, the circumstances of its execution and any legal . ' MlSsSlcil W S m 24 conclusions that may depend upon such terms and cir cumstances, the appellees have introduced an affirmative defense. Under Rule 8(c) of the Federal Rules of Civil Procedure, such new matter is deemed to be denied without reply. Indeed, no reply is permitted except by order of the court. See Rule 7(a). Therefore, the new matter alleged in the answer was not before the court on a motion to dis miss and is not material to the present appeal. In brief, the question now at issue is whether the facts (1) that appellant’s status was created by a contract of hire and (2) that he has been employed for a definite salary, operate as a matter of law to preclude this suit. Clearly the answer to this question is in the negative and, therefore, the appellants contend that the judgment of the District Court cannot be sustained. Even if the answer to this ques tion should be—and the appellants do not concede the cor rectness of such an assumption—that the circumstances of the particular hiring must be considered before the issue of waiver can be decided, the judgment of the District Court is in error because such an issue can be determined only by a hearing on the merits. A. The Contract of Hire Is Not Affected by the Relief Sought No modification of the contract of hire is sought in this case. The appellants ask for declaratory relief in the form of a decree that the policy, custom and usage of dis crimination in salary schedules solely on the basis of race and the actual discrimination against them solely on ac count of their race are a denial of equal protection of the laws. Injunctive relief is sought in the form of a decree restraining the appellees from applying the discrimina tory salary schedule and from continuing the practice of racial differentials in teachers’ salaries. It is to be emphasized that under the prayers of the com plaint the appellees would be left free to determine the 25 actual salary of each teacher on any basis other than race. Certainly the Court is not asked to amend any contract or to determine the wage to be paid to any teacher. Moreover, although the appellants seek immediate relief they complain of a continuing wrong. They have a very real interest in protection against the continuation of this discrimination from year to year in the future. It is within the discretion of a court administering equitable relief to determine whether its injunctive decree shall impose an immediate restraint or whether the decree shall become operative at some other date determined in the light of the equities of the case before it. Thus, in Mills v. The Board of Education, supra, under prayers essentially simi lar to those in the present case, the court declared the un- constitutionality of a racial salary differential and re strained its continuance as of the beginning of the next school year. The value of such a prospective decree and the interest of the appellants in obtaining such prospective relief, if the court in its discretion should thus postpone the oper ation of its decree, are apparent. A teacher has a reason able expectancy of reemployment from year to year, par ticularly such a teacher as the appellant Alston, who has been employed continuously for the past five (5) years (Appendix, p. 44). Yet his opportunity to bargain for and to obtain compensation for the next year is impeded by the existing salary schedule and by the custom and practice of paying colored teachers less than white teachers solely because of their race. That this impediment is an effective barrier is shown by appellees’ denial of appellant Alston’s petition for the discontinuance of the racial salary differ ential at the beginning of the present school year (Ap pendix, p. 50) and by the denial of a similar petition of another Negro school teacher at the beginning of the preceding year. (Appendix, p. 50.) Thus, the waiver argument is but colorable at best since the court is not asked to modify any contract; and with 26 reference to possible prospective relief for the next school year the waiver argument has no basis whatever. Yet, the contention of appellees and the holding of the District Court seem to be that the appellant Alston is precluded from ob taining immediate relief because he is under a contract of employment for the current school year, and that he is pre cluded from obtaining any prospective relief which will benefit him in bargaining for compensation for next year because he is not now under contract for that year. In brief, the decision below puts him in the dilemma of being unable to acquire such a status and interest as will give him standing to challenge a constitutional wrong without waiving his objection to that wrong. B. The Doctrine of Waiver Has Been Held Inapplicable to Analogous Dealings with Public Authorities The cases generally hold that the acceptance of public employment at a particular salary is no waiver of the right subsequently to object to the unconstitutionality of unlaw ful conduct of public administrative officers in fixing that salary. Cases involving various contractual relations with agencies of the state are in accord. In the cases which follow, courts have gone far beyond any relief sought in the present case and have actually modified contracts of public employment and other contracts with public agencies. Courts have granted relief against discrimination be tween salaries of men and women teachers, or between the salaries of married and single women, imposed by public authority contrary to law, despite the complainants ’ agree ments to accept a discriminatory salary. Hutton v. Gill, 212 Ind. 164, 8 N. E. (2d) 818 (1937); Moses v. Board of Education, 127 Misc. 477, 217 N. Y. S. 265; rev’d on other grounds, 245 N. Y. 106 (1927); Rockwell v. Board of Education, 125 Misc. 136, 210 N. Y. S. 582; rev’d on other grounds, 214 App. Div. 431, 212 N. Y. S. 281 (1925). Cf.: Chambers v. Davis, 131 Cal. App. 500, 22 P. (2d) 27 (1933). To the same effect are the cases in which a teacher has complained of an illegal retirement deduction or other de nial of benefits incidental to his employment accomplished by imposition of the school authorities, but with his formal consent. Minnesota ex rel. Jennison v. Rogers, 87 Minn. 130, 91 N. W. 438 (1902) Hibbard v. State ex rel Ward, 65 Ohio St. 574, 64 N. E. 109 (1901) School District v. Teachers’ Retirement Fund Assn., Ore. —, 95 P. (2d) 720, 96 P. (2d) 419 (1939). The same conclusion is reached in the long line of cases involving agreements to accept less than the statutory sal ary of a particular office. Glavey v. United States, 182 U. S. 595 (1901) Miller v. United States, 103 Fed. 413 (1900) Settle v. Sterling, 1 Idaho 259 (1869) Whiteley County Board of Education v. Rose, 267 Ky. 283, 102 S. W. (2d) 28 (1937) People ex rel Satterlee v. Board of Police, 75 N. Y. 38 (1878) Cf.: Pederson v. Portland, 144 Ore. 437, 24 P. (2d) 1031 (1933) (Alleged waiver of double compensation for overtime) Courts have not hestitated to invalidate bargains between public officers and independent contractors upon the com plaints of such contractors that the contracts signed by them contained terms which the public authorities had imposed in violation of some constitutional or other legal right. 28 Lukens v. Nye, 156 Cal. 498, 105 Pac. 593 (1909) People ex rel Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716 (1901) City of Cleveland v. Clements Bros. Construction Co., 67 Ohio St. 197, 65 N. E. 885 (1902)' R a tionale op t h e D ec isio n s Considerations of equity and public policy underlie the refusal of courts to recognize any waiver or estoppel in these cases. Where a statute or administrative order or regulation requires the discriminatory or otherwise illegal action in question, the person dealing with the public agency has no such choice or freedom of bargaining with reference to that phase of the transaction as will on equitable principles create an estoppel. The subject matter in question has been removed from the area of free bargaining by the illegal conduct of the state or its agents. The illegal element in the transaction is present not because of voluntary agree ment of the parties that it be there but because govern mental authority has required that it be there. See Minnesota ex rel. Jennison v. Rogers, supra City of Cleveland v. Clements Bros., supra Whiteley County Board of Education v. Bose, supra The fact that appellants are met at the threshold of their transaction with the state by a schedule and a practice of race discrimination in salaries leaves them only the alter natives of foregoing employment altogether or accepting employment under conditions of discrimination. This situ ation is emphasized by the fact, pleaded by the appellants (Appendix, p. 50) that a petition filed by a Negro school teacher on behalf of herself and the other Negro teachers of Norfolk in October, 1939, requesting the elimination of racial salary differentials was denied. In such circum stances submission to discrimination cannot be said to be 29 voluntary in the sense in which a choice must be voluntary to constitute a waiver of objection to the imposed condition. “ Were the rule otherwise it would be comparatively an easy matter for the governing authorities to take ad vantage of an officer dependent upon his salary for a livelihood and virtually compel him to forego his con stitutional right.” Whiteley County Board of Educa tion v. Rose, 102 S. W. (2d) at p. 30. A comparable and analogous situation arises when a state imposes upon a foreign corporation, as a condition of con tinuation in business within its borders, the payment of a tax which denies the corporation equal protection of the laws. The corporation may remain in the state and resist the tax. Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (1926) Similarly, when the privilege of using the public highway as a private carrier for hire is conditioned upon the assump tion of the obligations of a public carrier the entrepreneur may use the highway in his business as a private carrier and at the same time resist the unconstitutional condition. Frost Trucking Co. v. Railroad Commission, 271 U. S. 583 (1926) “ Having regard to form alone, the act here is an offer to the private carrier of a privilege, which the state may grant or deny, upon a condition, which the carrier is free to accept or reject. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool—an option to forego a privilege which may be vital to his livelihood or submit to a require ment which may constitute an intolerable burden.” (271 U. S. at 593) The court continues with language peculiarly apposite to the contention of waiver in the present case: 30 ‘‘It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, com pel a surrender of all. It is inconceivable that guaran tees embedded in the Constitution of the United States may thus be manipulated out of existence.” (271 U. S. at p. 593-4) Again, the Supreme Court has held in Union Pacific Rail way v. Public Service Corporation, 248 U. S. 67 (1918), that in applying for and obtaining a certificate which was a statutory prerequisite to the issuance of certain bonds, the corporation did not waive its right to contest the consti tutionality of the condition thus imposed on it. “ The certificate was a commercial necessity for the issue of the bonds. . . . Of course, it was for the in terest of the company to get the certificate. It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called.” (248 U. S. at p. 70) The common element of duress resulting from imposition of economic pressure characterizes the action of the public authorities in all of these cases as in the case at bar. The state leaves the constrained person merely a choice be tween accepting an unconstitutional and otherwise illegal arrangement on the one hand or suffering serious loss on the other. No doctrine of waiver founded on equitable principles can have application in such a situation. “ Guar antees imbedded in the Constitution of the United States (cannot) thus be manipulated out of existence.” 31 In addition to the considerations above presented, the question of public policy is emphasized in a large number of decisions against alleged waiver of advantages incidental to public employment. The courts have reasoned that the deprivation of rights to salary or other benefits incidental to public employment, or incidental to some other public relationship, involves not only the individual interest of the person immediately effected, but also the public interest in the public activity in which that person is engaged. Thus, in the already cited cases of statutory salaries the courts agree that there is a controlling public interest in the protection of the public service against the demoralizing effect of salary reductions below’ the amount legislatively determined to be adequate, and that no waiver by the in dividual employee can be effective in such circumstances. To the same effect is School District v. Teachers’ Retirement Fund Assn., supra, where a teacher’s express waiver of his right to certain disability compensation was held to be against public policy and therefore ineffective. The case at bar involves the very important public in terest in maintaining an effective public school system and in providing equal educational opportunities for white and colored children. Express declarations of such interest and policy appear in Section 129 of Article IX of the Constitu tion of Virginia and in Sections 680 and 786 of the School Code of Virginia. “ The general assembly shall establish and maintain ' an efficient system of public free schools throughout the State.” Va. Const., Art. IX, Sec. 129. City school boards are required to “ . . . establish and maintain . . . a general system of public free schools in accordance with the require ments of the constitution and the general educational policy of the Commonwealth.” Va. School Code, Sec. 786. 32 ‘ ‘ White and colored children shall not be tanght in the same school, but shall be tanght in separate schools, under the same general regulations as to management, usefulness and efficiency.” Va. School Code, Sec. 680. While colored teachers are held to the same professional standards as white teachers and many colored teachers manage to continue their professional studies so as to achieve efficiency beyond the requirement of their classi fication, it cannot be denied that the general effect of sub stantial salary discrimination is to impose a barrier of economic disadvantage which impedes the professional and scholarly advancement of those who teach colored children. The imposition of such a handicap upon the whole body of teachers in colored schools is in plain derogation of the legislative policy of maintaining an efficient school system and the more specific policy of equality in educational facili ties for white and colored children. It is also noteworthy that, since on the record race and color are admitted to be the sole basis of the unlawful discrimination, there is not even a design to promote any public interest through this discrimination. For these reasons, public policy alone is a sufficient basis for judicial refusal to impose any estoppel or waiver upon a teacher who complains of unconstitutional salary dis crimination against Negro teachers. C. Decision on the Waiver Issue Was Erroneously Based Upon Facts Not Before the District Court The foregoing discussion of waiver presupposes that a decisive answer on the question of waiver or estoppel can be given on the appellants’ complaint and applicable stat utes. Appellants, for the reasons hereinbefore presented, contend that it is clear that no waiver results from the con duct of appellant Alston. Appellees, on the other hand, contend that employment pursuant to a contract of hire results as a matter of law in waiver of the rights herein 33 asserted. But the District Court took an intermediate posi tion,—that waiver is a question to be determined upon the facts of the particular hiring. The following excerpts from the opinion of the District Court show that court’s approach and analysis: “ A defense set up in the answer . . . and which stands out in the record as an undisputed fact, is that some time before this suit was instituted the plaintiff entered into a contract with the defendant school board, which contract covers the subject matter of this litigation. . . . “ A copy of that contract is in the record before the court. There is an absence of any claim that I can find in the complaint to the effect that the plaintiff was in duced to enter into the contract by fraud, misrepre sentation or that it was entered into under duress or that any unfair means were employed by defendants in that behalf, or that it was ever made or signed under protest. . . . I am fully aware of the fact that in situ ations of this kind it sometimes happens that the em ployee is at a distinct disadvantage, is not in a position boldly to assert what he conceives to be his rights, and does not, in fact, therefore, contract freely with the other party. But I do not find in the record any facts that have been pleaded by way of explanation that could reasonably justify the court in reaching the conclu sion that it ought to disregard the written contract and further proceed in the case in spite of the fact that the plaintiff voluntarily entered into such contractual relation with the defendants. ’ ’ (Appendix, pp. 61-62.) The error of this analysis, in addition to the mistaken premise that the issue of waiver in this type of case cannot be dismissed without consideration of the details of the particular hiring, is that new matter, pleaded in the answer and an exhibit to the answer, is used as the factual basis of decision on a motion to dismiss the complaint. It is beyond question, both before and since the adoption of the present Rules of Civil Procedure, that such pleadings and exhibits, extrinsic of the complaint, cannot be considered on a motion to dismiss. 34 Cf.: Polk v. Glover, 305 U. S. 5 (1938) ^ Gibbs v. Buck, 307 IT. S. 66 (1939) Jouner v. Browning, 30 F. Supp. 512 (D. C. W. D. Tenn., 1939) As heretofore pointed out, the terms and circumstances of hiring pleaded in the answer represent an attempt to as sert an affirmative defense, and under Civil Rule No. 7(a) such new matter is deemed denied without reply. If the terms of the particular hiring are material, or if the con duct of the parties prior to and at the time of the particular hiring have any legal significance in a case of this char acter, then decision on the issue of waiver should have been for the appellants on preliminary hearing, with ultimate decision on the issue reserved for determination after a final hearing on the merits. At such a hearing the appellants would have been prepared to show, in addition to the petitions of Aline Black and the appellant Alston in 1938 and 1939 for removal of racial discrimination in salaries, and such other matters as are already pleaded in the complaint, the following facts: (1) That at the time he signed the contract in question appellant Alston knew that Aline Black, a teacher in the same building with him, very recently had been denied reemployment because of her efforts to have racial discrimination in salaries discontinued. (2) That appellant Alston is dependent upon his salary as a teacher for his livelihood and faced the prospect of destitution if he should not have been reemployed. (3) That the appellees had caused appellant Alston to believe, and reasonably so, that any protest made by him before the execution of his contract would re sult in his being denied reemployment. 35 (4) That the contract of the appellant Alston contains a clause which is properly construed as giving the appellee school board an absolute right to increase or decrease his salary for any reason on one month’s notice. (5) That before the tender of teachers’ contracts for the year 1939-40 the appellee school board by formal resolution fixed the precise salary to be stipulated in the contract of each teacher, including appellant Alston. (6) That the aforesaid action of the board left appel lant Alston and the person tendering a contract to him on behalf of the board powerless to change or bargain with reference to the terms of hiring. (7) That before receiving any salary or other benefit under his contract appellant Alston, seasonably and at the first reasonable opportunity petitioned the board to reconsider its action in fixing salaries on a discrimi natory basis. Thus, even on the District Court’s analysis of the waiver issue, appellants were denied their lawful opportunity and valuable right to contest an affirmative defense on its merits. - III There Is No Merit in the Other Purported Defenses of Law Raised by the Answer and Not Relied Upon in the Argument A. An Amount in Controversy to Exceed $3,000 Is Not Required to Confer Jurisdiction in This Case At the hearing on the Motion to Dismiss the appellees properly disclaimed any reliance upon the contention raised by paragraph (a) of their “ First Defense” (see Appendix, p. 54). The federal courts have repeatedly asserted that in a suit to vindicate the denial of civil rights guaranteed under the Constitution and laws of the United States no monetary value, in terms of exact measurement, can be placed upon such rights, and they will therefore be presumed to have a value in excess of the jurisdictional amount, if such valu ation be necessary. Glenwood Light and Water Co. v. Mutual Light, Heat and Power Co., 239 U. S. 121 (1915) Wiley v. Sinkler, 179 U. S. 58 (1900) Swafford v. Templeton, 185 U. S. 487 (1902) International News Service v. Associated Press, 248 U. S. 215 (1918) However, it has likewise been repeatedly asserted, by the federal courts, that in actions for the deprivation of civil rights and liberties the statutes of the United States confer jurisdiction upon the federal courts irrespective of the amounts in controversy or whether any amount of damage is averred. Section 24 (1) of the Judicial Code (28 U. S. C., Sec. 41 (1)) is followed by a series of situations excepted from the requirements of the jurisdictional amount. Among these is the 14th subdivision upon which appellants rely: “ Suits to redress deprivation of civil rights. Four teenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the depriva tion, under color of any law, statute, ordinance, regu lation, custom, or usage, of any State, or any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.” The courts have without hesitancy applied this section, and stated that the amount in controversy is not material. Davenport v. Cloverport, supra. Broom v. Wood, 1 F. Supp. 134,136 (1931) Mills v. Board of Education, etc., supra. Hague v. Committee for Industrial Organisation, 307 U. S. 496, 519 (1939) In the last cited case, the most recent opinion of the Supreme Court on the subject, Mr. Justice Stone said: “ As will presently appear, the right to maintain a suit in equity to restrain state officers, acting under a state law, from infringing the rights of freedom of speech and of assembly guaranteed by the due process clause, is given by Act of Congress to every person within the jurisdiction of the United States, whether a citizen or not, and such a suit may be maintained in the district court without allegation or proof that the jurisdictional amount required by section 24 (1) of the Judicial Code is involved. . . (Italics added.) B. Appellants Have No Full, Adequate and Complete Remedy at Law Presumably appellees, in asserting the existence of a complete remedy at law, intended to rely upon the proposi tion that appellants have a legal remedy by mandamus in the state courts. "While this was not argued below, and therefore, may be deemed to have been abandoned, it is not considered improper to direct the court’s attention to two recent cases by the Supreme Court of the United States which clearly establish that such contention is without merit. In Di Giovanni v. Camden Ins. Association, 296 U. S. 64, 69 (1935), the court said: “ It is true, as this Court has often pointed out, that the inadequacy prerequisite to relief in a federal court of equity is measured by the character of the remedy afforded in a federal rather than a state court of law. (Citing cases) If a plaintiff is entitled to be heard in in the federal courts he may resort to equity when the remedy at law there is inadequate, regardless of the legal adequacy of the legal remedy the state courts may afford. Otherwise the suitor in the federal courts might be entitled to a remedy in equity which the federal courts of law are not competent to give, or, on the other hand, be obliged to forego his right to be heard in the 38 federal courts in order to secure an equitable remedy which the state courts of law do but the federal courts of law do not give. ’ ’ In Petroleum Exploration Inc. v. Public Service Com mission, et al., 304 IT. S. 209, 217 (1937), the court said: “ It is settled that no adequate remedy at law exists, so as to deprive federal courts of equity jurisdiction, unless it is available in the federal courts.” It is well settled by a long course of judicial decisions that an original writ of mandamus does not lie within the juris diction of the federal courts conferred by Section 24 (1) Judicial Code (28 U. S. C. A. 41 (1)). Knapp v. Lake Shore, etc. Ry. Co., 197 U. S. 536 (1905) American Union Telegraph Co. v. Bell Telephone Co., 1 Fed. 698 (1880) M’Intire v. Wood, 7 Cranch 504, (1813) Smith v. Bourbon County, 127 IT. S. 105, (1888) Lacking an adequate remedy at law in the federal courts appellants cannot be denied their right to resort to that sovereignty for equitable relief because some other sov ereign offers aid of a different sort. C. The Plea of Ees Judicata Is an Affirmative Defense and Not Now Before the Court The plea of res judicata was properly ignored by the court below. Res judicata is an affirmative defense (Civil Rules 8(c)) and the District Court did not have the opin ion or pleadings in the Black case before it. A document purporting to be the final order therein is attached as an exhibit to the answer, but, under the rules, was not before the court for consideration. At the proper time, upon a hearing on the merits, the defense will fail (a) because the Black case was not decided 39 upon the merits but on a question of availability of man damus as a remedy under Virginia law, and (b) because the appellants here were neither party nor privy to that litigation. CONCLUSION A constitutional issue of great importance to the parties and to the public is presented by this litigation. The effect of the decision of the trial court is to place material damage resulting from violation of Constitutional right beyond judi cial cognizance. No conduct of appellants requires or war rants such a result. While justice remains the end of law, such a decision as is here challenged cannot be consistent with law. Respectfully submitted, Oliv er W . H il l , T hurgood M a r sh a ll , L eo n A. R a n so m , W il l ia m H . H a st ie , Counsel for Appellants. 117 E. Leigh Street, Richmond, Va. 40 APPENDIX [Caption] Complaint 1. The jurisdiction of this court is invoked under Judicial Code, section 24 (1) (28 U.S.C., Section 41 (1), this being a suit in equity.which arises under the Constitution and/or laws of the United States, viz., the Fourteenth Amendment of said Constitution and/or Sections 41 and 43 of Title 8 of the United States Code, wherein the matter in contro versy exceeds, exclusive of interest and costs, the sum of $3000. The jurisdiction of this court is also invoked under Judicial Code, Section 24 (14) (28 U.S.C., Section 41 (14), this being a suit in equity authorized by law to be brought to redress the deprivation under color of law, statute, regu lation, custom and usage of a State of rights, privileges and immunities secured by the Constitution of the United States, viz., the Fourteenth Amendment to said Constitu tion, and of rights secured by laws of the United States providing for equal rights of citizens of the United States and of all persons within the jurisdiction of the United States, viz., Sections 41 and 43 of Title 8 of the United States Code. 2. Plaintiffs show further that this is a proceeding for a declaratory judgment and an injunction under Section 274D of the Judicial Code for the purpose of determining a ques tion in actual controversy between the parties, to-wit, the question of whether the practice of the defendants, in adopting, enforcing and maintaining the policy, custom and usage by which plaintiffs and other Negro teachers and principals in the public schools of the City of Norfolk are uniformly paid lower salaries than white teachers and prin cipals in the City of Norfolk possessing the same profes sional qualifications and certificates, exercising the same duties and performing the same services, solely on account of their race and color is unconstitutional and void being a & r 41 violation of the Fourteenth Amendment to the United States Constitution and the laws of the United States and the Constitution and Laws of the Commonwealth of Vir ginia, all of which will appear more fully hereafter. 3. All parties to this action, both plaintiffs and defend ants, are citizens of the United States and of the State of Virginia and are resident and domiciled in said State. Defendant School Board of the City of Norfolk at all times mentioned herein was and is by law declared a body cor porate. 4. Plaintiff, Melvin 0. Alston, is colored, a person of African descent and of Negro blood. He is a tax payer of the City of Norfolk and the State of Virginia. He is a regular teacher in the Booker T. Washington High School, a public high school located in Norfolk, Virginia, main tained and operated by the School Board of the City of Norfolk. This suit is brought on his own behalf and also on behalf of other persons, citizens and residents of the State of Virginia, namely, teachers and principals in the colored schools of Norfolk, Virginia, similarly situated and affected, as will hereinafter more fully appear. 5. Plaintiff, Norfolk Teachers’ Association, a voluntary unincorporated association, is composed of Negro teachers and principals in the public colored schools of Norfolk, Vir ginia, organized for the mutual improvement and protection of its members in their profession as teachers and principals in the public schools of Norfolk, Virginia. 6. Defendant School Board of the City of Norfolk exists pursuant to the laws of Virginia as an administrative de partment of the State of Virginia discharging governmental functions (Constitution of Virginia, Article IX, Section 133; Code of Virginia, Chapter 35, Sections 774-776). Defendant C. W. Mason is Superintendent of Schools of Norfolk and holds office pursuant to the Constitution and laws of Virginia as an administrative officer of the public 42 free school system of Virginia (Constitution of Virginia, Article IX, Section 133; Code of Virginia, Chapter 34, Sec tion 774). C. W. Mason is made a defendant herein and is sued in his official capacity. 7. The State of Virginia has declared public education a State function. The Constitution of Virginia, Article IX, Section 129, provides: “ Free schools to be maintained.—The general assem bly shall establish and maintain an efficient system of public free schools throughout the State.” Pursuant to this mandate the General Assembly of Virginia has established a system of free public schools in the State of Virginia according to a plan set out in Chapters 34 and 35 of the Virginia Code of 1936, and supplement thereto of 1938. Provision has been made for the establishment of separate schools for white and colored persons with the positive duty of maintaining these separate schools under the same general regulations as to management, usefulness and efficiency (Virginia School Code, Section 680). The establishment, maintenance and administration of the pub lic school system of Virginia is vested in a State Board of Education, a Superintendent of Public Instruction, division superintendent of schools and county and city school boards (Constitution of Virginia, Article IX, Sections 131-133; Virginia School Code, Chapter 33, Section 611A). 8. All teachers in Virginia, including plaintiffs and other teachers in Norfolk are required to hold teaching certifi cates in full force in accordance with the rules of certifica tion laid down by the State Board of Education (Virginia School Code, Chapter 33, Section 660). The duty of en forcing this system is imposed upon the several county and city school boards including the defendant School Board of the City of Norfolk (Virginia School Code, Chapter 33, Sec tion 660.) Negro and white teachers and principals alike r 43 must meet the same requirements to receive teachers’ cer tificates from the State Board of Education, and upon qualifying are issued identical certificates. 9. The public schools of the City of Norfolk, Virginia, are under the direct control and supervision of the defendants acting as an administrative department or division of the Commonwealth of Virginia (Virginia School Code, Chapter 34, Sections 774-786); the defendants are under a duty to maintain an efficient system of public schools in Norfolk (Virginia School Code, Chapter 33, Section 611); Chapter 36, Section 786); and to enforce the school laws of the Commonwealth of Virginia (Virginia School Code, Chap ter 33, Section 660; Chapter 35, Section 786). 10. The defendants are under a duty to employ teachers (Virginia School Code, Chapter 33, Section 660; Chapter 35, Section 786); and to provide for the payment of teachers’ salaries (Virginia School Code, Chapter 33, Section 656; Chapter 35, Section 786); including the salaries of the plain tiffs herein and all other teachers and piincipals employed by defendants. The defendants are under a positive duty to enforce regulations for the employment, remuneration and dismissal of teachers in Norfolk (Chapter 48, Section 754 of the Charter and General Ordinances of the City of Norfolk—1920). 11. Defendants over a long period of years have con sistently pursued and maintained and are now pursuing and maintaining the policy, custom, and usage of paying Negro teachers and principals in the public schools of Nor folk less salary than white teachers and principals in said public school system possessing the same professional quali fications, certificates and experience, exercising the same duties and performing the same services as Negro teachers and principals. Such discrimination is being practiced against the plaintiffs and all other Negro teachers and prin cipals in Norfolk, Virginia, and is based solely upon their race or color. 44 12. The plaintiff Alston and all of the members of the ^ plaintiff association and all other Negro teachers and prin cipals in public schools in the City of Norfolk are teachers by profession and are specially trained for their calling. By rules, regulations, practice, usage and custom of the Commonwealth acting by and through the defendants as its agents and agencies, the plaintiff Alston and all of the members of the plaintiff association and all other Negro teachers and principals in the City of Norfolk are being denied the equal protection of the laws in that solely by reason of their race and color they are being denied com pensation from public funds for their services as teachers equal to the compensation provided from public funds for and being paid to white teachers with equal qualifications and experience for equivalent services pursuant to rules, regulations, custom and practice of the Commonwealth act ing by and through its agents and agencies, the School Board of the City of Norfolk and the Superintendent of Schools of Norfolk, Virginia. 13. Plaintiff, Melvin 0. Alston, has been employed as a regular male teacher by the defendants since September, 1935, and is in his fifth year of experience as a regular teacher in the Booker T. Washington High School, a public high school maintained and operated under the direct con- trol, supervision, rules and regulations of the defendants. He successfully completed the course of instruction pro vided at Virginia State College for Negroes, an accredited college maintained and operated by the State of Virginia for the instruction and preparation of Negroes as teachers in the public schools of the State. He holds a Collegiate Professional Certificate, the highest certificate issued by the Virginia State Board of Education for teaching in the public high schools of Virginia. In order to qualify for this certificate plaintiff has satisfied the same requirements as those exacted of all other teachers, white as well as Negro, qualifying therefor, and he exercises the same duties and performs services substantially equivalent to those per- 45 | | formed by other holders of the said certificate, white as well as Negro, yet all white male teachers in Norfolk who hold the said certificate with equal and less experience receive salaries much larger than the salary paid the plaintiff. 14. White male high school teachers employed by de fendants whose qualifications, certification, duties and serv ices are the same as plaintiff’s are being paid by defendants a minimum annual salary of Twelve Hundred ($1200.00) Dollars. 15. Plaintiff Alston is being paid by the defendants for his services this school year as a regular male high school teacher as aforesaid an annual salary of Nine Hundred and Twenty-one ($921.00) Dollars, being the amount fixed by defendants for Negro male high school teachers in their fifth year of teaching experience and solely because of the practice, usage and custom complained of in paragraph 11 of this complaint, and by the operation of the discriminatory salary schedule described in paragraphs 16 and 17 of this complaint the plaintiffs have been, are, and unless relief shall be granted by this Honorable Court as hereinafter prayed, will continue to be denied, solely by reason of race and color the opportunity to receive a higher salary equal % to that paid to any white teachers similarly situated. 16. Pursuant to the policy, custom and usage set out in paragraph 12 the defendants acting as agents and agencies of the Commonwealth of Virginia have established and maintained a salary schedule used by them to fix the amount of compensation for teachers and principals in the public schools of Norfolk which discriminates against plaintiffs solely because of their race or color. All teachers and prin cipals in the public schools of Norfolk, including the plain tiffs, have been, are being and will continue to be paid by defendants pursuant to the following salary schedule adopted, maintained and being enforced by the defendants for the school year 1939-1940: 46 Negro— Elementary Salaries now being paid teachers new to the system Maximum salary being paid (affecting only those in system before increment plan was discontinued) Normal Certificate $ 597.50 $ 960.10 Degree High School 611.00 960.00 Women 699.00 1,105.20 Men White Elementary 784.50 1,235.00 Normal Certificate 850.00 1,425.00 Degree High School 937.00 1,425.00 Women 970.00 1,900.00 Men 1,200.00 2,185.00 The practical application of this salary schedule has been, is, and will be to pay Negro teachers and principals of equal qualifications, certification and experience with white teach ers and principals less compensation from public funds solely on account of their race or color. 17. The salary schedule set out in paragraph 16 by which plaintiffs and other teachers and principals in Norfolk are being paid and are to be paid provides for a higher salary for white teachers new to the system than for Negro teach ers new to the system with identical state certificates, exer cising the same duties and performing essentially the same services; and a higher maximum salary for white teachers than for Negro teachers with identical state certificates, exercising the same duties and performing essentially the same services; and pursuant to and because of said maxima and minima white teachers in intermediate salary status are paid higher salaries than Negro teachers with equivalent intermediate status and experience, holding identical state certificates, exercising the same duties and performing es- 47 sentially the same services. The said discriminations in and pursuant to the schedule of salaries being paid and to be paid are based solely on race or color and amount to an unlawful discrimination which constitutes a denial of due process of law and equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Con stitution, and is therefore unconstitutional and void. 18. In enforcing and maintaining the policy, regulation, custom, and usage by which plaintiffs and other Negro teachers and principals in the public schools of Norfolk are uniformly paid lower salaries than white teachers and principals possessing the same professional qualifications and certificates, having the same experience, exercising the same duties and performing essentially the same services, solely on account of the race or color of the plaintiffs, de fendants, as administrative agents of the Commonwealth of Virginia, have violated and are continuing to violate the equal protection of the laws and due process clauses of the Fourteenth Amendment to the United States Constitution, and Sections 41 and 43 of Title 8 of the United States Code. To the extent that defendants in enforcing said discrimina tory system are acting under color of statute, regulation, policy, custom or usage, said statute, regulation, policy, custom or usage is void and unconstitutional, and to the extent that defendants may be acting without benefit of statute, regulation, policy, custom or usage, their acts are nevertheless acts of the State, similarly void and unconsti tutional. 19. The salaries of all teachers and principals in the pub lic schools of the City of Norfolk, including the salaries of petitioners, are paid out of the public school fund. This fund derives from two sources: The Commonwealth of Vir ginia and the City of Norfolk (Virginia School Code, Chap ter 33,'Section 646); all of said public school fund is raised by means of taxation upon the inhabitants of Virginia and their property (Constitution of Virginia, Article IX, Sec- 48 tions 135, 136; Virginia School Code, Chapter 33, Sections 657, 698, 699; Chapter 35, Section 782). Pursuant to these statutes all that portion of the public school fund which de rives directly from the state is used exclusively for the pay ment of teachers’ salaries (Virginia School Code, Chapter 33, Section 701). 20. Plaintiff Melvin 0. Alston is an owner of property jointly with other members of his family, a citizen and a resident of the City of Norfolk, and the Commonwealth of Virginia, and is a taxpayer in said City and Commonwealth contributing directly thereby to the creation of said public school fund and the payment of teachers’ and principals’ salaries, including his own. The property of plaintiff Al ston is taxed equally and in the same proportion as that of all other citizens, residents and property owners of the City of Norfolk and the Commonwealth of Virginia; no discrimination is made in the rate of taxes he is required to pay into the said public school fund on account of his race or color. Under the Constitution of Virginia said public school fund is to be administered for the equal benefit of all the people of the State (Constitution of Virginia, Article IX, Section 135.) 21. By virtue of the discriminatory salary schedule for teachers established and maintained by the defendants, hereinbefore set forth in paragraph 16, and the custom set out in paragraph 12, the plaintiff is denied an equal and proportionate participation in the benefit derived from that portion of his taxes devoted to the public school fund and the payment of teachers’ salaries therefrom; he is denied said equal and proportionate participation in said benefit and return solely on account of his race and color, con trary to the provisions of the Fourteenth Amendment to the Constitution of the United States and thereby suffers and sustains special and particular damage from the dis crimination practiced against him in the distribution of the fund which his taxes helped to create; and he is without remedy save this Honorable Court issue its writ of in- 49 junction restraining’ the defendants from distributing on an unconstitutional basis, and according to the discrimina tory and unconstitutional salary schedule hereinbefore de scribed and set forth at paragraph 16, the public school fund, to which plaintiff contributes, and which is used for the payment of teachers ’ salaries. 22. The defendants have the official authority and duty of maintaining the public schools within the corporate limits of the City of Norfolk (Chapter 48, Section 754 of the Charter and General Ordinances of the City of Norfolk— 1920); the defendant School Board is required on or before the first day of October of each year to submit to the City Manager of the City of Norfolk, Virginia, a detailed esti mate of its budget for the ensuing school year (Charter of the City of Norfolk, Section 109, Acts of Assembly of 1918). The City Manager of the City of Norfolk is required to submit all estimates, including the estimate of the public school budget for annual appropriations to the City Council at least sixty days before the end of the fiscal year (Charter of the City of Norfolk, Section 67, Acts of Assembly, 1918). Beginning with January 1, 1920, the fiscal year for Norfolk begins with January 1 and ends with December 31 of each year (Charter of the City of Norfolk, Section 69, Acts of Assembly 1918.) The City Council is required to pass the annual appropriations at least thirty days prior to the end of the fiscal year (Charter of the City of Norfolk, Section 68, Acts of Assembly, 1918). The section of the estimate of the budget for the year 1940 for the public schools of Nor folk on teachers’ salaries is based upon the discriminatory salary schedule set out in paragraph 16 of this complaint and the practice, policy, custom and usage set out in para graph 12 of this complaint. Unless this Honorable Court intervenes and grants the relief prayed in this complaint, the defendants will continue to distribute the public school fund for the City of Norfolk on the illegal and unconstitu tional basis set out above to the irreparable injury of the plaintiffs and others on whose behalf they file this suit. 50 23. A petition on behalf of Aline Elizabeth Black, indi vidually and on behalf of the Negro teachers and principals, including the present plaintiffs, was filed with the defend ants on or about October 27, 1938, requesting that the sal aries of Negro teachers and principals be equalized with those of white teachers and principals with equal qualifica tions and experience and performing essentially the same duties; the petition was denied and on September 28, 1939, a similar petition was filed on behalf of the plaintiffs with the defendant School Board of the City of Norfolk; this petition requested that present salary schedule be abolished and that plaintiffs and other Negro teachers and principals be paid compensation equal to that paid white teachers and principals with essentially equivalent qualifications and ex perience and performing essentially equivalent duties; this petition on or about the 26th of October, 1939, was likewise refused. 24. Plaintiffs and those similarly situated and' affected on whose behalf this suit is brought are suffering irrepa rable injury and are threatened with irreparable injury in the future by reason of the acts herein complained of. They have no plain adequate or complete remedy to redress the wrongs and illegal acts herein complained of other than this suit for a declaration of rights and an injunction. Any other remedy to which plaintiffs and those similarly situated could be remitted would be attended by such uncertainties and delays as to deny substantial relief, would involve mul tiplicity of suits, cause further irreparable injury, and oc casion damage, vexation and inconventience not only to the plaintiff and those similarly situated, but to defendants as governmental agencies. 25. There is between the parties an actual controversy as hereinbefore set forth. WHEREFORE, plaintiffs respectfully pray the Court that upon filing of this complaint, as may appear proper and convenient to the Court, the Court advance this cause 51 on the docket and order a speedy hearing of this action ac cording to law, and that upon such hearings: (1) That this Court adjudge and decree, and declare the rights and legal relations of the parties to the sub ject matter here in controversy, in order that such declaration shall have the force and effect of a final judgment or decree. (2) That this Court enter a judgment or decree de claring that the policy, custom or usage of the defend ants in adopting, enforcing, or maintaining a salary schedule fixing the salaries of the plaintiffs and other Negro teachers and principals at a rate lower than that paid to white teachers and principals of equal qualifications and experience, and performing essen tially the same duties and services, solely because of their race or color, is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution and is therefore uncon stitutional and void. (3) That this Court enter a judgment or decree de claring that the distribution by the defendants of that portion of the public school fund for teachers’ salaries on a basis whereby plaintiff J&kcSlUand other Negro teachers and taxpayers receive less salary than white teachers and taxpayers with equal qualifications and experience, and performing essentially the same duties and services solely because of their race or color denies to plaintiff *2§TOm®nd others similarly situated the equal protection of the law and due process of law guaranteed by the Fourteenth Amendment of the United States Constitution and is therefore uncon stitutional and void. (4) That this Court issue a permanent injunction forever restraining and enjoining the defendants and each of them from making any distinction solely on the grounds of race or color in the fixing of salaries paid white and colored teachers and principals employed in the public schools of the City of Norfolk. 52 (5) That this Court issue a permanent injunction forever restraining’ and enjoining the defendants and each of them from paying to plaintiff Alston bpi^:of’'plaintiff^'h-orfolfr-TeaehersA-Association or any other colored teacher or principal employed by them a less salary than they pay any white teacher or principal employed by them with equal qualifications, certifica tion, experience and filling an equivalent position in the public schools of the City of Norfolk. V (6) Plaintiffs further pray that the Court will allow them their costs herein and such further, other, addi tional or alternative relief as may appear to the Court to be equitable and just. (Signed) By M e l v in 0 . A l st o n , M e l v in 0 . A lsto n N orfolk T ea ch ers ’ A ssociation (Signed) By M e l v in 0 . A l st o n , M e l v in 0 . A l st o n , President Plaintiffs 53 C o m m o n w e a l t h op V ir g in ia C it y op N orfolk } ss I, Melvin 0. Alston, having been first sworn according to law, depose and say upon oath that I am one of the plaintiffs named in the foregoing complaint; that I have read said complaint and that the matters and facts set forth therein are true to the best of my information, knowledge and belief. M el v in 0 . A lsto n Subscribed and sworn to before me th is----- day of No vember, 1939, in the City and Commonwealth aforesaid. My commission expires Notary Public J. T h o m a s H e w in , J r. 327 North First Street, Richmond, Virginia Oliv er W . H il l 117 East Leigh Street, Richmond, Virginia L eo n A . R ansom 1512 Girard Street, N. E., Washington, D. C. W il l ia m H . H a st ie , 1221 Fairmont Street, N. W., Washington, D. C. T hurgood M a rsh a ll , 69 Fifth Avenue, New York, N. Y. Attorneys for Plaintiffs 54 [Caption] Answer of Defendants First Defense The Court lacks jurisdiction over the subject matter, be cause : (a) The matter in controversy does not exceed, ex clusive of interest and costs, the sum of Three Thou sand Dollars. (b) There are no grounds upon which to invoke the jurisdiction of the Court under Judicial Code, Section 24 (14), 28 U. S. C. A. Section 41 (14). (c) No constitutional rights of the plaintiffs have been violated. (d) Plaintiffs have full, complete and adequate rem edy at law if they have any remedy at all. (e) For the reasons alleged in the Second Defense herein: Second Defense 1. The plaintiffs fail to state a claim upon which relief can be granted, because: (1) There is no controversy between the plaintiffs and defendants that is embraced within the declaratory judgment Act referred to in the complaint. (2) The Norfolk Teachers’ Association is an unin corporated organization and as such is not within the constitutional provisions referred to in the bill of com plaint. (3) The plaintiff, Melvin 0. Alston, as an employee of the School Board, has no vested rights to any posi tion to teach in the public schools and a claim in the 55 premises is not within the provisions of the Constitu tion and Acts of Congress alleged. (4) By reason of contract in writing dated June 12, 1939, between the plaintiff, Melvin 0. Alston, and said School Board, a copy of which is attached hereto as a part hereof, covering his services as a teacher in said public schools, he is estopped from proceeding in this cause and has waived any rights, if any he has, in the premises. (5) By reason of the contract aforesaid, to grant the relief requested, the Court would be making a contract, which the law vests the School Board with the discretion to make, and would further be impairing the obligation of the contract heretofore made. (6) Even if the Court has jurisdiction of the subject matter involved, nevertheless it has no jurisdiction in this particular case. (7) The plaintiff, Melvin 0. Alston, has_ no vested right to teach in the public schools of the City of Nor folk and therefore no rights to be protected by this Court. (8) Under the laws of the State of Virginia the said School Board is authorized and empowered to employ teachers and fix their compensation, and such being the case they have the right to employ them for such salary as said Board is willing to pay and the teacher to accept. (9) The operation of the public schools of the State of Virginia is a State function, and to grant relief in this case the Court would be interfering with the op eration of the State in such function. 2. The plaintiffs cannot proceed on behalf of others who are not named in the complaint. 3. For the reasons alleged in the First Defense. 56 Third Defense Heretofore, Aline Elizabeth Black, a Negro teacher in said public schools, brought a writ of mandamus in the Cir cuit Court of the City of Norfolk against said defendants seeking the same relief alleged in this complaint, “ in her own right and on behalf of all such other persons similarly situated,” and by order of said Court entered on the First day of June, 1939 (a certified copy of which is attached hereto and made a part of this answer), such relief was denied. No appeal was taken from this decree, and under the laws of the State of Virginia for such cases made and provided, the said decree has become final, thereby fully and completely adjudicating the matters and things set forth and contained in this complaint. [Copy] Contract With Teachers This Article of Agreement, between the School Board of Norfolk, Virginia, State of Virginia, of the first part, and M. 0. Alston, of the second p a rt: Witnesseth, That the said party of the second part sub ject to the authority of the said school board under the supervision and control of the division superintendent agrees to teach in the schools administered by said school board under the following conditions; to-wit: 1. The said teacher or party of the second part shall open and close school on regular school days at such hours as the school board may designate, and shall give daily recess with appropriate supervision in accordance with the recess schedule adopted by the school board, provided the school day consists of not less than five hours or more than sis and one-half exclusive of the noon hour recess, when such is provided. 2. The said teacher shall obey all school laws and regulations and all rules made in accordance with the 57 law by the said school board and shall make promptly and accurately all reports required by the superin tendent of schools. 3. Said teacher shall exercise care in the protection and upkeep of the school property, furniture and fix tures and shall promptly report to the superintendent needed repairs or necessary added facilities or supplies. 4. In schools in which no regular janitor is employed the arrangement for keeping the school clean and in sanitary condition is stipulated below under special covenant, number 1. 5. The said teacher hereby swears or affirms alle giance and loyalty to the Government of the United States. 6. The school board or party of the first part shall deduct monthly from the salary of the said teacher a sum equal to one per centum of the salary, to be placed to the credit of the Retired Teachers’ Fund and to be applied as provided by law. 7. The said teacher may be changed from, one teach ing position to a different teaching position by the di vision superintendent when the efficiency of the school system requires such change, and provided proper ex planation be made to the school board. 8. The said board reserves the right to discuss the teacher or party of the second part for just cause, an opportunity on request being granted for a hearing, paying for services rendered in accordance with this agreement to date of dismissal. In case schools are closed temporarily on account of an epidemic or for other necessary cause the board may pay the teacher for time lost, or may extend the school term. 9. The said school board or party of the first part agrees to pay said teacher or party of the second part, $92.10 per school or calendar month for a term of ten (10) school or calendar months, beginning on Septem- 58 ber 7, 1939 for a lawful school, for services rendered, payable on the last day of each school or calendar month or as soon thereafter as possible. (See special cove nant, number 3). SPECIAL COVENANT. 1. With reference to care and cleanliness of school building and out buildings in which no janitor is em ployed. 2. With reference to time lost by teacher on account of sickness or for other cause. Deduction from salary subject to Rules and Regu lations of the School Board numbered 25. 3. With reference to shortening the school term in case funds are exhausted. The right is reserved to the School Board to in crease or decrease the salary herein specified for any month or months immediately after notice to that effect. 4. Other covenants. In witness whereof, the parties hereunto have set their hands and seal, this 12th day of June, 1939. (Signed) A. H. F orem a n , Chairman of the Board L.S. L ea h a H aller Clerk of the Board L.S. (Signed) M e l v in O. A lto n Teacher L.S. [Copy] V I R G I N I A : In the Circuit Court of the City of Norfolk, on the 1st day of June, in the year, 1939. 59 Aline Elizabeth. Black, Petitioner vs. School Board of the City of Norfolk, A body corporate, and C. W. Mason, Superintendent, Defendants This day came the petitioner and filed her written ex ception to the ruling of the Court continuing this cause from April 20, 1939, to May 31, 1939; and came also the defend ants and filed their separate demurrers and answers to said petition; and came the petitioner further and filed her joinder in said demurrers and her replications and joinder of issues to the separate answers of each of the defendants. And this cause then came on this day to be heard upon the petition of the petitioner and the exhibits filed therewith and upon the demurrers of the defendants filed thereto, and upon argument of counsel. Upon consideration of which the Court, for reasons stated in its opinion which is filed as a part of the record in this cause, being of opinion that said demurrers should be sus tained, doth hereby adjudge that the same be sustained, and! that said petition be and the same is hereby dismissed, to which said ruling of the Court the petitioner, by her counsel, duly excepted on the ground that the same is contrary to the law. And it is further ordered that the defendants recover of the petitioner their costs in this behalf expended. A COPY TESTE: C e c il M. R obertson , Clerk By Sue B. Goforth D.C. [Caption] Opinion From the Bench I feel that the Court ought to announce its conclusions now in the presence of those directly interested in the litiga tion, rather than defer the decision until a later time. The 60 Court has had the benefit of the briefs for about ten days and the opportunity to study the pleadings and the briefs and to make an independent investigation of the law deemed applicable. I desire to compliment counsel for both sides upon the able and exhaustive briefs which they have filed and on the oral arguments made today. The questions presented and particularly that with respect to the alleged discrimi nation on account of race or color, are very important. They are questions which concern this section of the coun try especially and which must be faced and finally solved in accordance with the mandates of the Constitution, without regard to the outcome of this pending case. These conclu sions can not be doubted by any serious-minded citizen who has given careful thought to the subject. As pointed out in the course of the argument today, one of the questions raised in both the complaint and the an swer relates to the amount involved in the controversy. The defendants have very properly conceded that this is not the type of case which requires the allegation and proof of any particular amount in order to establish jurisdiction in this court. The right asserted in the complaint is a civil right, guaranteed by the Constitution, is excepted from the provisions of the Act of Congress conferring jurisdiction based upon the amount in controversy. Consequently no amount is required to be alleged or proved in order to main tain a suit based upon an alleged violation of such right. I do not think that the Court is required, in the view that it takes of the right of the plaintiff to maintain his suit in the face of the written contract, to express an opinion in regard to the most important question involved in cases of this type. I do not know what facts the proofs would finally establish, if the case proceeded that far, with respect to the charge of unconstitutional discrimination against the plain tiff on account of his race or color. The authorities are clear, I think however, that there can be no discrimination in a case of this kind, if such discrimination is based on race or color alone. Under our Constitution, particularly the 61 Fourteenth Amendment, all citizens stand upon equal footing before the law and are entitled to equal benefits and privi leges where state action is involved; or, to state the proposi tion another way, a state can not, through its constitution, statutes, or rules and regulations, or through one of its ad ministrative bodies, arbitrarily discriminate against per sons within its jurisdiction. In the words of the Fourteenth Amendment, a state can not deny to any person within its jurisdiction the equal protection of the law. That principle is firmly established, and, if and when a case of discrimina tion based on race or color is presented, the person discrim inated against will be granted appropriate relief. The view that I take of the plaintiff’s case, with some hesitation I will admit, does not render it necessary for the Court to pass on the unconstitutional discrimination charged in the complaint to have been practiced against the plaintiff, other than to observe that the complaint charges in clear and explicit language that the discrimination in compensa tion is based on race or color alone. Under well-established rules on a motion to dismiss, the court must accept those allegations as true, because they are well pleaded, as an examination of the complaint will disclose. That is to say, when matters are well pleaded in the complaint and a mo tion to dismiss is filed, based upon the alleged ground that the complaint fails to show that the plaintiff is entitled to any relief, the court must assume that the facts well pleaded in the complaint are true. That, of course, does not mean that in the event the case proceeds to the taking of testi mony, that such allegations will still be assumed to be true. In that event the parties alleging facts will have to establish their existence by the required degree of proof, but this case, however, has been heard today upon motion to dismiss and upon such motion, as already observed, the facts alleged in the complaint have to be taken as true for the purposes of the hearing. A defense set up in the answer which gave me serious con cern from the first in the examination of the pleadings and 62 briefs, and which, stands out in the record as an undisputed fact, is that some time before this suit was instituted the plaintiff entered into a contract with the defendant school board, which contract covers the subject matter of this liti gation. For the purposes of a decision of this case I think that the plaintiff Alston and the defendant school board may very properly be regarded as the persons who are essentially interested as parties in the outcome. A copy of that contract is in the record before the court. There is an absence of any claim that I can find in the com plaint to the effect that the plaintiff was induced to enter into the contract by fraud, misrepresentation or that it was entered into under duress or that any unfair means were employed by defendants in that behalf, or that it was ever made or signed under protest. There was the general charge in the oral arguments today that the plaintiff was afraid to assert his rights against the defendants, and had to accept what the defendants offered him or forego follow ing the profession for which he had prepared himself in life. Anri I do not think that this is a suggestion that should be lightly disregarded by the court. I am fully aware of the fact that in situations of this kind it sometimes happens that the employee is at a distinct’disadvantage, is not in a position to boldly assert what he conceives to be his rights, and does not therefore, in fact, contract freely with the other party. But I do not find disclosed in the record any facts that have been pleaded by way of explanation that could reasonably justify the court in reaching the conclu sion that it ought to disregard the written contract and fur ther proceed in the case in spite of the fact that the plaintiff voluntarily entered into such contractual relation with the defendants. It does appear that the plaintiff is a man of intelligence and excellent education, that he is experienced, that he has been teaching in the public schools of this City for some years and was entirely familiar with the alleged unconsti tutional discrimination against the members of his race 63 long before be accepted the written contract tendered to him by defendant. Of those facts there can not be the slightest doubt. Now, there is some persuasiveness in the argument that he feared to assert his rights, feared that he might be punishd by the loss of his position, having before him the unhappy example of another teacher who had sought to enforce what she conceived to be her constitutional rights. I say, those matters caused me to hesitate, but I am satisfied that this plaintiff, and others similarly situated, each in his individual right, have a remedy if they are here after unconstitutionally discriminated against, without the necessity of signing a contract with the Board, a remedy by which they can go into a court of competent jurisdiction and have the cases heard and their constitutional rights vindi cated, if the latter have been violated or are threatened to be violated in the immediate future. I do not think a court ought to be quick in any case, whether it is a case of colored citizens or white citizens, or individuals or corporations, whether the case relates to contracts of this kind or contracts in general, to disregard and set aside the solemn obligations of a contract. On the contrary, I think it is the duty of the Court, unless it is clearly shown that the contract is invalid because contrary to law or other cause, to uphold it, and, as far as it is within its jurisdiction, to protect its obligations. I do not see, after a careful study of the authorities relied on by both sides on that particular point, how the plaintiff can have a valid, binding contract which he can enforce against the defendant Board and at the same time be in a position to repudiate that contract insofar as it is not favorable to him and come into a court of equity and ask the court to make a different contract. Whatever may be the law in other states, there is no doubt that in Virginia a person can not under the law as it now exists and has existed for many years, acquire a status as a teacher, which gives him certain rights that must be respected, independently of a contract with the Board as a 64 teacher. In Virginia the relation is not a continuing one, but can be created only by a contract with the School Board in a particular jurisdiction. It continues for only one school year at a time, with the absolute right on the part of the School Board not to contract again with the particular person. The Board may decline to contract again with such person without rhyme or reason for such refusal and in that particular part of the Board’s procedure there manifestly has been no discrimination on account of race or color, for the simple reason that the Board can, after the expiration of the school year, decline to have any further contractual relations with an applicant to teach, whether such applicant be white or colored. But I do not think that even that broad discretion in the Board would give it the right, after the qualifications of an applicant had been favorably passed on, found acceptable and the applicant tendered a written contract to teach, to say if the applicant then insisted that he be not discrimi nated against on account of his race or color, that such applicant was without any remedy because he did not have a written contract with the Board. In other words, the Board could hardly be heard to say, as it now does, that a man had entered into a contract binding upon him and had thereby waived his right to protest against unconstitutional discrimination, and later say to an applicant with the proper qualifications, who had been approved and tendered a contract, that he had no right because he did not have a written contract with the Board. My conclusion, therefore, is that this contract has not been shown to be invalid in any particular; that it is binding upon the plaintiff, as well as upon the defendant Board, plaintiff having signed and entered upon the performance of the contract two or three months (I do not recall the exact time) before this suit was instituted; that if the plaintiff intended to contest the action of the Board with respect to compensation, it was his duty to take prompt and appropriate action to that end after he was accepted as an 65 applicant and before he entered into a contract with the Board for another year. I think that by signing the con tract and entering upon its performance, he waived the constitutional right which he now asserts in the complaint. I think that in principle the case is very much like the case of the colored man in Missouri (Missouri ex rel Gaines v. Canada, 305 U. S. 337) would have been if he, instead of insisting on his constitutional right as he did, had accepted the substitute offered by the State of Missouri, and had gone to a university in one of the designated adjoining states to study law. In other words, had he accepted the substitute offered by the State of Missouri, he could not thereafter have insisted upon his original rights. By declining to ac cept the substituted privilege he remained in a position to demand that to which he was originally entitled. That right was personal to him and it lay within his power alone to de termine whether he would insist on that right or would accept a substitute therefor. In numerous instances citizens under standingly waive constitutional rights, not necessarily expressly but by their conduct. For instance, it is fundamental law in this country that private property can not be condemned for private use, even for just compensation, yet there are many instances in which corporations possessing the power of eminent do main, have condemned private property for private use, or in which corporations not possessing the power of eminent domain have nevertheless condemned private property, and yet in these cases the condemnor has acquired good title to the property. The owners had a constitutional right to object to their property being taken by corporations not possessing the power of eminent domain or to its being taken for a private use, yet when they failed to insist upon theii constitutional rights and accepted the compensation awarded for the property taken, they could not thereafter deny the title of the condemnor. Unfortunately, there have been instances in which colored people have been indicted in courts in which colored citizens 66 were systematically excluded from the grand and petit juries, but I do not recall at this time any instances where that practice prevailed and a defendant, with knowledge of the situation, made no appropriate objection to the grand and petit juries, but stood trial on the merits and was con victed, that the conviction was set aside because of the viola tion of the defendant’s constitutional rights in that respect. It is true that it has been held in many cases, where the de fendant made timely objection to the grand and petit juries on the ground that he was being discriminated against be cause of his race or color, that the convictions were set aside by the appellate courts. In those instances the conviction was set aside because the accused had insisted upon his con stitutional right. An outstanding illustration of the waiver of constitutional rights may be found in the recently adopted Rules of Civil Procedure. Nothwithstanding the fact that the Seventh Amendment to the Constitution preserves the right of trial by jury in certain classes of cases, under the express provision of the Rules, unless' a party to a civil ac tion makes timely written demand for trial by jury, he is deemed to have waived that right. (Rule 38) It is regretable, in a sense, that the Court can not finally dispose of all matters in the suit, but will have to dismiss the case because of what may by some be thought to be a technicality. A solemn written contract entered into be tween parties, whether it be between a citizen and an arm of the state, or between two individuals, or betwen individuals and a corporation, or between corporations, can in no proper sense be regarded as a technicality. [Caption] Judgment The Court having suggested, after examination of the bill of complaint and answer herein that insofar as defenses in law are raised in the portions of the answer denominated “ First Defense” , Second Defense” and “ Third Defense”, the hearing and disposition of the case 67 might be facilitated if argument was made in advance of trial upon defendant’s motion to dismiss the bill of com plaint for alleged legal insufficiency and upon that part of the answer which challenges the legal sufficiency of the complaint upon the ground that plaintiff had waived his asserted constitutional right by entering into a contract with defendant; And by consent of the parties the case thereafter, on Feb ruary 12, 1940, came on to be heard upon the defendant’s motion to dismiss the bill of complaint on the ground of legal insufficiency and also so much of the answer as chal lenges the legal sufficiency of the complaint because of al leged waiver by entering into said contract, and was fully argued by counsel, counsel for the respective parties having theretofore filed their written briefs with the Court; And the Court being of the opinion that the plaintiff, Melvin 0. Alston, and the defendant, School Board of the City of Norfolk, are the only necessary parties to this cause, and being further of the opinion that plaintiff, Melvin 0. Alston, having entered into said written contract with the defendant, School Board of the City of Norfolk, to teach, which contract is a part of the record in this cause, and having prior to the institution of this suit entered upon the performance and partly performed the said written con tract, has for the reasons stated in the opinion of the Court, delivered orally at the close of the arguments, waived such constitutional rights, if any he has, that he seeks to enforce, doth so ADJUDGE and DECREE; And it is accordingly ADJUDGED, ORDERED AND DECREED that this action be and the same hereby is dis missed, to which ruling of the Court in dismissing the com plaint, plaintiff, by counsel, duly objected and excepted. And it is further ORDERED that the defendants recover of the plaintiffs their costs in this behalf expended. (Signed) L u t h e r B. W a y United States District JudgeNorfolk, Virginia, February 29, 1940. t t '•r'VSv.vy.