Attorney Notes

    OUTH CARO I

RECORD
AND

B R I E F  J











BRIEF FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5667

JOHN H. WRIGHTEN, A ppellee, 

versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF 
SOUTH CAROLINA, NORMAN M. SMITH, P resi­
dent of the U niversity of South Carolina, SAMUEL 
PRINCE, D ean of the L aw School, and R. C. NEED­
HAM, R egistrar, A ppellants.

FILED
OCT 14 1947

3LAUDE M. DBA

JOHN M. DANIEL, 
Attorney General,

T. C. CALLISON,
Asst. Attorney General,

DAVID W. ROBINSON, 
Columbia, S. C.

PRICE & POAG,
Greenville, S. C.

Attorneys for Appellants.

The R. L. Bryan Company, Leoal Printers, Columbia, S. C.





TABLE OF CONTENTS

Table of Authorities..........................     iii

Proceedings Below ............................................................ 1

Constitution and Statutes ..................................................  2

Questions Involved .............................................................. 2

Facts ....................................................................................... 3

Argument:

P age

I. Did the District Court Accord to the Laws of 
South Carolina the Full Presumption of Con­
stitutionality to which they are Entitled Un­
der our Federal S ystem !................................. 7i

II. Does the Equal Protection Clause of the Fed­
eral Constitution Require a State Which Sep­
arate the Races in Educational Institutions 
to Give Education of “ Substantial Equality”  
to Members of Both Races, or doess it Go Fur­
ther and Require that the Facilities be of 
“ Complete Equality and Parity in all Re­
spects” ! .............................................................  9

III. Is a Negro Plaintiff who fails to Apply to the 
Educational Institution Designated by the 
State to Provide his Legal Education and who 
fails to make the Officials of that Institution 
Parties to his Suit Entitled to a Mandatory 
Injunction requiring his admission to the In­
stitution Provided for White Citizens ? . . . .  11

IV. Under the Facts Disclosed by the Record 
Were the Defendants Entitled to a Dismissal! 15

(i)





A. F. of L. v. Watson, 327 U. S. 582 ................................. 14

Alabama v. McOrday, 325 U. S. 450, 466-7 .....................  8

Asbury Hospital v. Cass County, 326 U. S. 207 .............  14

Bluford v. Canada, 32 F. Supp. 707 ............................. 17

Bluford y. Canada (Mo.) 153 S. W. (2d) 1 4 .................  17

Chase v. IJ. S., 261 F. 833, 256 U. S. 1, 8 .....................  14

Cumming v. Board, 175 U. S. 528, 544, 545 .................  9

Davis v. Bowles, 321 IT. S. 144, 153 ................................. 8

Fletcher v. Peck, 6 Cranch................................................  8

Gaines v. Canada, 305 U. S. 337 ......................................  10

Gaines v. Canada (Mo.) 131 S. W. (2d) 2 17 ...................  13
King v. Mullins, 171 XJ. S., 404 ........................................  8

McCabe v. Atchison T. & S. F. By. Co., 235 XJ. S. 78, 85,
86 ............................................................... ................... 10

Michael v. Witham (Tenn.), 165 S. W. (2d) 378 .......... 13
Plessy v. Ferguson, 163 XJ. S., 537, 544 .........................  10

Railroad Comm. v. Pullman, 312 XJ. S. 1 01 .....................  14

Rescue Army v. Municipal Court,___ XJ. S .____ , 91 L.
Ed. 1232 .......................................................................  13

Sipuel v. Oklahoma, 180 Pac. (2d) 1 3 5 ...........................13
Spector Motor Co. v. McLauchlin, 323 XJ. S. 1 0 1 .......... 14

XJnited States v. The Reform, 3 Wall 6 1 7 .....................  8

Utah Power & Light Co. v. Pfost, 286 U. S. 165 .............  8
Words & Phrases, 747, 797 ................................................  14

TABLE OF AUTHORITIES
P age

(iii)



Constitution and Statutes:

8 U. S. C. A. 43 ........................................................  2

28 U. S. C. A. 41 (14) ................................................  2

28 U. S. C. A. 400 ........................................................  2

S. C. Constitution Art. X I § 7 ................................... 2

S. C. Constitution Art. XI, § 8 ...............................  2

16 Statutes 3 1 4 ...........................................................  2

19 Statutes 803 ...........................................................  2

20 Statutes 687, 690 ...................................................  2
\

44 Statutes 401, 1605 ..................................................  2

Code of 1942 §§ 5377, 5697, 5724, 5800 .................  2

1947 Appropriation Act, 13, 1 8 .................................  2

TABLE OF AUTHORITIES— (Cont’d)
P age

(iv)



BRIEF FOR APPELLANTS

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5667

JOHN H. WRIGHTEN, A ppellee, 

versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF 
SOUTH CAROLINA, NORMAN M. SMITH, P resi­
dent of the U niversity of South Carolina, SAMUEL 
PRINCE, D ean of the L aw School, and R. C. NEED­
HAM, R egistrar, A ppellants.

PROCEEDINGS BELOW

This suit asking for a declaratory judgment, injunc­
tive relief and damages was filed on the 8th of January, 
1947, in the United States District Court for the Eastern 
District of South Carolina. At the pre-trial conference of 
May 15, 1947, the District Court announced that the equi­
table issues would be tried first. On this basis the trial was 
had before the District Judge on June 5-6, 1947. His Order, 
Findings, Conclusions and Opinion were filed on July 12, 
1947.........F. Supp., ..........

This is an appeal by the defendants from the order en­
joining the trustees and officers of the University of South 
Carolina from excluding the plaintiff and other persons



2 W righten, A ppellee, v. Board of Trustees

from admission to the University Law School by reason of 
race or color unless legal education on a complete equality 
and parity in all respects to that furnished at the University 
Law School is furnished to the plaintiff elsewhere in the 
State on September 15,1947, and continually thereafter and 
refusing to dismiss the suit. (A., 100.)

CONSTITUTION AND STATUTES

The Eleventh and Fourteenth Amendments and the 
statutory provisions embraced in 28 U. S. C. A. 41 (14), 
28 U. S. C. A. 400, and 8 U. S. C. A. 43, are the Federal 
laws involved here.

South Carolina laws establishing a system of segrega­
tion of white and Negro students in higher education are 
contained in the Appendix to this brief. (A. 102-107.) They 
include: Constitution, Art. XI, 7, 8; 16 Stat. 314; 19 Stat. 
803; 44 Stat. 401, 1065; 1947 App. Act, Section 13, Section 
18; 1942 Code 5697, 5800, 5377.

The Act of 1890 (20 Stat. 687, 690, 1942 Code 5724), 
provides that the University Law School (white) shall be 
self-sustaining. The Appropriation Acts of 1945, 1946 and 
1947 authorize and direct the operation of a Law School 
for Negroes at “ State College” , Orangeburg, S. C. (44 
Stat. 401, 1605; 45 S tat.___ ).

QUESTIONS INVOLVED

1. Did the Court below accord to the State law the 
full presumption of constitutionality to which it is entitled?

2. Does the equal protection clause of the Federal Con­
stitution require a State which separates the races in edu­
cational institutions to give an education of “ substantial 
equality”  to members of both races, or does it require that



op U. S. C. et al., A ppellants 3

the facilities furnished be on a “ complete equality and 
parity in all respects ’ ’ ?

3. Is the plaintiff, a Negro citizen of the State, who 
fails to apply to the educational institution charged by the 
State with providing legal education for Negro citizens 
and who fails to make the officials of that institution par­
ties to his suit, entitled to a conditional injunction requir­
ing his admission to the institution maintained for white 
citizens ?

4. Under the facts disclosed by the record, were the 
defendants entitled to an order of dismissal?

FACTS

John H. Wrighten is a Negro citizen and resident of 
South Carolina, twenty-five years of age. He has com­
pleted his college work at State College, receiving a Bach­
elor degree from that institution in May, 1947. He has the 
qualifications of education and character requisite for ad­
mission to the University of South Carolina Law School. 
(A. 13, 15.)

The University of South Carolina is an institution 
maintained by the State for the purpose of providing 
higher education for qualified persons of the white race. 
Its control is vested in a Board of Trustees named in ac­
cordance with the statute law of the State. (A. 102-103.)

The Colored Normal, Industrial, Agricultural & Me­
chanical College of South Carolina (herein referred to as 
State College) located at Orangeburg is an institution 
maintained by the State for the higher education of Ne­
groes. Its control is vested in a Board of Trustees entire­
ly distinct from the Board of Trustees which is charged 
with the operation of the University of South Carolina, ex­



4 W righten, A ppellee, v . Board op Trustees

cept that the Governor of the State is an ex-officio member 
of both Boards. (A. 98.)

No defendant in this action is in any way connected 
with the operation of “ State College” .

Under date of July 2, 1946, John H. Wrighten applied 
to the Dean of the Law School of the University of South 
Carolina for admission to the Law School for the semester 
beginning about February 1, 1947. By letter of the 6th of 
July 1946, Norman M. Smith, President of the University, 
advised John EL Wrighten that the University was unable 
to act favorably upon his application. (A. 40-41.) Presi­
dent Smith rejected John EL Wrighten’s application be­
cause the Constitution and statutes of South Carolina re­
quired that the University of South Carolina be operated 
exclusively for white persons. (A. 41-42.) The Becord dis­
closes no other application by a Negro citizen for admis­
sion to the University Law School.

Prior to the tiling of this action in January 1947, no 
application for a law-school education had ever been made 
to State College. (A. 18, 19, 27.)

Subsequent to the institution of this action the officials 
of State College received letters from four different indi­
viduals inquiring about a law-school education. Three were 
interested in obtaining scholarships for education at law 
institutions outside of South Carolina. The fourth was from 
the plaintiff in this case. Still no application had on the date 
of the trial of this case (June 5, 1947) been received by 
State College for a legal education. (A. 20-27.)

Shortly after the enactment of the 1945 Appropriation 
Act which authorized the establishment of a law school at 
State College, the President and Trustees began a study 
and survey to obtain the necessary information for the 
establishment of a law school. Since there was no applicant



op U. S. C. et al., A ppellants 5

during the fiscal year 1945-1946, no law school was opened 
at State College and the lump sum appropriation for that 
year was spent for other educational purposes. 44 Stat. 
401. (A. 18, 51, 106.)

After the enactment of the Appropriation Act of 1946, 
which again authorized the establishment of a law school 
at State College, the Trustees and President continued 
their investigations, but since no application was received 
the funds appropriated in this Act were spent and allotted 
for other educational purposes. 44 Stat. 1605. (A. 19, 52, 
106.)

After the enactment of the most recent Appropriation 
Act, 2 May, 1947, and in view of the interest in a law edu­
cation as evidenced by the several inquiries received, the 
Board of Trustees of State College at its regular meeting 
on 20 May 1947, named a Committee to select a faculty for 
the law school, and directed the President to take the neces­
sary steps to have the law school in operation in September 
1947. (Ex. 15, A. 28, 53.)

Pursuant to that resolution and in furtherance of the 
previous investigation, a Committee from the Board of 
Trustees has interviewed prospective faculty members and 
has obtained the assistance of the Dean of the University 
of South Carolina Law School in helping to select and as­
semble a library. The Trustees expect to open this law 
school at the session beginning September 17, 1947. (A. 
29, 53.)

Had John H. Wrighten on July 2, 1946, applied to 
State College for a law education for the semester begin­
ning about February 1, 1947, he would have been accorded 
a law school education there. (A. 53.)

State College is and has been for many years operated 
on a high scholastic plane with a faculty of 101 members,



6 W righten, A ppellee, v. Board of Trustees

many of whom have Doctors ’ Degrees. It is the purpose of 
the President and of the Trustees to operate the law school 
on the same high scholastic plane. (A. 30, 53, 99.)

Under the Appropriation Act of 2 May, 1947, the State 
contribution for the operation and support of State College 
at Orangeburg aggregates $359,000.00 (A. 32). The expect­
ed regular enrollment totals approximately 1,400 students, 
plus about 1,000 summer school students. (A. 30-31.) Ex­
cluding the summer school students this means that South 
Carolina has appropriated approximately $250.00 per stu­
dent for the education of students at State College during 
the current fiscal year.

For the same period South Carolina has appropriated 
$520,000.00 for the operation and maintenance of the Uni­
versity of South Carolina which expects a student body of 
5,300 for the regular session and some 1,200 summer school 
students. (A. 43-44.) On the basis of the regular students 
this is an appropriation of a little less than $100.00 per 
student for those in attendance at the University. There­
fore, in per student appropriation the State Legislature 
has been much more liberal in its provision for the Negro 
student at State College than for the white student at the 
University of South Carolina.

During the 1946-47 fiscal year the tuition and other fees 
collected by the University of South Carolina from its law 
students aggregated $65,000.00. The disbursements for all 
law-school purposes, including salaries, wages, supplies, 
equipment, utilities, repairs and insurance and its share of 
administrative expenses, aggregated $53,000.00, leaving an 
excess of income over disbursements of $12,000.00. The es­
timated income from the Law School for the 1947-1948 
session is $80,000.00 to $90,000.00. Estimated expenses for 
this period are $55,000.00 to $60,000.00. (A. 62-63.) It mil



of U. S. C. et al., A ppellants 7

thus be seen that the law school at the University is self- 
sustaining in accordance with the intent of the 1890 Act, 
20 Stat. 687, 690, 1942 Code, Sec. 5724. (A. 103.)

The University of South Carolina Law School is now 
greatly overcrowded with an expected enrollment for the 
September 1947, semester of 300, as contrasted with a top 
pre-war enrollment of about 140. (A. 57-58.) The building 
and the library space at the University Law School are in­
adequate for the student body and during the coming ses­
sion classrooms outside of the law school building will be 
used. (A. 63-64.)

In the operation of a law school at State College small 
classes may be anticipated in the earlier years. A  student 
educated in a smaller class has a substantial advantage 
over one in a larger class. (A. 65, 66, 80, 83.)

When the law school is opened in Orangeburg in Sep­
tember, 1947, a student will be able to obtain a law educa­
tion there equivalent to that at the University of South 
Carolina Law School. (A. 66, 68, 74, 80, 83-84.)

ARGUMENT

I

Did the District Court accord to the laws of South 
Carolina the full presumption of constitutionality to which 
they are entitled under our federal system?

Despite the conditional character of the injunction, 
the order of the District Court makes it clear that the South 
Carolina Constitution and statutes providing separate ed­
ucational facilities for white and Negro students are held 
in violation of the equal protection clause of the first sec­
tion of the 14th Amendment. S. C. Const., Art. XI, Sec. 7; 
1942 Code 5377; 19th Stat. 803. (A. 100-105.)



8 W righten, A ppellee, v. Board op Trustees

This is true because unless the State segregation laws 
are unconstitutional the Court had no power to order the 
defendants to admit the plaintiff to the University Law 
School in violation of these State laws.

At the outset, therefore, it is important to have in mind 
the rules of construction which guide Federal Courts in 
passing upon the validity of State laws. We can find no 
more appropriate language than that of Chief Justice Mar­
shall in Fletcher v. Peck, 6 Cranch, 3 L. Ed. 125, 128.

“ The question, whether a (State) law be void for 
its repugnancy to the constitution, is, at all times, a 
question of much delicacy, which ought seldom, if ever, 
to be decided in the affirmative in a doubtful case. The 
court, when impelled by duty to render such a judg­
ment, would be unworthy of its station, could it be un­
mindful of the solemn obligations which that station 
imposes. But it is not on slight implication and vague 
conjecture that the legslature is to be pronounced to 
have transcended its powers, and its acts to be consid­
ered as void. The opposition between the constitution 
and the law should be such that the judge feels a clear 
and strong conviction of their incompatability with 
each other.” (Emphasis supplied.)
When a State law is assailed as in conflict with the 

Federal Constitution, the Court is bound to assume the 
existence of any state of facts which would sustain the 
statute or the State constitutional provision. State law may 
be condemned only if the conflict is clearly shown. Alabama 
v. McOrday, 325 U. S. 450, 466-7; Davies v. Bowles, 321
U. S. 144, 153.

There is a basic presumption that a public officer will 
properly perform his duty and obey the mandate of appli­
cable State and Federal laws. U. S. v. The Reform, 3 Wall, 
617; King v. Mullins, 171 U. S. 404; Utah Power & Light 
Co. v. Pfost, 286 U. S. 165.



op U. S. C. et al., A ppellants 9

Under our Federal system the education of people in 
schools maintained by state taxation has been entrusted to 
the states and any interference on the part of a Federal 
Court with the management of such schools can be justified 
only in the case of a clear and unmistakable disregard of 
rights secured by the Federal Constitution. Cumming v. 
Board, 175 U. S. 528, 545.

A thoughtful examination of the Opinion leaves the 
conviction that the Court granted the injunction because 
the State Legislature had not done what the Court would 
have done in similar circumstances. But nowhere in the 
Opinion is there evidence that the Court found in the State 
Constitution and statutes “ clear and unmistakable dis­
regard”  of the plaintiff’s Federal right. Yet unless the 
Court felt this “ strong conviction”  of incompatability be­
tween State law and Federal Constitution he had no right 
to exercise the delicate power of declaring the State law 
invalid.

II

Does the equal protection clause of the Federal Con­
stitution require a State which separates the races in edu­
cational institutions to give education of “ substantial 
equality” to members of both races, or does it go further 
and require that the facilities be of “ complete equality and 
parity in all respects” ?

John H. Wrighten was denied admission to the Law 
School at the University of South Carolina because 
the Constitution and statutes of South Carolina require 
that the University of South Carolina be operated exclus­
ively for white persons. (A. 41-2.) While the complaint 
alleged that his exclusion was based on policy, custom and 
usage (Paragraphs 8, 10; A. 5-6), it is clear from the tes­
timony and from the applicable law that his exclusion was



10 W righten, A ppellee, v. Board of Trustees

based on the State Constitution and statutes. Constitution 
of 1895, Art. XI, Secs. 7 and 8; 16 Stat. 314; 19 Stat. 803; 
44 Stat. 401, 1605; 1942 Code 5377, 5697, 5800. (A. 102- 
105.)

Under the concession of plaintiff’s counsel at the pre­
trial conference (A. 13) as reiterated in the Opinion (A. 
90) and as established by the decisions, the right of the 
State of South Carolina to segregate the races in educa­
tional institutions is not in question here. Plessy v. Fergu­
son, 163 U. S. 537, 544; McCabe v. Atchison, T. & 8. F. By. 
Co., 235 U. S. 78, 85, 86; Cumming v. Board of Education, 
175 U. S. 528, 545; Gaines v. Canada, 305 U. S. 337.

Though the State has the right to segregate in educa­
tion it must provide substantially equal educational facil­
ities within its borders for the members of each race. 
Gaines v. Canada, 305 U. S. 337, 351.

“ Here, petitioner’s right was a personal one. It 
was as an individual that he was entitled to the equal 
protection of the laws, and the State was bound to 
furnish him within its borders facilities for legal edu­
cation substantially equal to those which the State 
there afforded for persons of the white race, whether 
or not other Negroes sought the same opportunity” . 
(Emphasis supplied.)
After approving this yardstick of “ substantial equal­

ity” , the trial Court, in its Order, Conclusions of Law and 
elsewhere in its Opinion, holds that the law school facil­
ities provided for the negro citizens of South Carolina must 
be on “ a complete equality and parity in1 all respects”  to 
those provided for the white citizens. (A. 101, 100, 96).1

1 In the pre-trial order of May 20, 1947, the Court states the issue 
as being “whether the plaintiff is given law-school facilities hy the State 
of South Carolina comparable with those furnished white students.” 
(Emphasis supplied.) (A. 13.)



of U. S. C. et al., A ppellants 11

If the District Judge meant, as we believe he did, to estab­
lish a more stringent yardstick than that of the Gaines case, 
we submit that he erred in that he is bound by that de­
cision of the Supreme Court.

It is difficult, of course, to compare the facilities of any 
two law schools. The two for comparison here will consist 
of the overcrowded University Law School with a student 
body during the coming session of approximately three 
hundred, and the one at State College with a student body 
of not more than ten. It is obvious that a larger faculty will 
be required at the University than at State. The University 
Law School will have courses for Freshmen, Juniors and 
Seniors. The probability is that law students at State Col­
lege during the coming session will be only first-year men.

The testimony of Dean Prince of the South Carolina 
Law School, of former Dean Hicks of the Furman Law 
School and of former Dean Lott of the Louisville Law 
School, is that a student should be able to obtain a law- 
school education at State College equally as adequate as 
that at the University. (A. 66, 80, 83.) He will have the 
great advantage of smaller classes. (A. 66, 80, 83.) The 
Secretary of the Board of Trustees of State College and 
the President of that institution make it clear that the law 
school will be operated on the same high scholastic plane 
as the other departments of State College. (A. 30, 53.) 
The District Judge has found that this academic work is 
on a parity with that given at the University of South 
Carolina. (A. 99.) The State has been more generous in 
its 1947 appropriations for Negro students than for white. 
(A. 31-32, 41-42.)

Ill

Is a Negro Plaintiff who fails to apply to the educa­
tional institution designated by the State to provide his



1.2 W righten, A ppellee, v. Board op Trustees

legal education and who fails to make the officials of that 
institution parties to his suit entitled to a mandatory in­
junction requiring his admisson to the institution provided 
for white citizens?

The right of South Carolina to segregate the races in 
education is recognized in the opinion filed (A. 90), and 
in the pre-trial order. (A. 13.) Plessy v. Ferguson, 163 
XJ. S. 537, 544; McCabe v. Atcheson, 235 U. S. 78, 85; Gaines 
v. Canada, 305 XJ. S. 337.

The fact that South Carolina has provided a system 
of segregation in education is established by the Findings 
of Fact. Constitution, Art. XI, § 7-8; 16 Stat. 314; 19 Stat.
803; 44 Stat. 401, 1605; 45 Stat. ___ ; 1942 Code 5377,
5697, 5800. (A. 98, 102-105.)

Since “ the education of people in schools maintained 
by state taxation is a matter belonging to the respective 
states and any interference on the part of Federal authority 
cannot be justified except in the case of a clear and unmis­
takable disregard of rights secured by the supreme law of 
the land”  (Camming v. Board, 175 XJ. S. 528, 545) it is 
fundamental that the plaintiff must exhaust his opportu­
nities of securing legal education at State before obtaining 
injunctive relief here. (A. 96.)

By its segregation laws South Carolina has exercised 
its right to require him to apply to State for a legal ed­
ucation. This he has refused to do (A. 22, 49, 50). The un­
disputed testimony is that had he applied to State on the 
date he applied to the University of South Carolina (July 
1946), for a legal course of study beginning about Feb­
ruary, 1947, he would have been accorded a legal education 
there. (A. 53.)

The Court ignored this undisputed evidence appar­
ently on the theory that there was no law school actually



of U. S. C. et al., A ppellants 13

in operation at State on July 2,1946 (A. 95). No law school 
can be opened or operated without at least one student. 
The plaintiff offered no testimony to show that any Negro 
citizen, other than the plaintiff, had ever applied to any 
institution for a law education in South Carolina and the 
defendants’ testimony affirmatively shows that up to the 
date of trial (June 5, 1947) no application for a law educa­
tion had ever been made to State by any person. (A. 27.)

Under the delicate responsibility of a Federal Court 
dealing with the constitutionality of State law can the 
Court ignore valid undisputed testimony that legal educa­
tion was available to the plaintiff at State and strike down 
constitutional and statutory provisions making it a crime 
for the defendants to permit the plaintiff entrance to the 
University! We think not.

Federal and State laws are as obligatory on the plain­
tiff as on the defendants. If the plaintiff asks that State 
law be set aside as in conflict with Federal he must make 
a showing that he has exhausted all avenues of obtaining 
his Federal right (to a legal education in South Carolina) 
by applying to the institution (“ State” ) charged with fur­
nishing that education. Until he has been refused there he 
has not been denied the equal protection of the laws. Gaines 
v. Canada, 131 S. W. (2d) 217; Sipuel v. Oklahoma, 180 
Pac. (2d) 135; Michael v. Witham (Tenn.), 165 S. W. (2d)
378; cf. Rescue Army v. Municipal Court, ____ U. S .____ ,
91 L. Ed. 1221, 1232.

In the Gaines case the Court found that the plaintiff 
could maintain his action to gain admittance to the Uni­
versity of Missouri (white) without applying to Lincoln 
University (Negro) because the State law as interpreted by 
the Missouri Supreme Court placed no mandatory duty to 
establish a law school on the Curators of Lincoln Univer­



sity but on the contrary gave them the choice of establish­
ing a law school or providing out-of-state scholarships. 
Gaines v. Canada, 305 U. S. 337, 346. As we point out below 
the Trustees of State College had the mandatory duty 
under the 1945 and 1946 Appropriation Acts of establish­
ing a law school as soon as there was a demand. If the Dis­
trict Court was unwilling to accept that construction of 
the 1945 and 1946 statutes (A. 95) and if he was of opinion 
that the validity of the State laws here depended on 
whether these laws were construed as mandatory it was his 
duty to withhold a decision until the parties had obtained 
an interpretation by the State Supreme Court. Railroad 
Commission v. Pullman, 312 U. S. 496, 500-501; Spector 
Motor Co. v. McLaucMin, 323 IT. S. 101; Alabama: v. Mc- 
Orday, 325 U. S. 450; Asbury Hospital v. Cass County, 
326 U. S. 207; A. F. of L. v. Watson, 327 U. S, 582, 599.

Not only has the plaintiff failed to apply to State but 
he has failed to make its officials parties defendant. That 
institution is governed and operated by persons other than 
the named defendants. (Findings, A. 98-99; 1942 Code, Sec. 
5800, A. 103.)

Though the language of the 1945 and 1946 Appropria­
tion Acts (44 Stat. 401, 1605, A. 106) “ authorized”  the 
establishment of a law school at State, this language must 
be construed as mandatory in the light of South Carolina 
law requiring segregation and in the light of the Four­
teenth Amendment requiring “ substantially equivalent”  
educational facilities. 26 Words & Phrases, 747, 797; Chase 
v. U. 8., 261 Fed. 833, 256 U. S. 1, 8; Sipuel v. Oklahoma, 
180 Pac. (2d) 135.

Even if the Trustees of State were not required 
to open and operate a law school by the 1945 and 1946 Acts 
certainly the 1947 Act, in effect at the time of the trial,

14 W righten, A ppellee, v . Board of Trustees



of U. S. C. et al., A ppellants 15

imposed a mandatory duty. Though this Act of May 1947 
was passed between the date of filing and the date of trial 
it must be considered on the issue of injunctive relief. (A. 
107, 20.)

By these Acts of 1945, 1946 and 1947 the Legislature 
of South Carolina delegated its duty to provide legal edu­
cational facilities for Negro citizens “ substantially equal”  
to those at the University, to the Trustees of State College. 
The plaintiff here asserts that these facilities are not pro­
vided. We assert that State College has fulfilled this duty. 
But if the plaintiff is entitled to litigate that question with­
out applying to State College then its Trustees are neces­
sary parties to this suit, because theirs is the primary duty 
of furnishing these facilities. The named defendants have 
no right to admit the plaintiff to the University in viola­
tion of State law until it has been established that State 
College has failed in its duty. Surely a suit alleging that 
failure may not be maintained unless some representative 
of State is before the Court.

IV

Under the facts disclosed by the record were the de­
fendants entitled to a dismissal?

At the time John Wrighten applied to the University 
of South Carolina for admission to its law school there 
was in existence a State statute providing for the opening 
of a law school for Negro citizens at Orangeburg. The 
plaintiff was charged with notice of this law. In view of the 
backing which he has exhibited in this cause it is safe to



16 W righten, A ppellee, v. Board of Trustees

say that he and his counsel were actually cognizant of 
the law.2 (A. 106-107, 20.)

The undisputed evidence shows that the Trustees and 
the President of State were cognizant of their obligation to 
furnish a legal education when the demand arose. When 
there was no demand in 1945 and 1946 they used the funds 
appropriated by the 1945 and 1946 Appropriation Acts 
(44 Stat. 401, 1605) for other educational needs. (A. 18- 
19, 51-52.) There is never enough money for all that edu­
cators wish to do.

Had the plaintiff applied he would have received a law 
education at State. (A. 53.) Until he or someone else did 
there was no legal or moral obligation on the Trustees of

2 This suit was filed contemporaneously with suits in three other 
southern states.

In Sipuel v. Board of Regents of University of Oklahoma, 180 Pac. 
(2d) 135, the State Supreme Court affirmed the trial Court’s refusal 
to mandamus the University to admit the plaintiff, a Negro citizen, into 
its law school, holding that the State Regents for higher education had 
a mandatory duty to open a law school for Negroes at Langston College, 
and therefore the plaintiff was not denied the equal protection of the 
law. Certiorari was requested in a petition filed on Sept. 24, 1947, in the 
United States Supreme Court.

In Sweatt v. Painter the Texas trial court refused a writ of man­
damus to compel the University of Texas authorities to admit the plain­
tiff, a Negro citizen, to its law school. An appeal has been taken to the 
Court of Civil Appeals in Texas.

In Johnston v. Board of Supervisors and in Hatfield v. Board of 
Supervisors, the District Court for the 19th Judicial District of Louisiana 
dismissed suits by Negro citizens requesting admission to the law and 
medical schools of the Louisiana State University, upon the ground that 
there was a mandatory duty on the Trustees of Southern University, a 
State institution maintained for Negroes, to operate law and medical 
schools when the need appeared. The Court held that the plaintiffs 
could not maintain these suits without having shown a demand on 
Southern College for this education and a failure to obtain it there. 
These cases are now on appeal to the Supreme Court of Louisiana.

In the Sweatt case and possibly in the Sipuel case there is present 
the issue of whether a State may segregate according to races in educa­
tional institutions, an issue not present in the Wrighten case. (A. 13, 90.)



op U. S. C. et al., A ppellants 17

State to hire a faculty and to buy law books. No law school 
is possible without a law student. No one applied. No one 
had applied up to June 5, 1947 (A. 27.)

The Legislature, recognizing the needs of this institu­
tion and the high calibre of its work (A. 99) has given it 
much more liberal State aid per pupil than that given the 
University—the comparison is $250.00 per Negro student, 
$100.00 per white student. (A. 30-32, 43-44.)

What more could South Carolina have done to grant 
John Wrighten a legal education in fulfillment of the “ equal 
protection”  clause? Was it the State’s duty to hire a facul­
ty and pay those teachers to do nothing in the hope that 
a student would apply? If that is the measure of compli­
ance with “ equal protection”  then the State would have 
paid an idle faculty from 1867—the date of the opening of 
the University Law School. The Constitution does not re­
quire such an impractical interpretation. The true meaning 
of the Amendment is that where a State segregates in edu­
cational matters the obligation to furnish a Negro student 
with a legal education matures not before but a reasonable 
length of time after the first Negro applies to State College. 
Games v. Canada (Mo.), 131 S. W. (2d) 217; Bluford v. 
Canada, 32 F. Supp. 707; Bluford v. Canada (Mo.), 153
S. W. (2d) 14; Michael v. Witham (Tenn.), 165 S. W. (2d) 
378.

The testimony shows that South Carolina was alert to 
the probability that Negro citizens would wish legal edu­
cation. Before the plaintiff had applied to the University 
in July, 1946—and the record shows no other application 
—the Legislature had authorized the law school at State 
in two separate Appropriation Acts (44 Stat. 401, 1605). 
Even before a single application has been filed the Board of 
Trustees of State has made plans to open the law school



18 W righten, A ppellee, v. Board of Trustees

(Ex. 15.) The testimony shows that the Law School will 
operate on a plane equivalent to that of the University. 
(A. 30, 53, 66, 80, 83.)

This testimony satisfies the “ substantially equal”  
yardstick of the Gaines case and the District Court should 
have so held. It shows that State should graduate as good 
lawyers as does the University if its applicants have equiv­
alent abilities and preparation. The law requires that and 
nothing more.

It was error to hold the case for a later hearing to de­
termine whether the two schools had the same number of 
faculty members, or an equivalent number of books or an 
equally well prepared librarian or “ complete parity and 
equality”  in some other respect. A  court is not equipped to 
supervise the operation of a school. (A. 96.) Under our 
Federal system the education of the people in state insti­
tutions is controlled by the State. Cumming v. Board, 175 
U. S. 528.

The record shows that South Carolina has accorded this 
plaintiff the “ equal protection”  of the law as required by 
the Fourteenth Amendment. The defendants are entitled to 
a reversal with a direction that the District Court dismiss 
the suit.

JOHN M. DANIEL,
Attorney General,

T. C. C ALLISON,
Asst. Atty. General,

PRICE & POAG,

DAVID W. ROBINSON, 

Attorneys for Appellants.











APPELLANTS’ APPENDIX

United States Circuit Court of Appeals
FOURTH CIRCUIT

M

JOHN H. WRIGHT KN, A ppellee,

versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF 
SOUTH CAROLINA, NORMAN M. SMITH, P resi­
dent of the U niversity of South Carolina, SAM­
UEL PRINCE, Dean of the L aw School, and R. C. 
NEEDHAM, R egistrar, A ppellants.

PILED
SEP 26 1947

CLAUDE U. DEAN
CLKPac

The R. L. Bryan Company, Lega*’ Printers, Columbia, S. C.





INDEX
P age

Complaint........................................................................   1
Answer ..............................................................................  8
Pre-Trial Order (20 May, 1947) ....................................  13
Proceedings Trial (June 5-6, 1947) ............................... 14

Plaintiff’s Witnesses:
M. F. Whittaker ................................................  15
Norman M. Sm ith................................................  40

Defendants’ Witnesses:
John H. Wrighten .................   47
W. C. Bethea ......................................................  50
S. L. P rin ce .........................................................  56
Jack Lott ...........................................................  76
J. W. Hicks .......................................................  81

Exhibits:
Plaintiff’s Exhibits:

“ A ” —Letter of John H. Wrighten to Dean
of Law School July 2, 1946 ......................... 40

“ B ” —Letter Norman M. Smith to John H.
Wrighten July 6, 1946 ...............................  41

“ C” —Standards of Association of American 
Law Schools.................................................. 71

Defendants’ Exhibits:
1. 44 Stat. 401 .................................................... 92
2. 44 Stat. 1605 ..........................................10, 92
3. 45 Stat.,.........  107
4. Letter John H. Wrighten to M. F. Whit­

taker, Feb. 8, 1947 .................................. 21
5. Copy letter M. F. Whittaker to John H.

Wrighten, Feb. 12, 1947 ............................. 21
6. Certificate of E. Vaughn, Asst. Registrar,

of Feb. 12, 1947 ............................................  22

(i)



INDEX—Continued
P age

7. Letter of M. F. Whittaker to John H.
Wrighten, Feb. 22,1947 .............................  22

8. Letter of John H. Wrighten to M. F. Whit­
taker, Feb. 24, 1947 ................................... 22

10. Letter of Harry M. Bowen to Pres. State
A. & M. College, February 25,1947 .......... 24

11. Letter of M. F. Whittaker, Pres., to Harry
M. Bowen, March 6,1947 .........................  24

12. Letter E. Avery Adams, Jr., to M. F. Whit­
taker, Mar. 31, 1947 ................................... 25

13. Letter of M. F. Whittaker to E. Avery
Adams, Jr., Apr. 7, 1947 ...........................  26

14. Letter of James L. Calhoun to M. F. Whit­
taker, May 18, 1947 ................................... 26

15. Certified Excerpt from Minutes of Meeting
of Trustees of A. & M. College of S. C.
May 20,1947 ................................................  28

Opinion of the Court of July 12, 1947 ...........................  87
Findings of Fact of July 12, 1947 ................................. 98
Conclusions of Law of July 12, 1947 ..................... .......  99
Injunction Order of July 12, 1947 ............................... 100

S. C. Constitutional Provisions:
Article XI, Section 7 ........................................  102
Article XI, Section 8 ........................................  102

S. C. Statutes:
Code of 1942:

Section 5377 ................................................  102
Section 5697 ................................................  103
Section 5724 ................................................  103
Section 5800 ................................................  103
16 Stat. 314 (Acts 1877) ...........................  104
19 Stat. 803 (Acts 1887) ...........................  105
44 Stat. 401 (Acts 1945) .........................  106
44 Stat. 1605 (Acts 1946) .......................  106
45 Stat--------(Act May 2, 1947) ................ 107

(ii)



APPELLANTS’ APPENDIX

United States Circuit Court of Appeals
FOURTH CIRCUIT

JOHN H. WRIGHTEN, A ppellee,

versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF 
SOUTH CAROLINA, NORMAN M. SMITH, P resi­
dent of the U niversity of South Carolina, SAM­
UEL PRINCE, Dean of the L aw School, and R. C. 
NEEDHAM, R egistrar, A ppellants.

Civil Action No. 1670

COMPLAINT

TO THE HONORABLE JUDGE OF THE DISTRICT 
COURT OF THE UNITED STATES FOR THE 
EASTERN DISTRICT OF SOUTH CAROLINA, 
COLUMBIA DIVISION:

Now comes the plaintiff, John H. Wrighten, possessing 
all the qualifications and having met all the requirements 
necessary for admission to the Law School of the Univer­
sity of South Carolina, and respectfully shows:



I .

The jurisdiction of this Court is invoked under sub­
division 14 of Section 71 of Title 28 of the United States 
Code, this being an action authorized by law to be brought 
to redress the deprivation under color of law, statute, reg­
ulation, custom and usage of a state of rights, privileges 
and immunities secured by the Constitution of the United 
States, namely, the Fourteenth Amendment of said Con­
stitution and of rights secured by the laws of the United 
States, namely, Section 43 of Title 8 of the United States 
Code, all of which will appear more fully hereafter.

II.

Plaintiff further shows that this is a proceeding for a 
declaratory judgment under Section 400 of Title 28 of the 
United States Code for the purpose of determining an ac­
tual controversy between the parties, to-wit: Whether the 
practice of the defendants in enforcing the policy, custom 
and usage by which plaintiff and other Negroes similarly 
situated although possessing all the necessary qualifications 
therefor are denied admission to the Law School of the 
University of South Carolina on the basis of race or color 
violates rights secured under the Fourteenth Amendment 
of the Federal Constitution.

III.

This is a class action authorized by Rule 23(a) of the 
Rules Civil Procedure for the District Courts of United 
States. The rights involved are of common and general 
interest to the members of the class represented by the 
plaintiff, namely, Negro citizens of the State of South Car­
olina who possess all of the qualifications for admission to 
the Law School of the University of South Carolina. Mem­
bers of this class are so numerous as to make it impracti­
cable to bring them all before the Court and for this rea­
son plaintiff prosecutes this action in his own behalf and 
in behalf of the class without specifically naming the said 
members therein.

2 W righten, A ppellee, v . Board of Trustees



IV.
By virtue of the Constitution and Statutes of South 

Carolina, the establishment of a State University at Co­
lumbia, South Carolina, with a law school and other 
branches and divisions thereof is authorized for the pur­
pose of providing and maintaining the highest type of in­
struction and training for the residents of the State of 
South Carolina. (Const, of S. C. of 1895, Art. 11, Section 
8; Code of South Carolina (1942) Section 5697).

The University is maintained and supported out of the 
public funds of the State. (Const, of S. C. of 1895, Art. 11, 
Section 8).

V.
The requirements for admission to the Law School of 

the University of South Carolina are as follows: An ap­
plicant for admission must present satisfactory certificates 
of good moral character. He must be at least eighteen years 
of age and must either present a certificate of graduation 
from a university or college of approved standing; or a 
certificate from such a university or college attesting the 
fact that the applicant has met the entrance requirements 
and has satisfactorily completed at least two full years of 
college work.

In addition the applicant’s pre-legal work “ exclusive 
of non-theory courses in military science, hygiene, domestic 
arts, physical education, vocal and instrumental music or 
courses without intellectual content of substantial value”  
must be completed with a scholastic average equal to the 
average required for graduation in the institutions at­
tended.

Further each applicant must submit a signed, written 
statement as to his previous attendance at other law schools 
and as to his previous application for admission to other 
law schools.

VI.
Plaintiff, John H. Wrighten, further shows that he is 

a colored person of African descent and of Negro blood;

op U. S. C. et a l, A ppellants— A ppendix 3



4 W righten, A ppellee, v. Board of Trustees

that he is a native-born citizen of the United States and a 
resident and citizen of the State of South Carolina; that 
he is of good moral character; that he is over eighteen years 
of age; that he attended the public schools and colleges of 
the State of South Carolina; that he has completed three 
years of college work at South Carolina Agricultural and 
Mechanical College, a college maintained by the public 
funds of the State of South Carolina for the education of 
Negro citizens; that while attending such school he took 
a pre-law course; and completed such course with a scho­
lastic average better than the scholastic average required 
for his graduation from the aforesaid South Carolina Agri­
cultural and Mechanical College.

VII.
The defendant, The Board of Trustees, is a corporation 

and an administrative agency of the State in which is en­
trusted the government of the affairs and the policies of 
the University (Code of S. C. (1942) Section 5715).

The defendant, Norman A. Smith, the President of the 
University, is the chief academic officer of the said institu­
tion to whom is delegated the duties of executing the poli­
cies and rules adopted by the Board of Trustees with re­
spect to the government of the University.

The defendant, Samuel Prince, Dean of the Law School 
of South Carolina University, is the chief academic and 
administrative officer of the said school to whom is dele­
gated the duty of executing the policy and rules adopted 
by the Board "of Trustees with respect to the government 
of the Law School.

The defendant, B. C. Needham, as Registrar of the 
University and as the administrative agent of the said Uni­
versity, has the duty and responsibility of passing upon 
the qualifications of all applicants to the Law School.

The defendants, Board of Trustees, Norman A. Smith, 
President, Samuel Prince, Dean, and R. C. Needham, Reg­
istrar, and each of them is being sued in his representative 
capacity.



VIII.
That defendants have established and are maintaining 

a policy, custom and usage of denying to plaintiff and 
others on whose behalf this suit is brought the equal pro­
tection of the laws by refusing to admit them to the Law 
School of the University of South Carolina, there being no 
other law school supported by State funds which plaintiff 
and other Negroes similarly situated can conveniently at­
tend, while admitting white applicants only to said Law 
School and maintaining same exclusively for the attend­
ance of white persons.

IX.
On June 30,1946, plaintiff, being duly qualified as here­

inabove set out, applied for admission as a student in the 
School of Law of the University of South Carolina by filing 
by letter an appropriate application for admission thereto; 
that on or about the 6th day of July 1946 he received a 
letter from the defendant, Norman A. Smith, acknowledg­
ing the receipt of his application and informing him that 
the University was unable to act favorably upon his appli­
cation. On the 17th day of August, 1946 the plaintiff wrote 
to the defendant, Edwin Gf. Seibels, Chairman of the Board 
of Trustees of the University of South Carolina, and sent 
copies of said letter to the other members of the said 
Board of Trustees formally applying to them for admis­
sion as a student in the Law School of the Univer­
sity of South Carolina, on August 28, 1946, plaintiff re­
ceived a communication from the defendant, Edwin G-. 
Seibels, Chairman of the Board of Trustees, acknowledging 
the receipt of the plaintiff’s application of August 17, 1946 
and stating that the said letter would be brought to the 
attention of the Board at its next meeting. That the Board 
of Trustees held at least one meeting since the date of 
plaintiff’s application and took no action thereon. Plaintiff, 
having heard nothing further, considers this a rejection of 
his application and institutes the instant action.

of U. S. C. et al., A ppellants— A ppendix 5



6 W righten, A ppellee, v. Board of Trustees

X.
The School of Law of the University specializes in 

teaching law and in preparing students thereof to enter the 
legal profession as attorneys at law. There is no other law 
school maintained by public funds of the State of South 
Carolina where the plaintiff can study law to the same ex­
tent and on an equal level of scholarship and intensity as 
in the School of Law of the University of South Carolina. 
The arbitrary and illegal refusal of the defendants, the 
Board of Trustees, Norman A. Smith, President, Samuel 
Prince, Dean, and B. C. Needham, ^Registrar, to admit 
plaintiff as a student of the aforesaid School of Law on the 
ground of race and color has inflicted upon your plaintiff, 
and other Negroes similarly situated, an irreparable injury 
placing them at a distinct disadvantage with regard to 
practice of law in the State of South Carolina and the pub­
lic service therein as compared with the persons who have 
had the benefit of the special and unique preparation which 
is afforded at the said Law School to qualified white ap­
plicants. That the policy, custom and usage maintained by 
the defendants, Board of Trustees, Norman A. Smith, 
President, Samuel Prince, Dean, and B. C. Needham, Begis- 
trar, in denying to your plaintiff and other qualified Negro 
applicants the right to attend the Law School at the Uni­
versity of South Carolina amounts to a systematic denial 
of the equal protection of the plaintiff’s rights under the 
Fourteenth Amendment to the Federal Constitution.

XI.
There is between the parties an actual controversy as 

hereinbefore set forth and that said defendants by their 
illegal and wrongful acts have damaged this plaintiff in the 
sum and to the extent of Fifteen Thousand ($15,000.00) 
Dollars.

WHEBEFOBE, Plaintiff respectfully prays the Court 
that upon filing of this complaint, as may appear proper 
and convenient, the Court advance this case on the docket 
and order a speedy hearing of this action according to the 
law, and upon such hearing:



of U. S. C. et a t, A ppellants— A ppendix 7

1— That this Court adjudge and decree, and declare 
the rights and legal relations to the parties to the subject 
matter herein controverted, 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, declar­
ing that the policy, custom and usage of the defendant, in 
refusing admission as a student to plaintiff and other quali­
fied Negroes solely on account of their race and color, is 
unconstitutional and violative of the Fourteenth Amend­
ment of the United States Constitution.

3— That this Court issue a permanent injunction for­
ever restraining and enforcing the defendants and each of 
them from denying to plaintiff possessing the qualifications 
for admission to the Law School of the University of South 
Carolina solely because of color.

4— That the plaintiff have judgment for Fifteen Thou­
sand Dollars ($15,000.00).

5— That this Court will allow plaintiff his costs herein 
and such further, other additional or alternative relief as 
may appear to the Court to be just and equitable in the 
premises.

HAROLD R. BOULWARE,
E. A. PARKER,
THURGOOD MARSHALL, 
ROBERT L. CARTER,

Attorneys for Plaintiff.
(Verified by John H. Wrighten Jan. 4, 1947.)



Civil Action No. 1670 

ANSWER
The defendants answering the complaint would respect­

fully show to this Court:
1. That no action of these defendants has violated any 

right, privilege or immunity secured to the plaintiff by the 
14th Amendment of the Constitution so as to give plaintiff 
any right to proceed under Section 43 of Title 8 of the 
United States Code or to authorize this Court to entertain 
this action by reason of Subdivision 14 of Section 41 of 
Title 28 of the United States Code.

2. That, upon advice and belief, no grounds exist for 
a declaratory judgment in favor of the plaintiff under Sec­
tion 400 of Title 28 of the United States Code.

3. That, upon advice and belief, Rule 23(a) of the 
Rules of Civil Procedure does not permit or authorize the 
present suit to be brought by the plaintiff as a class action; 
that the plaintiff is not a proper, authorized, or qualified 
representative of any class or group of citizens who might 
claim to possess qualifications for admission to the Uni­
versity of South Carolina Law School; that plaintiff’s ac­
tion will not insure the adequate representation of all Ne­
gro citizens who might claim to possess qualifications for 
admission to the Law School; and that members of the 
class of Negro citizens who might claim to possess qualifi­
cations for admission to the Law School are not so num­
erous as to make it impracticable to bring them before the 
Court.

4. That under the Constitution and Statutes of South 
Carolina the University of South Carolina with its Law 
School and other branches and divisions was established 
and is maintained for the purpose of providing higher edu­
cation to those qualified therefor with expenditures made 
for the maintenance and support of the University out of 
the public funds of the State; but that the defendants are 
forbidden by the Constitution and Statutes of South Caro-

8 W righten, A ppellee, v. Board of Trustees



of U. S. C. et al., A ppellants— A ppendix 9

lina to permit the attendance at the University of South 
Carolina of members of the Negro race, and a separate in­
stitution of higher education under the name and title of 
the Colored Normal Industrial, Agricultural & Mechanical 
College of South Carolina is established and maintained 
by the State of South Carolina with its public funds 
through agencies other than these defendants, for the 
higher education of Negro citizens of South Carolina.

- 5. That in addition to the qualifications for admission 
to the Law School of the University of South Carolina 
enumerated in paragraph V of the complaint, these defend­
ants are required by the Constitution and laws of the State 
of South Carolina to enforce the requirement that any ap­
plicant for admission to the Law School of the University 
of South Carolina must be of the white race.

6. That they have no knowledge or information suffi­
cient to form a belief as to the allegations of paragraph 
VI of the complaint concerning plaintiff’s citizenship, resi­
dence, character, age, education or scholastic standing.

7. That defendants occupy the positions in the admin­
istration of the University of South Carolina ascribed to 
them in paragraph VII of the complaint and are bound in 
the performance of their duties therein by the applicable 
provisions of the Constitution and laws of the State of 
South Carolina,. 8

8. Upon advice and belief, that the action of the de­
fendants in maintaining the Law School of the University 
of South Carolina for the attendance and education of white 
persons only is required under the Constitution and laws 
of the State of South Carolina rather than by any policy, 
custom and usage established and maintained by these de­
fendants; that in so doing the defendants are not denying 
to plaintiff or to any other Negro citizen the equal protec­
tion of the laws of South Carolina; that plaintiff and others 
similarly situate may, if qualified therefor and if due de­
mand therefor is made, obtain a legal education at the Col­
ored Normal Industrial, Agricultural & Mechanical College



of South Carolina at Orangeburg, S. C., substantially equal 
to that afforded to white students at the University of 
South Carolina.

9. That plaintiff on 2 July, 1946, for the first time, and 
solely for the purpose of bringing the present suit, applied 
for admission to the Law School of the University of South 
Carolina for the second semester of the 1947 scholastic 
year, which application was legally refused by letter from 
the President of the University on 6 July, 1946. That fur­
ther application was made by the plaintiff to the Board of 
Trustees in August, 1946, acknowledged by the Chairman 
of the Board, but was not favorably considered by the 
Board. That the refusal of defendants to accept plaintiff’s 
application was based upon the fact that ample provision 
had been made by the State of South Carolina for a Law 
School for Negroes in connection with the Colored Normal 
Industrial, Agricultural & Mechanical College, and that 
such provision having been made, the defendants were pro­
hibited by the laws of South Carolina from permitting per­
sons of one race to attend schools and colleges provided for 
persons of another race.

10. That by Section 16, Act 601 of the Acts of the Gen­
eral Assembly of South Carolina, 1946 (44 Stat., 1605), 
which became effective on or about 1 April, 1946, the man­
datory duty was placed upon the Board of Trustees of the 
Colored Normal Industrial, Agricultural & Mechanical Col­
lege of South Carolina, an institution of higher learning 
maintained by public funds of the State of South Carolina 
to provide higher education for members of the colored race 
in South Carolina, to establish a graduate law department 
in connection with that College, ample appropriation being 
in the same Act made for that purpose. That plaintiff, if he 
is qualified for a legal education, is entitled to attend that 
Law School rather than the Law School of the University 
of South Carolina. Upon information, advice and belief, the 
plaintiff has made no application for admission to the Col­
ored Normal Industrial, Agricultural & Mechanical College 
for the purpose of taking a law course, and that if timely 
application had been made by plaintiff there, rather than

10 W righten, A ppellee, v . Board op Trustees



at the University of South Carolina, proper and adequate 
facilities for his legal education would have been provided 
by that State institution. That, in view of the legislative 
authorization and direction for the establishment of a Law 
School at the Colored Normal Industral, Agricultural & 
Mechanical College of South Carolina, and plaintiff’s full 
and ample opportunity to obtain a legal education there, 
defendants deny that they have done plaintiff any injury, 
placed him at any disadvantage with other citizens of South 
Carolina, or deprived him of any rights.

11. That their acts toward the plaintiff have been legal 
and proper and that plaintiff has suffered no damage there­
from.

For a Second Defense:
12. The defendants aver, upon information, advice and 

belief, that plaintiff shows no ground for the granting of 
the equitable relief of injunction by this Court and that, if 
the matters referred to in his complaint show any impair­
ment of his rights, he has a plain, adequate and complete 
remedy at law.

For a Third Defense:
13. The defendants aver upon information, advice and 

belief, that the plaintiff by failing to make proper appli­
cation for legal training to the Colored Normal Industrial, 
Agricultural & Mechanical College, the only institution of 
higher learning authorized by the Constitution and laws of 
South Carolina to admit Negro students and the only in­
stitution of higher learning charged by the Legislature with 
the legal training of Negroes, is estopped and barred from 
maintaining the present action.

For a Fourth Defense:
14. The defendants aver, upon advice and belief, that 

since they are sued in their representative capacity, the 
present action constitutes a suit against the State of South 
Carolina, without its permission, and as such is prohibited 
by the Eleventh Amendment of the Constitution of the 
United States.

of U. S. C. et al., A ppellants— A ppendix 11



12 W righten, A ppellee, v. Board op Trustees

For a Fifth Defense:
15. The defendants aver upon information, advice and 

belief that plaintiff is without the good faith requisite to 
the maintenance of the present action and that there is 
absent a bona fide controversy justifying a hearing by this 
Court; that the true purpose of the present suit is not the 
seeking of a legal education by the plaintiff, which education 
he may have under the laws of South Carolina at a proper 
institution, but is rather an attempt by the plaintiff and 
those associated with him in the maintenance of the present 
suit, to break down and disrupt the established policy of 
the State of South Carolina and of its people to provide a 
separation of the races in the educational institutions of 
the State for the mutual benefit of both races. That this 
policy has been sanctioned, recognized and approved for 
a long period of time by both the white and Negro citizens 
of the State and has been adhered to by both races with 
the knowledge that it is the best system under which peace 
and good order can be maintained, the reciprocal rights and 
friendly relationships between the races preserved, and 
their honored traditions perpetuated.

WHEREFORE defendants pray:
That the relief asked in the complaint be denied and 

that the complaint be dismissed with costs against the plain­
tiff.

JOHN M. DANIEL,
Attorney General for State 

of South Carolina, Wade 
Hampton Office Building, 
Columbia, S. C.

M. J. HOUGH,
Assistant Attorney General.

T. C. CALLISON,
Assistant Attorney General.

PRICE & POAG,
DAVID W. ROBINSON, 

Attorneys for Defendants.
February 3, 1947.



op U. S. C. et al., A ppellants— A ppendix 13

A trial by jury 
pleading.

is demanded of the issues raised in this

JOHN M. DANIEL,
Attorney General for State of 

South Carolina.
Attorney for Defendants.

ORDER ON PRETRIAL CONFERENCE
1. A pretrial conference was held in the above entitled 

cause on May 15, 1947. The Court announced that the equi­
table issues involved would be tried first before the Court 
without a jury and that after decision was rendered the 
Court would then consider whether or not it was necessary 
to have a jury trial on the question of damages, provided 
grounds therefor were found.

2. It was agreed that without any general admissions 
and limited solely to the issues to be tried in this case the 
broad question of the right of segregation and education ac­
cording to races is not before the Court but that the issue 
here is whether the plaintiff is given law school facilities 
by the State of South Carolina comparable with those af­
forded white students; Provided of course that if it be 
shown that opportunities are given, the parties may go into 
the sufficiency and the quality of the same.

3. It is agreed that the plaintiff is more than 21 years 
of age and has the qualifications set out in Article 5 of the 
complaint. The University of South Carolina is limited to 
white students and the plaintiff is colored.

4. The case was set for trial in the United States Court­
room at Columbia, South Carolina, on Thursday, June 5, 
1947, at 10 o ’clock in the forenoon.

5. Counsel were given the right, and in fact requested, 
to furnish the Court with trial briefs as early as possible 
prior to the trial; it being directed that these be sent to the 
Clerk of Court at Charleston with sufficient copies for him 
to forward copies to opposing counsel. The Clerk will not 
forward these copies until briefs of counsel on both sides 
are filed.



14 Wrighten, A ppellee, v. Board of Trustees

6. After the hearing of the case counsel will be allowed 
10 days within which to furnish additional briefs and at 
the same time submit proposed findings of fact and con­
clusions of law.

IT IS ORDERED that the foregoing will govern the 
conduct of this cause.

/ s /  J. WATIES WARING,
United States District Judge.

Charleston, S. C.,
May 20, 1947.

(A True Copy. Attest.)
ERNEST L. ALLEN,

Clerk of U. S. District Court,
Eastern District, South Carolina.

TRIAL PROCEEDINGS—JUNE 5-6, 1947
The Hon. J. Waties Waring, Presiding.
Appearances: E. A. Parker, Harold R. Boulware, Rob­

ert L. Carter, Thurgood Marshall, Attorneys for the Plain­
tiff; John M. Daniel, D. W. Robinson, James H. Price, T. C. 
Callison, James H. Price, Jr., Attorneys for the Defendants.

The Court : Any motions ?
Mr. B otjlwake : Yes, there is, your Honor. I would like 

to again move that Mr. Marshall he admitted in the Court 
for the purpose of this case.

The Court : Admitted for the purpose of this case.
Mr. Marshall : Thank you, sir.
Mr. B oulware : E. A. Parker, an attorney, a member of 

the Sumter County bar and of the South Carolina bar, is 
also associated with me in this case, and I move that he he 
admitted to this Court for the purpose of this case.

The Court : Admitted for the purpose of this case.
Any motions for the defense?
Mr. R obinson: No, sir.
The Court: Well, gentlemen, I ’m ready to proceed if 

you are.
Mr. Marshall: May I make a brief oral statement? We 

are ready for trial.



of U. S. C. et al., A ppellants— A ppendix 15

The Court: Y ou wish to make a statement, you say?
Mr. Marshall: On the case.
The Court : I ’m familiar with the pleadings—if there’s 

a statement you wish to make, I ’ll be glad to hear you.
Mr. Marshall: A s I understand it, from the pretrial 

conference, the preliminary matters are practically dis­
posed of, so that the plaintiff is qualified in all respects 
under the complaint. I think the issue is narrowed down to 
because of his race and color, that is my understanding of 
the pretrial conference. It appears from the pleadings in 
the case and information we have that there is no law 
school in existence other than that law school, and that is 
practically the only point in the case, as such. I don’t be­
lieve—the question I wanted to ask is whether at this stage 
we are required to prove the qualifications of the plaintiff 
on the basis of the pretrial conference or is that agreed 
upon?

Mr. R obinson: I think that is covered in the pretrial 
conference.

The Court : I  think so. I  think it ’s fully covered.

Miller F. Whittaker, sworn:
D irect E xamination

By Mr. Marshall :
Q. You have given your full name and residence?
A. Haven’t given my residence.
Q. Give it, please.
A. State College, Orangeburg, South Carolina.
Q. And are you President of the State College?
A. I ’m President.
The Court: What is the full name of the State Col­

lege?
Dr. W hittaker : State Normal, Industrial, Agricul­

tural and Mechanical College of South Carolina.
The Court: Y ou speak of the State College at Orange­

burg. I want to get in the record the exact name.
Mr. Marshall: In order to protect the right of the 

plaintiff in this case, we at this time request authority to



16 Wrighten, A ppellee, v. Board of Trustees

proceed—he’s a state officer of the Negro school—as an ad­
verse witness.

Mr. R obinson: We don’t think it applies to this wit­
ness, as he is not a party defendant. The plaintiff has not 
elected to make him a party defendant, has elected to make 
no one connected with the State College a party defendant. 
We don’t think the rule applies.

The C ourt : I ’ll reserve ruling on that. I ’ll see how the 
witness testifies.

Mr. Marshall : Thank you.
Q. President Whittaker, how long have you been presi­

dent of the school you just mentioned?
A. Fifteen years.
Q. And will you explain briefly to the Court the type 

of school that is maintained at your institution?
A. The college is primarily a land grant institution. By 

that, I mean it was established under the Acts of the Fed­
eral Government offering work in liberal arts, sciences, ag­
riculture, mechanics, arts, home economics, and so forth. 
It is the only state institution for the higher education of 
Negroes.

Q. And what type of degrees do you give at the pres­
ent time?

A. At the present time we are offering the Bachelor 
of Science degree, Bachelor of Arts, and Master of Science 
degrees.

Q. Do you at the present time award Master of Arts 
degrees?

A. We have not yet awarded any, but we have candi­
dates for the Master of Science degrees.

Q. As I understand, you mean you have students there 
studying for the Masters?

A. Yes, sir.
Q. Do you have any professional schools connected 

with your institution?
A. The only professional schools connected with our 

institution is the undergraduate in education, that is, the 
training of teachers.

Q. lo r  example, do you have a medical school there?
A. We do not have a medical school there.



of U. S. C. et al., A ppellants— A ppendix 17

Q. Do you have a dental school?
A. We do not have a dental school.
Mr. R obinson: We don’t think these questions are rel­

evant to the issues.
The C ourt : I think they are relevant—the general type 

of school—I ’d like to know more about it.
Q. Do you have a dental school?
A. No dental school.
Q. Pharmacy?
A. No pharmacy.
Q. Do you have a law school there?
A..No, no law school.
Q. As of June of the year 1946, did you have a law 

school there?
A. We did not.
Q. Did you have one there as of July of last year?
A. We did not.
Q. Did you have one as of January this year?
A. We did not.
Q. Do you have one now?
A. We do not.
Q. Is there any law school operated by the State of 

South Carolina to which Negroes are at present admitted, 
if you know?

A. There is none, as far as I know.
Q. Do you know of any other school or university in the 

State of South Carolina for the education of Negroes be­
yond the high school level other than the school that you 
are president of?

A. There is none, no.
Q. So, at the present time, there is no law school at 

your school?
A. That’s right.
Q. There is no setup at the present time in existence 

for the training of a Negro in the field of law at your in­
stitution ?

A. There is none.
Mr. Marshall: That is all.



Cross E xamination

By Mr. R obinson :
Q. Dr. Whittaker, is your institution accredited by the 

Southern Association of Colleges and Secondary Schools?
A. It is.
Q. Is it also a member of the American Schools and 

Colleges Association?
A. It is a member of the American Association of Col­

leges.
Q. Dr. Whittaker, in the 1945 appropriation bill, was 

the establishment of a law school authorized at State Col­
lege?

Mr. Marshall: We object on the ground that the 
statute is the best evidence.

The Court: I think you ought to produce the statute.
Mr. R obinson: We offer in evidence the Acts of 1945, 

page 402.
The Court: Page 402?
Mr. R obinson: Yes, sir.
The Court : Are they here ?
Mr. R obinson: 1945.
The Court: Are they here?
Mr. R obinson: I have a copy of them in my pretrial 

brief which was furnished you, a copy of the pertinent ex­
cerpts. I can get it from the statute if you wish.

The Court: No, if it ’s in there.
Q. Are you familiar with the fact that the 1945 legis­

lature authorized the establishment of a law school at State 
College ?

A. I am, yes, sir.
Q. During the fiscal year for which that appropriation 

was applicable, 1945-1946, did State College have any ap­
plication for admission to that law school?

A. It did not.
Mr. Marshall: We object, if your Honor please, on 

the grounds that under the Mitchell-McCabe case, the rights 
of plaintiff in this case can not be made to depend on the 
rights of any one else.

18 Wrighten, A ppellee, v. Board of Trustees



op U. S. C. et al., A ppellants— A ppendix 19

The Court : That is for me to pass on. I don’t mind his 
testifying.

Mr. Marshall: I withdraw the objection.
Mr. Robinson : We offer in evidence the Acts of 1946, 

page 1605.
Q. Dr. Whittaker, at the 1946 session of the General 

Assembly, are yon familiar with the fact that the appro­
priation bill again authorized the establishment of a law 
school at State College?

A. Yes, sir.
Q. During the fiscal year 1946-47, did you have any 

applicants for a law course at State College?
A. We did not.
Q. You did not?
A. No, sir.
Mr. R obinson : We offer in evidence now the appropria­

tion Act of May 2, 1947, Bill 312. I think, if your Honor 
please, I have an excerpt from that.

The Court: Yes, you have an excerpt.
Mr. R obinson: Attested by the plaintiff’s counsel.
The Court: Have counsel on the other side seen that 

excerpt?
Mr. Marshall: Yes, sir, we are familiar with each one 

of them.
The Court: I s it correct?
Mr. Marshall: Yes, sir.
The Court: Don’t you think we ought to have a cer­

tified copy of that Act—it ’s not printed?
Mr. R obinson: This is one attested by plaintiff’s coun­

sel in accordance—
The Court: I meant for the permanent record?
Mr. Marshalt. : If your Honor please, I wish the record 

to show our objection to the Act of 1947, as being in­
admissible, on the ground that this is an Act passed after 
this suit was filed, and most certainly if the defense is that 
this plaintiff should have applied under the Act, it ’s obvious 
he couldn’t make application, under this Act if he did 
want—



20 Wrighten, A ppellee, v. Board of Trustees

The Court: I don’t think it will affect the decision; 
may affect the relief. I ’ll allow it in for what it may be 
worth.

Mr. Marshall : All right, sir.
Q. Dr. Whittaker, are you familiar with the fact that 

the General Assembly at the 1947 session again authorized 
the establishment of a law school at State College?

A. I am, yes, sir.
Q. Are you familiar also with the fact that the General 

Assembly instructed the trustees of your institution to use 
such portion of the money set aside for the graduate and 
law school for the operation of that school during the fiscal 
year 1947 and 1948?

A. I am, sir.
Q. Have you had any applications for admission to 

the law school to this date?
A. We have three inquiries, which are not formal ap­

plications, but which might be considered as such.
Q. As such. Have you the original letters? First, I ask 

you, have you had some correspondence with the plaintiff, 
John H. Wrighten, about the law school?

A. I did have.
Q. Will you look at this file and see if this is your 

complete file of your correspondence with him?
A. This is. (Consulting papers.)
Mr. R obinson: We offer for identification, letter of 

John H. Wrighten to President M. F. Whittaker, dated Feb­
ruary 8, 1947.

Mr. Marshall: If your Honor please, we’d like to see 
them.

Mr. R obinson: I ’m offering for identification first.
The Court : Let it be marked for identification. Show 

to the other defendants. Exhibit 4 for identification.
Mr. R obinson: We offer for identification the office 

copy of President Whittaker, reply to John H. Wrighten, 
dated February 12,1947. Plaintiff’s counsel have looked at 
this letter?

Mr. Marshall : We have. May it please the Court, when 
this letter was transmitted by the plaintiff to the lawyer, 
not being a lawyer yet, the Plaintiff wrote a P. S. on the



of U. S. C. et al., A ppellants— A ppendix 21

bottom of it. I wonder if yon conld cut that off! W e’ll 
agree—

The Court: W e’ll use the office copy instead.
Clerk : Defendant’s exhibit 5 for identification.
Mr. 'Robinson : We offer for identification the certifi­

cate of E. Vaughn, Assistant Registrar, of February 12, 
1947.

Clerk : Defendant’s exhibit 6 for identification, certifi­
cate.

Mr. R obinson : We offer for identification letter of 
M. F. Whittaker to John H. Wrighten, February 22,1947.

Clerk : Defendant’s exhibit 7 for identification.
Mr. R obinson: We offer for identification letter of Feb­

ruary 27, John H. Wrighten to M. F. Whittaker—I ’m not 
sure about the date.

Clerk : Defendant’s exhibit 8— it ’s the 24th.
Mr. R obinson : Make it the 24th then.
Clerk : Defendant’s exhibit 8 for identification.
Mr. R obinson: We offer these, defendant’s 4, 5, 6, 7 

and 8, in evidence.
The Court: Are they in evidence now? Any objection?
Mr. Marshall: No objection.
The Court: Admitted in evidence.
Mr. R obinson: May I publish them?
The Court : Exhibits 4 to 8, inclusive ?
Clerk : Yes, sir.
Mr. R obinson : This is exhibit 4 (READING): 236 Com­

ing Street, Charleston 24, S. C., February 8, 1947. Presi­
dent M. F. Whittaker, S. C. State College, Orangeburg, 
S. C. Dear Sir: I am still looking for the letter from you 
concerning the completion of my work at that institution. I 
was informed that there is a law school there, please in­
form me of the same. Yours truly, John H. Wrighten.

Accompanying that, under date of February 12, 1947: 
Mr. John H. Wrighten, 236 Coming Street, Chareston 24, 
South Carolina. Dear Mr. Wrighten: Inclosed is a letter 
showing that you have completed your work at this insti­
tution. I regret to advise that we do not have a law school 
at this institution. Yours very truly, M. F. Whittaker, Presi­
dent.



22 Wrighten, A ppellee, v. Board of Trustees

Under date of February 12, 1947 (READING) TO 
WHOM IT MAY CONCERN: John H. Wrighten has com­
pleted his work for the bachelor of arts degree as of Jan­
uary 26; degree to be confirmed May, 1947. Very truly 
yours, E. Vaughn, Asst. Registrar. Seal of the College.

(READING): February 22, 1947. Mr. John H. Wrigh­
ten, 236 Coming Street, Charleston 24, South Carolina. 
Dear Mr. Wrighten: Your letter of February 8, 1947, in- 
icated an interest in a law education. Since writing you on 
February 12,1 am informed that the House of Representa­
tives has directed the establishment of a law school here 
and has made an appropriation for same. The Senate will 
probably concur. Its operation will begin when students 
are available. Your letter is our first inquiry about law 
courses. May we consider it as an application for admit­
tance? Yours very truly, M. F. Whittaker, President.

(READING) 236 Coming Street, Charleston 24, S. C., 
February 24,1947, Mr. M. F. Whittaker, S. C. State College, 
Orangeburg, S. C. Dear Sir: I won’t be able to give you a 
definite answer about the law school until I hear from my 
atty. Harold R. Boulware. I am sending him that informa­
tion this evening. Until you hear from me I wish you would 
consider the answer no. I am hoping that my atty. will in­
form me soon. Yours truly, John H. Wrighten.

Q. Dr. Whittaker, you haven’t had any further letter 
from John H. Wrighten since Feb. 24, 1947 (Ex. 8) ?

A. No, sir.
Q. Have you had any personal communication with him 

concerning with reference to the law school?
A. No, sir.
Q. Is John H. Wrighten a graduate of the State Col­

lege?
A. He is.
Q. Is he in Court today?
A. He is.
Q. When did he receive his degree^
A. May 26, 1947.

-^47. When did he complete his work at the
State College?



of U. S. C. et al., A ppellants— A ppendix 23

A. January 20—I ’d have to refresh my memory on the 
exact date—January, 1947.

Q. The semester ending in January 1947?
A. Yes, sir.
Q. How long was he at the school, do you recall, Doc­

tor?
A. I believe he was there three and a half years.
Q. You believe he was there three and a half years. 

During the time that he was at the school, did he indicate 
in his conversations with you any interest in a law educa­
tion?

A. Not especially, no.
Q. Did he indicate an interest in the ministry, as a 

matter of fact?
A. His general actions indicated it, but not especially—
Mr. Marshall: We object to his general actions.
The Court: Well, I  rather commend his change, but 

still I don’t think it at all relevant.
Mr. R obinson: We offer for identification letter of 

Harry M. Bowen, to the Office of the President, State A. 
and M. College, of the 25th of February, 1947, and the re­
ply of March 6, 1947 from M. F. Whittaker to Harry M. 
Bowen.

Clerk : 9 and 10 fo r  identification.
Mr. R obinson : We offer for identification, a letter of 

March 31, 1947 from E. Avery Adams, Jr. to President M. 
P. Whitaker, and the reply from M. F. Whittaker to E. 
Avery Adams, Jr. of April 7, 1947.

Clerk : 11 and 12 fo r  identification, defendants’ ex­
hibits.

Mr. R obinson: We offer for identification the letter 
of James L. Calhoun to M. F. Whittaker, of the 18th of 
May, 1947.

Clerk : 13 for identification, defendants’ exhibit—14 
for identification.

Mr. R obinson: We now offer in evidence exhibits 10 to 
14.

The Court: Have counsel seen the letters?
Mr. Marshall: Yes, sir. If your Honor please, as to 

the letter for identification No. 10, which purports to be a



24 Wrighten, A ppellee, v. Board of Trustees

letter from a. Harry M. Bowen, which is unsigned, except in 
a typewritten signature; in addition, the letter says, “ I am 
in receipt of a letter from the State Department of Educa­
tion which suggests that I contact you in regards to outside 
aid,”  and my specific objection to this is, of course, we don’t 
believe it’s material at all, hut we have no objection, hut 
I most certainly object to that part of it, and the letter re­
fers to a letter from the State Department of Education. 
That is the letter I would like to see.

The Court: I ’d like to see it, too. Have you got it 
here?

Mr. R obinson: No, sir.
The Court : Well, I might call the Superintendent of 

Education.
Mr. Marshall: Very well, sir.
The Court: It doesn’t seem to me they are very per­

tinent. I ’ll let them in. If I don’t think I ought to read them, 
I ’ll exclude them.

Mr. Marshall: We withdraw our objections then.
Mr. R obinson: If the Court please, I ’ll publish exhibit 

10. (READING) Mr. Harry M. Bowen, 7 Ann Street, Green­
ville, S. C., 25 February 1947. Office of the President, 
State A. and M. College, Orangeburg, S. C. Dear S ir: I am 
a graduate of the South Carolina State A. and M. College, 
Class of 1935, and am desirous of matriculating at a School 
of Law during the 1947-48 school term under the provisions 
of the Servicemen’s Readjustment Act (Public Law 346).

I am in receipt of a letter from the State Department 
of Education which suggests that I contact you in regards 
to outside aid to students in certain courses which is 
granted through the State A. and M. College.

Please send me all the information available as to what 
facilities and/or arrangements the State of South Carolina 
has made to furnish such educational opportunities.

Thank you very muph in advance. Respectfully yours, 
Harry M. Bowen, Class of 1935.

Exhibit D-ll. (READING) Mr. Harry M. Bowen, 7 
Ann Street, Greenville, South Carolina. This is March 6, 
1947. At present, this college does not have any aid for 
students to study law outside the State of South Carolina.



op U. S. C. et al, A ppellants— A ppendix 25

It appears that the Legislature will probably establish 
a Law School here. May we consider this letter as an ap­
plication to enter the same? Yours very truly, M. F. Whit­
taker, President.

Q. Dr. Whittaker, have you had any further corre­
spondence from Harry M. Bowen with reference to the law 
school?

A. None.
Q. Have you had any personal contact with him with 

reference to the law school?
A. None.
The Court : Is that Brown or Bowen ?
Mr. R obinson: Bowen.
Exhibit 12: (READING) 1009 E. Catherine Street,

Ann Arbor, Michigan, 31 March 1947. President M. F. 
Whitaker, South Carolina State College, Orangeburg, 
South Carolina. Dear Sir: It has recently come to my at­
tention through the Press and other sources that the State 
of South Carolina is granting financial aid to several medi­
cal students who are pursuing courses in out of state medi­
cal schools. Upon further inquiry I learned that such mat­
ters are being administered for the State through your of­
fice. Being a resident of South Carolina, I manifest a very 
keen interest in this out of state aid.

I am a Junior in the University of Michigan Law 
School, having begun matriculation here in the term be­
ginning 4 March 1946. I was graduated from Booker T. 
Washington High School, Columbia, South Carolina, in the 
class of 1936 and received the Bachelor of Arts Degree 
from Johnson C. Smith University, Charlotte, North Caro­
lina, in the class of 1940. My South Carolina address and 
residence is : 2113 Lady Street, Columbia, South Carolina.

When I began my matriculation here the State of South 
Carolina had no Law School which Negro students could 
attend, and neither did the State make any provisions for 
those students who were forced to attend out of state in­
stitutions for work beyond the college level. Having been 
away from the State for more than a year, I have not been 
able to he fully informed as to the provisions the State has



26 Wrighten, A ppellee, v. Board of Trustees

made or contemplates making for such students who are 
attending out of state schools. Having learned that medi­
cal students were being aided, I naturally feel that law stu­
dents attending an out of state law school would he em­
braced by such provisions.

I now seek information relative to such aid for myself 
and all such information would be greatly appreciated. I 
would like to submit an application pertaining thereto as 
soon as it is feasible. Thanking you for the considerate 
that you will give this matter, I remain Very truly yours, 
E. Avery Adams, Jr.

Exhibit D-13: (HEADING) April 7, 1947. Mr. E. 
Avery Adams, Jr., 1009 East Catherine Street, Ann Arbor, 
Michigan. Dear Mr. Adams: At present the State of South 
Carolina has not made appropriation for scholarships for 
law students. It is in the process of establishing a law school 
at this institution. As soon as the law is passed, I shall write 
you whether or not scholarships are available. Yours very 
truly, M. F. Whittaker, President.

Q- Doctor Whittaker, have you had any further corre­
spondence with E. Avery Adams, Jr. ?

A. I have not.
Q- Has he talked with you personally about it?
A. He has not.
Mr Romnsox: Exhibit D-14: (HEADING) 3809 Jay 

f orth®ast> Washmgton 19, D. C., 18 May 1947. M. F, 
.. resident, S. C. State College, Orangeburg,

forni1 w w T  near President Whittaker, I have been in- 
rw™ (  tllat the General Assembly of South Carolina has
a ! ! ? l y ! PPrTPT ted money for the purpose of setting up
nufuosrS  S m°01 axTS‘ State ColleSe ’ and also ^ r  the p • i hlegro students seeking higher or pro-
are nnfn? U+a-101j f*16 state, because such schools
also betnnaiatamed for Negroes within the State. I have

you, as p restS ifo f & c ”  Stafe ^  °Mailled thrOTg‘

State o h S i ? 0 £ £ * " " *  that 1 graduated from S, C
Howard [ J v , , 7 1 am now attending Law School at Howard University. As a citizen „ f  the state, and an out-of-



of U. S. C. et al., A ppellants— A ppendix 27

state student, I am desirous of obtaining out-of-state aid. 
I shall be very grateful to you for any information that you 
can give me as to how I may go about obtaining such aid, 
or as to the authenticity of the information which has come 
to me. Sincerely a former student, James L. Calhoun.

Q. Have you replied to that letter, Doctor?
A. I have not.
Q. Why not ?
A. It ’s very recent.
Q. It ’s very recent. Do you expect to reply to it?
A. Yes, sir.
Q. Doctor Whittaker, do the letters which we have of­

fered in evidence, exhibits 4 to 14, cover all of the inquiries 
which you have had with reference to law school education?

A. They do.
Q. You have had no actual application then for a law 

course at State College?
A. None as such.
Q. I ’m not sure that I brought it out. Did you have any 

application for law school education in 1943, 1944, 1945, or 
1946?

A. None, other than these inquiries which you have ex­
hibited.

Q. They are all dated in 1947 ?
A. Yes, sir.
Q. Now, based on that apparent interest, has the State 

College made any plans for the establishment of a law 
school ?

Mr. Marshall : If your Honor pleases, I object to the 
beginning of that questions—based upon that interest.

The Court : What do you mean by that, Mr. Robinson?
Mr. R obinson : I mean in view of the fact that several 

students have shown an interest in a law education.
The Court: Ask him what plans, if any, have been 

made.
Q. What plans has State College made for the estab­

lishment of a law school, Dr. Whittaker ?
A. At the regular meeting of the board of trustees in 

May, I recommended that a committee of the board be ap-



pointed to make plans for the establishment of a law school. 
This committee has been appointed, including two members 
of the board of trustees and the president.

The Court: Yourself?
Dr. W hittaker: Yes, sir.
A. (cont) And the committee is in the process of gath­

ering information which information must be returned to 
the general board of trustees.

Q. Who are the members of that committee other than 
yourself ?

A. Mr. W. C. Bethea, who is the secretary, and Mr. 
Adam Moss, an attorney in Orangeburg.

Q. He is, in fact, the dean of the Orangeburg bar, isn’t 
he?

A. He is.
Q. Did the board of trustees adopt a resolution with 

reference to this matter?
A. They did.
Mr. R obinson: We offer for identification an excerpt 

from the Minutes of a Regular Meeting of the Board of 
Trustees of the Colored Normal, Industrial, Agricultural 
and Mechanical College of South Carolina Held on the 20th 
day of May, 1947.

Clerk : Defendants’ exhibit 15 for identification.
Mr. Robinson: We offer exhibit 15 in evidence: Ex­

cerpt from the Minutes of a Regular Meeting of the Board 
of Trustees of the Colored Normal, Industrial, Agricultural 
and Mechanical College of South Carolina Held on the 
20th day of May, 1947. This is certified as a true excerpt.

Q. Dr. Whittaker, in those minutes, I notice the state­
ment that you reported that two students had inquired 
about a first year law course for the term beginning in Sep­
tember, 1947. You had reference to the letters we have of­
fered in evidence?

A. Yes, sir.
Q. They were not actual inquiries about a law course, 

but rather out-of-state scholarships—those letters you had 
reference to?

A. Yes, sir, those letters I had reference to.

28 Wrighten, A ppellee, v. Board of Trustees



of U. S. C. et a t, A ppellants— Appendix 29

Q. Doctor, prior to this meeting of the board, had you 
made any surveys with reference to securing members of 
a law faculty or any inquiries about a law library ?

A. Well, I had been inquiring for the last two years 
about a staff and the requirements for a law school.

Q. Did you apply to any one at the University of South 
Carolina for assistance on either one of those matters ?

A. I have talked to Dean Prince, who is dean of the 
law school at the University.

Q. Discussed with him the question of a library?
A. Yes, sir.
Q. Have you also recently talked over this law school 

matter with the Dean of Lincoln University in Missouri?
A. I have had correspondence with the Dean of Lin­

coln University, and I have talked with the President of 
Lincoln University.

Q. You have talked with the President of Lincoln Uni­
versity?

A. Yes, sir.
Q. Is it the purpose of the State College to open this 

law school in September if there are any applications, Dr. 
Whittaker ?

A. I believe that is the purpose.
Q. There’s been no change in the board’s attitude since 

those meetings ?
A. No, sir.
Q. If a law school is opened at State College, Dr. WTiit- 

taker, is it the purpose of the president to operate it on the 
high scholastic standard your academic—

Mr. Marshall: I proffer this objection in view of the 
word “ i f ” . I don’t think there’s any material evidence, any 
evidence material as to what might be done—if something 
is done concerning the right of this plaintiff to get a law 
school education today. It ’s the exact same point that came 
up in the University of Maryland and Missouri case. This 
is that the plaintiff is not interested in what is going to be 
done in the future. He’s interested in getting himself the 
same education—



80 W righten, A ppellee, v. Board of Trustees

The Court: Suppose they came in and showed there 
was a law school running now that would satisfy the re­
quirements ?

Mr. Marshall: If they can show there’s a law school 
in existence at the present time.

The Court: Well, the Court has power to admit them 
to a law school and fix the time.

Mr. Marshall: Well, sir, if your Honor pleases, in the 
Gaines case, the Gaines case was one, but in the Maryland 
case, it was ordered that they either show a separate school 
that was absolutely equal or admitted as then—and used 
the word “ now”  three times.

The Court: I think a Court of equity has a right to 
make a reasonable time to do anything of that sort.

Mr. Marshall: I then most certainly object to the fact 
that this witness has the intention of operating a law school 
in a certain manner in the future.

The Court: Well, that’s just a matter of intention. I ’ll 
take it for what it’s worth. You’ve got to have the appro­
priation, got to have teachers, got to have buildings, got to 
have a law library, got to have students—because he says 
he wants to do it—I ’ll let him say so.

Q. Dr. Whittaker, I ’ll rephrase the question: When 
State College opens the law school, is it the purpose of its 
president to maintain that law school on the same high 
scholastic plane that the academic school is now operated!

A. It certainly is the purpose of the president to main­
tain any school that is opened or may be opened there on 
the high scholastic standard.

Q. You are very proud of the high scholastic standing 
of your school at the present time?

A. We are very proud of it.
Q. Dr. Whittaker, can you give me the actual enroll­

ment at State College during the present fiscal year, 1946- 
47 ?

A. The present enrollment up to now for 1946-47 is 
1443 students.

Q. The present enrollment up to now for 1946-47 is 
1443 students?



of U. S. C. et al., A ppellants— A ppendix 31

A. Yes, sir.
Q. The fiscal year expires on June 30 of this year!
A. That’s right.
Q. Now, in addition to those fourteen hundred stu­

dents, are there some summer school students?
A. Summer school opens on June 11, and there will be, 

probably be, a thousand summer school students, which 
comes in the same fiscal year.

Q. There will probably be a thousand summer school 
students, which comes in the same fiscal year. What about 
the enrollment of the summer school last summer?

A. About the same enrollment.
Q. What is your expected enrollment for the regular 

session beginning in September 1947 ?
A. It is expected to be the same enrollment, because 

we are now overcrowded, and it ’s hardly possible to admit 
any more students.

Q. During the next fiscal year you expect approxi­
mately fourteen hundred students at your regular session 
and about one thousand at summer school?

A. That’s correct.
Q. Dr. Whittaker, what is the total appropriation for 

State College as contained in the May 1947 appropriation 
Act?

A. I should like to refer to my notes to give you the 
exact figures.

Q. If you will.
Mr. M arsh all : If your Honor please, i f  the Act is in 

evidence—
The Court: What?
Mr. M arsh all : If the Act is in evidence—he’s asking 

what is the appropriation.
Mr. R obinson: I  want to break it down between stu­

dent fees and state aid, if your Honor please.
The Court : All right.
Mr. R obinson : I may say this, since—
The Court: Y ou want to show his budget then?
Mr. R obinson: I ’m not primarily interested in the 

budget, not state aid. I may say for the record that for the



first time in many years the state legislature this year in­
cluded in its appropriation Act the income which various 
institutions obtained from student fees and otherwise, mak­
ing a total appropriation Act, which seems far in excess 
of those of previous years; prior years, the only thing in 
the state Act was the state contribution. This year they 
have adopted the other bookkeeping method of including 
fees in it.

The Court: Each college keeps its fees?
Mr. R obinson : They did up until this year. Just what 

the effect of this appropriation is, I don’t know, because 
the appropriation is for a lump sum figure in which they 
estimate the fees will return a certain amount and the gen­
eral funds of the state will contribute a certain amount. I 
think the only figure that is pertinent in this case particu­
larly is the state contribution.

Q. Dr. Whittaker, do you have those figures?
A. I have them now. How do you want them now?
Q. I ’d like to have first the total amount carried in the 

May 2, 1947 appropriation Act for State College?
A. The total amount carried in the Act for the State 

College is $523,000.00.
The Court: Let’s see the exhibit, please?
Q. Doctor, how is that broken down between state con­

tribution and fees?
A. It appears, as near as we can get it, because the 

fees are estimated, that the state contribution is $299,000.00 
and the rest of that—no—the state contribution is $359,- 
000.00.

Q. $359,000.00?
A. Yes, sir, and the rest of it is students’ fees.
Q. Student fees?
A. Yes, sir.
Q. Doctor, how large is your faculty at the state col­

lege?
A. One hundred and one professional teachers.
Q. Are they well qualified teachers ?
A. They are all well qualified.
Q. A number of them have graduate degrees?

82 W righten, A ppellee, v . Board of Trustees



of U. S. C. et ah, A ppellants— Appendix 33

A. A very large number of them have graduate de­
grees.

Q. Some of them have degrees from institutions out­
side of the United States, I believe?

A. Yes, they do.
Q. Dr. Whittaker, if only one law school student ap­

plies for admission to the law school in 1947 will you oper­
ate the law school!

A. I don’t think I can answer that, Mr. Eobinson; the 
board would have to say whether it would be operated or 
not,

Q. I think that’s all I wish to ask him.

R edirect E xamination

By Mr. Marshall:
Q. Dr. Whittaker, you testified as to the teachers on 

your faculty being qualified—any of them qualified to teach 
law?

A. No, sir.
Q. You testified as to your knowledge of the Acts of 

1945. Will you tell the Court how much money you had 
available in the scholastic year 1945-1946 to establish a law 
school?

A. None, sir.
Q. Will you tell th* Court how much money you had 

available in the scholastic year 1946-1947 to establish a law 
school ?

A. None, as designated as such.
Q. Do you have any now you can set a law school up?
A. Not now. Available the first of July.
Q. What I ’m trying to—isn’t it true that your budget 

for the scholastic year 1946-47 was used up?
A. Yes, sir.
Q. No money available for a law school, was it?
A. No, sir.
Q. This money, this new Act, is not in you hands yet, 

is it?
A. No sir.
Q. At the present time you don’t have a nickel to set 

up a law school?



34 W righten, A ppellee, v. Board of Trustees

A. No, 1 have no money for a law school at present.
Q. Yon testified that if you have applications you will 

open the law school in September. I want to ask you if you 
have—you don’t consider any of these letters you read, 
including Wrighten’s letter, an application, do you?

A. No, sir.
Q. If you don’t receive any more, are you or not going 

to set up a law school?
A. I ’ll say the board of trustees would have to answer 

that, Mr. Marshall.
Q. How many faculty members do you have under con­

tract for your September law school?
A. None.
Q. How many faculty members have agreed to come to 

your law school to teach in 1947 ?
A. None.
Q. What prospects do you have of getting a faculty? 

As of today?
A. None today.
Q. Do you have any dean of the law school?
A. I do not have.
Q. Any full-time professors?
A. No full-time professors.
Q. Any part-time professors?
A. No part-time professors.
Q. Have you been in correspondence with any pros­

pective law librarian?
A. No law librarian—no correspondence with a law 

librarian.
Q. I irst, I want to ask you: I assume it will be Negro 

teachers in your school? Those are the ones you have been 
interviewing?

A. I believe that is the law of the state, Mr. Marshall.
Q. That is true though, isn’t it?
A. Yes, sir.
Q. Do you know of any qualified Negro law librarian 

other than A. Mercer Daniels of the Law School of Howard 
University now employed?

A. I do not.



of U. S. C. et al., A ppellants— Appendix 35

Q. Do you know of any qualified law librarian who 
happens to be a Negro1?

A. I do not.
Q. Do you have a contractual agreement with any one 

to build the law school building?
A. We do not.
Q. Do you have any facilities available on your campus 

at the present time—I ’m speaking of building facilities 
not ground facilities, for law school?

A. No building as a law building. No, we have some 
space that might be used in other buildings.

Q. If you use that space, would that cut down on your 
available space?

A. It would.
Q. Didn’t you just testify you were overcrowded at 

the present time?
A. That’s correct.
Q. Do you expect it to be equally overcrowded next 

year?
A. That’s correct.
Q. Isn’t it true that if you use that space, you are go­

ing to deprive other students of that place to study in ?
A. That’s probably true.
Q. Do you have the slightest idea of the cost of build­

ing a law school ?
A. Now, when you say “ building” , do you mean the 

material building?
Q. Yes, sir, first?
A. I have some idea of building the building.
Q. For how much are you figuring it in your plans for 

the building?
A. In our plans, we estimate one hundred thousand 

dollars for the graduate building, containing space for the 
law school and other graduate—

Q. Where are you going to get one hundred thousand 
dollars ?

A. Well, we’ll have to get it from the state if we get it.
Q. Is there one hundred thousand dollars in the pres­

ent appropriation?



86 W righten, A ppellee, v. Board of Trustees

A. Not in the appropriation I answered Mr. Robinson 
—no.

Q. I mean taking into consideration all of the appro­
priations up to this day?

A. No. No.
Q. There’s not the one hundred thousand dollars avail­

able is it?
A. No, sir.
Q. As a matter of fact, isn’t it true, President Whit­

taker, that from your experience in running a general 
school and college and university, isn’t it true that you do 
not know too much about the law school, and you have to 
rely on Dean Prince?

A. That’s very true.
Q. Now, in the present appropriation for the year 

1947 and 1948, approximately how much money is avail­
able for use in setting up a law school?

A. $60,000.00 is available for all graduate work, includ­
ing law, medicine pharmacy and other fees.

Q. Doesn’t that also include out-of-state scholarships?
A. That includes also out-of-state scholarships.
Q. All of that has to come out of the sixty thousand 

dollars ?
A. That’s right.
Q. Have you ordered a law library—books f
A. No, sir. No, sir.
Q. Well, as a matter of fact, isn’t it true that as far as 

you have gotten is this appointment of this committee of 
trustees ?

A. That’s right.
Q. That’s true?
A. That’s right, yes, sir.
Q. And that didn’t happen until May of this year?
A. May 20, I believe, is the date.
Q. W hen did you personally first know about the law 

school being—
A. Oh, 1 read it in the paper when first filed, I imagine.
Q. Back in January?
A. Yes sir.



of U. S. C. et al., A ppellants— A ppendix 37

Q. And yet no action was taken by yonr board or by 
any one else connected with your school—official—I real­
ize you said you’ve been looking around—-no official action 
taken until May of this year, is that true ?

A. That’s true. You see, there’s been no need of official 
action until some money was available.

Q. I understand that—that’s the way I understand. 
Has your joint committee and this subcommittee met yet?

A. It has not yet.
Q. Has it reported? Is it ready to report?
A. Not ready to report.
Q. Hasn’t reported, of course?
A. No, sir.
Q. President Whittaker, I want your opinion as to 

whether or not in your mind, bearing in mind the difficulty 
in getting law books, the lack of adequate building space, 
the fact that you don’t have a faculty member yet, nor a 
dean, nor a librarian, do you, in your own mind, believe you 
can set up a law school by September that would be the full 
and complete equal of the law school at the University of 
South Carolina?

A. No, I don’t think so. That’s my opinion.
Mr. Marshall: That’s all.

R ecross E xamination

By Mr. R obinson :
Q. Doctor Whittaker, do you have class rooms avail­

able which you could use for fifteen additional hours on 
your campus to provide class rooms for that number of 
hours a week for first year laiv students ?

A. I think we could if the schedule were stretched out 
—I mean if the daily schedule were extended, we could 
make class rooms available.

Q. You have ample stack room in your general library 
for your law library?

A. We have space in the stack room for approximately 
fifty thousand more volumes.

Q. You have space in the stack room for approximately 
fifty thousand more volumes. Do you have a building ap-



38 W righten, A ppellee, v. Board of Trustees

propriation in a bill which has been passed by the General 
Assembly but is awaiting the governor’s action?

A. Mr. Marshall : An objection, if your Honor please 
—any building hasn’t been approved.

The Court: Yes, that’s not law.
Mr. R obinson: Counsel, in examining his own witness, 

if the Court please, went into the question about building 
space.

The Court: All right, I ’ll let him answer it.
Q. There’s a so-called surplus appropriation that is 

awaiting the governor’s action. He has until January to 
sign it, I believe? What is the appropriation for State Col­
lege in that bill?

A. Three hundred and fifty thousand dollars.
Q. Doctor, you told counsel that no money was avail­

able in ’45-1946. You mean by that that the appropriation 
of the General Assembly was a lump sum for your entire 
operation ?

A. Yes, sir.
Q. And if you had established a law school during that 

fiscal year, you would have had to use part of that money 
or part of the student fees?

A. Yes, sir.
Mr. Marshall: I object.
The Court: The appropriation fixed wdiat the money 

was for?
Mr. R obinson: No, sir, if you look in our brief, you’ll 

find for maintenance, or some such stuff as 'that.
The Court: In 1945 there was a lump sum appropria­

tion and gave him authority to establish other departments. 
You did not establish them?

Dr. W hittaker: Did not, no, sir.
Q. In your 1946 appropriation there were two items in 

your appropriation, one general item, and one for graduate 
and law. Is that correct?

A. That’s correct.
Q. That’s the bill under which you are operating until 

the end of June 1947?
A. That’s correct.



op U. S. C. et al., A ppellants— A ppendix 39

Q. Having no law school applications, yon have nsed 
that money for—allocated it for graduate work !

A. That’s correct.
The Court: That’s twenty-five thousand dollars!
Dr. W hittaker : That’s correct.
The Court : That has been used for something else! 
Dr. W hittaker : Been used for graduate work.
The Court: It ’s been used for graduate work!
Dr. W hittaker: Yes, sir.
The Court: All of it ’s been used!
Dr. W hittaker: Yes, sir.
By Mr. Marshall :
Q. How much of this $350,000.00 is earmarked for a 

law school building!
A. It ’s not ear marked.
Q. What is it for!
A. For buildings.
Q. Well, you sent in a request for it, didn’t you!
A. Oh, yes, sir.
Q. Was a law school included in that request!
A. If you’ll pardon me, I told you awhile ago that the 

request was for a graduate building.
Q. Oh, that’s the building you were talking about be­

fore!
A. That’s correct.
Q. This building is to include everything—medicine— 
A. Not medicine, no.
Q. What is it to cover!
A. Graduate work leading to Master’s degree, and 

space would be available for law.
Q. Space for a law library!
A. Yes, sir.
Q. In the building!
A. Yes, sir. You understand this is a theoretical build-



40 W righten, A ppellee, v. Board of Trustees

Norman M. Smith, sworn.

Direct E xamination

By Mr. Marshall:
Q. Mr. Smith, yon are President of the University of 

Sonth Carolina!
A. Yes.
Q. One of the defendants in this law actions?
A. Yes, that’s right.
Q. Mr. Marshall: I don’t think there’s any question 

as to my right to proceed here as an adverse witness!
The Court: Yes.
Mr. Marshall: Permission granted!
The Court: Yes, I ’ll allow it.
Q. President Smith, did you receive a letter of applica­

tion from Mr. John H. Wrighten for admission to the law 
school of the University of South Carolina!

A. I did.
Q. Do you have the file with you!
A. Yes, I have it here.
Q. I think I have the original here. Is this the original! 

You have a copy!
A. You just want me to identify them!
Q. Just identify them. This is your signature!
A. That’s right.
Mr. Marshall: Any objection!
Mr. R obinson: One is a letter to the dean of the law 

school—this one.
Clerk : Plaintiff’s exhibit A, letter of John H. 

Wrighten, dated July 2, 1946. Letter of Norman M. Smith, 
President, to John H. Wrighten, dated July 6, 1946, plain­
tiff’s exhibit B.

The Court: Admitted.
Mr. Marshall: May it please the Court, exhibit A, the 

letter from John H. Wrighten is addressed to the Dean of 
the Law School, dated July 2, 1946, and, omitting the head­
ing, it is: (READING) Dear Sir: I shall complete my 
course of study at State A. and M. College, Orangeburg, S. 
C. on January 19, 1947th Division.



of U. S. C. et al., A ppellants— A ppendix 41

I am contemplating entering Law School at the Uni­
versity the second Semester of the scholastic year-1947. 
Due to overcrowded Schools throughout the country, I am 
hereby submitting my application in advance.

All credentials regarding my qualifications etc. will be 
in due time submitted to your Office.

Thanks for the impending consideration. Very truly 
yours, John Wrighten.

The reply is from President Norman M. Smith, ad 
dressed to Mr. Wrighten.

(READING) Sir: Your letter of application to enter 
the Law School of the University of South Carolina has 
been received.

You are informed that the University is unable to act 
favorably upon this application. Very truly yours, Norman 
M. Smith, President.

Q. President Smith, the letter dated July 2 to the 
Dean was answered by you? Will you explain to the Court 
how that happened ?

A. The letter in question was forwarded to me by Pro­
fessor Coleman Karesh of the law school, and I replied in 
accordance with the letter you just read.

Q. And it was referred to you in the regular routine of 
the University? Is that correct?

A. That’s right.
Q. In your letter you stated that you regretted you 

couldn’t act favorably on his application, and I wish you 
would explain to the Court why you couldn’t admit him?

A. Because the University of South Carolina is an in­
stitution for the education of white people, and it wouldn’t 
be in accordance with the State Constitution or the statutes 
to admit Wrighten.

Q. Isn’t it true that the University of South Carolina 
has a policy of not admitting Negroes to any branches of 
the University ?

Mr. P rice : We object to that question, because the wit­
ness just stated the Constitution and the statutes—

The Court: There’s no harm in his stating—he had no 
obedience—



42 W righten, A ppellee, v. Board op Trustees

Mr. M arshall : That’s what he answered—it was not 
the policy of the University in obedience of the law of the 
land—I ’ll rephrase the question.

The Court: Yes.
Q. Giving your interpretation, in your understanding 

of what the laws of South Carolina are, as you have just 
testified, the question I wanted to know was whether or 
not the University of South Carolina follows those statutes 
in that it is operated solely for white students?

A. That is my interpretation.
Q. And that is the way you run the University, isn’t 

that true?
A. In accordance with the legal requirements of the 

state.
Q. All right. President Smith, do you or do you not ad­

mit Negroes to the University of South Carolina?
A. No.
Q. You do not admit them?
A. No, we do not admit them.
Q. Because of their race or color?
A. Because the University is for the education of white 

students only.
Q. In other words, the reason he is ineligible for ad­

mission to the University of South Carolina is because he 
is a Negro?

A. That’s right.
Q. Is that right? Is that all?
(No response.)

Cross E xamination
By Mr. R obinson :
Q. President Smith, when did you become President of 

the University?
A. First of February, 1945.
Q. When did Mr. Prince become Dean of the Law 

School ?
A. It was in August 1946—August 1, 1946.
Q. When did Mr. Needham become registrar of the 

University?
A. 20th of August, 1945.



of U. S. C. et a l, A ppellants— A ppendix 43

Q. And since those respective dates, each of the three 
of you has carried out the functions of your respective of­
fices!

A. That’s correct.
Q. President Smith, in the current appropriation bill 

which was adopted on the 2nd of May, 1947, what is the to­
tal appropriation for the operation of the University of 
South Carolina!

Mr. Marshall: If your Honor pleases, that is most 
certainly improper, unless they take the position they don’t 
have money enough to let the plaintiff in. I don’t—

The Court: I don’t see the materiality of how much 
money the University has, unless you wrant to show that 
the appropriation for the law school is on a parity with the 
appropriation for the law school at Orangeburg.

Mr. R obinson: W e’ll have evidence along that line, 
comparing the two law schools, which is the basis of plain­
tiff’s case. It ’s important to ascertain the amount of state 
aid to each of the two institutions. It ’s one of the factors 
that goes into the question of comparability.

The Court : It ’s a factor only in this sense, that it may 
show whether or not there is an adequate appropriation for 
another law school. I don’t think the factor as to whether 
it’s exactly sound to have one or two law schools—

Mr. R obinson : I agree fully, but we need the compara­
ble appropriation for the two institutions.

The Court: I ’ll let it go in and see what develops.
Q. President Smith, what is the total appropriation!
A. Two million two hundred and ninety-three thousand 

five hundred dollars.
Q. How much of that is state aid and how much fees !
A. The state contribution is five hundred and twenty 

thousand and seven hundred dollars; estimated tuition and 
other student fees, one million seven hundred and seventy- 
two thousand eight hundred dollars.

Q. What is the present enrollment at the University of 
South Carolina!

A. The enrollment for the last term, or the 1946-47 
term just ended, is four thousand one hundred and thirty



44 W righten, A ppellee, v. Board op Trustees

seven for the term just passed. In the first term of 1946-47, 
four million one hundred and sixty-seven.

Q. Four thousand?
A. Four thousand one hundred and sixty-seven; and 

for the summer term, it will be eighteen hundred; in the 
summer school, twelve hundred.

Q. Summer term, that’s the eighteen hundred?
A. Eighteen hundred, that’s a third for the summer 

term.
Q. And for the summer school, it ’s twelve hundred?
A. About twelve hundred.
Q. What is your anticipated enrollment for September, 

1947?
A. Fifty-three hundred plus.
Q. Fifty three hundred plus; and is your anticipated 

enrollment for the summer school in 1948 approximately 
what it is this summer ?

A. It should be a slight amount more.
Q. It should be a slight amount more. What was the 

pre-war enrollment at the University of South Carolina— 
what was the pre-war—

Mr. Marshall: I think there is a stage that this gets 
completely immaterial.

The Court : I think we are wandering far afield. What 
is the pertinency?

Mr. R obinson: They brought out through President 
Whittaker, they brought out the inadequacy of facilities at 
State College for the purpose of taking care of enrollment. 
Assuming the correctness of that testimony, if the facilities 
of the University of South Carolina are similarly inade­
quate, there is no difference between the treatment of white 
and Negroes, which is the basis of this suit.

The Court: One has a law school, and the other hasn’t.
Mr. R obinson: That’s true.
The Court: I think it’s all quite immaterial.
Mr. Marshall: I must say that we have deliberately 

tried to limit this, and I think that if we wanted to go into 
the things that they do not have down in Orangeburg, we 
could stay here all day on this inequality as to those two



of U. S. C. et al., A ppellants— A ppendix 45

schools. I ’m trying to stick to the one point of the law 
school. I ’m not ready—rather, I don’t want to take the 
Court’s time comparing Orangeburg and the University of 
South Carolina.

The Court : I think it will be shorter to let him answer 
these questions.

Mr. Marshall: All right, sir.
Q. What was your pre-war enrollment ?
A. Student enrollment for 1940-41 was two thousand 

and four.
Q. The last?
A. For the regular session.
Q. Your summer school enrollment was what?
A. Summer school enrollment was—I have that infor­

mation—it was less than one thousand.
Q. Less than one thousand—that’s sufficient. Out of 

the student body at the regular session of some forty-two 
hundred, how many can you house on the campus ?

A. We have accommodations for twelve hundred and 
fifty, but we crowd seventeen hundred and fifty in them.

Q. President Smith, what is your understanding of the 
control of the University of South Carolina?

A. The control of it is under the board of trustees of' 
the University.

Q. Is that board independent of the board of trustees 
of State College at Orangeburg?

A. It is, sir.
Q. Have you any connection with the State College at 

Orangeburg?
A. None whatever, sir.
Q. Does Dean Prince have any connection with the 

State College at Orangeburg?
A. No, sir.
Q. Does Registrar Needham have any connection with 

the State College at Orangeburg?
A. No, sir.
Mr. R obinson : That’s all.



46 W righten, A ppellee, v. Board of Trustees

R edirect E xamination

By Mr. Marshall :
Q. Mr. Smith, the law school of the University of South 

Carolina is a separate building, is it not ?
A. Yes.
Q. Will you please explain to the Court if there is any 

effect on law school education by the fact that the rest of 
the University is overcrowded?

A. I didn’t get that.
Q. The fact that the rest of the University is over­

crowded, does that have any effect on the law school ?
A. It ’s overcrowded, too.
Q. The question I—assuming that it ’s overcrowded, 

too—but is the fact that the rest of the University is over­
crowded, does that have any bearing on the law school?

A. The law school will have to use other rooms around 
the campus than the law school building. We are beginning 
this fall.

Q. That’s this fall?
A. Temporary buildings have been put up for the law 

school.
Q. Temporary buildings have been put up for the law 

school?
A. The University—the law school will use—
Q. What I am trying to say, President Smith, is that 

the fact that you had this jump, getting to the enrollment 
in the law school for a moment, isn’t it true that regardless 
of how crowded the University gets, it has no effect—the 
law school is crowded or overcrowded solely as to its own 
students ?

A. The overcrowding of the University affects every 
one administratively.

Q. Do the other students go into the law school?
A. No.
Q. What effect does it have on them?
A. Administratively it has an effect because the ac­

counts, correspondence, and so forth, a great deal of it is 
handled through the administrative office of the University,

Q. Granting that, is there anything else?



of U. S. C. et al., A ppellants— A ppendix 47

A. Some of the law students live on the campus in the 
dormitories and eat in the mess halls of the campus, the 
University.

Q. Anything else?
A. I don’t know of anything else.
Mr. R obinson: We have no further questions.
Mr. Marshall: That’s all.
The Court: Anymore testimony?
Mr. Marshall: No, sir, the plaintiff rests.
(The Court recessed for ten minutes.)
The Court: Proceed for the defense.
Mr. P rice, Sr.: Your Honor, the defense at this time 

would like to call the plaintiff and examine him under Rule 
43 (b) and examine him as an adverse witness.

John H. Wrighten, sworn:
D irect E xamination 

By Mr. P rice, Sr. :
Q. John, where do you live?
A. 326 Coming Street, Charleston, South Carolina.
Q. How old are you?
A. Twenty-five.
Q. Where did you receive your grammar school educa­

tion?
A. Edisto Island.
Q. Charleston?
A. Edisto Island, South Carolina.
Q. Which high school?
A. Avery Institute, Charleston.
Q. Where?
A. Avery Institute, Charleston.
Q. When you finished high school, where did you go? 
A. State A. and M. College.
Q. State A. and M. College at Orangeburg?
A. State A. and M. College at Orangeburg.
Q. There you received the qualifications you set out 

in your complaint which made it possible for you to enter 
a law school like the South Carolina University? If the 
State of South Carolina, in pursuance of laws which have



48 W righten, A ppellee, v. Board op Trustees

been passed, and the resolution of the board of trustees of 
your college, establishes a law school at Orangeburg for 
colored people, which will give you reasonably and substan­
tially a comparable legal education to that which you could 
receive at the South Carolina Law School, will you attend 
it?

Mr. Marshall: We object for two reasons: The first 
reason is the same reason we were making along—any evi­
dence of anything in the future is inadmissible; and the sec­
ond ground is there is no issue in this case as to the estab­
lishment of a school that is substantially or comparatively 
—the issue as raised in this case by the defendants them­
selves must be that the school is completely equal, and the 
question says substantially comparable.

The Court: Yes, it has to be a school that is as ade­
quate as the University law school.

Mr. P rice : That’s the question I asked, if your Honor 
pleases, substantially.

The Court: Substantially equivalent—on a parity.
Q. Well, put it that way—establishment on a parity 

with the South Carolina law school, will you attend it?
A. That’s a question I couldn’t tell you.
Q. How’s that?
A. A question I can not answer.
Q. Why?
A. Well, in the first place, the law school at State—
Q. Do you understand the question? That if these au­

thorities, the man who’s been president of your school for 
years and under whom you received your education, if he 
and those who have been ordered to establish this law school 
provide one there, that is the equal under the law with the 
University law school here at Columbia, will you attend it?

A. I think it will take me some time to answer.
Q. What is that?
A. I think it will take me some time.
Q. I 11 wait right now for a minute or two and let you 

think. Lou say you want a law education, don’t you, and if 
we 11 give it to you at a colored school as well as a white 
school, will you take it?



op U. S. C. et al., A ppellants— A ppendix 49

A. That is, if it ’s equal in all respects to the University 
of South Carolina, I ’ll attend. That is, if it ’s equal in all 
respects to the University of South Carolina, I ’ll attend.

Q. If they do establish this law school to start the first 
of September, then you are ready right now to apply for 
entrance to that school?

A. No, sir.
Q. If you have any doubts in your mind about attend­

ing, you wouldn’t go then, would you ?
A. No, sir.
Q. In other words, you would have to be the judge of 

whether or not they have set up the law school right down 
there and everything, and if you decided it was all right, 
you might go ?

Mr. Marshall : I object to argument with the witness.
Mr. P rice: I ’m not arguing; I ’m asking questions.
The Court : I think the witness has answered. He said 

if the law school was the equal of the University of South 
Carolina, he would g o ; otherwise, he wouldn’t.

Mr. Marshall: That’s why I object.
The Court : We haven’t got a jury listening. It ’s argu­

ment. I think I have the answer.
, Q. Have you replied to President Whittaker, to his last 

letter, after your letter in which you said as soon as you 
consulted your lawyer you’d let him know whether or not 
you would apply?

A. I haven’t.
Q. Have you consulted with your lawyer about that?
A. I have.
Q. What did he tell you to do ?
Mr. Marshall: I object on the grounds—
The Court: I don’t think this is necessary. I don’t 

think it’s competent, or relevant, or proper.
Q. You have not applied for that law school, have you?
A. You mean at—
Q. After talking to your lawyer, you have not applied 

for admission for law—



50 W bighten, A ppellee, v. Board of Trustees

A. I made to the University of South Carolina; not at 
Orangeburg.

The Court: Any questions?
Mr. Marshall: No questions.

W. C. Bethea, sworn:

Direct E xamination
By Mr. R obinson:
Q. For the record, will you state your name and ad­

dress?
A. W. C. Bethea, Orangeburg, South Carolina.
Q. What is your connection with State College, Mr. 

Bethea?
A. For twenty-two years, I ’ve been trustee of State 

College, Orangeburg, and about the same length of time, 
secretary of the board of trustees of State College, Orange­
burg.

Q. And you also are a member of the committee ap­
pointed to investigate the establishment and provide the 
facilities for a law education?

A. Yes, sir.
Q. With you on that committee, I believe, are Dr. Whit­

taker and Mr. Adam Moss of the Orangeburg bar?
A. Yes, sir.
Q. Does that college now provide higher education fa­

cilities for Negro students?
A. It does.
Q. Mr. Bethea, is it operated on a high scholastic 

plane?
A. It is.
Q. When did you first have any discussion of the es­

tablishment of a law school at that institution?
Mr. M arshall : If your Honor pleases, speaking of the 

board of trustees, the minutes are the best evidence. Any 
discussion of the board—

The Court: Do the minutes of the board show any 
action ?



op U. S. C. et al., A ppellants— A ppendix 51

Mr. B ethea : The minutes of 1945, of May, quoted the 
appropriation bill regarding the setting up of a graduate 
school.

The Court: Any reference to a law school?
Mr. B ethea : Just exactly like, I think, it was written 

in the appropriation bill, of which I have a copy.
The Court: Any action taken to set up a law school?
Mr. B ethea : No action taken in May, 1945.
Q. After that meeting in May, 1945, which followed 

the appropriation Act of 1945, was any investigation made 
with reference to law school facilities, Mr. Bethea?

A. Dr. Whittaker was directed to gather all informa­
tion from Southern colleges and universities regarding the 
setting up of graduate and professional schools and to re­
port to the board, which he did.

Q. Were there any applications for a law school edu­
cation during that fiscal year ?

A. None were brought to my attention.
Q. None were brought to your attention. When you 

came to discuss your 1946-47 budget with the budget com­
mission, Mr. Bethea, did you discuss the question of a law 
school at Orangeburg with the budget commission ?

A. Your Honor, I have no written minutes on that; I 
can give you what transpired.

The Court: If you’ve got the minutes, look at them—
Mr. B ethea : I haven’t got them. I  can give you what 

transpired.
Q. I don’t want the content of your discussion, I 

merely want the fact of whether or not you discussed—
A. I discussed it with the budget commission in the 

fall of 1945.
Q. That was preliminary to the appropriation Act of 

1946?
A. Yes, sir.
Q. Now, after the adoption of the appropriation Act 

of 1946, which is the appropriation for the current year, 
expiring June 30, 1947, I believe?

A. That’s right.



52 W righten, A ppellee, v. Board of Trustees

Q. Did you have any applications for a law school edu­
cation at Orangeburg?

A. None were brought to my attention.
Q. None were brought to your attention. No law school 

was, in fact, then established?
A. No, sir.
Q. Could you establish a law school without a student?
A. No, sir.
Q. Has the money which has been appropriated for the 

current year been spent on education at Orangeburg or 
committed for that purpose ?

A. For the year just finished?
Q. Year finished the end of this month?
A. Yes, sir.
Q. All your funds have been committed now?
A. We usually see to that, yes, sir.
Q. Now, shortly after the passage of the May 2, 1947, 

appropriation Act, did your board have this meeting of 
May 20, 1947 ?

A. Yes, sir, that is our regular spring meeting, May 
20,1947.

Q. That is your regular spring meeting, May 20, 1947? 
It is timed to follow closely after the appropriation Act?

A. And just before graduation.
Q. And just before graduation?
A. That’s right.
Q*. Your board adopted, took the action which the 

minutes as introduced in evidence shows with reference to 
a law school ?

A. Yes, sir.
Q. Is it the plan of the board of trustees to open a law 

school in September, 1947, at State College?
A. Yes, sir, the president has been directed to open it.
Q. The president has been directed to open it. If you 

have as many as one law student, will you open the law 
school?

A. We certainly will, yes, sir.
Q. What has your committee done towards making 

plans for the opening of this law school, Mr. Bethea?



of U. S. C. et al., A ppellants— A ppendix 53

A. We have directed the president to scour the coun­
try for his dean. On his arrival, we’ll go further into the 
matter. We have to wait until his arrival to receive his 
advice.

Q. Have you done anything towards obtaining infor­
mation about the necessary law library?

A. We have asked several months ago Dean Prince of 
the University of South Carolina law school to advise us.

Q. Mr. Bethea, why was it that your board took steps 
to open a law school in September, 1947, at its May meet­
ing?

A. The press carried that applications had been made 
to the University law school, letters of inquiry came to the 
president, Gf. I . ’s flooded the campus. It appeared proper 
to seriously consider the starting of a law school.

Q. The letters that came to the president are the ones 
we have offered in evidence here today?

A. Yes, sir.
Q. You have not as yet had actual applications?
A. None brought to my attention.
Q. You have already taken the steps to open the law 

school in September, 1947 ?
A. Yes, sir.
Q. Mr. Bethea, had John Wrighten in July, 1946, made 

application to the State College at Orangeburg for a law 
education for the semester beginning about February 1, 
1947, would he have been furnished a legal education there?

A. That allowed six months to start—yes, sir.
Q. Mr. Bethea, when the law school is opened at State 

College, do you expect to operate it on the same high scho­
lastic plane as the academic school is operated?

A. Certainly.
Q. Does your board expect to make it comparable to 

the law school at the University of South Carolina.
A. W e’ll strive to make it better.
Q. You’ll strive to make it better?
A. Yes, sir.



54 W righten, A ppellee, v. Board of Trustees

Q. I asked Dr. Whittaker about your current appro­
priations. Is his testimony on that point correct, Mr. Be­
thea ?

A. I think it is substantially correct—may be a thou­
sand dollars one way or the other there.

Q. His testimony about the present student enroll­
ment?

A. That’s substantially correct.

Cross E xamination
By Mr. Marshall:
Q. Mr. Bethea, when you testify that if you get an ap­

plication that your school will set up a law school in Sep­
tember, isn’t it true you are speaking for yourself alone?

A. Well, of course, I ’m one of six members.
Q. It would have to come up again before the trustee 

board?
A. Legally that’s correct.
Q. And you say if the application had been made to 

Orangeburg for a law school in June of last year, that with 
your budget you could have set up a law school within six 
months ?

A. Well, the reason I mention six months, it would take 
several months to assemble a faculty. We had a lump sum 
appropriation.

Q. Of how much?
A. That was 1946-47.
Q. I mean how much of the lump sum was available 

and not budgeted for other uses?
A. It was not budgeted at all, a lump sum.
Q. As of when?
A. July, 1946.
Q. When was it budgeted, allotted?
A. Allotted, I presume—it’s the usual custom in the 

May meeting just prior to that.
Q. It ’s the usual custom in the May meeting just prior 

to that. So that if an application was made in June, you’d 
have to do some reallocation?

A.  ̂ery true, and also to apply to the contingent fund 
of the legislature.



Q. Still, without the question of applying for the con­
tingent fund, which was after all contingent?

A. That’s right.
Q. With the budget, the amount of money you had, 

could you have set up a law school with a building of its 
own, with a dean and four full-time professors, including 
the dean, and a full-time qualified law librarian, and a law 
library of at least ten thousand carefully selected law books, 
according to the Association of American Law Schools, and 
with a sufficient reading space for each student, including 
office space, full permanent office space for each full-time 
professor—could you, under any circumstances, without 
using the contingent fund have set that up in six months ?

A. To begin there, your building there would take a 
very large amount of money. Answering your entire ques­
tion, we could not have done that including that building. 
We have space available in our school. The law school in 
North Carolina for Negroes have no law library separate.

Q. What school?
A. North Carolina.
Q. Is that accredited by the American Association?
A. I don’t know. We have applied to them for advice, 

that is our sister state, for advice.
Q. Well, assuming that, the rules of the accrediting 

agency for law schools in the United States require the 
information I have given in my last question to you, in­
cluding a separate building, and a separate library—then, 
under any circumstances, could you as of June or July of 
last year, set that law school up in six months ?

Mr. P rice : We want to object to that question on the 
ground the test in this case is not what some association 
of law colleges may or may not do, what may or may not 
be their standards. The test is whether or not we can at 
Orangeburg establish a law school which will be in sub­
stantial comparison in an educational manner, not whether 
or not it may have all these associations, affiliations or 
other things that do not enter into the education, but 
whether or not we are able under the law of the United 
States to furnish at Orangeburg, establish a law school

op U. S. C. et al., A ppellants— A ppendix 55



56 Wrighten, A ppellee, v. Board of Trustees

which will he in substantial, comparable compliance with 
the other law school in this state for white men.

Mr. Marshall: I ’ll withdraw the question and re­
phrase.

Q. Have you seen the law school building at the Uni­
versity of South Carolina ?

A. Never have.
Q. As of June or July of last year, without using the 

contingent fund, could you have built a building having at 
least three class rooms, library space for more than ten 
thousand volumes, a separate law library, space to study 
in, four full-time professors and eight part-time profes­
sors, a dean, a law library, in six months ?

Mr. P rice: We still object to that on the ground it is—
The Court: He can answer the question. You can ar­

gue that it isn’t neeessarv. He can answer.
A. As far as the building is concerned that would have 

been impossible last year. As far as the faculty is con­
cerned, I think a faculty could have been assembled. As far 
as the law books are concerned, I couldn’t answer.

Q. Mr. Bethea, how many members—as I understand 
it, you don t have any members of the faculty of the pro­
posed law school as yeti

A. Not as yet. W e’ll have one next week.
Q. You are hoping to get one next week!
A. We expect to have a good dean next week.
Q. Have you examined his qualifications?
•A- He comes from South Carolina, one of our old stu­

dents. He’ll be all right, I believe, if he’ll accept.
Q. Oh, if he’ll accept.
The Court: Any other questions?
S. L. Prince, sworn:

Direct E xamination
By Mr. R obinson:
Q. Mr. Prince, what is your position at the University 

of South Carolina?
A. Dean of the law school.
Q. When did you become Dean of the law school?



op U. S. C. et al., A ppellants— A ppendix 57

A. Last summer.
Q. Will you briefly tell us of your college and law 

school education, Mr. Prince?
A. I was graduated from Wofford College at Spartan­

burg in 1907, and I studied law with my father for some 
four or five years. He was a member of the state bar, on 
the circuit bench—on the circuit bench—and I entered the 
practice in 1912, and since that time I practiced in the firm 
of Watkins and Prince, which firm we formed in 1914, until 
I left the firm last summer.

Q. You are then a graduate of any law school?
A. No, sir.
Q. Mr. Prince, this application of John Wrighten to 

the law school, I believe, came in in your absence ?
A. That’s correct.
Q. And it was handled by persons at the University 

other than you?
A. Yes, sir, Mr. Karesh, Professor Karesh.
Q. Professor Karesh and President Smith?
A. Yes, sir.
Q. You had nothing to do with the handling of that 

application ?
A. No, sir.
Q. Mr. Prince, what is the present enrollment of the 

law school of the University of South Carolina?
A. Two hundred and thirty-two for these two past se­

mesters, with two hundred and one actually left in attend­
ance during the last past semester.

Q. That semester ended during the latter days of May?
A. That’s correct.
Q. Now, you start in to another semester on what date?
A. The 9th.
Q. Of June?
A. Of June, yes, sir, but that is not for first year stu­

dents. W e’ll take freshmen in again in September.
Q. When does the spring semester start?
A. The first of February.
Q- The first of February. When does your next regu­

lar session of the law school start?



58 Wrighten, A ppellee, v. Board op Trustees

A. 19th of September.
Q. 19th of September, 1947!
A. Yes, sir.
Q. What is your expected enrollment at that time!
A. I would judge around three hundred.
Q. You would judge around three hundred!
A. Yes, sir.
Q. You judge that from applications already in and 

interest shown!
A. Yes, sir. We have something over one hundred and 

fifteen applications for freshmen already, and there would 
he one hundred and fifty to one hundred and seventy-five 
old students.

Q. What was the pre-war enrollment at the university?
A. The University?
Q. I mean the law school?
A. Oh, in 1940, one hundred and thirty-nine.
Q. In 1940, one hundred and thirty-nine ?
A. Yes, sir.
Q. That was among the highest enrollments that the 

law school has ever had?
A. That’s correct. Starting with 1910, I notice it was 

eighty.
Q. Starting with 1910, you notice it was eighty. During 

the war years, I take it, the enrollment fell off?
A. Very much.
Q. Very much?
A. Down to just a handful of students.
Q. Down to just a handful of students?
A. Yes, sir.
Q. How many professors made up the pre-war faculty 

at the law school?
A. There were six, four full-time and two that taught 

teachers, but engaged in practice also.
Q. \\ as the faculty the same when you came to the law 

school in the summer of 1946?
A. Yes, sir.
Q. Six men, four full-time men and two part-time still 

with you, and you took Dean Frierson’s place?



of U. S. C. et al., A ppellants— A ppendix 59

A. That’s correct.
Q. In addition to faculty members, have you called on 

lawyers of the Columbia bar to assist you to help in teach­
ing?

A. Yes, sir, six of them that teach from three to six 
hours a week.

Q. Why did you do that, Dean Prince?
A. Because of the heavy enrollment of Freshmen.
Q. Because of the heavy enrollment of freshmen?
A. Yes, sir.
Q. What classroom space do you have in the present 

law school building?
A. We have three classrooms and we have to use what 

we know as Abner Library as a classroom also. This fall 
we’ll have classrooms outside of the law building.

Q. This fall you’ll have classrooms outside of the law 
building ?

A. Yes, sir.
Q. Are any of those classrooms adequate to house your 

present freshman law class?
A. No, sir.
Q. So you have had to divide your classes?
A. That’s correct.
Q. What is the approximate number of books in your 

law school library?
A. Approximately twenty thousand.
Q. Approximately twenty thousand. Does that include 

duplicates ?
A. Yes, sir.
Q. Include out-of-date books?
A. Includes all the books.
Q. Includes all the books?
A. Yes, sir.
Q. Is a considerable portion of your library out-of- 

date books?
A. Yes, sir, that’s true of any law library. They may 

have some historical value; no substantial value.
Q. Do you have sufficient stack room in the law school 

building to accommodate your books ?



60 Wrighten, A ppellee, v. Board of Trustees

A. No, sir.
Q. What do you do with the books that can not be ac­

commodated in your stack room?
A. Scattered over the counter, some in the general li­

brary, some in the school of commerce, and, I reckon, two 
or three thousand of them stacked on floors.

Q. Stacked on the floors?
A. Yes, sir.
Q. Do you have separate offices in that building for 

the members of the faculty?
A. There’s an office for the dean, and there’s one of­

fice in addition there for the rest of the faculty, and there’s 
one, kind of a cubbyhole room, that one of the professors 
uses that is connected with the Abner Library, but it isn’t 
practical to use it because you have to go through the class­
room while classes are going on to get to it.

Q. You do not then have separate offices for members 
of your faculty?

A. No, sir.
Q. Do you have any lounge space for your students to 

leave their coats?
A. No lounge space, no locker space, no, sir.
Q. Do not have any lounge space, no locker space. 

What do they do with their books and coats and hats?
A. Put them on the floor, largely. Recently we have 

gotten some little shelves in the hallway just to keep them 
up off the floor, but they don’t protect them otherwise than 
to keep them from being stepped on.

Q. "YV hat are the sizes of the present classes at the Uni­
versity?

A. The freshman class of last September had one hun­
dred and three in it, and then by additions and withdrawals 
dwindled down to seventy-seven. The junior class has some 
sixty odd in it; the January7 seniors were about twenty or 
tventy-five, and the June seniors were about twenty or 
twenty-five.

Q. W hat freshman class do yrou expect in September?
A. Class of one hundred and fiftv.
Q. Class of one hundred and fifty?



of U. S. C. et al., A ppellants— A ppendix 61

A. That’s right.
Q. What is the maximum that you can teach in any of 

your classrooms'?
A. About sixty.
Q. About sixty?
A. Yes, sir. Except in the Abner Library, which isn’t 

accommodated for classrooms at all. We can put ninety to 
one hundred, but they are terribly crowded together and 
no space for elbow room.

Q. And that’s a portion of your library?
A. Yes, sir.
Q. Dean, can you go over briefly the books in your li­

brary that are used by your students in connection with 
their courses, which of the books are generally used?

A. Well, of course, the books that are mostly used are 
South Carolina Reports, and we have quite a number of 
duplications there. We try to keep at least five separate 
sets on the shelves. Then the United States Supreme Court 
Reports, and the Northeastern Reporter is used substanti­
ally, the Atlantic Reporter is used substantially, and, of 
course, they use Corpus Juris, Corpus Juris Secundum, 
use the encyclopedia.

Q. Selected Case Series used to any extent, A. L. R.?
A. Oh, yes, sir.
Q. The statutes of the federal government and the 

state?
A. That’s correct, yes, sir.
Q. What about textbooks?
A. We have a fair library of textbooks, but not as com­

plete as we want it.
Q. Do students use those to any extent?
A. Some extent, yes, sir.
Q. What about the remaining sets of the National Re­

porter System—are they used additionally?
A. They are there for them, and, of course, when foot­

notes require or indicate they are to be used, why the stu­
dents are supposed to use them, yes, sir.

Q. What about the Federal Reporter ?
A. Yes, sir.



62 W righten, A ppellee, v. Board of Trustees

Q. And also the Federal Supplement?
A. That’s correct.
Q. Do the students make any use of your English De­

ports?
A. Very little, if any, as far as I know, because we 

heven’t had any special courses in special research that 
take them there, but we have them available.

Q. Do your students use your law reviews?
A. Yes, to some extent, where they are referred to in 

the footnotes of the case books.
Q. Do they use the state reports which antedate the 

reporter system?
A. Not much, other than the South Carolina Reports.
Q. Not much, other than the South Carolina Reports?
A. Yes, sir.
Q. Dean Prince, have you made a computation of the 

budget of the law school for the current year?
A. Yes, sir.
Q. What is the amount of the expenditure?
A. It ’s $53,000.00—I can give it to you exact.
The Cou rt : For the current year, or incoming year?
Mr. P rice : For the current year, July to July, Judge.
The Court : 1946-47?
Mr. P rice : Yes, sir; that’s estimating the month of 

June of 1947.
Q. $53,000.00?
A. $53,260.65.
Q. That includes the law school shelves, administra­

tion, repairs, all those items ?
A. Yes, sir.
Q. What are the total receipts from fees, tuition fees, 

at the law school for the same period?
A. $65,153.50.
Q. So from the University’s standpoint, the law school 

is currently more than paying its way?
A. Yes, sir.
Q. Dean Prince, can you estimate the receipts and dis­

bursements for the next fiscal year for the law school?



of U. S. C. et al., A ppellants— A ppendix 63

A. Well, this would be in proportion to the students 
that are estimated to be coming—the income ought to be 
some eighty or ninety thousand dollars, and we have some 
additional expense in operation because we’ll have to have 
at least three additional part-time teachers, and that will 
be three or four or five thousand dollars, depending on the 
circumstances.

Q. You estimate then that your receipts from tuition 
fees for the next fiscal year as between eighty or ninety 
thousand dollars, and your expenditures between fifty-five 
and sixty thousand dollars?

A. Something like that, yes, sir.
Q. Dean Prince, is the law school building at the Uni­

versity of South Carolina, which you are now using, ade­
quate for the teaching of the enrollment which you now 
have there?

A. No, sir.
Q. Is your space for the library adequate for the teach­

ing of the students that are now there ?
A. No, sir.
Q. Is the space available for offices for the faculty ade­

quate for them?
A. No, practically nothing there.
Q. Are you familiar with the history of the law school 

at the University, Dean Prince ?
A. Somewhat, yes, sir.
Q. You know practically when it was established?
A. 1868.
Q. Do you know how long it operated with one faculty 

member?
A. Till about 1900.
Q. And do you know when the six-man faculty was 

finally put in at the University, approximately ?
A. The late ’30’s.
Q. Do you know when the present law school building 

■was built?
A. 1919.
Q. Do you know what its cost was ?
A. I think it was sixty thousand dollars.



64 W righten, A ppellee, v. Board op Trustees

Q. Have you been requested by the authorities at State 
College to assist them in obtaining information about an 
appropriate library to be erected there?

A. Yes, sir, Dr. Whittaker and Mr. Bethea both talked 
to me about it.

Q. What did you do with regard to it?
A. I have communicated with a publisher, Mackey and 

Company in Virginia, and I have also kept my eyes open 
to spot good law books. I mean books that are necessary 
where I could see where I could find them, and to get prices 
and such as that, and to let the people know who are in­
terested in selling law books that I know that would be 
likely to be in the market—I think they already know that 
—I think they’ve been to Orangeburg and visited Dr. Whit­
taker and maybe Mr. Bethea.

Q. What volume of works have you gotten a price on, 
figures on, Dean Prince?,

A. May I refer to my memorandum?
Q. If you please, yes.
The Court: Certainly.
A. This includes about seventy-five hundred volumes.
Q. Does it include all of the named volumes as shown 

in the list of the Association of American Law Schools?
A. Yes, sir.
Q. At what price can those seventy-five hundred vol­

umes be purchased now, according to the information you 
got?

A. $37,027.00.
Q. $37,027.00. Do you have the price of the books sec­

ondhand?
A. Yes, sir, we could get those for $24,289.00.
Q. Are many of the books in the South Carolina law 

school library secondhand books?
A. The vast majority, yes, sir:
Q. The vast majority?
A. Books wear out—they are in a worn condition, 

man} of them. W e try to keep them up, keep them repaired.
Q. Dean Prince, in your opinion, can a law student ob­

tain a better education in a small class than in a large class, 
assuming its facilities are equivalent?



op U . S. C. et a l,  A ppellants— A ppendix 65

A. Yes, sir.
Mr. Marshall: If your Honor please, I was waiting 

for the end of the question to object. I understand that opin­
ions are restricted to expert witnesses, and this witness on 
the stand has had a connection with a law school for one 
year. I don’t think he’s expert as to the type of education 
that can be gotten in a law school, not after one year.

The Court: Y ou might ask him a few questions. After 
all, an expert is one who says he knows more.

By Mr. Marshall :
Q. Prior to the deanship at the university, have you 

taught in a law school?
A. I have taught; not in a law school.
Q. You never taught in a law school—you didn’t at­

tend a law school?
A. I did not.
Q. Your only connection with a law school then is one 

year, is that correct?
A. Well, a conventional law school, yes. I have at­

tended many institutes.
Mr. P rice : We object to that line of examination. We 

don’t think—if a lawyer who has practiced law for thirty 
years—

By the Court :
Q. Have you made a study of legal education?
A. Judge, I ’ve been very much interested in education 

all my life. I was chairman of the board of trustees at the 
Anderson public schools for many years, sat on the board 
for eighteen years, chairman of the teacher’s committee for 
nearly all of the eighteen years. I taught at Lander College 
for five years, have attended four law institutes. I ’ve been 
very much interested in education generally and in the le­
gal education, too—I was on the state board of law exami­
ners for seven years.

Q. Examiners—
A. Have had—
Q. Do you consider yourself competent to give an opin­

ion as to the quality of law schools’ work and size of classes 
and nature of teaching ?

A. I feel so, Judge.



66 W righten, A ppellee, v. Board of Trustees

The Court : I ’ll allow it.
Mr. P rice : I mean I have definite ideas about it.
The Court: All right, sir.
A. Yes, sir, I think that the small class where the in­

structor comes in contact with the student more and more 
is the most efficient method of teaching.

D irect E xamination
By Mr. R obinson (continued):
Q. Does a small class permit the student to be called 

on more frequently than in the large class?
A. Yes, sir. In my own teaching, I try to get the boys 

up front on their feet to think on their feet so that they can 
know what they meet when they get out into practice.

Q. Is there a greater chance for a student to loaf in 
a large class or a small class?

A. Large class.
Q. In a small class is it necessary for him to be pre­

pared practically every day?
A. Yes, sir.
Q. Dean Prince, assuming that the trustees at Orange­

burg State College will be able to acquire the seventy-five 
hundred volumes that you have suggested, and assuming 
that they obtain law professors of equivalent ability to 
those on your faculty, tell us whether, in your opinion, John 
Y  righten can obtain as good legal education at the Orange- 
burg State College as he could at the University of South 
Carolina law school!

Mr. Marshall : TV e object to asking the witness to de­
cide the case—that’s the whole case.

The Court: Entirely speculative. In other words, the 
answer is going to be if Orangeburg is just as good as Co­
lumbia, would it be just as good for John Wrighten. I know 
what his answer will be—let him answer it.

A. Yes, sir. Is that correct, Judge!
The Court: Yes.
Q. Do you have an expert librarian at the University 

of Soutli Carolina law school?
^  e have a good librarian. She’s a graduate, a law 

graduate, and she s taking training now. She never had



of U. S. C. et al., A ppellants— A ppendix 67

special training before, other than some observation, but 
we expect eventually to have her a well-trained law li­
brarian.

Q. I believe you told us that some of your classes next 
fall would have to be out of the law school building ?

A. Yes, sir.
Q. In reverse, during the war, when your law enroll­

ment went down, I believe the academic school used some 
of your class rooms ?

A. That’s what I understand. We have commercial stu­
dents come into the law library now. The building, it is true, 
is separate from the other buildings, but it ’s almost sur­
rounded by a building within seventy-five feet and by a ten­
nis court within twenty feet.

Q. Dean Prince, is there anything else to throw light 
on this case that occurs to you that I haven’t asked ?

A. Nothing that occurs to me, sir.

Cross E xamination
By Mr. Marshall:
Q. Dean Prince, despite all you have testified to about 

the terrific hardships under which you are teaching at the 
law school of the University of South Carolina, is it still 
true that a graduate of the law school of the University of 
South Carolina is admitted to the bar of the State of South 
Carolina without examination!

A. Yes.
Q. Despite all of that?
A. Yes.
Q. Still true, and a group of them were admitted a 

couple of days ago without examination?
A. That’s correct.
Q. Wouldn’t it be in your mind, opinion, that in order 

for John Wrighten to get an equal education, to get his 
equality, under the Fourteenth Amendment to the Constitu­
tion, that he get his education in a school where upon, after 
graduation, he would be admitted to the bar of South Caro­
lina without an examination ?

A. No.
Q. You do not consider that a question of equality?



68 W righten, A ppellee, v. Board of Trustees

A. I do not. I think it ’s a detriment.
Q. You think it ’s a detriment!
A. Yes, sir.
Q. Oh, you are a former member of the bar examiners, 

aren’t you!
A. Yes.
Q. And you think they should take bar examinations!
A. I do. The American Bar Association thinks so, too.
Q. Have you—-you testified that you thought yourself 

competent to discuss the relative value between small and 
large law schools, is that correct!

A. To a certain extent, yes.
Q. Have you done any studying on the problem!
A. I don’t know what you mean by studying on the 

problem.
Q. Have you read anything, any book that discussed 

the problem, or the comparison of small and large law 
schools !

A. No, I wouldn’t say I have.
Q. For example, are you familiar with the article in 

3 American School Review, 309, published in T4 by Wil­
liam R. Vance of the University of Minnesota, an article on 
the function of the state supported law school? Are you fa­
miliar with that article ?

A. No, I am not.
Q. Are you familiar with the 20 Oregon Law7 Review, 

page 281, 1941, the Dean of the University of Kansas City 
on the smaller law school, are you familiar with that ar­
ticle ?

A. I don’t believe that I have read that one.
Q. Are you familiar with the entire volume, “ The 

Present Day Law Schools,”  a book written by Alfred S. 
Defore of the Carnegie Foundation, published in 1928!

A. No.
Q. Are you familiar with minutes of the tenth annual 

meeting of the American Association of Law Schools where 
the problem w7as first discussed?

A. No.



of U. S. C. et al., A ppellants— A ppendix 69

Q. Are you familiar with 15 Tennessee Law Review, 
179, by the President of the Association of American Law 
Schools, Mr. Herschel W. Arant, ‘ ‘ Survey of Legal Educa­
tion in the South,” —are you familiar with any of those 
articles ?

A. No, I am not.
Q. As a matter of fact, when you say you are compe­

tent to pass on the value of small and large schools, you are 
talking about your individual, personal opinion, are you 
not?

A. Largely.
Q. Have you ever been in a small law school?
A. Been in a small law school?
Q. Yes, sir.
A. You mean visited?
Q. See it operate?
A. Oh, yes.
Q. Which small law school?
A. All right, North Carolina, Duke, Georgetown, 

George Washington, University of Florida, Virginia, Uni­
versity of Virginia.

Q. Have you been in large ones ?
A. No, I ’ll be in Columbia this next week.
Q. Do you know under the articles that have been writ­

ten in comparing them and under the committees of the 
Association of American Law Schools, the number of stu­
dents that are agreed to be in a large school or small school?

A. I do not.
Mr. P rice : We object to that. The law in this state is 

that a witness may not be cross examined on expert books 
as to what the contents are—that’s not permissible under 
the law of this State—ask about what some man in New 
York or Massachusetts or some writer has written about 
law schools.

The Court: He said he doesn’t know.
Mr. Price : We say it ’s not proper to ask him about the 

contents of it.
The Court: Proceed.
(The reporter read back the question, as requested.)



70 Wrighten, A ppellee, v. Board of Trustees

Q. Will you answer, Mr. Prince?
A. No, I do not.
Q. Dean Prince, is the law school of the University of 

South Carolina a member of the Association of Law 
Schools ?

A. It is.
Q. Is it also accredited by the American Bar Associa­

tion ?
A. It is.
Q. Is there any other accrediting agency that accredits 

law schools?
A. None that I know of.
Q. As a matter of fact, those are the two accrediting 

agencies, is that correct?
A. Well, I ’m a member of the American Bar Associa­

tion.
Q. I mean, aren’t you the representative of the law 

school of the University of South Carolina on the associa­
tion?

A. That’s correct, yes.
Q. Are you the one who attends conventions?
A. That’s correct.
Q. And does the University of South Carolina law 

school meet the standards of the American law schools as 
of today?

A. We have recently been checked over, inspected, and 
we’ve been told that we operated the school satisfactorily 
except for housing.

Q. On this question of the library that you have—
A. Yes.
Q. At the University of South Carolina, for example, 

you say that the students do not make much use of English 
reports?

A. As far as I know, we haven’t been able to do much 
research work, not this year.

Q. Don't you teach legal bibliography!
A. Why certainly.
Q. Don't you teach English Beports and English re­

ports in bibliography?



of U. S. C. et al., A ppellants— A ppendix 71

A. We do not require them to go study the English re­
prints or English Reports, but they are explained to them, 
yes, sir.

Q. Don’t they go and look at them?
A. I would judge they do.
Q. Don’t you teach contracts?
A. I do not.
Q. I mean somebody teaches contracts, isn’t that cor­

rect?
A. Yes, sir,—sure.
Q. Don’t they use English reprints in that?
A. Personally I do not.
Q. What subjects do you teach?
A. I teach equity.
Q. Don’t you use them in equity?
A. In the case books, yes. There are many cases from 

the reprints and reports from the case books we use.
Q. Do you have with you a copy of the proceedings of 

the Association of American Law Schools which shows the 
standards ?

A. Yes. (Producing book.)
Q. Do you have any objection to us putting that in evi­

dence? I mean, is it your only copy?
A. No—sure.
Mr. Marshall : Do you have any, Mr. Robinson ?
Mr. R obinson: I don’t think that’s competent, your 

Honor. The test is whether the end result will give this man 
a legal education.

Mr. Marshall: T wo things, sir: The only part I ’m in­
terested in, the standards—the evidence is that the Univer­
sity of South Carolina has not only been accredited but 
meets the standards of the statutes of South Carolina, that 
admits to the bar without examination, says, either a gradu­
ate of the University of South Carolina or a school ap­
proved by the Association of American Law Schools. I 
think the standards are most certainly material to this case.

The Court: Y ou may question him on it without put­
ting the whole book in.



Mr. Marshall: N o, sir, I  just wanted to have the sec­
tion that I would designate put in the record. Then we could 
have that duplicated and the hook—I most certainly didn’t 
want to put the whole hook—I can ask Dean Prince the 
standards—all in a few pages.

Mr. Pbice: We object on the ground the book—it’s 
not the standards we are trying. We don’t care what some 
crowd of professors in New York or Massachusetts have 
ruled about, an association that may or may not he bene­
ficial to the school, but which do not affect the question of 
the proper legal education, which is all the State of South 
Carolina will be required to give this plaintiff, and the test 
is whether or not this school will be able to give him rea­
sonably a—substantially—that’s the word the decision 
used—the same legal education which he would obtain at 
this school here in Columbia—would he get substantially 
the same at Orangeburg. It ’s not to he tried, in my humble 
judgment, by the rules and regulations of some association 
of law schools which, I understand, only about two-thirds 
of the law schools of the country belong to.

The Court: The South Carolina statute provides two 
standards for admission: One is graduation from the South 
Carolina University law school, and the other is meeting 
the standard of the American association.

Mr. Marshall : Association of American Law Schools.
The Court: Therefore, I think—he’s testified on the 

University of South Carolina. Let him testify, if he knows, 
as to what standards are required by the American Asso­
ciation.

Q. Do you have the standards there, Dean Prince?
A. Yes, I have.
The Court: Before we go into that, what is the stat­

ute? I recollect the substance—does it say law school of the 
University of South Carolina?

Mr. Marshall: I don’t remember the exact language. 
If I get the first volume of the Code, sir, I can find it.

The Court : Get that in, because I want to know the ex­
act language of it.

72 W righten, A ppellee, v . Board op T rustees



of U. S. C. et at., A ppellants— Appendix 73

Mr. Marshall : I ’m not sure just how the first part was 
worded, but I did see the Association of American Law 
Schools.

The Court: Have you the second one?
Mr. Marshall : 320.
The Court: 320?
Mr. Marshall: Yes, sir. 320 of the ’42 Code— ’42 Code, 

sir. If your Honor pleases, the particular sections we want 
marked to be copied and the volume withdrawn, are pages 
215 to and including 223 of the Association of American 
Law Schools, 1946 Handbook, being Chapter IV, Articles 
of Association.

The Court: Has it a date?
Mr. Marshall: It says 1946; it appears to have been 

printed in 1947.
The Court : Printed in 1947 ?
Mr. Marshall: Yes, sir.
Mr. R obinson: 1946 Handbook. Your Honor, under 

that, our objection is its relevancy.
Mr. Price: I proceed further—the question of admis­

sion to the bar when a man graduates is one thing, and his 
education—I have always thought it faulty, and it ’s agi­
tated all over- the country as to whether he should be ad­
mitted to the bar without further examination—that’s not 
what we are concerned with. I am satisfied if the law is still 
maintained after a colored youth demands that he be ad­
mitted the same as the law school here, if this law is still 
in existence at this time—

The Court: That’s why I asked for the statute. I 
wanted to know if the statute limited it to this school or—

Mr. Price : Any other law school in the state, a mem­
ber of some association. Of course, at that time that amend­
ment was put in—originally it only provided for the ad­
mission under that Act of a South Carolina law student. 
Then, some time later, this addition was put in there that 
would apply to any other law school in the state, not those 
outside the state, but those in the state.

The Court: I ’d like to see the section.



74 W righten, A ppellee, v. Board op Trustees

Q. Dean Prince, the exhibit, plaintiff’s exhibit C, which 
was just put in evidence, are those the regulations and 
standards of the Association of American Law Schools that 
are in effect today?

A. Yes, you have to be elected a member of the As­
sociation, and they state that their membership will come 
from this group, though it ’s my observation that they are 
still rather liberal in their interpretation of those regula­
tions.

Q. Is that gathered from your one meeting you have 
attended! You have only been to one!

A. That is correct.
Q. You gathered that from one meeting?
A. From one meeting and the report in that book.
Q. But none of that has been accomplished yet—so 

that all here you are speaking about what might happen 
in the future ?

A. No, the statement was made on the floor as to how 
the executive committee functioned.

The Court: The University law school is a member of 
the Association?

Mr. P rince : Yes, sir. Has been since 1924 or 1925, I 
forget the exact date.

Mr. Marshall: If your Honor please, I don’t think 
there are any further questions.

R edirect E xamination
By Mr. R obinson :
Q. Mr. Prince, you say you were opposed to the Uni­

versity law school having this so-called diploma privilege?
A. Yes.
Q. Why?
Mr. Marshall: I most certainly object to this—the 

statute is in existence whether he thinks it good or bad.
The Court : I don’t think it very much matters whether 

he is opposed to it or not.
Q. Is it, in your opinion, an advantage or a detriment?
A. Detriment.
The Court: Students can stand examinations if they 

want to?



OF U. S. C. et a l, A ppellants— Appendix 75

Mr. P rince : Yes, sir, and many of them are. My obser­
vation in the field of education is that examinations at the 
end of the completed effort or course are thought to be the 
best system. It ’s true at Oxford University; it ’s true at the 
University of Chicago, and I felt that it was true here.

Q. In your opinion, would it be an advantage to the 
law graduate of the University of South Carolina if that 
privilege of being admitted by examination, without exami­
nation, were revoked?

A. Would it be an advantage to the University?
Q. Would it be an advantage to the student?
A. I think so.
Q. Now, Dean, I neglected to ask you—do you have 

books in your library, duplicates, which could be loaned to 
Orangeburg if they wished?

A. W e’d be glad to lend them many books.
Q. Can you give an approximation of how many you 

might have for that purpose?
A. Any books they needed they didn’t have, why we’d 

be happy to lend them, could get them to them in twenty- 
four hours ’ time, less time than that.

Q. On a more or less permanent basis, until the library 
could be built up, would you have volumes that could be left 
down in Orangeburg?

A. Oh, yes, sir. Yes, sir.
Q. Approximately how many, could you give me an 

idea?
A. Oh, I expect we could lend them five or ten thou­

sand.
R ecross E xamination

By Mr. Marshall :
Q. You had testified that you had twenty thousand vol­

umes?
A. Yes, I expect twenty or twenty-two thousand.
Q. So that if you let the law school at Orangeburg have 

ten thousand, you’d have to get out the American Associa­
tion?

A. No.



76 W righten, A ppellee, v. Board of Trustees

Q. Don’t they—doesn’t the American Association of 
Law Schools require ten thousand!

A. That is the rule.
Q. So that with ten thousand you would just be on the 

line, wouldn’t you!
A. Why, yes, you can interpret that.
Q. Didn’t you testify that you had so many students 

that your facilities are all jammed to capacity!
A. That’s correct.
Q. And you can still let somebody else have some 

books!
A. Why, yes.
Mr. Marshall: That’s all.
Mr. Price: I don’t like all this merriment in the court­

room.
The Court: Order in the courtroom. Mr. Marshal, if 

the audience makes a demonstration in the courtroom, put 
them out.

(The Court recessed until 3 p. m.)
Continued at Afternoon Session, June 5,1947.
Jack Lott, sworn:

D irect E xamination
By Mr. R obinson :
Q. Mr. Lott, where is your home!
A. Johnston, South Carolina.
Q. Lou were born and spent your early years in this 

state!
A. Yes, sir.
Q. Where did you receive your academic education!
A. University of Virginia.
Q. Where did you receive your law school education!
A. University of Virginia.
Q. Did you take graduate law work after that!
A. Les, sir, Cornell University.
Q. Cornell University. After you left Cornell Univer­

sity, did you enter into the teaching of law!
A. Yes, sir, I went to the University of Louisville, 

school of law.



of U. S. C. et a l, A ppellants— Appendix 77

Q. University of Louisville, school of law?
A. Yes, sir.
Q. What year did you begin teaching that ?
A. 1933.
Q. 1933?
A. Yes, sir.
Q. As a member of the law faculty?
A. That’s right.
Q. How long did you teach there, Mr. Lott?
A. I taught there until June of 1942.
Q. You taught there until June of 1942?
A. Yes, sir.
Q. Did you teach at any other law school?
A. Yes, sir, I did part-time teaching at the University 

of Indiana.
Q. You did part-time teaching at the University of In­

diana ?
A. Yes, sir, and while a graduate student at Cornell 

University, I also did some teaching.
Q. While a graduate student you also did some teach­

ing at Cornell?
A. Yes, sir.
Q. Did you do some teaching at Furman University in 

this state?
A. Yes, sir, I did that immediately after graduating 

from the University of Virginia law school, between 1930 
and 1932.

Q. Furman law school ?
A. Furman law school, yes, sir.
Q. Mr. Lott, during that teaching profession, did you 

teach small law classes and large law classes?
A. Yes, sir. At Furman, I had some very small classes, 

some as small as six or eight, and I had some small classes 
at Cornell. Classes at Louisville ranged from twenty to 
thirty-five, I would say, possibly some smaller.

Q. At the University of Virginia, when you were a stu­
dent, what were the sizes of the classes ?

A. I believe my first year the class had one hundred 
and twenty-five in it.



78 W righten, A ppellee, v. Board of Trustees

Q. The other classes were smaller?
A. Smaller proportionately. I believe the class in which 

I graduated numbered about sixty.
Q. You believe the class in which you graduated num­

bered about sixty. At Cornell University, when you were 
taking graduate law work, what were the sizes of your 
classes?

A. My classes in graduate work were small, ranging 
from ten to twelve, some smaller, some as small as six.

Q. Now, you said you taught at Louisville until 1942. 
Have you taught there since that time?

A. Yes, sir, after getting out of the Army in 1945, I 
went back. That was in October of 1945—I went back there 
and taught until June of last year.

Q. When you left there in June, 1946, were you dean 
of the Louisville school?

A. Yes, sir.
Q. You resigned to enter business, I believe, Mr. Lott!
A. That’s correct, yes, sir.
Q. Mr. Lott, on the basis of your experience as a stu­

dent and law professor, I want to ask you whether a stu­
dent in a small law class has an opportunity for obtaining 
a better law education than one in a large law class?

Mr. Marshall: If your Honor pleases, we object to 
these questions, this line of testimony, for several reasons: 
The first reason, it is not in issue in the pleadings in this 
case at all; it is not in issue as to the evidence before the 
Court up to the present time. All of the evidence shows that 
there is no law school that can be compared with the Uni­
versity of South Carolina. I assume this line of question­
ing is for the purpose of establishing a point that if at some 
time in the future a small law school is established, it will 
as good as a large one. That is a point they dispute on—a 
brand new point not in evidence. The plaintiff is not pre­
pared to meet a point not in evidence. We can meet it if 
given time; we can produce dozens of witnesses on the 
point. The main reason I object, other than it ’s not in issue 
in this case, we are now not meeting the question of equal­
ity of provisions, but the question of no school and an ex-



of U. S. C. et al., A ppellants— A ppendix 79

isting law school. I think that’s the only thing in issue be­
fore this Court.

The Court: Mr. Eobinson, I don’t quite see the rele­
vancy, the usefulness of this. If a law school had been es­
tablished in Orangeburg and complaint was made that it 
wasn’t on a parity with the University of South Carolina, 
it may be pertinent to show whether or not it was a good 
or bad law school. Unless you are endeavoring to show that 
the University of South Carolina law school is a very poor 
law school—you say it ’s overcrowded, and you want to 
show that small classes would be much better—is that your 
purpose?

Mr. R obinson : No, sir, this is my purpose, your 
Honor—

The Court: I think that’s about all it shows.
Mr. R obinson : As I understand the scope of the com­

plaint as limited by your Honor’s pretrial order, the issue 
in this case is whether the plaintiff will be accorded or is 
accorded a substantially equivalent law school opportunity. 
Now, on the issue of comparability, a number of factors 
are pertinent. Plaintiff’s counsel will urge, no doubt, that 
the South Carolina law school is in existence; that it has 
a separate law building; that it has a library within that 
building, as an existing fact, perhaps other reasons. What 
you are interested in is whether the student himself, weigh­
ing all the advantages of Orangeburg, all of the advantages 
of Columbia, comes out of the law school with substantially 
equal opportunities. Now, if the small school at Orange­
burg has the advantage of small classes—

The Court: Mr. Robinson, you mean the imaginary 
school at Orangeburg. That issue may come before me at 
a later date, to compare the Orangeburg law school, but 
now it’s not even on the blueprints.

Mr. R obinson: Frankly, on the law, as I see it, the 
plaintiff has not made out a case, but I don’t want to rely 
on that fact. That law school can’t actually be opened in 
Orangeburg until there’s an applicant there. No matter 
what faculty, what library, whatever else you have, if you 
have no law student, you have no law school, and, of course,



80 W righten, A ppellee, v. Board of Trustees

the testimony here uncontradicted is that there is no appli­
cation from this plaintiff or any other.

The Court: I don’t think the evidence is at all perti­
nent. I ’ll let you put it in for the record.

A. I should say he does have a better opportunity, in 
my judgment, a class of around fifteen to twenty is an ideal 
class for an undergraduate school. The advantage of a 
small school is that there is an opportunity for personal 
contact between the student and the instructor. Further­
more, he has opportunity to examine each student in the 
class almost daily on his work, which, in my opinion, is an 
advantage. I think that if a class reaches the proportion of 
one hundred and twenty-five to one hundred and fifty, there 
are distinct disadvantages. In my judgment, a student, if 
the professors are equal in ability, a student in a small law 
school has equal opportunity, if not better opportunity, to 
get a legal education.

Q. Mr. Lott, in your opinion, is the privilege of a law 
school graduate to be admitted to practice before the courts 
of the state with examination upon production of his di­
ploma from a law school an advantage to the law student 
or a detriment to the law students 1

A. Sir, I feel that it is quite an advantage to require 
him to take the bar examination. By requiring him to take 
the bar, he is required to review all those courses which he 
had in his early law school training, which, in my opinion, 
is a definite advantage. I have stood for that position in 
the State of Kentucky all along.

Q. Kentucky does not have a diploma privilege?
A. No, sir.
Q. Mr. Lott, in your opinion, if a good working library 

of, say, seventy-five hundred law books are available at the 
Orangeburg school and the faculty comparable to the facul­
ty at the University of South Carolina, do you think that a 
student at the Orangeburg School can obtain as good a law 
education as he could at the University of South Carolina?

 ̂  ̂A. Yes, sir, I do believe he could. While at Furman 
University, we had very small classes, but a working li­
brary, I felt our students were getting a good legal educa­
tion.



of U. S. C. et al., A ppellants— Appendix 81

Cross E xamination

By Mr. Marshall:
Mr. M arshall : I have no questions, may it please the 

Court.
The Court : You are not familiar with the plans for the 

Orangeburg law school?
Mr. L ott : N o, sir.

J. W. Hicks, sworn:

D irect E xamination

By Mr. P rice :
Q. Mr. Hicks, what is your profession?
A. Lawyer.
Q. Where?
A. Greenville, South Carolina.
Q. Where did you receive your general education, col­

legiate education ?
A. At Furman, and Welsh Neck High School, now 

Coker College.
Q. Where did you receive your legal education, Mr. 

Hicks ?
A. University of Chicago.
Q. University of Chicago. Where have you practiced 

in this state, Mr. Hicks ?
A. I practiced at Florence, South Carolina, from 1912 

to 1920, and in Greenville, 1926 to date.
Q. In Greenville, 1926 to date. I believe you have re­

cently had a legal connection, that is, a legal position, with 
the United States Government here in Columbia?

A. Yes, sir.
Q. What was that, Mr. Hicks?
A. I was District Attorney for the O.P.A.
Q. And you had a somewhat similar office in Greenville, 

I believe ?
A. That was the Area Rent Office in Greenville.
Q. What experience, Mr. Hicks, have you had as a law 

school teacher and law school dean?
A. I was Dean of the Furman law school and taught 

there from 1921 to 1926,1 believe it was.



82 W righten, A ppellee, v. Board of Trustees

Q. Furman is—what is the nature of Furman Uni­
versity ?

A. That is a Baptist College for men.
Q. That is a Baptist college for men?
A. They now have the women’s college connected with 

it—at that time, just for men.
Q. They organized the law department in what year?
A. Began operating in 1921.
Q. Operated how long?
A. Until, I believe, about 1930. It operated for a few 

years after I left.
Q. It operated for a few years after you left. About 

what was the average student body of the law school while 
you were there?

A. I would imagine twenty-five to thirty.
Q. You would imagine twenty-five to thirty?
A. Yes.
Q. And the average class how large?
A. Probably eight to ten—twelve. Now, I had some 

classes in commercial law wdiere there were larger classes, 
run up to fifty or sixty.

Q. I mean in general education?
A. My first answer applied to that.
Q. What other law schools, Dean Hicks, have you been 

familiar with in studying and visiting?
A. I studied at Harvard for one year, and I visited 

Yale and Columbia, Virginia, Richmond, South Carolina— 
I don’t know, maybe some others.

Q. During that time, Mr. Hicks, have you had occasion 
to study and observe the difference, or tire merits or de­
merits of a large law school and a small law school?

A. I have.
Q. I 11 ask you, Mr. Hicks, what is your opinion with 

reference to the ability of a student to secure a proper le­
gal education in a small law school as compared with one 
in a large law school?

Mr. Marshall: For the record, the same objection.
The Court: Enter the objection. I ’ll allow the ques­

tion.



of U. S. C. et al., A ppellants— Appendix 83

A. With the same professor and the same student, I 
think the advantages in the small law school far outweigh 
any disadvantages.

Q. Do you mind briefly giving us your reasons for that, 
Mr. Hicks?

A. Because the professor can reach the student daily, 
constantly. I ’ve been in classes of about two hundred and 
seventy-five to three hundred. The professor would proba­
bly call on you once in three months, not over twice in three 
months. I ’ve been in classes where I was called on daily, 
and had classes where I called on the students daily. In one 
instance, the first, the student might be prepared at will. 
In the other, he has to be prepared at all times.

Q. In other words, in the large law class he could take 
a chance on not being called on and maybe get by?

A. Yes, sir.
Q. But in the small law school like you speak of, he’s 

apt to be called on each day?
A. That’s correct.
Q. What, for instance, have you observed to the atten­

tion of students in a large law school to a small—
A. In a large law school, when boys knew they weren’t 

going to be called on, the boys in the back of the room usu­
ally read the sports edition of the paper in the m orning- 
in a small, they had to be on their toes all the time.

Q. The question of the Orangeburg school, which has 
been ordered to be established by law: If that law school is 
opened with a faculty that is reasonably comparable to 
those in the South Carolina law school here, and compar­
able, with a sufficient library, do you, in your opinion, be­
lieve that the student at Orangeburg school will be able to 
receive a legal education equal to that of a law school here 
in Columbia?

A. I do.
Q. What has been your observation, Mr. Hicks, about 

the exception of the general rule in states where they ad­
mit the students of the state law school to the bar without 
examination, do you think that’s an advantage or disad­
vantage to the student ?



84 W righten, A ppellee, v. Board of Trustees

A. I think it’s a decided disadvantage not to make all 
students take the bar examination.

Q. Did you take that position at Furman?
A. I did, if I recall. I fought Mr. Robinson’s father on 

that question at Carolina.
Q. You fought Mr. Robinson’s father on that question 

at Carolina?
A. Yes, sir, not that I wanted Furman exempt; I 

wanted Carolina to have to take it.
Q. You wanted Carolina to have to take it. Your opin­

ion is that the student who has to study for that examina­
tion to pass it has an advantage over the hoy who just goes 
along and gets a diploma ?

A. I ’m decidedly of the opinion. I learned more in the 
two or three months I put on preparing for the bar exami­
nation than I learned at any entire session in college.

Cross E xamination
By Mr. Marshall :
Q. Mr. Hicks, do you know anything about the pro­

posed plan or the proposed law school at Orangeburg?
A. Not a thing in the world, sir.
Q. Mr. Hicks, do I understand you correctly, that you 

consider that in your studying for the bar examination, you 
got more than you did in the three years of law school in 
Chicago ?

A. No, you misunderstood.
Q. That’s what I thought,
A. I thought I learned more probably than in one ses­

sion at Chicago.
Q. You thought you learned more probably than in one 

session in Chicago?
A. Yes. Of course, I had to have the foundation in or­

der to review and specifically learn the points which I had 
to get up for the bar. If I hadn’t had other training, I 
couldn’t have done it.

Q. Do you consider the law school of the University of 
Chicago a large law school?

A. No, at the time I was there, we had classes, our first 
year class, I believe, was about one hundred and twenty-



of U. S. C. et a l, A ppellants— A ppendix 85

five, and about the time we were in our senior year, we were 
about to forty or fifty, probably.

Q. In your comparison of small and large law schools, 
did you consider an entering class of one hundred and 
twenty-five a small or large school ?

A. I would class this as a large school, in the terms in 
which we are speaking here now.

Q. To be specific, as to schools you know—I under­
stand you are familiar with Harvard?

A. I was there for a year—know something.
Q. Do you think a student at Furman gets as good an 

education as at Harvard?
A. I think with the same professors he would. Unfor­

tunately, we didn’t have them at Furman. I was one of 
them; I don’t compare myself with Harvard.

Q. That’s the same as the University of Chicago law 
school—you are also familiar with it?

A. Yes, although I think I had some professors at Fur­
man better than either at Harvard or Chicago.

Mr. Marshall : No more questions, thank you.
Mr. P rice : Thank you, Mr. Hicks.
Mr. R obinson: My understanding is the depositions 

were not offered in evidence?
Mr. Marshall: The depositions were taken for the 

purpose of being used—for the purpose of either counsel—
The Court: The depositions are not before the Court 

then?
Mr. Marshall: No, sir.
Mr. R obinson : The defense rests.
The Court: Anything in rebuttal?
Mr. Marshall: No rebuttal, sir.
The Court: I may say here before I forget it that I 

shall adopt the same system or rule here that I have 
adopted in the case I heard yesterday or the day before: 
I ’ll give each side, after oral argument, each side ten days 
for the filing of briefs, if they desire, with prepared find­
ings of fact and conclusions of law, but it ’s only ten days



86 W righten, A ppellee, v. Board of Trustees

from the time—I want to start consideration of these cases 
within a reasonable length of time.

(The Court adjourned until June 6, 1947, at 10 a. m.)
CONTINUED AT MORNING SESSION, JUNE 6, 

1947, 10 a. m.
Mr. Callison: I wish to announce that because of a 

death in the family of Attorney General Daniel, he will not 
be able to he further present during this trial. For that rea­
son, we hope the Court will see fit to excuse him.

The Court : Of course, the Court hears with great re­
gret of the death in the family of the Attorney General of 
South Carolina. We shall miss Mr. Daniel, and I express to 
him our great sympathy. Proceed.

(Mr. Carter argued to the Court in behalf of the plain­
tiff.)

(Messrs. Callison, Price, and Robinson argued to the 
Court in behalf of the defendants.)

The Court: I s it in evidence what time the next se­
mester of the Orangeburg school opens?

Mr. R obinson: It will he mid-September. There’s a 
summer school. I t ’s open—it’s—

The Court : I say Orangeburg school ?
Mr. R obinson: Yes, sir, they have a summer school 

also, but their next regular semester is during September, 
1947.

The Court: Is that agreed?
Mr. Marshall : President Whittaker is here, and I ’d 

be perfectly willing to take his word.
The Court: I ’d like for counsel to furnish me that 

after the hearing.
Mr. Marshall : Very well, sir.
(ilr. Marshall argued to the Court in rebuttal in be­

half of the plaintiff.)
(Mr. Marshall asked that the Court take judicial no­

tice that Avery Institute was a private school.)
The Court: I don't think it’s material either way. The 

testimony is that he is qualified from the Orangeburg col­
lege. It doesn’t matter where he got it from.



of U. S, C. et al., A ppellants— Appendix 87

Well, gentlemen, I indicated that you have leave to 
file briefs, ten days from date, which will be the 16th of 
June, and I desire that the briefs include, or have attached, 
findings of fact and conclusions of law.

If there’s nothing further in this matter, the Court will 
now adjourn and stand adjourned.

(After The Court adjourned on June 4, 1947, Mr. Rob­
inson dictated the following note to the reporter, relative 
to the information requested by the Court as to the summer 
session at State College at Orangeburg:)

Mr. R obixsox: June 11 is the beginning of the summer 
school, and September 17 is the beginning of the next regu­
lar session.

I certify that the foregoing is a 
correct transcript of my notes.
KATHERINE KLAUBER, 

Official Reporter.

Civil Action No. 1670 

OPINION
The plaintiff John H. Wrighten is a Negro resident 

and citizen of South Carolina over the age of 21, who has 
completed his preparatory schooling and also a college 
course at the Colored Normal, Industrial, Agricultural & 
Mechanical College of South Carolina (commonly referred 
to as “ State College” ). He received his bachelor’s degree 
from that institution in May of this year and has the quali­
fications of education and character for admission to the 
University of South Carolina Law School or other graduate 
departments, save and except that he is a Negro and the 
University of South Carolina, including its law school, is, 
under the constitution, laws, customs and regulations there­
under in the State of South Carolina, open to persons of 
the white race only.

The State of South Carolina has established a system 
of segregation of races in schools and colleges. Article XI,



Section 7 of the Constitution of the State of South Carolina 
(1895) provides:

“ Separate Schools—Separate schools shall be pro­
vided for children of the white and colored races and 
no child of either race shall ever be permitted to attend 
a school provided for children of the other race.”

Section 5377 of the Code of Laws of South Carolina is 
as follows:

“ Mixed schools unlawful.—It shall be unlawful for 
pupils of one race to attend the schools provided by 
boards of trustees for persons of another race.”

In 1887 the General Assembly of South Carolina pro­
vided (XIX  Stats. 803):

“ That the University of South Carolina shall con­
sist of the following departments to be established ex­
clusively for white students in the City of Columbia 
by the Board of Trustees, to wit * * * School of
Law * * *.”

Section 5800 of the Code of Laws of South Carolina 
provides:

“ Establishment.—There shall be established with­
in this State a Normal, Industrial, Agricultural and 
Mechanical College for the higher education of the col­
ored youth of the State, and the said college shall be 
known as the Colored Normal, Industrial, Agricultural 
and Mechanical College of South Carolina.”
State College has at present no law school and the Law 

School of the University of South Carolina situate at Co­
lumbia is the only law school in operation in this State.

The University of South Carolina (hereinafter re­
ferred to as “ University” ) is owned by the State of South 
Carolina and is operated and maintained by the State for 
the purpose of providing higher education for qualified per­
sons of the white race, and is governed by a Board of Trus­
tees named in accordance with the statute laws. In like man-

88 W righten, A ppellee, v. Board of Trustees



of U. S. C. et al., A ppellants— A ppendix 89

ner, State College, which is situate at Orangeburg in this 
State, is owned, operated and maintained and is governed 
by another Board of Trustees, also named in accordance 
with the statute laws of the State. These two Boards are 
separate and distinct except that the Governor of the State 
is an Ex Officio member of both.

The defendants named in this cause are the Board of 
Trustees of the University and three named parties, 
namely, Norman M. Smith, who is the President of the Uni­
versity, Samuel L. Prince, who is the Dean of the Law 
School, and B. C. Needham, who is the Registrar. No offi­
cial or member of the Board of State College is made a 
party.

The plainitff being desirous of obtaining a legal educa­
tion made application on July 2, 1946, to the Law School 
of the University, and this application being referred to the 
President, on July 6, Norman M. Smith refused plaintiff’s 
admission, and subsequently plaintiff addressed another ap­
plication to the Board of Trustees of the University, and 
this application was likewise refused. The refusal is based 
upon the fact that the plaintiff is a Negro and that the offi­
cials of the University are charged with the duty of operat­
ing the same for white persons only and that they have no 
right or authority under the constitution and laws of the 
State of South Carolina governing the University to accept 
the application of anyone other than a white person.

This action is based upon Section 1 of the Fourteenth 
Amendment to the Constitution of the United States and 
Section 43 of Title 8 USCA. The jurisdiction of this court 
is derived from Subdivision 14 of Section 41 of Title 28
USCA. The prayer for declaratory judgment is based upon 
Section 400 of Title 28 USCA.

The complaint in this cause seeks a declaratory judg­
ment and also injunctive relief, whereby the plaintiff will 
be declared entitled to a legal education and the Trustees 
and Officers in charge of the University Law School ordered 
to grant him entrance so that he may obtain a legal educa­
tion. In addition, the complaint asks for money damages for



90 W righten, A ppellee, v. Board of Trustees

loss by reason of deprivations of his rights. It appears that 
while he made application in the summer of 1946, the plain­
tiff was not qualified to enter a law school until May, 1947. 
Under these circumstances it seems that the matter of dam­
ages may well be deferred to ascertain what results are 
obtained by the granting of injunctive relief. I therefore 
determined on hearing this case on a pretrial conference to 
pass upon the equitable issues first, and the cause will be 
kept open, as will be more definitely hereinafter shown, for 
the determination of the matter of damages at an appro­
priate time should such arise.

In the presentation and arguments in this case many 
factors not strictly within the purview of the case were 
discussed. The justice or injustice, propriety or impro­
priety, of racial segregation in education was referred to, 
and the broad question of the matter of segregation of the 
races discussed. These matters are of immense interest and 
importance under the American constitutional guarantees 
and the American idea of liberty and equality. However, 
they are not pertinent to this case and will not here be dis­
cussed since under the pleadings and the agreements de­
termined at a pretrial conference the basic question of seg­
regation is not in issue. As a matter of fact, the right to 
segregate has been assumed or tacitly acknowledged by 
many of our courts, including the Supreme Court of the 
United States. (See Plessy v. Ferguson, 163 U. S. 537; Mc­
Cabe v. Atchison T. & S. F. Ry. Co., 235 U. S. 151; Gong 
Lum v. Rice, 275 U. S. 78; Gaines v. Canada, 305 U. S. 337).

Segregation in education may be considered as a nec­
essity or a luxury, according to the geographical situs. Each 
community will have to decide whether it can or desires to 
sustain the financial burdens of segregation, and this must 
therefore be treated as a political rather than a judicial 
problem. That issue therefore will not be discussed herein 
but the case will be considered in the narrow confines of 
whether the plaintiff is entitled to admission to the Uni­
versity under the facts and circumstances of this case; and 
whether the State should be allowed a reasonable oppor­
tunity to provide legal educational facilities substantially



op U. S. C. et al., A ppellants— A ppendix 91

equivalent and equal to that of the University at some other 
institution within the State.

A case arising in the State of Missouri has provided 
a clear chart for the decision of the basic rights of these 
parties. I refer of course to the case of Gaines v. Canada, 
305 U. S., 337. In that case, Gaines, a Negro citizen and 
resident of the State of Missouri, attempted to obtain en­
trance into the Law School of the University of Missouri 
which was maintained solely for whites. There was another 
institution (Lincoln University) maintained by the State 
of Missouri for the higher education of Negroes. It had no 
law school, though there had been appropriations and au­
thorizations to its officials to establish a law school when 
deemed advisable. The State in the meantime provided an 
alternate remedy by providing funds for the assistance of 
Negro students desiring graduate education (such as law) 
in institutions situate outside of the borders of Missouri. 
The case finally reached the Supreme Court of the United 
States, which court held in clear tones that a Negro was 
entitled to the same educational facilities as a white per­
son and that the State of Missouri could not force him to 
go outside and seek an education in another state, even 

/ though paid for by Missouri, but that he was entitled to 
equal privileges and opportunities with white students with­
in the State. Subsequent to this decision it appeared that 
Lincoln University was directed by statute to open a 
graduate school and other cases arose as to whether the 
mere fact of preparation, subsequent to the decision, was 
sufficient. The courts allowed the State a reasonable time 
to make adequate preparation.

In argument and by briefs filed with me, counsel have 
cited a number of cases applicable to the questions here 
involved. I feel, however, that as above stated, the case 
of Gaines v. Canada (supra) really lays down all the law of 
the land, and the other cases (some set out in a footnote), 
while persuasive, are not in any way controlling. They re­
late not to the rights but to the remedies, and this being a 
cause of an equitable nature, the remedy is left somewhat 
to the sound discretion of the trial court, and in arriving



92 W bighten, A ppellee, v. Board op Trustees

at the same I have based it upon my own views of the 
rights, needs, exigencies, and equities in the instant case, 
guided and influenced by the experience and wisdom of 
other courts which have rendered opinions in similar 
matters.

So we arrive at the definite conclusion that the plain­
tiff, Wrighten, is entitled to the same opportunity and fa­
cilities afforded to whites for obtaining a legal education 
by and in the State of South Carolina. To what remedy is 
he entitled?

The General Assembly of South Carolina, in its gen­
eral appropriation bills for the years 1945, 1946 and 1947, 
made certain appropriations and declarations which are 
pertinent in the consideration of this case. These are as 
follows:

“ From Act No. 223 of Acts of the General Assembly 
for 1945. (44 Statutes 401):

SECTION 16
The Colored Normal Industral Agricultural and 

Mechanical College of South Carolina.
For Maintenance.................................... $130,000.00

# # #

PROVIDED, FURTHER, That the Board of Trus­
tees of the Colored Normal Industrial, Agricultural & 
Mechanical College of South Carolina is hereby author­
ized to establish graduate Law and Medical" Depart­
ments and such other departments as may be neces­
sary to provide training in all lines of college activ­
ities for students attending this College, and to fix 
tuition fees for such courses commensurate with the 
costs thereof and in line with similar tuition charges at 
other state institutions.
From Act No. 601 of the Acts of the General Assembly 

for 1946 (44 Statutes 1605):



of U. S. C. et al., A ppellants— A ppendix 93

SECTION 16
The Colored Normal, Industrial, Agricultural, and 

Mechanical College of South Carolina.
ITEM 1. For Maintenance ........................ $150,000.00
ITEM 2. For temporary housing............  15,000.00
ITEM 3. For special repairs....................  5,000.00
ITEM 4. Graduate school.......................... 25,000.00

Total ............................................... $195,000.00
*  *  *

PROVIDED, FURTHER, That the Board of Trus­
tees of the Colored, Normal, Industrial, Agricultural 
& Mechanical College of South Carolina is hereby au­
thorized to establish graduate Law and Medical depart­
ments and such other departments as may be necessary 
to provide training in all lines of college activities for 
students attending this College, and to fix tuition fees 
for such courses commensurate with the costs thereof 
and in line with similar tuition charges at other state 
institutions.

From the General Appropriations Act of 1947-1948 
(House 240, Senate 276, Secretary State 312), Ap­
proved 2 May, 1947:

#  #  *

SECTION 18
The Colored Normal, Industrial, Agricultural, and 

Mechanical College of South Carolina.
Item 1. For maintenance ...........................$463,000.00
Item 2. Graduate and Law School ..........  60,000.00

T ota l..................................................$523,000.00

Provided, Further, That the Board of Trustees of 
the Colored Normal, Industrial, Agricultural and Me­
chanical College of South Carolina shall use so much 
of the fund appropriated for Graduate and Law School,



94 W righten, A ppellee, v. Board of Trustees

as is necessary to maintain and operate a law school 
during the coming fiscal year.

Provided Further, That the Board of Trustees of 
the Colored Normal, Industrial, Agricultural and Me­
chanical College of South Carolina is hereby author­
ized to establish and maintain graduate Law and Med­
ical departments and such other departments as may 
be necessary to provide “ training in all lines of col­
lege activities for students attending this College, and 
to fix tuition fees for such courses commensurate with 
the costs thereof and in line with similar tuition 
charges as other state institutions.”
The plaintiff takes the position that the proposal to 

establish a law school at State College has come only re­
cently and is authorized by the appropriation act of the 
legislature of 1947, and points out that it is probable that 
there would not have been an adequate appropriation (per­
haps not any appropriation) and certainly not a manda­
tory requirement to establish a law school at State College 
had not this case been brought. The plaintiff says, there­
fore, that his rights accrued when he brought his case that 
there was no law school in existence at that time save that 
at the University, and he insists that he is entitled to the 
strict relief demanded, namely, that he be admitted to the 
only law school in the State and the one supported by public 
funds. On the other hand, the defendants show that the 
State is making adequate preparation to take care of the 
plaintiff and others in like plight, and that it would have 
been futile to establish a law school at State College when 
there were no applications, and that a law school is made 
up as much by students as by professors and equipment, 
one being complementary to the other. They further point 
out that the State College officials have testified that they 
are going forward with plans and will have a going satis­
factory law school in operation at the next session of the 
College in September, 1947. We are here met with diamet­
rically opposite views; the one that the plaintiff is entitled 
to enter the only law school in existence, and that the State 
College Law School is a theory rather than a condition;



op U. S. C. et al., A ppellants— A ppendix 95

the other is that the State College Law School, while not 
actually in existence, is so far planned and arranged that 
it will be available to the plaintiff and others and will be 
an institution on a parity in every way equal to the Uni­
versity Law School. As to the correctness of these two 
views, only time can tell.

The defendants lay particular stress upon the fact that 
no applications had been made for legal education at State 
College, and in fact only recently have inquiries been made. 
That may be plead as an excuse for delay but not as an 
excuse for denial. Where the State does not make prepara­
tions in advance to furnish facilities to which its citizens 
are entitled, it runs the risk of being forced to share the 
facilities furnished to members of one race with those of 
another race. That is a matter of policy and economy pe­
culiarly within the realm of the discretion of the State offi­
cers but they should know that in the exercise of such dis­
cretion they necessarily run the risk of being called upon 
to furnish and perhaps share equal facilities to both races. 
The language of Chief Justice Hughes in the Gaines case 
(at page 351) is completely applicable to Wrighten’s case.

“ Here, petitioner’s right was a personal one. It 
was as an individual that he was entitled to the equal 
protection of the laws, and the State was bound to 
furnish him within its borders facilities for legal ed­
ucation substantially equal to those which the State 
there afforded for persons of the white race, whether 
or not other negroes sought the same opportunity.”  I

I would be unwilling to have the matter deferred if 
the establishment of the law school at State College was 
still discretionary and. still only a possibility. However, I 
feel that due faith and deference must be given to the as­
surances of responsible State officials. They have made defi­
nite assurances that the law school will be in active opera­
tion, equipped, fitted and staffed, and ready for the giving 
of instruction on a complete parity with the University 
Law School.



96 W righten, A ppellee, v. Board of Trustees

In the briefs and arguments, divergent views were 
taken as to the proposed law school at State College. Con­
siderable time was expended upon testimony and discus­
sion of what were adequate facilities for a law school, as 
to how many professors were needed, class room space 
and equipment, law library and other matters pertaining 
thereto. Discussions as to the advisability of large or small 
classes and various other details were attempted to be gone 
into. It seems to me that none of these matters is pertinent 
at this time. This Court cannot lay down any definite rule 
as to just how the State College shall set up a law school. 
These matters are for the officials to whom are entrusted 
these duties. It is peculiarly a matter for the State to reg­
ulate and direct its own educational facilities. See Cumming 
v. Richmond County, 175 U. S. 528. The only restriction 
to be put upon it is the very broad and very definite restric­
tion that equal facilities must be given to white and col­
ored. If the proposed law school at State College places 
Negro students on a parity with white students at the Uni­
versity, then the constitutional rights .of this plaintiff and 
others who desire legal education will have been satisfied 
and the State of South Carolina will have performed its 
duty as required by the Constitution of the' United States 
and the decisions of its courts. And therefore the Order of 
this Court will provide merely that adequate legal educa­
tion be furnished to Negroes in the State of South Caro­
lina on a complete equality and parity with that furnished 
to whites, the place, manner and method of furnishing the 
same to be left to the sound discretion of the State officials, 
provided always of course that that discretion is exercised 
fairly and equitably. I

I have therefore determined that the proper solution 
of this case is to leave the matter in an alternative situa­
tion and to provide that the demands of the plaintiff will 
be satisfied if the State College Law School is opened and 
adequate for its September, 1947 term as represented; and 
if at that time the plaintiff and others who are qualified 
can and do obtain entrance to a law school at State College, 
satisfactorily staffed, equipped, and a going concern, and



of U. S. C. et al., A ppellants— Appendix 97

on a substantial parity in 'all respects with the services 
furnished at the University Law School, then the demands 
of the plaintiff will be adequately satisfied and no further 
action will be necessary by this Court. On the other hand, 
if that be not done completely and fully, then the plaintiff 
will be entitled to entrance at the Law School of the Uni­
versity. The third alternative is that the State furnish no 
law school education to any persons of either white or 
Negro race.

In other words, the Order of this Court will provide 
that the State furnish to the plaintiff and others in like 
plight law school facilities equal to that at the University 
of South Carolina, either at the University itself, or State 
College, or any other satisfactory institution in the State, 
or furnish none to anyone; and furthermore, I think it only 
fair and just, in view of all the circumstances, that the State 
of South Carolina be granted until the next law school 
semester which will open in the month of September, 1947.

Formal findings of fact and conclusions of law and an 
appropriate Order in accordance with the foregoing views 
will be entered.
Charleston, S. C.,
July 12,1947. / s /  J. WATIES WARING

United States District Judge.

Gaines v. Canada (Supreme Court of Missouri), 131 S. W. (2d), 217; 
Bluford v. Canada, 32 Fed. Supp., 707;
Bluford v. Canada (Supreme Court o f Missouri), 153 S. W. (2d), 14; 
Michael v. Witham (Supreme Court Tennessee), 165 S. W. (2d), 378; 
Sipuel v. Oklahoma (Supreme Court Oklahoma), (April 29, 1947),

....... S. W. (2d), ........
S00 also *

Pearson v. Murray (Maryland), 182 Atlantic, 590, 103 A. L. R., 706.



98 W righten, A ppellee, v. Board of Trustees

Civil Action No. 1670

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
FINDINGS OF FACT

1. The plaintiff John H. Wrighten is a Negro over the 
age of 21, a citizen and resident of the State of South Caro­
lina, and has all the lawful qualifications necessary for ad­
mission to the Law School of the University of South Caro­
lina.

2. Plaintiff made application for admission to the Law 
School of the University of South Carolina first on July 2, 
1946, and again on August 17, 1946, but was refused ad­
mission by the officials in charge of the said Law School 
because of his race. He did not make application to State 
College where there was no law school in existence.

3. hinder the Constitution and laws of the State of 
South Carolina, the University of South Carolina, includ­
ing its Law School, is maintained solely for persons of 
the white race, and Negroes are declared not eligible. The 
defendants are the Board of Trustees of the University 
of South Carolina, and Norman M. Smith, President of 
the University, Samuel L. Prince, Dean of the Law School 
of the University, and R. C. Needham, Registrar of the 
same.

4. The Lniversity of South Carolina (commonly called 
University) is an institution maintained by the State for 
thê  purpose of providing higher education (including the 
maintenance of a law school) for qualified persons of the 
white race, and its control is vested in a Board of Trustees 
named in accordance with the statute laws of the State.

5. The Colored Normal, Industrial, Agricultural & Me­
chanical College of South Carolina (commonly called State 
College) is an institution maintained by the State for the 
higher education of Negroes, and its control is vested in a 
Board of Trustees which is independent of the Board of 
Trustees of the University; and the personnel of the two



op U. S. C. et a t, A ppellants— A ppendix 99

Boards are entirely distinct except that the Governor of 
South Carolina is Ex Officio a member of both Boards.

6. Prior to the institution of this action in January, 
1947, no application for a law school education had been 
received by State College, but subsequently a number of 
letters have been received from different individuals in­
quiring as to legal education.

7. The General Assembly of the State of South Caro­
lina in its annual appropriation act for the year 1945 au­
thorized the establishment of a law school at State College 
but left it to the discretion of the Trustees and President, 
who considered the matter but did not establish such a 
school, and the appropriation available for same was used 
for other purposes. Similar action occurred in 1946.

8. The General Assembly of the State of South Caro­
lina in its annual appropriation act for the year 1947 (Act 
approved May 2, 1947), authorized the Board of Trustees 
of State College to establish and maintain a graduate law 
department and made an appropriation for that purpose, 
and the Board of Trustees has directed the President of 
that institution to make preparations to have a law school 
in operation commencing not later than the September, 1947, 
semester, and the President and a member of the Board 
of Trustees have positively stated that an adequately 
staffed, equipped and going law school will be opened and 
in operation for instruction at that time on an equality and 
parity with the law school at the University.

9. State College is an institution with a faculty at 
present of 101 and is operated on a high scholastic plane 
and on a parity with the University in its general courses 
except for certain graduate departments, including a law 
school.

CONCLUSIONS OF LAW
1. This court has jurisdiction of this suit under the 

Fourteenth Amendment of the Constitution of the United 
Sates and Title 28 USCA Section 41, Subdivision 14; Title 
8, USCA, Section 43: and Title 28, USCA, Section 400.



100 W righten, A ppellee, v. Board op Trustees

2. This is an actual controversy between the parties 
and in pursuance of the Declaratory Act of Congress 
(Title 28 USCA Section 400) it is hereby declared that per­
sons of the Negro race possessing lawful qualifications are 
entitled to legal education by the State of South Carolina 
on an equality and parity with persons of the white race, 
and that it is violative of the Constitution of the United 
States to discriminate according to race.

3. The furnishing of legal education on an equality 
and parity to persons of the white and Negro races may 
be at one and the same institution or at separate institu­
tions, the same being left to the judgment and discretion 
of the authorities of the State, always prodded that if two 
separate institutions are maintained, the education fur­
nished and all facilities maintained are to be on a complete 
equality and parity without discrimination.

4. The plaintiff is entitled to a permanent injunction 
restraining the defendants from maintaining the policy of 
excludng qualified Negroes from admission to the Law 
School of the University of South Carolina because of their 
race and color; provided no similar or equal law school is 
established and maintained by the State of South Carolina 
and in existence for the furnishing of similar and equal 
legal education to Negroes.
Charleston, S. C.,
July 12, 1947.

J. WATIES WARING,
United States District Judge.

ORDER
In accordance with the Opinion and Findings of Fact 

and Conclusions of Law filed in the above-entitled cause, 
it is

ORDERED:
1. That the plaintiff, John H. Wrighten, and others in 

like plight are hereby declared to be entitled to a legal 
education to be furnished by the State of South Carolina



of U. S. C. et al., A ppellants— A ppendix 101

on a complete equality and parity with any other citizens 
and residents of the State of South Carolina.

2. The defendants in this case, namely the Trustees 
and officers of the ITniversity of South Carolina (includ­
ing its Law School) are enjoined from excluding from ad­
mission to the Law School of the University of South Caro­
lina the plaintiff and any persons by reason of race or color, 
unless legal education on a complete equality and parity is 
offered and furnished to the plaintiff and other persons in 
like plight upon the same terms and conditions by some 
other institution established, operated and maintained by 
the State of South Carolina within its borders.

3. In the event that the State of South Carolina does \ 
establish a law school within its borders which is open to ; 
the plaintiff and to others in like plight on a complete equal­
ity and parity in all respects with the Law School of the 
University of South Carolina on or before September 15, 
1947, and continues to operate the same on a like equality 
and parity or else closes the Law School of the University 
and furnishes no legal education to any persons within the 
State; then this order as to the Trustees and officers of the 
University of South Carolina shall be suspended and of no ! 
effect.

4. This cause shall be kept open in order that any of 
the parties hereto may apply for further relief and make 
further showing to this Court as to whether the terms of 
the order have been fully carried out so that the general 
intent of the same may be carried into full force and execu­
tion, namely, that any legal education furnished by the 
State of South Carolina shall be on a complete equality and 
parity to persons of the white race and of the negro race.

5. This Court has not passed upon the demand of the 
plaintiff for damages and plaintiff may within a reasonable 
time after September 15, 1947, apply for a trial and hear­
ing on that subject if he be so advised.

/s /  J. WATIES WARING,
U. S. District Judge.

Charleston, S. C.,
July 12, 1947.



102 W righten, A ppellee, v. Board op Trustees

SOUTH CAROLINA CONSTITUTION OF 1895 
Article XI.

Section 7. Separate schools.—Separate schools shall 
be provided for children of the white and colored races, 
and no child of either race shall ever be permitted to at- 
attend a school provided for children of the other race.

Section 8. Clemson Agricultural College—South Caro­
lina School for the Deaf and Blind—University of South 
Carolina—Winthrop Normal and Industrial College—Col­
ored Normal, Industrial, Agricultural and Mechanical Col­
lege.—The General Assembly may provide for the mainte­
nance of Clemson Agricultural College, South Carolina 
School for the Deaf and Blind, located at Cedar Springs, 
the University of South Carolina, and the Winthrop 
Normal and Industrial College, a branch thereof, as now 
established by law, and may create scholarships therein; 
the proceeds realized from the land scrip given by the Act 
of Congress passed the second day of July, in the year 
eighteen hundred and sixty-two, for the support of an agri­
cultural college, and any lands or funds which have hereto­
fore been or may hereafter be given or appropriated for 
educational purposes by the Congress of the United States, 
shall be applied as directed in the Acts appropriating the 
same: Provided, That the General Assembly shall, as soon 
as practicable, wholly separate Claflin College from Claflin 
I niversitv, and provide for a separate corps of professors 
and instructors therein, representation to be given to men 
and women of the negro race; and it shall be the Colored 
Normal, Industrial, Agricultural and Mechanical College 
of this State.

SOUTH CAROLINA STATUTES
Code of 1942

§ 5377. Mixed schools unlawful. It shall be unlawful 
for pupils of one race to attend the schools provided by 
boards of trustees for persons of another race.

Acts of 1896, 170.



op U. S. C. et al., A ppellants— A ppendix 103

§ 5697. State colleges and universities. There shall he 
universities and colleges as follows: one located in the city 
of Columbia, styled the University of South Carolina; an­
other in or near the town of Orangeburg, styled the Col­
ored Normal, Agricultural and Mechanical College of South 
Carolina; another known as Winthrop College, the South 
Carolina College for Women; another styled The Citadel, 
the Military College of South Carolina; and the Medical 
College of the State of South Carolina. They shall be sep­
arate and distinct institutions, each under its present board 
of trustees or visitors.

Acts of 1906, 16; Acts of 1913, 188; Acts of 1920, 
968.

§ 5724. Tuition fees and beneficiary scholarships—reg­
ulations. The tuition fee shall be forty dollars per annum 
for each student, except that in the law department the 
board of trustees may fix such additional fees as they deem 
necessary to make it self-sustaining as soon as possible; 
compensation for room rent, use of library, and damage 
to property, shall be regulated by the board. Except in the 
law department, the faculty of the said university may 
grant beneficiary scholarships, without payment of any 
fees, to such competent and deserving youths of this State 
as may be unable to pay the same, and the trustees of the 
said university shall prescribe such rules and regulations 
as may be proper to confine the enjoyment of this privilege 
to those whose necessities require it. * * * Acts of 1899, 
105.

§ 5800. Establishment. There shall be established 
within this State a Normal, Industrial, Agricultural and 
Mechanical College for the higher education of the colored 
youth of the State, and the said college shall be known as 
the Colored Normal, Industrial, Agricultural and Mechan­
ical College of South Carolina. The Colored Normal, In­
dustrial, Agricultural and Mechanical College of South Car­
olina shall be under the management and control of a board 
of trustees, composed of seven members, six of whom shall 
be elected by the General Assembly, whose term of office



shall be six years. But the General Assembly shall at its 
first election elect two of said trustees for two years, two 
for four years, and two for six years, so that two of them 
shall go out of office every two years. The Governor of the 
State shall he ex officio the seventh member of said hoard 
of trustees.

Acts of 1896, 174.

16 Stat. p. 314 (Acts 1877).

No. 37 JOINT RESOLUTION to Provide for Reorgan­
ization of the University of South Carolina and of the State 
Normal School.

Whereas experience has demonstrated that the exist­
ing methods of conducting the University of South Caro­
lina and the State Normal School are impracticable and 
unnecessarily expensive, and that the results attained under 
them are commensurate neither with the liberal design of 
the Legislature nor with the hopes of the people who are 
taxed for the maintenance of these institutions of learning; 
and whereas sound public policy manifestly dictates the 
expediency of placing these and similar institutions, as far 
as may he practicable, upon such a basis as will enable them 
to afford the largest possible educational advantages to all 
classes of citizens at an outlay compatible with the present 
embarrassed condition of the finances of the State; there­
fore,

Section 1. Be it resolved hv the Senate and House of 
Representatives of the State of South Carolina, now met 
and sitting in General Assembly, and by the authority of 
the same, That His Excellency the Governor be, and he is 
hereby, directed to assume control of all the property, real 
and personal, of the State University and Normal School 
now belonging to and used by these institutions and to place 
the same in the custody and under the management of some 
discreet and competent person, who shall have the power, 
by and with the advice and consent of the Governor, to rent 
the dwelling houses thereof to suitable tenants and use 
the proceeds arising from such rentals in keeping all the

104 W righten, A ppellee, v. Board op Trustees



op U. S. C. et al., A ppellants— A ppendix 105

property in good condition and repair and in compensating 
himself for Ms services in this regard: Provided, That such 
compensation shall be determined by the Governor, and that 
an itemized account of the receipts and expenditures herein 
contemplated shall be transmitted, through the Governor, 
to the General Assembly, at its next regular session, and 
annually thereafter until it shall be otherwise ordered by 
the Legislature.

Sec. 2. That His Excellency the Governor and the 
Board of Trustees, who, together with the Chairman of the 
Committees on Education of the Senate and of the House 
of Representatives, respectively, shall constitute a Commis­
sion to inquire into and devise plans for the organization 
and maintenance of one university or college for the white 
and one for the colored youths of the State, which said 
universities or colleges shall be kept separate and apart, 
but shall forever enjoy precisely the same privileges and 
advantages with respect to their standards of learning and 
the amounts of revenue to be appropriated by the State 
for their maintenance. This Commission to report by Bill 
or otherwise at the next regular session of the General As­
sembly and to receive no compensation for the services of 
its members.

#  #  *

19 Stat. p. 803 (Acts 1887)
No. 397. AN ACT To Amend Chapter XX  of the Gen­

eral Statutes, Entitled “ Of the University of South Caro­
lina.”

Sec. 1—General Statutes, Chapter XX, “ Of the 
University”  amended.

Sec. 2—Grant to Agricultural Experiment Station.
Sec. 3—Repealing clause.

Section 1. Be it enacted by the Senate and House of 
Representatives of the State of South Carolina, now met 
and sitting in General Assembly, and by the authority of 
the same, That Section 1027, in Chapter XX, of General 
Statutes, entitled “ Of the University of South Carolina”  
be stricken out and the following be inserted:



106 W righten, A ppellee, v. Board of Trustees

Sec. 1027. That the University of South Carolina shall 
consist of the following departments, to be established ex­
clusively for white students in the City of Columbia by the 
Board of Trustees, to wit: A post graduate department or 
a University Department proper; a College of Agriculture 
and Mechanic Arts; a College of Liberal Arts and Sciences; 
a College of Pharmacy; a Normal School, and a School of 
Law, * * *.

44 Stat. 401 (Acts 1945):

Section 16.
The Colored Normal, Industrial, Agricultural and 

Mechanical College of South Carolina.
For Maintenance............................................$130,000.00
Provided, Further, That the Board of Trustees of the 

Colored Normal Industrial, Agricultural & Mechanical Col­
lege of South Carolina is hereby authorized to establish 
graduate Law and Medical departments and such other de­
partments as may be necessary to provide training in all 
lines of college activities for students attending this Col­
lege, and to fix tuition fees for such courses commensurate 
with the costs therein and in line with similar tuition 
charges at other state institutions.

44 Stat. 1605 (Acts 1946):

Section 16.
The Colored Normal, Industrial, Agricultural and 

Mechanical College of South Carolina.
ITEM 1. For Maintenance.................$150,000.00
ITEM 2. For temporary housing . . . .  15,000.00
ITEM 3. For special repairs.............  5,000.00
ITEM 4. Graduate school...................  25,000.00

Total ............................................... $195,000.00
* # *

Provided, Further, That the Board of Trustees of the 
Colored Normal, Industrial, Agricultural & Mechanical Col­
lege of South Carolina is hereby authorized to establish



op U. S. C. et a t, A ppellants— A ppendix 107

graduate Law and Medical Departments and such other de­
partments as may be necessary to provide training in all 
lines of college activities for students attending this Col­
lege, and to fix tuition fees for such courses commensurate 
with the costs thereof and in line with similar tuition 
charges at other state institutions.

45 Stat. (Act May 2,1947).

Section 13. University of South Carolina:
For Maintenance ............................ $2,293,500.00

Provided, That the salary of the President shall be 
Seventy-five Hundred ($7,500.00) Dollars per year, and 
shall not be supplemented by any other source.

45 Stat. (Act May 2, 1947).

“ SECTION 18
The Colored Normal, Industrial, Agricultural, and 

Mechanical College of South Carolina.
Item 1. For maintenance ...................$463,000.00
Item 2. Graduate and Law School . .. 60,000.00

Total ............................................... $523,000.00

Provided, Further, That the Board of Trustees of the 
Colored Normal, Industrial, Agricultural and Mechanical 
College of South Carolina shall use so much of the fund ap­
propriated for Graduate and Law School, as is necessary 
to maintain and operate a law school during the coming 
fiscal year.

Provided, Further, That the Board of Trustees of the 
Colored Normal, Industrial, Agricultural & Mechanical Col­
lege of South Carolina is hereby authorized to establish 
and maintain graduate Law and Medical departments and 
such other departments as may be necessary to provide 
training in all lines of college activities for students attend­
ing this College, and to fix tuition fees for such courses



commensurate with the costs thereof and in line with 
similar tuition charges as other state institutions.

108 W righten, A ppellee, v . Board of Trustees

* * #











IN THE

llmUh (Eimrit (tart nf Appeals

Board of T rustees of the U niversity of 
South Carolina, Norman M. Smith ,
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and E. C. Needham, Regis- 
trar, No. 5667

For the Fourth Circuit

J ohn H. W righten,

vs.
Appellants

Appellee.

BRIEF FOR APPELLEE

H arold R. B oulware, 
Columbia, S. C.,

E dward D udley, 
T hurgood Marshall,

20 W. 40th Street, 
New York, N. Y.,

Attorneys for Appellee.
W. P. R obinson, 

Columbia, S. C.
Of Counsel.





I N D E X

PAGE
Statement of Case _________________________________ 1

Statement of Facts_________________________________ 2

Question Involved
Is the refusal to admit a qualified Negro to the Uni­
versity of South Carolina Law School on the basis 
of race a violation of the Fourteenth Amendment 
to the United State Constitution where said insti­
tution is the only place offering legal training by
the state _______________________________________ 4

Conclusion_________________________________________  11

Table of Cases.
Alston v. Norfolk School Board (C. C. A. 4th), 112 F.

(2d) 992 (1940) certiorari denied, 311 U. S. 693 
(1940) _______ :__________________ ..._____________  9

Ex Parte Virginia, 100 U. S. 339 (1879)_____________ 9
Meyer v. Nebraska, 262 U. S. 390 (1923)______________  10
Missouri ex rel. Gaines v. Canada, 307 U. S. 337 

(1938) _______________ ____________________5, 7, 9,10,11
Pearson, et al. v. Murray, 169 Md. 478 (1936)_____ 8,10,11
Yick Wo v. Hopkins, 118 U. S. 356 (1886)___________  9





1ST THE

intteft States Ctrrmt (ftmtrt of Appeals
For the Fourth Circuit

Board of Trustees of the U niversity of 
South Carolina, Norman M. Smith , 
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants,
vs.

J ohn H. W righten,
Appellee.

No. 5667

BRIEF FOR APPELLEE

Statement of Case

On January 4, 1947, appellee, plaintiff below, filed in the 
District Court for the Eastern District of South Carolina 
a complaint against appellants, defendants below, for refus­
ing to admit him to the first-year class of the School of Law 
of the University of South Carolina (A-17).

Following a pre-trial conference held on May 15, 1947, 
the Court announced that the equitable issues involved 
would be tried first before the Court without a jury. The 
Court’s order on the pre-trial conference entered May 20, 
1947, establishes that an agreement had been reached be-



2

tween opposing parties that the broad question of the right 
of segregation and education according to races is not be­
fore the Court but that the issue here is whether the plain­
tiff-appellee is given law school facilities by the State of 
South Carolina comparable to those afforded white students 
(A-13).

Defendants-appellants appealed from the judgment of 
the United States District Court for the Eastern District 
of South Carolina entered on July 12, 1947, granting an 
injunction against appellants restraining them from exclud­
ing from admission to the Law School of the University 
of South Carolina plaintiff-appellee and any person or per­
sons by reason of race or color unless legal education on 
a complete equality and parity is offered and furnished 
to the appellee and other persons in like plight upon the 
same terms and conditions by some other institution estab­
lished, operated or maintained by the State of South Car­
olina.

It is the judgment from this trial in appellee’s favor 
that appellants now appeal.

Statement of Facts

Appellee, John H. Wrighten, is a Negro over the age 
of 21, a citizen and resident of the State of South Carolina 
and has all of the lawful qualifications necessary for admis­
sion to the Law School of the University of South Carolina 
(A-98). Wrighten made application for admission to the 
Law School of the University of South Calorina first on 
July 2, 1946 and again on August 17, 1946 but was refused 
admission by the officials in charge of the said Law School 
because of his race (A-98). He did not make application 
to State College where there was no law school in existence 
(A-98).



3

Under the Constitution and Laws of the State of South 
Carolina, the University, including its Law School, is main­
tained solely for persons of the white race (A-98). The 
appellants are the Board of Trustees of the University 
of South Carolina, Norman M. Smith, President of the 
University of South Carolina, Samuel Prince, Dean of the 
Law School, and R. C. Needham, Registrar of the same 
(A-98). The University of South Carolina (commonly 
called The University) is an institution maintained by the 
State for the purpose of providing higher education (in­
cluding the maintenance of the Law School) for qualified 
persons of the white race and its control is vested in the 
Board of Trustees named in accordance with the statute 
laws of the State (A-98). The Colored Normal, Industrial, 
Agricultural & Mechanical College of South Carolina (com­
monly called State College) is an institution maintained by 
the State for the higher education of Negroes and its con­
trol is vested in the Board of Trustees, which is independent 
of the Board of Trustees of the University. The Governor 
of South Carolina is an ex-officio member of both Boards 
(A-98-99).

The General Assembly of the State of South Carolina, 
in its annual Appropriation Act for the year 1945 authorized 
the establishment of the Law School at State College but 
left it to the discretion of the Trustees and President who 
considered the matter hut did not establish such a school 
and the appropriation available for the same was used for 
other purposes (A-99). Similar action occurred in 1946. 
Similarly, the General Assembly of the State of South 
Carolina in its Appropriation Act for the year 1947, adopted 
after this case was filed, authorized the Board of Trustees 
of State College to establish and maintain a graduate law 
department and made an appropriation for that purpose 
(A-99).



4

The present action is brought in the nature of a class 
suit to determine whether defendants’ policy, custom and 
usage in denying plaintiff and other qualified Negroes ad­
mission to the Law School of the University of South 
Carolina pursuant to the Constitution and Laws of the 
State of South Carolina violates the equal protection clause 
of the Fourteenth Amendment.

Question Involved

Is the refusal to admit a qualified Negro to the Uni­
versity of South Carolina Law School on the basis of 
race a violation of the Fourteenth Amendment to the 
United States Constitution where said institution is the 
only place offering legal training by the state.

It is submitted that the only question before this Court 
at this time is whether or not, in the light of the facts in 
this case, appellants’ refusal to admit appellee into the 
University of South Carolina Law School in the absence 
of a showing that equal facilities were provided elsewhere 
within the State of South Carolina is a violation of the 
equal protection clause of the Fourteenth Amendment to the 
Constitution of the United States.

The President of State College at Orangeburg testi­
fied that there was no law school available which admitted 
Negroes in South Carolina prior to or at the time of the trial 
of this case (A-17). This fact has never been disputed by 
anyone. At the time of the trial of this case the only law 
school maintained by the State of South Carolina was at the 
University of South Carolina. The only place appellee 
could obtain a legal education in South Carolina was at the 
University of South Carolina. He has been refused ad­
mission to this school solely because of his race or color.



5

Had he been white, there is no question that he would have 
been admitted.

Appellants contend that the segregation laws of South 
Carolina justify their refusal to admit Negro students. In 
doing so they completely ignore the decision of the United 
States Supreme Court in Missouri ex rel. Gaines v. Canada, 
305 U. S. 337, at page 349 (1938) on this question:

“ * * * The admissibility of laws separating the races 
in the enjoyment of privileges afforded by the State 
rests wholly upon the quality of the privileges which 
the laws give to the separated groups within the 
State. * * *”

Appellants in their brief have raised the arguments 
concerning the duty of appellee to apply for admission to 
an imaginary law school at State College located at Orange­
burg, South Carolina. The lower Court’s order on pre-trial 
conference set the pattern and conduct in the trial of this 
case, it was stipulated as follows:

“ It was agreed that without any general admis­
sions and limited solely to the issues to be tried in 
this case the broad question of the right of segrega­
tion and education according to races is not before 
the Court but that the issue here is whether the plain­
tiff is given law school facilities by the State of South 
Carolina comparable with those afforded white stu­
dents; Provided of course that if it be shown that 
opportunities are given, the parties may go into the 
sufficiency and the quality of the same”  (A-13).

Whether or not appellants have complied with the re­
quirements of the Fourteenth Amendment as presented in 
the order of the lower Court (A-100-101), in alternative 
manner is another question that may come before this 
Court at some future time. The following testimony by 
Miller F. Whittaker, President of State College at Orange-



6

burg, S. C. (A-17), conclusively shows that there was no law 
school within the State of South Carolina prior to or at the 
time of the trial of this action. In answer to questions con­
cerning State College, Mr. Whittaker gave the following 
testimony:

“ Q. Do you have a law school there? A. No, no 
law school.

“ Q. As of June of the year 1946, did you have a 
law school there ? A. We did not.

“ Q. Did you have one as of January of this year? 
A. We did not.

“ Q. Do you have one now? A. We do not.
“ Q. Is there any law school operated by the State 

of South Carolina to which Negroes are at present 
admitted if you know? A. There is none as far as 
I know.

“ Q. Do 3̂ ou know of any other school or uni­
versity in the State of South Carolina for the educa­
tion of Negroes beyond the high school level other 
than the school that you are president of? A. There 
is none, no.

“ Q. So, at the present time there is no law school 
at your school? A. That is right.

“ Q. There is no setup at the present time in 
existence for the training of the Negro in the field of 
law at your institution? A. There is none.”

In spite of this testimony from the President of the only 
institution in South Carolina where Negroes were admitted 
to higher education, appellants insist that the language of 
the 1945 and 1946 Appropriation Act (44 Stat. 401, 1605, 
A-106), “ authorized”  the establishment of a law school at 
State and that this language must be construed as manda­
tory in the light of South Carolina law requiring segrega-



tion. (These statutes are set out in full in Appellants’ Ap­
pendix, pp. 92-94.) Provisions similar to those in the Acts 
of 1945 and 1946 were on the statute hooks of Missouri at 
the time the suit against the University of Missouri arose 
in the case of Missouri ex rel. Gaines v. Canada, supra. 
The Supreme Court of the United States stated as to this 
defense in that case:

“ * * # it appears that the policy of establishing the 
law school at Lincoln University has not yet ripened 
into an actual establishment and it cannot be said that 
a mere declaration of purpose still unfulfilled is 
enough. The provision for legal education at Lin­
coln at present is entirely lacking. Respondents’ 
counsel urge that if on the date when petitioner ap­
plied for education to the University of Missouri he 
had instead applied to the curators of Lincoln Uni­
versity, it would have been their duty to establish a 
law school; and that this agent of the state, to which 
he should have applied, was specifically charged with 
the mandatory duty to furnish him what he seeks. 
We do not read the opinion of the Supreme Court as 
construing the state statute to impose such a manda­
tory duty as the argument seems to assert * *

Even assuming that the appropriation by the State of 
South Carolina to State College for all graduate work, in­
cluding law, medicine, pharmacy and out-of-state scholar­
ships (A-36) will be available to set up a future law school 
for Negroes, we must rely upon the testimony of President 
Whittaker in giving his opinion as to the physical possibil­
ity of accomplishing such an act.

“ Q. President Whittaker, I want your opinion 
as to whether or not in your mind, bearing in mind 
the difficulty in getting law books, the lack of an 
adequate building space, the fact that you do not 
have a faculty member yet, nor a dean, nor a librar­
ian, do you in your own mind believe that you can



8

set up a law school by September that would be the 
full and complete equal of the law school at the Uni­
versity of South Carolina? A. No, I do not think 
so. That is my opinion”  (A-37).

In the case of Pearson, et al. v. Murray,1 which was a 
mandamus action to compel the admission of a qualified 
Negro to the University of Maryland Law School, the 
Court of Appeals of Maryland in granting the requested 
relief stated:

“ The method of furnishing the equal facilities 
required is at the choice of the State now or at any 
future time. At present it is maintaining only the 
one law school . . .  no separate school for colored 
students has been decided upon and only an inade­
quate substitute has been provided. Compliance 
with the Constitution cannot be deferred at the will of 
the state. Whatever system it adopts for legal educa­
tion now must furnish equality of treatment now. . .. 
in Maryland now the equal treatment can be fur­
nished only in the one existing law school, the peti­
tioner, in our opinion, must be admitted there.”

The Court then concluded:
“  . . . The state has undertaken the function of 

education in the law but has omitted the students of 
one race from the only adequate provision made for 
it and omitted them solely because of their color. 
If those students are to be offered equal treatment 
. . . they must, at present, be admitted to the one 
school provided. And as the officers and Regents 
are the agents of the state intrusted with the con­
duct of the school, it follows that they must admit 
. . . there is identity in principle and agent for the 
application of the constitutional requirement.”

1169 Md. 478 (1936).



9

The Gaines case has provided a clear principle for the 
decision of the basic rights of the parties in this case. In 
that case, Gaines, a Negro citizen and resident of the State 
of Missouri, attempted to obtain entrance to the Law 
School of the University of Missouri, which was maintained 
solely for whites. There was another institution (Lincoln 
University) maintained by the State of Missouri for the 
higher education of Negroes. It had no law school, though 
there had been appropriations and authorizations to its 
officials to establish a law school when deemed advisable. 
After denial of the relief in the state court and upon ap­
peal to the United States Supreme Court, that Court held 
in unmistakable terms that a Negro was entitled to the 
same educational facilities as a white person within the 
state.

It is our contention, therefore, that the Gaines case, 
supra, sets forth the law which is controlling in this case. 
This Court is asked by appellees to merely sustain the prin­
ciple, at this time, that the Fourteenth Amendment to the 
United States Constitution requires the State of South 
Carolina in furnishing legal education to qualified white 
students at the University of South Carolina to admit 
qualified Negroes into the University of South Carolina 
in the absence of equal facilities elsewhere in the state.

A long list of cases has sustained the principle that no 
state shall deny to any of its citizens the equal protection 
of the laws on account of race or color.2

When appellee applied to enter the law school at the 
University of South Carolina it was the only law school

2 E x  Parte Virginia, 100 U. S. 339 (1879) ; Yick W o  v. Hopkins, 
118 U. S. 3S6 (1886); Alston  v. N orfolk  School Board, 112 F. (2d) 
992 (C. C. A. 4th, 1940) Certiorari denied 311 U. S. 693 (1940); 
Missouri e x  rel. Gaines v. Canada, supra.



10

maintained and operated by the state for the legal education 
of its citizens (A-17).

Appellants admittedly denied him the right to attend 
solely on account of his race and color (A-98).

The equal protection of the laws is denied where the 
state maintains a law school from which Negro students, 
otherwise qualified, are excluded because of their race, and 
at the same time does not provide a law school within the 
state which Negroes may attend.3 Missouri ex rel. Gaines 
v. Canada, supra; Pearson, et al. v. Murray, supra.

The fact that there is a limited demand within the state 
for the legal education of Negroes does not excuse this 
discrimination. Missouri ex rel. Gaines v. Canada, supra; 
Pearson, et al. v. Murray, supra. As an individual this ap­
pellee is entitled to the equal protection of the laws, and the 
state is bound to furnish him within its borders facilities for 
legal education equal to those which the state affords for 
persons of the white race, whether or not other Negroes 
seek the same opportunity Missouri ex rel. Gaines v. 
Canada, supra. This discrimination is not excused because

3 Appellee is also deprived of his liberty without due process of 
law through this denial of equal protection by the State of South 
Carolina as the right “to acquire useful knowledge” is one of those 
liberties long recognized at common law as essential to the orderly 
pursuit of happiness by free men.

As stated by the U. S. Supreme Court in M eyer  v. Nebraska, 262 
U. S. 390, 399: “ ‘No state shall * * * deprive any person of 
life, liberty, or property, without due process of law.’ While this 
Court has not attempted to define with exactness the liberty thus 
guaranteed, the term has received much consideration, and some of 
the included things have been definitely stated. Without doubt, it 
denotes not merely freedom from bodily restraint, but also the right 
of the individual to contract, to engage in any of the common occu­
pations of life, to acquire useful knowledge, to marry, establish a 
home and bring up children, to worship God according to the dictates 
of his own conscience, and, generally, to enjoy those privileges long 
recognized at common law as essential to the orderly pursuit of happi­
ness of free men.” (Citing cases.)



11

it may be termed temporary pending the establishment of 
a law school for Negroes within the state Missouri ex rel. 
Gaines v. Canada, supra; Pearson, et al. v. Murray, 
supra.

Conclusion

In considering this question, appellee respectfully re­
quests this Court to examine carefully the violation of the 
equal protection clause of the Fourteenth Amendment by 
appellants in refusing to accept appellee into the only law 
school maintained by the State of South Carolina solely 
because of appellee’s race and color. The right violated is 
an individual one which the agents of the State of South 
Carolina acting under color of law within the State of South 
Carolina cannot justify. Equal protection and due process 
cannot be satisfied by continuously pointing to imaginary 
equality. As a matter of fact, the lower Court could have 
issued a permanent injunction at the time of the hearing- 
admitting appellee into the only law school in the State of 
South Carolina.

It is respectfully submitted that the appeal be dismissed.

Respectfully submitted,

H arold R. B oulware,
Columbia, S. C.,

T hurgood Marshall,
E dward R. D udley,

20 West 40th Street, 
New York City,

Attorneys for Appellees.







L awyers P ress. I nc., 165 William St., N. Y. C. 7 ; 'Phone: BEekman 3-2300







REPLY BRIEF AND BRIEF IN OPPOSITION TO 
MOTION TO DISMISS WITH APPENDIX

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5667

JOHN H. WRIGHTEN, A ppellee, 

versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF 
SOUTH CAROLINA, NORMAN M. SMITH, P resi­
dent of the U niversity of South Carolina, SAM­
UEL PRINCE, D ean of the L aw School, and R. C. 
NEEDHAM, A ppellants.

JOHN M. DANIEL, 
Attorney General,

T. C. CALLISON,
Asst. Attorney General, 

DAVID W. ROBINSON, 
Columbia, S. C.,

PRICE & POAG,
Greenville, S. C.,

Attorneys for Appellants.

The R. L. Bryan Company, Legal Printers, Columbia, S . C.



:



INDEX

Table of C ases..................................................................  iii

Reply Brief ......................................................................  1

Brief in Opposition to Motion to Dism iss................... 5

Appendix .......................................................................... 15

P age

( i )





Cases:

American Brake Co. v. N. Y. Ry. Co., 2 Cir., 282
F. 523 ................................................................  6

American Engr. Co. v. Metropolitan, 2 Cir., 275
F. 40 ..................................................................  8

Audi-Vision v. R. C. A., 136 F. (2d) 621, 147 A. L.
R. , 574 ............................................................ 5, 13

B. & 0. Ry. Co. v. United Fuel Gas Co., 4 Cir., 154
F. (2d) 545 ......................................................... 5

City of Des Moines v. Des Moines Water Co., 8
Cir., 230 F. 570 .................................................  7

Collins v. Metro-Goldwyn Pictures, 106 F. (2d) 83. 13
Curtis v. Connly, 1 Cir., 264 F. 5 0 ........................  12
Dean v. Nelson, 7 Wall. 346, 19 L. Ed. 9 5 .............  7
Forgay v. Conrad, 6 How. 2 0 1 ...............................  7
French v. Shoemaker, 12 Wall. 8 6 .........................  8
Gaines v. Canada, 305 U. S. 337 ............................  2
Great Lakes Towing Co. v. St. Joseph-Chicago S.

S. Co., 7 Cir., 253 F. 635 .................................. 12
Gulf Refining Co. v. U. S., 269 U. S. 125, 70 L. Ed.

195 ......................................................................  7
Hill v. Chicago, etc., R. R. Co., 140 U. S. 52, 35 L.

Ed. 33 ................................................................  7
Jackson v. Jackson, 4 Cir., 175 F. 710 ................... 12
Kasishke v. Baker, 10 Cir., 144 F. (2d), 382.........  7
Keystone M. & I. Co. v. Martin, 132 U. S. 91, 33 L.

Ed. 275 ..............................................................  7
Knox v. Phillips, 300 U. S. 1 94 ...............................  8

CITATIONS
P age



CITATIONS (Continued)
P age

Keihn v. Dodge, 8 Cir., 19 F. (2d) 503 .................  8
Lewisburg Bk. v. Sheffy, 140 U. S. 452, 35 L. Ed.

493 . . ; ................................................................. 7
Long v. Maxwell, 59 Fed. 945 .................................  11
Marian Coal Co. v. Peale, 3 Cir., 204 F. 1 62 .........  7
Odell v. Batterman, 2 Cir., 223 F. 292 ...................  6
People of Puerto Rico v. Bank, 1 Cir., 116 F. (2d)

379 ......................................................................  8
Reeves v. Beardall, 316 U. S. 283 .......................5, 13
Rubert Hermanos, Inc., v. People of Puerto Rico,

1 Cir., 118 F. (2d) 752, 757 ..............................  12
Sanders v. Bluefield Waterworks & Imp. Co., 4

Cir., 106 F. 587 ................................................7, 10
Sheppy v. Stephens, 2 Cir., 200 F. 946 ...................  12
Thompson v. Murphy, 8 Cir., 93 F. (2d) 3 9 ...........  12
Victor Talking Machine Co. v. George, 3 Cir., 69

L. Ed. 871 ....................................................... 7, 13
West v. East Coast Cedar Co., 4 Cir., 113 F. 742... 11 
Winthrop Iron Co. v. Meeker, 100 U. S. 183, 27 L.

Ed. 742 ............................................................... 7

Statutes:

28 U. S. C. A. 225 .....................................................  5

Textbooks:

31 Am. Jur. 95, Sec. 435 .......................................... 8

( iv )



REPLY BRIEF AND BRIEF IN OPPOSITION TO 
MOTION TO DISMISS WITH APPENDIX

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 5667

JOHN H. WRIGHTEN, A ppellee, 

versus

BOARD OF TRUSTEES OF THE UNIVERSITY OF 
SOUTH CAROLINA, NORMAN M. SMITH, P resi­
dent op the U niversity of South Carolina, SAM­
UEL PRINCE, D ean of the L aw School, and R. C. 
NEEDHAM, A ppellants.

REPLY BRIEF

I

THE AVAILABILITY OF LEGAL EDUCATION AT 
STATE COLLEGE

Ignoring the undisputed testimony of the Secretary of 
the Board of Trustees that had the Appellee applied he 
would have obtained a legal education at State (A. 53), 
the argument is made that “ the only place Appellee could



2 W righten, A ppellee, v. Board of Trustees

obtain a legal education was at the University of South 
Carolina”  (Appellee 4).

This position is unsound because at the time of the ap­
plication and the time of trial there were statutes requiring 
the trustees of State to open a law school when there was 
a demand (44 Stat. 401, 1605; 45 Stat. 622-3). On the date 
of the trial of this case (June 1947) there had never been 
an application to State for a law school education and prior 
to the institution of this action on January 4, 1947 there 
had not even been an inquiry (A. 18, 19, 27). Yet in 
May 1947 the Trustees of State directed the opening of 
the law school in September 1947 (Ex. 15) and its opera­
tion on a plane equivalent to that of the University Law 
School (A. 30, 53, 66, 80, 83).

As will be shown in the Appendix to tills Brief the 
school was opened on September 17, 1947 with eight first 
year students, three faculty members and an adequate li­
brary {Infra, p. 17).

II

GAINES v. CANADA, 305 U. S. 337

Counsel argue that the facts of the Wrighten case 
bring it within the decision of the Games case. This posi­
tion ignores the fundamental difference in the statutes in­
volved. The Missouri law, as interpreted by the State Su­
preme Court, did not require the opening of a law school 
at Lincoln I niversity for Xegro students but gave the cura­
tors of that institution the discretionary power to provide 
out-of-state scholarships:

‘ ‘ While in that sense the discrimination may be 
termed temporary, it may nevertheless continue for 
an indefinite period by reason of the discretion given 
to the curators of Lincoln University and the alterna-



op U . S. C. et al., A ppellants 3

tive of arranging for tuition in other States, as per­
mitted by the state law as construed by the state court, 
so long as the curators find it unnecessary and imprac­
ticable to provide facilities for the legal instruction of 
negroes within the State.”  (Emphasis supplied.)

Gaines v. Canada, 305 TJ. S. 337, 351-2.

There is no provision in the South Carolina law giv­
ing the trustees of State such an alternative (A. 106-108). 
If there is any question as to whether these State, statutes 
are mandatory then a Federal court should delay action 
until the South Carolina Supreme Court has interpreted 
them (Appellant’s Brief 13-14).

The Appellee suggests that this Court “ merely sus­
tain the principle, at this time”  of the Fourteenth Amend­
ment that the plaintiff must be admitted to the University 
law school “ in the absence of equal facilities elsewhere in 
the State”  (Brief 9). The Appellants have not argued 
that this general principle is erroneous (Answer, A. 9-10, 
Brief 10). The question here is not the bare academic one 
of whether a Negro citizen is entitled to State-furnished ed­
ucational facilities substantially equal to those furnished 
the white citizen. Games v. Canada is conclusive on that 
point. The issue here is whether South Carolina made such 
facilities available on proper demand.

Nor do we argue that a limited demand justifies a denial 
of equal facilities. The “ equal protection”  clause gives a 
personal right to a plaintiff acting in good faith. But to 
recover on the basis of this constitutonal provision John 
Wrighten must show his application to the state school 
named by South Carolina as the place where he can obtain 
his law education and that institution’s refusal to furnish 
it. In the alternative he must show that others of his race 
have applied and been refused a legal education there. He 
has shown neither.



4 W righten, A ppellee, v. Board of Trustees

The Appellee’s brief makes no reply to our position 
(Appellant’s Brief 9-11) that the District Judge, in hold­
ing that the educational facilities furnished by the State for 
John Wrighten must be on “ a complete equality and parity 
in all respects”  with those furnished white students, went 
beyond the “ substantial equality”  rule of Gaines v. Cana­
da, 305 U. S. 337, 351.

However, the Executive Secretary of the National As­
sociation for the Advancement of Colored People, the or­
ganization which is financing the Appellee’s case, in a re­
cent article published in the New York Herald-Tribune 
agrees with the interpretation that the District Decree went 
beyond the holding of the Gaines case (Appendix, p. 22).

/



of U. S. C. et o.l., A ppellants 5

B R IE F  IN  OPPOSITION TO M O T IO N  
T O  D IS M IS S

The Motion to Dismiss raises the sole question of 
whether the Order of the District Court (A. 100-1) is a 
final judgment within the meaning of 28 U. S. C. A. 225. 
In determining that issue the question is a practical one to 
be determined by practical considerations with regard be­
ing given by the appellate Court to substance rather than 
form. B. & 0. By. Co. v. United Fuel Gas Co., 4 Cir., 154 
Fed. (2d) 545.

The word “ final”  as used in the statute does not mean 
that every phase of the litigation must be completely ter­
minated before an appeal may be filed here. Reeves v. Bear- 
doll, 316 U. S. 283; Zolkind v. Scheimann, 139 Fed. (2d) 
895; Audi Vision v. RCA, 136 F. (2d), 621, 147 A. L. R. 
574; Rules of Civil Procedure 54(b).1

It is therefore essential to ascertain what was decided 
below. The plaintiff asked that the Court grant a declara­
tory judgment that the policy of the defendants in exclud­
ing Negroes from the University Law School violated the 
Fourteenth Amendment, that it enjoin the defendants from 
denying him admission to the Law School and for damages 
because of their previous refusal (A. 7).

The District Court’s order of July 12, 1947 held (1) 
that the plaintiff was entitled to a legal education in South 
Carolina on a complete equality and parity with any other 
citizen of the State, (2) that the defendants “ are enjoined”  
from excluding the plaintiff from admission to the law 
school on account of race unless legal education on a com-

1 The Amendment to this rule adopted by the Supreme Court on 
December 27, 1946, was not effective on the date of the order below. 
28 U. S. C. A. 723(c) Rule 86.



6 W righten, A ppellee, v. Board of Trustees

plete parity is furnished to him elsewhere in the state, (3) 
that in the event South Carolina does establish by Septem­
ber 15, 1947, and continues thereafter to operate a com­
pletely equal law school within its borders for the plaintiff 
and other Negroes then the injunction shall be suspended, 
(4) that the cause be left open for a further showing as to 
whether the terms of the order have been obeyed and (5) 
that the plaintiff could after September 15, 1947 apply for 
a trial on the issue of damages (A. 100-101).

This Order grants the prayer for a declaratory judg­
ment and for injunctive relief. As to these issues it is final. 
The injunction has been issued. No further order of the 
District Court is necessary. If no law school had been 
established at State on September 15, 1947, and had this 
appeal not been taken the defendants would have been re­
quired to have received him into the University Law School 
by the Order of July 12, 1947. Had they refused they would 
have been guilty of contempt. If the defendants have no ad­
equate relief except by appeal the order is final within the 
meaning of 28 U. S. C. A. 225. American Brake Co. v. N. T. 
Rif. Co., 2 Cir. 282 F. 523; Odell v. Batterman, 2 Cir. 223 
F. 292.

Other than by this appeal, there was no apparent solu­
tion to the dilemma which the District Court’s order im­
posed upon the defendants. At their peril they would have 
had to judge correctly whether the law school at State Col­
lege was equal to that at the University. If they decided in­
correctly that it was, they ran the risk of being held in con­
tempt of Court for not admitting plaintiff to the University. 
If they decided incorrectly that it was not, they ran the 
risk of violating the State criminal laws against admitting 
Negro students to white institutions of learning. For this 
situation there was no adequate relief except by appeal.



of U. S. C. et al., A ppellants 7

The fact that the Court suspended the injunction until 
September 15, 1947, is immaterial. No school terms opened 
between July 12th and Sept. 15th, so that the latter date 
would have been the determinative date as to compliance 
if there had been no suspension clause. Appellee’s argu­
ment that the Order is temporary (Brief 10) ignores the 
fact that the injunction was issued and is self-executing.

The provision in the fourth paragraph of the Order 
that any party might make a further showing to the Court 
“ as to whether the terms of the order have been fully 
carried out so that the general intent of the same may be 
carried into full force and execution * * * ”  does not
deprive it of its final character. For gay v. Conrad, 6 How. 
201; Victor Talking Machine Co. v. George, 3 Cir., 69 F. 
(2d) 871.2

In fact, this provision makes it clear that the District 
Court intended its order as a final one, the violation of 
which could be punished or otherwise remedied by the 
Court, cf. Sanders v. Bluefield Waterworks & Improvement 
Co., 4 Cir., 106 Fed. 587, infra.

In the For gay case a decree setting aside deeds was 
held appealable though the Court below retained juris­
diction by referring to a Master the issue of an accounting 
for rents. The Supreme Court’s language there seems most 
appropriate:

“ The question upon the motion to dismiss is
whether this is a final decree within the meaning of the

2 Accord: Dean v. Nelson, 7 Wall. 346, 19 L. Ed. 96; Winthrop Iron 
Co. v. Meeker, 100 U. S. 183, 27 L. Ed. 899; Leivisburg Bank v. Sheffy, 
140 U. S. 452, 35 L. Ed. 493; Keystone M. & I. Co. v. Martin, 132 U. S. 
91, 33 L. Ed. 275; Hill v. Chicago, etc., R. R. Co., 140 U. S. 52, 35 L. 
Ed. 33; Gulf Refining Co. v. V. S., 269 U. S. 125, 70 L. Ed. 196; Marian 
Coal Co. v. Peale, 3 Cir., 204 Fed. 162; City of Des Moines v. Des Moines 
Water Co., 8 Cir., 230 Fed. 570; Kasishke v. Baker, 10 Cir., 144 Fed. 
(2d) 382. Cf. International Salt Co. v. U. S., decided by the Supreme 
Court on November 10, 1947; 16 Law Week 4005.



8 W righten, A ppellee, v. Board of Trustees

acts of Congress. Undoubtedly, it is not final, in the 
strict technical sense of that term. But this Court has 
not heretofore understood the words “ final decree” 
in this strict and technical sense, but has given to them 
a more liberal, and, as we think, a more reasonable con­
struction, and one more consonant to the intention of 
the legislature.”
The suspension clause reserves no power beyond that 

of any court of equity to hold that changed conditions justi­
fy relief from an existing injunction. Such a reservation 
does not prevent the decree from being appealable. French 
v. Shoemaker, 12 Wall. 86; Knox v. Phillips, 300 U. S. 194; 
People of Puerto Rica v. Bank, 1 Cir., 116 F. (2d) 379; 
American Engineering Co. v. Metropolitan, 2 Cir., 275 F. 
40; Keihn v. Dodge, 8 Cir., 19 F. (2d) 503.

From 31 Am. Jur. 95, Sec. 435, quoted with approval in 
Re Roney, 7 Cir., 139 F. (2d) 175:

“ Accordingly, where further action of the court 
is necessary to give a complete adjudication upon the 
merits, the judgment under which the further question 
arises is to be regarded, not as final, but as interlocu­
tory, but a judgment on the merits defining and settling 
the rights of the parties is not rendered interlocutory 
by the fact that further orders may be necessary to 
carry into effect the rights settled by the judgment. 
To the contrary, a judgment is regarded as final if no 
further questions can come before the court except such 
as are necessary to be determined in carrying it into 
effect. In such case, the subsequent action of the court 
is regarded as a subsequent proceeding and only aux­
iliary to or in execution of the final judgment. It has 
also been held that a judgment may be final although 
the defendant is given leave to apply to the trial court 
for a modification of it. ’ ’

Appellee argues that there is no final order because the 
defendants have until September 15, 1947, to exercise one



of U. S. C. et al., A ppellants 9

of three options: admit John Wrighten to the University, 
discontinue the law school for the white students or estab­
lish a completely equal law school for the plaintiff within 
the State.

In fact these appellants do not have any option. They 
are required by State law to operate the University Law 
School, so they may not close that school. They have no 
power to open a new law school for Negroes because state 
law places that duty on persons not parties to this suit. 
Therefore, they must admit John Wrighten to the Univer­
sity under the compulsion of the order, despite the fact 
that by so doing they violate the segregation laws of South 
Carolina. This is true because the supremacy clause makes 
the Fourteenth Amendment superior to state law and be­
cause the District Court had jurisdiction to so hold.

If the defendants are freed from the duty of admitting 
John Wrighten it is because the trustees of State, not par­
ties here, have opened and are maintaining a law school for 
Negroes with completely equal facilities. If the position that 
the law school at State does not comply with the July 12th 
Order taken in the motion of 2 October 1947 filed by the 
plaintiff in the District Court is correct, then John Wrigh­
ten was and is entitled to admission to the University with­
out any further order of the Court and if he applied and 
was refused then the defendants would be in contempt.

Whether the order of July 12, 1947, is appealable must 
be decided by its terms. Appellee may not alter that rule 
by filing in the District Court a motion for further relief 
after an appeal has been taken. For completeness’ sake we 
add as an appendix correspondence showing the facts re­
lating to the plaintiff’s application and withdrawal of his 
application at State.



Several Fourth Circuit Court of Appeals opinions sup­
port the position that the July 12th Order is appealable. 
In Sanders v. Bluefield Waterworks Improvement Co., 
106 Fed. 587, decided by Circuit Justice Fuller and District 
Judges Brawley and Waddell, the District Court had re­
fused the plaintiff an injunction against the defendant 
taking any water from a certain stream. The order had in­
stead provided that the defendant should have “ such use 
and supply of the water as is necessary for its enjoyment 
of its land” , subject to the plaintiff’s right to use so much 
of the water as was “ reasonably necessary and adequate 
for the use and enjoyment of the land through which the 
stream flows.”  Neither amount was determined and the 
case was left with the Master to investigate any complaint 
by either party of a violation of the “ spirit and legal effect 
of this order”  and “ to report his investigation and find­
ings to the Court for its further action.”  The plaintiff sub­
sequently claimed an over-use of water by the defendant 
and when the Master and the District Court found against 
him, appealed to the Circuit Court of Appeals seeking to 
show error in the original decree, although the time for ap­
pealing from that order, if it were final, had expired. The 
Circuit Court of Appeals held that the first order was a 
final one and that plaintiff, having failed to appeal from 
it within time, could not now challenge its legal effect:

“ A decision upon the merits does not lose its 
character as a final decree because it may itself be­
come the source of future litigation between the par­
ties. When the Court below, after a full hearing, re­
fused the injunction prayed for, such refusal was ap­
pealable, and an appeal in proper time would have 
brought to this Court for final determination whether 
the defendant Company could lawfully divert any of 
the water from the Beaver Pond Spring. Acquiescence 
in that decree gives to it the character of finality as to

10 Wrighten, A ppellee, v. Board of Trustees



op U. S. C. et al., A ppellants 11

the point decided, and precludes further consideration 
of it. That decree decides that the defendant Company 
may divert a part of the water. * * * The only
question not finally decided related to the amount of 
water that might be thus taken. As to this the decree 
provided that, if there was any violation of the order 
by either party, then, upon application to the court, 
an investigation would be had, not for the purpose of 
correcting, modifying, or adding to the decree, but evi­
dently to punish any disobedience of it.”

The effect of the District Court order in the present 
ease is closely analogous to that of the first order in the 
Sanders case. In both, the rights of the parties were settled, 
jurisdiction was retained for a determination of whether 
those terms were being obeyed and the parties were per­
mitted to report for the Court’s consideration any alleged 
violation of the order.

In another pertinent decision of this Court, Long v. 
Maxwell, 59 Fed. 945, it was held that a decree for specific 
performance was a final decree although it provided that 
“ the form and terms of the said conveyance to be ap­
proved or changed on further direction by one of the Judges 
of this Court; and the plaintiff is required to perform, on 
his part, all the terms of the said contract.”  When the de­
fendant failed to appeal from this order within time he was 
not allowed to question it when he appealed from a “ decre­
tal order”  directing the enforcement of the original decree.

In West v. East Coast Cedar Co., 4 Cir., 113 Fed. 742, 
it was held that a decree dismissing a bill for injunction 
was final and appealable although jurisdiction was re­
tained to allow a Master to determine what damages, if 
any, the defendant had suffered by reason of an injunction 
pendente life against him.



12 W righten, A ppellee, v. B oard op Trustees

We submit that in these Fourth Circuit decisions alone 
a clear answer is found to appellee’s position that the or­
der below was not appealable. Before leaving the matter, 
however, we would emphasize again the fact that if the 
defendants below cannot now appeal from the injunction 
order, the effect of the order upon them—the duration of 
the injunction, whether it is suspended and for how long 
—will depend upon, not what they do, but what is done by 
the Trustees and officials of State College over whom they 
have no control. A decree which completely determines the 
rights of some of the parties not jointly liable with those 
against whom the suit is retained is reviewable on appeal 
by the aggrieved parties. This principle should apply even 
more strongly to a situation where the subsequent conduct 
of persons not parties to the suit is determinative of how 
the decree will be enforced. See, for the rule referred to, 
Thompson v. Murphy, 8 Cir., 93 Fed. (2d) 39; Curtis v. 
Connly, 1 Cir., 264 Fed. 50; Sheppy v. Stephens, 2 Cir., 200 
Fed. 496; Jackson v. Jackson, 4 Cir., 175 Fed. 710, and 
Great Lakes Towing Co. v. St. Joseph-Chicago S. S. Co., 
7 Cir., 253 Fed. 635.

Finally, we should point out that although we have 
argued that the injunctive order below is the “ final decree” , 
it is not necessary to maintain that it is the only “ final de­
cree” , in the sense of “ appealable decree” , that can be 
rendered in the cause. The more recent decisions in par­
ticular recognize that there may be more than one final ap­
pealable decree in a case.

From Hubert Hermanos, Inc., v. People of Puerto Rico, 
1 Cir., 118 F. (2d) 752, 757:

“ A ‘ final decision’ is not necessarily the ultimate 
judgment or decree completely closing up a proceed­
ing. In the course of a proceeding there may be one



of U. S. C. et al., A ppellants 13

or more final decisions on particular phases of the 
litigation, reserving other matters for further determi­
nation. (Citing cases.) The words ‘ final decisions’, like 
the equivalent ‘ final judgments and decrees’ in former 
acts regulating appellate jurisdiction, have not been 
understood in a strict and technical sense, but have 
been given a liberal and reasonable construction.”
The fact that the incidental issue of damages is unde­

termined (A. 13, 101) does not prevent the injunction order 
from being reviewed now. Rule 54(b); Reeves v. Beardall, 
316 U. S. 283; Collins v. Metro-Goldwyn Pictures, 106 F. 
(2d) 83; Audi-Fision v. R. C. A., 136 F. (2d) 621, 147 A. 
L. R. 574; Victor Talking Machine Co. v. George, 69 F. 
(2d) 871.

Respectfully submitted,

JOHN M. DANIEL,
Attorney General,

T. C. CALLISON,
Asst. Attorney General,

PRICE & POAG,

DAVID W. ROBINSON, 

Attorneys for Appellants.





APPENDIX



INDEX TO APPENDIX
P age

Letter of John H. Wrighten dated July 25, 1947.......... 17

Letter of Benner C. Turner dated August 15, 1947___  18

Letter of John H. Wrighten dated August 28, 1947... 19

Letter of Benner C. Turner dated September 2,1947.. 19

Letter of John H. Wrighten dated September 15,1947. 20

Letter of M. F. Whittaker dated October 18,1947 ........ 21

Excerpt from New York Herald-Tribune November 2,
1947 ............................................................................  22

(16)



APPEN D IX

From information received through the Secretary of 
the Board of Trustees of the South Carolina Agricultural 
& Mechanical College at Orangeburg, S. C., it appears that 
the law school of State College was opened on September 
17, 1947 with a faculty of three. The Dean is a Harvard 
Law graduate with several years of teaching experience. 
One of the professors holds a degree from the Kansas Uni­
versity, School of Law, and the third a law degree from 
Howard University.

Of eleven applicants eight were admitted. These stu­
dents are being given the usual fifteen hours of Freshman 
work. Two of the faculty members are teaching six hours 
each; the third three hours and acting as librarian.

The State College has purchased some 7,500 volumes 
for its law library at a cost of some $25,000.00. Many addi­
tional volumes have been donated.

On July 25, 1947, John H. Wrighten applied for ad­
mission to the law school. On August 15, 1947, his appli­
cation for admission was accepted. On August 28, 1947, he 
withdrew his application for the reasons set out in his 
letter to the President of September 15, 1947.

This correspondence is as follows:
236 Coming Street 
Charleston 24, S. C. 
July 25, 1947

Dean of Law School 
S. C. State College 
Orangeburg, S. C.
Dear Sir:

Please consider my application for admittance to the 
law school at S. C. State College beginning September 17, 
1947.

(17)



18 W righten, A ppellee, v. Board of Trustees

Please advise me of all requirements for entrance. I 
shall appreciate this information immediately if possible.

Please advise me about living condition on the campus 
and in the city, however, I shall like to live on the campus 
if it can be arranged.

Yours truly,
(Signed) John H. Wrighten

STATE A. & M. COLLEGE 
Orangeburg, S. C.

August 15, 1947.
Mr. John Henry Wrighten 
236 Coming Street 
Charleston, South Carolina
Dear Mr. Wrighten

T am pleased to advise you that your application for 
admission to the law school has been accepted. The school 
will open on September 17th and you should present your­
self to the Dean’s office on that date to begin the process 
of registration. ^

In response to your Inquiry about living conditions, I 
have been advised that all available space in the dormitories 
has already been reserved and it will be necessary for you 
to take a room in the city. A list of rooms which may be 
secured in the city is available at the office of the presi­
dent. In case you are a veteran rooming facilities may be 
available for you in the veteran’s dormitories. In order to 
reserve such space it will be necessary for you to write 
Mr. James W. Becknell, Manager of Veteran’s Housing. 
Boom reservation for veterans may be made by sending a 
deposit of 8 dollars which will also serve as rent for one 
month.

Very truly yours,
Benner C. Turner

Dean of the Law School
BCT/vev



op U. S. C. et al., A ppellants— A ppendix 19

372 W. 120th Street 
New York 27, New York 
August 28, 1947

Dean Benner C. Turner 
S. C. State Law School 
Orangeburg, South Carolina
Dear Sir:

I am having a difficult time in getting my plans made 
to shape; since I cannot get them in order between Sep­
tember 17th, I am asking you to please return my applica­
tion to the law school.

There are several things I shall like to do before en­
tering therefore I beg for my application at once.

For a successful school year I wish you the best 
everything.

Yours truly,

of

John H. Wrighten

State A. & M. College 
Orangeburg, S. C.

September 2, 1947
Mr. John H. Wrighten 
372 West 120th Street 
New York 25, New York
Dear Mr. Wrighten:

This is to acknowledge receipt of your letter of Au­
gust 27th advising us that you did not feel that you will 
be able to so arrange your affairs as to he ready to begin 
work as a student in the law school on September 17th.

It is not clear to me what you have in mind when you 
ask us to return your application blank. Formal applica­
tions with blanks furnished by the school are the property 
of the school and are to he kept for the school file in order 
that we may have a record of the disposition of each case.



20 W righten, A ppellee, v. Board op Trustees

As for your withdrawal, your written notice to us is suf­
ficient to effect that.

Very truly yours,
Benner C. Turner 
Dean of the Law School

BCT/vev

236 Coming St. 
Charleston 24, S. C. 
September 15, 1947

President M. F. Whitaker 
S. C. State College 
Orangeburg, S. C.
Dear Sir:

Please let me express my many thanks to you for your 
consideration; I really appreciate your kindness in the past 
and I am sure it will be the same in the future.

As you know it was my intention to enter the law 
school, but my attorneys found some other angles that 
needed to be settled before I enter, therefore, I wont be 
there until next year—I hope. I

I saw Messrs Boulware and Hinton on Friday, and I 
learned of your plans, I am awful grateful to you for that.

May I wish for you a very successful school year.

Respectfully yours,

(signed) John H. W righten.



of U. S. C. et at, A ppellants— A ppendix 21

STATE AGRICULTURAL AND MECHANICAL 
COLLEGE

Orangeburg, S. C.
October 18,1947.

Office of the 
President

Mr. A. C. Bethea 
Orangeburg, South Carolina.

Dear Mr. Bethea:
The following is the expenditure for law school books: 

The Michie Company..............................  $20,791.00
Bryan’s, Columbia, gross cost for the 

following:
1 set S. C. R eports.....................$ 804.00
1 Vol. Lemmon’s Corporations.. 6.00 810.00

Lawyers Cooperative Publishing Co. 31.00
Periodicals (to be ordered from Den­

nis Co.) ....................................  2,000.00
West Publishing Company, including:

South Carolina Reprint (deliv­
ered) ........................................$ 285.00

Continuation Subscriptions . . . .  345.00
Fifth Decennial ........................  350.00 980.00

Total .................................... $ 24,612.00

On the Michie order, we are to pay $8,000 now and the 
balance next year. The other orders are to be paid as de­
livered.

You already have the salary budget.

Yours very truly,
M. F. W hittaker, President.



22 W righten, A ppellee, v. Board of Trustees

From New York Herald-Tribune November 2, 1947

REGIONAL SCHOOLS FOE NEGROES SEEN 
DENIED BY SUPREME COURT

Walter White Questions Constitutionality of New Bill, 
Giving Earlier Ruling by Court Giving Law Stu­

dent Chance to Study in Missouri

By W alter W hite

Executive Secretary, National Association 
for the Advancement of Colored People

Has the South decided to surrender “ states’ rights” ! 
It would seem so since thirteen Southern governors voted 
recently at Asheville, N. C., to ask Congress to legalize 
regional instead of state professional and graduate schools 
for Negroes. Perhaps the governors’ attention has not been 
called to the decision of the United States Supreme Court 
in the famous Games case from Missouri. If they had read 
and understood the forthright language of Mr. Chief Jus­
tice Hughes, they might have discovered that their question 
has already been answered. And the answer is “ no” . 

* * * * *

A Federal judge in South Carolina, J. Waties War- 
ing, recently handed down a decision which went in vigor 
of language even beyond that of the Supreme Court in the 
Gaines case. South Carolina was ordered by Judge Waring 
to furnish the Negro seeker of a legal education a course 
equal in every respect to that given white students at the 
University of South Carolina, or admit him to the univer­
sity “ or furnish none (legal education) to any one” . Thus 
out of the South itself comes the answer to the subterfuge 
the thirteen governors seek to foist on its Negro citizens 
in lieu of doing their explicit duty.









v , 1: f  i p  5

ij*U i*V * c



1ST T H E

finite i>tatrs Ctrrmt Court of Appeals
For the Fourth Circuit

Board of T rustees of the U niversity of 
South Carolina, N orman M. Smith , 
President of the University of South 
Carolina, Samuel Prince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants,
vs.

John H. W righten,
Appellee.

No. 5667

MOTION TO DISMISS AND BRIEF 
IN SUPPORT THEREOF

W. P. R obinson, 
Columbia, S. C.

Of Counsel.

H arold R. B oulware, 
Columbia, S. C.,

E dward Dudley,
T hurgood Marshall,

20 W. 40th Street, 
New York, N. Y.,

Attorneys for Appellee.





I N D E X

PAGE

Motion to Dismiss ________________________________  1

Notice of M otion_______________________________ __ 2

Statement of the Case______________________________  5

Statement of Facts________________________________  7

Argument:
I. This Court does not have jurisdiction of this 

cause because the order from which appellants 
appeal is not a final order_____________________  8

II. This appeal is fragmentary and premature_____ 13

Conclusion_________________________________________ 16

Exhibit “ A ”  _____________________________________  17

Table of Cases.

Arnold v. United States for use of W. B. Guimarin &
Co., 263 U. S. 427 (1923)_______________________ 13,15

Beebe v. Bussell, 19 How. 283,15 L. Ed. 668 (1857) 10,12,13 
Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. Ed. 73

(1882) ________________________________________10,13
Bronson v. B. R. Co., 2 Black 524,17 L. Ed. 359 (1863) 12
Collins v. Metro-Goldwyn Pictures Corp., 106 F. (2d)

83 (1939) _______________________________________  10
Craighead v. Wilson, 18 How. 199, 15 L. Ed. 332 (1856) - 12 
Crosby v. Buchanan, 23 Wall. 453, 90 U. S. 137 (1875).. 12



11
PAGE

Farrellv v. Woodfolk, 19 How. 268, 15 L. Ed. 670
(1857)_________________________________________ 11,13

Fidelity & Casualty Co. of New York v. Turby (C. C.
A. 3rd), 81 F. (2d) 299 (1935)___________ _______12,13

Forgay v. Conrad, 6 How. 201, 12 L. Ed. 404 (1848)___  12
France & Canada S. S. Co. v. French Republic (C. C.

A. 2d), 285 F. 290 (1922) ___________________ ____ 13
Grant v. Phoenix Mutual Life Insurance Co., 106 IT. S.

429, 1 Sup. Ct. 414, 27 L. Ed. 237 (1882)________ _ 11
Louisiana Nat. Bank v. Whitney, 121 U. S. 248, 7 Sup.

Ct. 897, 30 L. Ed. 961 (1887)_____________________  12
Martin v. National Surety Co. (C. C. A. 8th), 85 F. (2d)

135 (1936), aff. 300 IT. S. 588, 81 L. Ed. 822, 57 Sup.
Ct. 531 (1937)___________________________   11

Mordecai v. Lindsay, 19 How. 199,15 L. Ed. 624 (1857)- 11
Norris Safe & Lock Co., et al. v. Manganese Steel Safe 

Co. (C. C. A. 9th), 105 F. 577 (1907)______________  12
Parcels v. Johnson, 20 Wall. 653, 87 U. S. 410 (1874)___. 12
R. R. Co. v. Swasey, 23 Wall. 409, 9 U. S. 136 (1875)__.___ 12 
Reeves v. Beardall, 316 U. S. 283, 62 Sup. Ct. 1085 

(1942) __________________________________________  H
St. Clair Co. v. Lovingston, 18 Wall. 628, 85 U. S. 813

(1873)__________________________________________  12
Steel & Tube Co. of America v. Dingess Rum Coal Co.

(C. C. A. 4th), 3 F. (2d) 805 (1925)_____________ 12,13
United States v. Bighorn Sheep Co. (C. C. A. 8th), 276 

F. 710 (1921)____________________________________  13
Western Contracting Corp. v. National Surety Corp.

(C. C. A. 4th), _ -  F. (2d) , September 16, 1947 13

Authorities.
7 Federal Code Annotated, Title 28, Sec. 225. 8



IN THE

Imtefc States (Etmttl diwrt of Appeals
For the Fourth Circuit

Board of Trustees of the U niversity of 
South Carolina, N orman M. Smith , 
President of the University of South 
Carolina, Samuel Prince, Dean of the 
Law School and E. C. Needham, Regis­
trar,

Appellants,
vs.

John H. W righten,
Appellee. * 1

Motion to Dismiss

Appellee moves the court to dismiss the appeal herein 
on the following grounds :

1. The Appeal in This Case Should be Dismissed for 
Lack of Jurisdiction because the Order from which 
Appellants Appeal is Not a Pinal Order.



2

2. The Appeal in This Case Should be Dismissed be­
cause it is Fragmentary and Premature.

H arold R. B oitlware,
Harold R. Boulware,

1109% Washington Street,
Columbia 20, S. C.,

T hurgood Marshall,
Thurgood Marshall,

20 West 40th Street,
New York 18, N. Y„

Attorneys for Appellee.

Notice

T o :

John M. Daniel,
Attorney General,

T. C. Callison,
Asst. Attorney General,

D avid W . R obinson,
Columbia, S. C.,

Price & Poag,
Greenville, S. C.,

Attorneys for Appellant.



3

Please take notice that on November 21, 1947, at the 
opening of court or as soon thereafter as counsel can be 
heard, the above motion will be submitted to the court.

H arold R. Boulware,
Harold R. Boulware,

1109% Washington Street,
Columbia 20, S. C.,

T hurgood Marshall,
Thurgood Marshall,

20 West 40th Street,
New York 18, N. Y.,

Attorneys for Appellee.

October 31, 1947.





IN THE

llnltth (Etrrmt Qhutrt of Appeals
For the Fourth Circuit

Board of Trustees of the U niversity of 
South Carolina, N orman M. Smith,
President of the University of South 
Carolina, Samuel Prince, Dean of the 
Law School and R. C. Needham, Regis­
trar,  ̂No. 5667

Appellants,
vs.

John H. W righten,
Appellee.

BRIEF IN SUPPORT OF MOTION TO DISMISS

Statement of the Case

On January 4, 1947, appellee, plaintiff below, filed in 
the District Court for the Eastern District of South Caro­
lina a complaint against appellants, defendants below, for 
refusing to admit him to the first year class of the School 
of Law of the University of South Carolina (A-l-7).

It was established upon a trial of this case that the 
University of South Carolina School of Law was the only 
law school maintained by the state to which appellee could 
make application (A-17). It was admitted that appellee was

5



6

qualified in all respects to attend the law school at the 
University of South Carolina except for the fact that he 
was a Negro (A-98). He would have been admitted to said 
school if he had been white.

Appellee sought a declaratory judgment and injunction 
enjoining the appellants from refusing to admit him to the 
law school of the University of South Carolina solely be­
cause of race and color thus violating the equal protection 
of the laws under the Fourteenth Amendment to the United 
States Constitution. At a pre-trial conference the Court 
determined that it would hear the equitable issues first 
(A-13). The appellee also sought damages. After a trial 
of these issues on June 5, 1947, the Court issued an order 
stating that appellee was entitled to a permanent injunc­
tion restraining the appellants from maintaining their 
policy of excluding qualified Negroes from admission to 
the law school of the University of South Carolina because 
of their race or color; provided no similar or equal law 
school was established and maintained by the State of 
South Carolina and in existence for the furnishing of simi­
lar and equal legal education to Negroes. The order stated 
further that:

“ In the event that the State of South Carolina 
does establish a law school within its borders which 
is open to the plaintiff and to others in like plight 
on a complete equality and parity in all respects 
with the Law School of the University of South 
Carolina on or before September 15, 1947, and con­
tinues to operate the same on a like equality and 
parity or else closes the Law School of the University 
and furnishes no legal education to any persons 
within the State; then this order as to the Trustees 
and officers of the University of South Carolina 
shall be suspended and of no effect.

“ This cause shall be kept open in order that any 
of the parties hereto may apply for further relief



7

showing to this Court as to whether the terms of 
the order have been fully carried out so that the 
general intent of the same may be carried into full 
force and execution, namely, that any legal education 
furnished by the State of South Carolina shall be 
on a complete equality and parity to persons of the 
white race and of the Negro race”  (A-101).

Appellants thereupon appealed to this Court.

Statement of Facts

There is no controversy as to the facts in this case. The 
essential allegations of fact are not in dispute, and are as 
found by the United States District Court in its Findings of 
Fact. Appellee is a Negro, over 21 years of age, a citizen 
and resident of the State of South Carolina and has all of 
the lawful qualifications essential for admission to the law 
school of the University of South Carolina. Application 
was made for admission to said school on July 2, 1946, and 
again on August 17, 1946, but his admission was refused by 
the appellants because of appellee’s race. The University 
of South Carolina law school is the only law school main­
tained in the state for the legal education of either Negroes 
or whites. The trial of this cause established that there 
was no other law school in the State of South Carolina. 
Evidence wms introduced to show that plans were on paper 
for the establishment of a law school at the State College 
at Orangeburg, the institution which South Carolina main­
tains for the mechanical, agricultural, normal and indus­
trial education of Negroes. However, as of the time ot 
trial these plans had gone no further than the paper on 
which they were written. Appellee’s contention is that he 
is entitled to admission to the University of South Caro­
lina School of Law and the refusal of appellants to admit 
him to said school because of his race violates the Four­
teenth Amendment.



8

A R G U M E N T

I
This Court does not have jurisdiction of this cause 

as the order from which appellants appeal is not a 
final order.

By virtue of Title 28, Section 225 of the Judicial Code1 
the Circuit Courts of Appeal have appellate jurisdiction to 
review by appeal only final decisions.

The appellee’s complaint in this case raised only one 
issue in the Court below, i. e., that he, a citizen of the State 
of South Carolina, is entitled to enter the law school at the 
University of South Carolina since it is the only law school 
maintained and operated by the State of South Carolina for 
the legal education of its citizens. He made three claims 
for relief (1) That he was entitled to a declaratory judg­
ment; (2) That he was entitled to an injunction; and (3) 
That he was entitled to damages.

With respect to this first claim, after trial and decision 
rendered, the District Court issued an order which stated 
that the appellee, and others in like plight are entitled to a 
legal education to be furnished by the State of South Caro­
lina on a complete equality and parity with any other citi­
zens and residents of the State of South Carolina and that 
the appellants are enjoined from excluding from admission 
to the law school of the University of South Carolina the 
appellee and any persons by reason of race or color, unless 
legal education on a complete equality and parity is offered 
and furnished to the appellee and other persons in like 
plight upon the same terms and conditions by some other

1 7 F. C. A. Title 28, Sec. 225.



9

institution established, operated and maintained by the 
State of South Carolina within its borders. The order ex­
pressly provided that:

“ 3. In the event that the State of South Caro­
lina. does establish a law school within its borders 
which is open to the plaintiff and to others in like 
plight on a complete equality and parity in all re­
spects with the Law School of the University of 
South Carolina on or before September 15, 1947, and 
continues to operate the same on a like equality and 
parity or else closes the Law School of the Uni­
versity and furnishes no legal education to any per­
sons within the State; then this order as to the Trus­
tees and officers of the University of South Carolina 
shall be suspended and of no effect.

“ 4. This cause shall be kept open in order that 
any of the parties hereto may apply for further re­
lief and make further showing to this Court as to 
whether the terms of the order have been fully car­
ried out so that the general intent of the same may 
be carried into full force and execution, namely, that 
any legal education furnished by the State of South 
Carolina shall be on a complete equality and parity 
to persons of the white race and of the Negro race.”

With respect to the third claim the order of the District 
Court expressly stated that:

“ This Court has not passed upon the demand of 
the plaintiff for damages and plaintiff may within 
a reasonable time after September 15, 1947, apply 
for a tl’ial and hearing on that subject if he be so 
advised.”

It is clear that by the terms of this order the Court gave 
these appellants three alternatives, one of which was to be 
adopted and executed by September 15, 1947: (1) to admit 
appellee to the law school at the University of South Caro­
lina, or (2) to establish a law school for him within the state



10

on complete equality and parity with that provided for 
whites at the University of South Carolina, or (3) to dis­
continue providing facilities for legal training at the Uni­
versity of South Carolina and provide no legal education 
for any group. Both appellee and appellants were given 
the express opportunity to come into court on or after Sep­
tember 15, 1947, and show the Court that one of these al­
ternatives had or had not been acted upon, whereupon the 
Court would issue its final order disposing of this case. The 
District Court thus expressly retained jurisdiction of this 
case so that it could issue a final order in the event that ap­
pellants did or did not act by September 15, 1947. The rea­
son the District Court did this was because the ultimate is­
sue in this case is whether or not the appellee has been pro­
vided with facilities equal in every respect to those fur­
nished other citizens of the state at the University of South 
Carolina law school. This issue was not finally disposed of 
by the District Court because the Court, in its discretion, 
decided to give appellants the opportunity to provide this 
appellee with equal facilities if they so desired or admit him 
to the University of South Carolina law school. Once ap­
pellants have shown the District Court that they have pro­
vided appellee with equal facilities or appellee has shown 
that they have not, then the ultimate issue in this case will 
be decided upon and disposed of by the District Court.

The Court’s order was clearly temporary in nature. It 
merely set forth the legal framework within which a final 
determination was to be made. It merely stated the legal 
principles governing the disposition of this case. The 
order did not in any respect dispose completely or finally 
of the controversy or any part thereof as required by the 
final judgment rule. BostwicJc v. Brinkerhoff, 106 U. S. 3, 
27 L. Ed. 73 (1882); Beebe v. Russell, 19 How. 283, 15 L. 
Ed. 668 (1857); Collins v. Metro-Goldwyn Pictures Corp.,



11

106 F. (2d) 83 (1939); Farrelly v. Woodfolk, 19 How. 268, 
15 L. Ed. 670 (1857); Mordecai v. Lindsay, 19 How. 199, 
15 L. Ed. 624 (1857); Reeves v. Beardall, 316 U. S. 283, 
62 Sup. Ct. 1085 (1942).

Certainly appellee could do nothing until September 15, 
1947, or within a reasonable time after this date at which 
time he could come into court and show that appellants 
had not furnished equal educational facilities to him, and 
had not discontinued furnishing legal training at the Uni­
versity of South Carolina. The Court would then, in ac­
cordance with its own decree expressly retaining jurisdic­
tion of the cause, grant appellee such further relief as 
would be necessary to secure his legal right to the equal 
protection of the laws.

Appellants could do nothing under this order except to 
show on or before September 15, 1947, that they had chosen 
one of the alternatives offered in the District Court’s order, 
and as a result of having made a decision request the Court 
to suspend the order in accordance with the terms of the 
order itself. Thus there remained something further to 
be done by the District Court before this case may be said 
to be finally disposed of by it.

The rule is, as set forth in Title 28, Section 225 of the 
Judicial Code, that before an appeal may be heard by the 
Circuit Court of Appeals the decision of the District Court 
must be final.

“ A decree to be final for the purpose of appeal, must 
terminate the litigation of the parties on the merits of the 
case, so that, if there is an affirmance, the Court below will 
have nothing to do but execute the decree appealed from.”  
Martin v. National Surety Co. (C. C. A. 8th), 85 F. (2d) 
135 (1936), affd. 300 U. S. 588, 81 L. Ed. 822, 57 Sup. Ct. 
531 (1937); Grant v. Phoenix Mut. Life Insur. Co., 106 U.



12

S. 429, 431, 1 Sup. Ct. 414, 27 L. Ed. 237 (1882); Louisiana 
Nat. Bank v. Whitney, 121 U. S. 284, 285, 7 S. Ct. 897, 30 
L. Ed. 961 (1887); Norris Safe & Lock Co. et al. v. Manga­
nese Steel Safe Co. (C. C. A. 9th), 150 F. 577 (1907); R. R. 
Co. v. Swasey, 23 Wall. 409, 90 II. S. 136 (1875) ; Crosby v. 
Buchanan, 23 Wall. 453,90 U. S. 137 (1875); For gay v. Con­
rad, 6 How. 201, 12 L. Ed. 404 (1848); Craighead v. Wilson, 
18 How. 199, 15 L. Ed. 332 (1856); Beebe v. Russell, supra; 
Bronson v. RR. Co., 2 Black 524, 17 L. Ed. 359 (1863); St, 
Clair Co. v. Lovingston, 18 Wall. 628, 85 U. S. 813 (1873); 
Parcels v. Johnson, 20 Wall. 653, 87 U. S. 410 (1874).

“ When a decree finally decides and disposes of the 
whole merits of the cause, and reserves no further ques­
tions or directions for the future judgment of the Court, 
so that it will not be necessary to bring the cause again 
before the Court for its final decision, it is a final decree.”  
Fidelity & Casualty Co. of New York v. Turby (C. C. A. 
3rd), 81 F. (2d) 299 (1935); Steel & Tube Co. of America 
v. Dingess Rum. Coal Co. (C. C. A. 4th), 3 F. (2d) 805 
(1925). It remains for the District Court to determine 
whether or not the appellants have provided this appellee 
with a legal education equal in every respect to that offered 
other students at the University of South Carolina, or 
whether they have admitted him to the University of South 
Carolina, or have discontinued all legal education offered 
by the State of South Carolina. With respect to the claim 
for damages it cannot be doubted that no disposition has 
been made by the District Court. It is, therefore, clear 
that if there is an affirmance of the order of the District 
Court by this Court, something other than execution re­
mains to be done by the District Court before it can dis­
pose of this case.

Therefore, since the order appealed from is not a final 
order within the meaning of the statute as interpreted by



13

the decisions, supra, this appeal must be dismissed as the 
appellate jurisdiction of the Circuit Courts of Appeal is en­
tirely statutory. Fidelity £  C. Co. v. Turly (C. C. A. 3rd), 
81 F. (2d) 229 (1935); France <& Canada S. S. Co. v. French 
Republic (C. C. A. 2d), 285 F. 290 (1922); U. S. v. Big­
horn Sheep Co. (C. C. A. 8th), 276 F. 710 (1921). It is 
controlled by 28 Judicial Code S. 225 which provides:

“ The circuit courts of appeal shall have appellate 
jurisdiction to review by appeal final decisions.

First, In the district courts in all cases save where 
a direct review of the decision may be had in the 
Supreme Court under section 345 of this title * * * . ”

The plain meaning of this statute is that when an appeal 
is brought before a Circuit Court of Appeals based on an 
order which is not final, such an appeal must be dismissed 
for lack of jurisdiction. Fidelity & Casualty Co. of N. Y. 
v. Turby (C. C. A. 3rd), 81 F. (2d) 229 (1935); Steel <Sc 
Tube Co. of Am. v. Dingess Rum Coal Co. (C. C. A. 4th), 
3 F. (2d) 805 (1925); Beebe v. Russell, supra; Farrelly v. 
Woodfolk, supra; Bostwick v. Brinkerhoff, 106 U. S. 3, 27 
L. Ed. 73 (1882).

II

This appeal is fragmentary and premature.

One of the most essential principles governing appellate 
jurisdiction of this Court is that it will not take jurisdiction 
of a cause piecemeal. Western Contracting Corp. v. National
Surety Corp. (C. C. A. 4th),---- F. (2 d )----- , September 16,
1947; Arnold v. United States For Use Of W. B. Guimarin 
S Co., 263 U. S. 427 (1923).

In the Arnold case the Supreme Court said at page 434:
“  * * * it is well settled that a case may not be 

brought here by writ of error or appeal in frag-



14

ments; that to be reviewable a judgment or decree 
must be not only final, but complete, that is, final not 
only as to all parties, but as to the whole subject 
matter and as to all the causes of action involved; 
and that if the judgment or decree be not thus final 
and complete, the writ of error or appeal must be 
dismissed for want of jurisdiction.”

In this case appellee sought a declaratory judgment, an 
injunction, and damages. The only claim which in any sense 
can be said to be determined is appellee’s claim that he is 
entitled to a declaratory judgment. The opinion of the 
lower Court and its order declared what the rights of the 
parties were, but postponed its decision as to whether or 
not an injunction would issue until after the 15th of Sep­
tember, 1947. The Court also determined that it would not 
hear the appellee’s claim for damages until it had deter­
mined the rights of the parties and appellee’s right to an 
injunction. The lower Court has not yet determined that it 
will issue an injunction as this cannot be determined until 
the Court has had an opportunity to decide whether or not 
these appellants have furnished appellee with a separate 
law school equal in every respect to the law school at the 
University of South Carolina. If the Court below decides 
that appellee will be granted an injunction enjoining these 
appellants from refusing to admit him to the law school 
at the University of South Carolina, the Court will then 
hear the issue as to damages since it will then be clear that 
the unlawful actions of these appellants have caused appel­
lee damages.

The Court below, in the process of deciding the equitable 
issues here involved, in its discretion, gave these appellants 
a reasonable opportunity to carry out what appellants, 
responsible state officers, declared to be their intention with 
regard to appellee’s constitutional rights, and to have this



15

suit dismissed if they so desired. On October 4, 1947, the 
plaintiff below filed in the lower Court a Motion for Further 
Relief, copy of which is set out herein as “ Exhibit A .”  
This motion is still pending. Appellants, by appealing to 
this Court, have deprived the Court below of its right to 
make a final determination of the issues involved.

It is thus clear that at least four questions in this cause 
remain undisposed of; (1) whether or not appellants have 
provided this appellee with a separate law school equal in 
every respect to the law school at the University of South 
Carolina; (2) whether or not an injunction will issue re­
straining these appellants from refusing to admit appellee 
to the first year law class at the University of South Caro­
lina; (3) whether or not this suit should be dismissed since 
the state has not denied appellee the equal protection of the 
laws; and (4) whether or not appellee is entitled to dam­
ages.

It is clear that this case does not come within what ap­
pears to be an exception to the rule that an adjudication, 
final in its nature as to a matter distinct from the general 
subject of the litigation, and affecting only the parties to the 
particular controversy, may be reviewed without awaiting 
the determination of the general litigation. Arnold v. 
United' States, etc., supra.

Here the controversy is between only two parties; the 
appellee, a citizen and resident of South Carolina, and ap­
pellants, officers of the State of South Carolina. The only 
issue between them is whether or not appellants have denied 
to this appellee the equal protection of the laws guaranteed 
by the federal constitution. In pursuing a determination 
of this issue, appellee made in the Court below three claims 
for relief, i. e., he claimed the right to a declaratory judg­
ment, an injunction, and damages. As pointed out above, all 
the Court below has done thus far is to outline the rights



16

of appellee, conditioned on appellants carrying out within a 
reasonable time their plan for securing to this appellee his 
right to the equal protection of the laws. Whether or not 
appellee has been denied the equal protection of the laws 
cannot be determined until appellants have shown to the 
Court below that they have carried out their plan in ac­
cordance with their declaration.

In short, there has been no determination of an issue 
separate and distinct from the main issue, affecting only 
the particular parties to the controversy.

Appellants, therefore, cannot bring this case to this 
Court until after the Court has declared what the rights of 
the parties will be under particular circumstances which 
prevail subsequent to September 15th. To hear the appeal 
now would do violence to the principle that appellate 
courts will only hear appeals where there has been a final 
and complete determination of the rights of the parties in 
the Court below.

Conclusion
Therefore, since the order of the District Court 

in this case from which appellants appeal is not a 
final order but a conditional order, and since all 
claims to relief in this case have not been determined, 
it is respectfully submitted that this cause be dis­
missed for lack of jurisdiction.

Respectfully submitted,
H arold R. B otjlware, 

Columbia, S. C.,
E dward D udley,
T hubgood Marshall,

20 W. 40th Street, 
New York, N. Y.,

Attorneys for Appellee.
W. F. R obinson, 

Columbia, S. C.
Of Counsel.



17

Exhibit A

IN THE

UNITED STATES DISTRICT COURT 

E astern D istrict of South Carolina

John H. W righten,
Plaintiff,

vs.

Board of Trustees of the U niversity of 
South Carolina, Norman M. Smith , 
President of the University of South 
Carolina, Samuel Prince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Defendants. * 1

Civil A ction 
No. 1670

Motion for Further Relief

Plaintiff moves the Court for further relief in the above 
entitled case and respectfully shows:

1. That on July 12, 1947 this Court entered an order 
which provides:

“ ORDERED:
“ 1. That the plaintiff, John H. Wrighten, and 

others in like plight are hereby declared to be en­
titled to a legal education to be furnished by the 
State of South Carolina on a complete equality and



18

parity with any other citizens and residents of the 
State of South Carolina.

“ 2. The defendants in this case, namely the 
Trustees and officers of the University of South 
Carolina (including its Law School) are enjoined 
from excluding from admission to the Law School 
of the University of South Carolina the plaintiff and 
any persons by reasons of race and color, unless legal 
education on a complete equality and parity is offered 
and furnished to the plaintiff and other persons in 
like plight upon the same terms and conditions by 
some other institution established, operated and 
maintained by the State of South Carolina within its 
borders.

‘ ‘ 3. In the event that the State of South Carolina 
does establish a law school within its borders which 
is open to the plaintiff and to others in like plight 
on a complete equality and parity in all respects 
with the Law School of the University of South 
Carolina on or before September 15, 1947, and con­
tinues to operate the same on a like equality and 
parity or else closes the Law School of the University 
and furnishes no legal education to any persons with­
in the State; then this order as to the Trustees and 
officers of the University of South Carolina shall be 
suspended and of no effect.

“ 4. This cause shall be kept open in order that 
any of the parties hereto may apply for further re­
lief and make further showing to this Court as to 
whether the terms of the order have been fully car­
ried out so that the general intent of the same may 
be carried into full force and execution, namely that 
any legal education furnished by the State of South 
Carolina shall be on a complete equality and parity 
to persons of the white race and of the Negro race.



19

“ 5. This Court has not passed upon the demand 
of the plaintiff for damages and plaintiff may within 
a reasonable time after September 15, 1947, apply 
for a trial and hearing on that subject if he be so 
advised. ’ ’

2. Defendants have continued to maintain the law school 
at the University of South Carolina.

3. Defendants have continued to maintain their policy 
of excluding plaintiff and other Negro applicants from at­
tending the law school of the University of South Carolina 
solely because of race or color.

4. Although the State of South Carolina is establishing 
a separate law school for Negroes at Orangeburg, the said 
proposed law school did not on September 15, 1947 and does 
not at the present time offer a legal education on a com­
plete equality and parity to that offered to white students 
at the University of South Carolina.

W herefore, plaintiff moves the Court to issue an order 
requiring the defendants to show cause why they should 
not be enjoined from excluding the plaintiff and other 
qualified applicants from the Law School of the University 
of South Carolina because of race or color.

H arold R. Boulware,
A. E. Parker,
T htjrgood Marshall, 
R obert L. Carter,

Attorneys for Plaintiff.



20

I, T hurgood Marshall, attorney for plaintiff in the 
above entitled motion hereby certify that on the 2d day of 
October, 1947 I served the attached Motion For Further 
Relief upon the attorneys for defendants by depositing 
copies in the United States mails, postpaid, addressed to 
them as follows:
W. F. R obinson, Esq.,

Attorney at Law,
Columbia, S. C.

J ohn M. D aniel, Esq.,
Attorney General for S. C.,
Columbia, S. C.

J. H ough, Esq.,
Asst. Attorney General for S. C.,
Columbia, S. C.

T. C. Callison, Esq.,
Asst. Attorney General for S. C.,
Columbia, S. C.

David W. R obinson, Esq.,
Attorney at Law,
Columbia, S. C.

Messrs. P rice & P oag,
Attorneys at Law,
Greenville, S. C.

T hurgood Marshall, 
Attorney for Plaintiff, 
20 West 40th Street, 
New York 18, N. Y.





L awyers P ress, I nc., 165 William St., N. Y . C. 7; 'Phone: BEekman 3-2300







IN THE

Im trii States Ctrnrit Court of Appeals
For the Fourth Circuit

B oard of T rustees of the University of 
South Carolina, Norman M. Smith, 
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants, 
vs.

J ohn H. W righten,
Appellee.

No. 5667

BRIEF FOR APPELLEE

W . F. R obinson, 
Columbia, S. C.

Of Counsel.

Harold R. B oulware, 
Columbia, S. C.,

E dward D udley,
T hurgood Marshall,

20 W. 40th Street, 
New York, N. Y.,

Attorneys for Appellee.





I N D E X

PAGE
Statement of Case ________________________________  1

Statement of Facts________________________________  2

Question Involved
Is the refusal to admit a qualified Negro to the Uni­
versity of South Carolina Law School on the basis 
of race a violation of the Fourteenth Amendment 
to the United State Constitution where said insti­
tution is the only place offering legal training by
the state ______________________________________  4

Conclusion________________________________________  11

Table of Cases.
Alston v. Norfolk School Board (C. C. A. 4th), 112 F.

(2d) 992 (1940) certiorari denied, 311 U. S. 693 
(1940) _______ ,________________________________  9

Ex Parte Virginia, 100 U. S. 339 (1879)_____________ 9
Meyer v. Nebraska, 262 U. S. 390 (1923)---------------------  10
Missouri ex rel. Gaines v. Canada, 307 U. S. 337 

(1938) __________________________________ 5,7,9,10,11
Pearson, et al. v. Murray, 169 Md. 478 (1936)-------- 8,10,11
Yick Wo v. Hopkins, 118 U. S. 356 (1886)___________  9





IN' THE

States (Ctmtit (Cmtrt n! Appeals
For the Fourth Circuit

Board of T rustees of the U niversity of 
South Carolina, Norman M. Smith , 
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants,
vs.

J ohn H. W righten,
Appellee.

No. 5667

BRIEF FOR APPELLEE

Statement of Case

On January 4, 1947, appellee, plaintiff below, filed in the 
District Court for the Eastern District of South Carolina 
a complaint against appellants, defendants below, for refus­
ing to admit him to the first-year class of the School of Law 
of the University of South Carolina (A-17).

Following a pre-trial conference held on May 15, 1947, 
the Court announced that the equitable issues involved 
would be tried first before the Court without a jury. The 
Court’s order on the pre-trial conference entered May 20, 
1947, establishes that an agreement had been reached be-



2

tween opposing parties that the broad question of the right 
of segregation and education according to races is not be­
fore the Court but that the issue here is whether the plain­
tiff-appellee is given law school facilities by the State of 
South Carolina comparable to those afforded white students 
(A-13).

Defendants-appellants appealed from the judgment of 
the United States District Court for the Eastern District 
of South Carolina entered on July 12, 1947, granting an 
injunction against appellants restraining them from exclud­
ing from admission to the Law School of the University 
of South Carolina plaintiff-appellee and any person or per­
sons by reason of race or color unless legal education on 
a complete equality and parity is offered and furnished 
to the appellee and other persons in like plight upon the 
same terms and conditions by some other institution estab­
lished, operated or maintained by the State of South Car­
olina.

It is the judgment from this trial in appellee’s favor 
that appellants now appeal.

Statement of Facts

Appellee, John H. Wrighten, is a Negro over the age 
of 21, a citizen and resident of the State of South Carolina 
and has all of the lawful qualifications necessary for admis­
sion to the Law School of the University of South Carolina 
(A-98). Wrighten made application for admission to the 
Law School of the University of South Calorina first on 
July 2, 1946 and again on August 17, 1946 but was refused 
admission by the officials in charge of the said Law School 
because of his race (A-98). He did not make application 
to State College where there was no law school in existence 
(A-98).



3

Under the Constitution and Laws of the State of South 
Carolina, the University, including its Law School, is main­
tained solely for persons of the white race (A-98). The 
appellants are the Board of Trustees of the University 
of South Carolina, Norman M. Smith, President of the 
University of South Carolina, Samuel Prince, Dean of the 
Law School, and R. C. Needham, Registrar of the same 
(A-98). The University of South Carolina (commonly 
called The University) is an institution maintained hy the 
State for the purpose of providing higher education (in­
cluding the maintenance of the Law School) for qualified 
persons of the white race and its control is vested in the 
Board of Trustees named in accordance with the statute 
laws of the State (A-98). The Colored Normal, Industrial, 
Agricultural & Mechanical College of South Carolina (com­
monly called State College) is an institution maintained hy 
the State for the higher education of Negroes and its con­
trol is vested in the Board of Trustees, which is independent 
of the Board of Trustees of the University. The Governor 
of South Carolina is an ex-officio member of both Boards 
(A-98-99).

The General Assembly of the State of South Carolina, 
in its annual Appropriation Act for the year 1945 authorized 
the establishment of the Law School at State College but 
left it to the discretion of the Trustees and President who 
considered the matter but did not establish such a school 
and the appropriation available for the same was used for 
other purposes (A-99). Similar action occurred in 1946. 
Similarly, the General Assembly of the State of South 
Carolina in its Appropriation Act for the year 1947, adopted 
after this case was filed, authorized the Board of Trustees 
of State College to establish and maintain a graduate law 
department and made an appropriation for that purpose 
(A-99).



4

The present action is brought in the nature of a class 
suit to determine whether defendants’ policy, custom and 
usage in denying plaintiff and other qualified Negroes ad­
mission to the Law School of the University of South 
Carolina pursuant to the Constitution and Laws of the 
State of South Carolina violates the equal protection clause 
of the Fourteenth Amendment.

Question Involved

Is the refusal to admit a qualified Negro to the Uni­
versity of South Carolina Law School on the basis of 
race a violation of the Fourteenth Amendment to the 
United States Constitution where said institution is the 
only place offering legal training by the state.

It is submitted that the only question before this Court 
at this time is whether or not, in the light of the facts in 
this case, appellants’ refusal to admit appellee into the 
University of South Carolina Law School in the absence 
of a showing that equal facilities were provided elsewhere 
within the State of South Carolina is a violation of the 
equal protection clause of the Fourteenth Amendment to the 
Constitution of the United States.

The President of State College at Orangeburg testi­
fied that there was no law school available which admitted 
Negroes in South Carolina prior to or at the time of the trial 
of this case (A-17). This fact has never been disputed by 
anyone. the time of the trial of this case the only law 
school maintained by the State of South Carolina was at the 
University of South Carolina. The only place appellee 
could obtain a legal education in South Carolina was at the 
University of South Carolina. He has been refused ad­
mission to this school solely because of his race or color.



5

Had lie been white, there is no question that he would have 
been admitted.

Appellants contend that the segregation laws of South 
Carolina justify their refusal to admit Negro students. In 
doing so they completely ignore the decision of the United 
States Supreme Court in Missouri ex rel. Gaines v. Canada, 
305 U. S. 337, at page 349 (1938) on this question:

i t### admissibility 0f laws separating the races 
in the enjoyment of privileges afforded by the State 
rests wholly upon the quality of the privileges which 
the laws give to the separated groups within the 
State. * * *”

Appellants in their brief have raised the arguments 
concerning the duty of appellee to apply for admission to 
an imaginary law school at State College located at Orange­
burg, South Carolina. The lower Court’s order on pre-trial 
conference set the pattern and conduct in the trial of this 
case, it was stipulated as follows:

“ It was agreed that without any general admis­
sions and limited solely to the issues to be tried in 
this case the broad question of the right of segrega­
tion and education according to races is not before 
the Court but that the issue here is whether the plain­
tiff is given law school facilities by the State of South 
Carolina comparable with those afforded white stu­
dents; Provided of course that if it be shown that 
opportunities are given, the parties may go into the 
sufficiency and the quality of the same”  (A-13).

Whether or not appellants have complied yfith the re­
quirements of the Fourteenth Amendment as presented in 
the order of the lower Court (A-100-101), in alternative 
manner is another question that may come before this 
Court at some future time. The following testimony by 
Miller F. Whittaker, President of State College at Orange-



6

burg, S. C. (A-17), conclusively shows that there was no law 
school within the State of South Carolina prior to or at the 
time of the trial of this action. In answer to questions con­
cerning State College, Mr. Whittaker gave the following 
testimony:

“ Q. Do you have a law school there? A. No, no 
law school.

“ Q. As of June of the year 1946, did you have a 
law school there ? A. We did not.

“ Q. Did you have one as of January of this year? 
A. We did not.

“ Q. Do you have one now? A. We do not.
“  Q. Is there any law school operated by the State 

of South Carolina to which Negroes are at present 
admitted if you know? A. There is none as far as 
I know.

“ Q. Do you know of any other school or uni­
versity in the State of South Carolina for the educa­
tion of Negroes beyond the high school level other 
than the school that you are president of ? A. There 
is none, no.

“ Q. So, at the present time there is no law school 
at your school ? A. That is right.

“ Q. There is no setup at the present time in 
existence for the training of the Negro in the field of 
law at your institution? A. There is none.”

In spite of this testimony from the President of the only 
institution in South Carolina where Negroes were admitted 
to higher education, appellants insist that the language of 
the 1945 and 1946 Appropriation Act (44 Stat. 401, 1605, 
A-106), “ authorized”  the establishment of a law school at 
State and that this language must be construed as manda­
tory in the light of South Carolina law requiring segrega-



7

tion. (These statutes are set out in full in Appellants’ Ap­
pendix, pp. 92-94.) Provisions similar to those in the Acts 
of 1945 and 1946 were on the statute hooks of Missouri at 
the time the suit against the University of Missouri arose 
in the case of Missouri ex rel. Gaines v. Canada, supra. 
The Supreme Court of the United States stated as to this 
defense in that case:

“ * * * it appears that the policy of establishing the 
law school at Lincoln University has not yet ripened 
into an actual establishment and it cannot be said that 
a mere declaration of purpose still unfulfilled is 
enough. The provision for legal education at Lin­
coln at present is entirely lacking. Respondents’ 
counsel urge that if on the date when petitioner ap­
plied for education to the University of Missouri he 
had instead applied to the curators of Lincoln Uni­
versity, it would have been their duty to establish a 
law school; and that this agent of the state, to which 
he should have applied, was specifically charged with 
the mandatory duty to furnish him what he seeks. 
We do not read the opinion of the Supreme Court as 
construing the state statute to impose such a manda­
tory duty as the argument seems to assert * *

Even assuming that the appropriation by the State of 
South Carolina to State College for all graduate work, in­
cluding law, medicine, pharmacy and out-of-state scholar­
ships (A-36) will be available to set up a future law school 
for Negroes, we must rely upon the testimony of President 
Whittaker in giving his opinion as to the physical possibil­
ity of accomplishing such an act.

“ Q. President Whittaker, I want your opinion 
as to whether or not in your mind, bearing in mind 
the difficulty in getting law books, the lack of an 
adequate building space, the fact that you do not 
have a faculty member yet, nor a dean, nor a librar­
ian, do you in your own mind believe that you can



8

set up a law school by September that would be the 
full and complete equal of the law school at the Uni­
versity of South Carolina? A. No, I do not think 
so. That is my opinion”  (A-37).

In the case of Pearson, et al. v. Murray,1 which was a 
mandamus action to compel the admission of a qualified 
Negro to the University of Maryland Law School, the 
Court of Appeals of Maryland in granting the requested 
relief stated:

“ The method of furnishing the equal facilities 
required is at the choice of the State now or at any 
future time. At present it is maintaining only the 
one law school . . .  no separate school for colored 
students has been decided upon and only an inade­
quate substitute has been provided. Compliance 
with the Constitution cannot be deferred at the will of 
the state. Whatever system it adopts for legal educa­
tion now must furnish equality of treatment now. . . . 
in Maryland now the equal treatment can be fur­
nished only in the one existing law school, the peti­
tioner, in our opinion, must be admitted there.”

The Court then concluded:
“  . . . The state has undertaken the function of 

education in the law but has omitted the students of 
one race from the only adequate provision made for 
it and omitted them solely because of their color. 
If those students are to be offered equal treatment 
. . . they must, at present, be admitted to the one 
school provided. And as the officers and Regents 
are the agents of the state intrusted with the con­
duct of the school, it follows that they must admit 
. . . there is identity in principle and agent for the 
application of the constitutional requirement.”

1169 Md. 478 (1936).



9

The Gaines case has provided a clear principle for the 
decision of the basic rights of the parties in this case. In 
that case, Gaines, a Negro citizen and resident of the State 
of Missouri, attempted to obtain entrance to the Law 
School of the University of Missouri, which was maintained 
solely for whites. There was another institution (Lincoln 
University) maintained by the State of Missouri for the 
higher education of Negroes. It had no law school, though 
there had been appropriations and authorizations to its 
officials to establish a law school when deemed advisable. 
After denial of the relief in the state court and upon ap­
peal to the United States Supreme Court, that Court held 
in unmistakable terms that a Negro was entitled to the 
same educational facilities as a white person within the 
state.

It is our contention, therefore, that the Gaines case, 
supra, sets forth the law which is controlling in this case. 
This Court is asked by appellees to merely sustain the prin­
ciple, at this time, that the Fourteenth Amendment to the 
United States Constitution requires the State of South 
Carolina in furnishing legal education to qualified white 
students at the University of South Carolina to admit 
qualified Negroes into the University of South Carolina 
in the absence of equal facilities elsewhere in the state.

A long list of cases has sustained the principle that no 
state shall deny to any of its citizens the equal protection 
of the laws on account of race or color.2

When appellee applied to enter the law school at the 
University of South Carolina it was the only law school

2 E x  Parte Virginia, 100 U. S. 339 (1879) ; Yick W o  v. Hopkins, 
118 U. S. 356 (1886) ; Alston  v. N orfolk  School Board, 112 F. (2d) 
992 (C. C. A. 4th, 1940) Certiorari denied 311 U. S. 693 (1940); 
M issouri e x  rel. Gaines v. Canada, supra.



10

maintained and operated by the state for the legal education 
of its citizens (A-17).

Appellants admittedly denied him the right to attend 
solely on account of his race and color (A-98).

The equal protection of the laws is denied where the 
state maintains a law school from which Negro students, 
otherwise qualified, are excluded because of their race, and 
at the same time does not provide a law school within the 
state which Negroes may attend.3 Missouri ex rel. Gaines 
v. Canada, supra; Pearson, et al. v. Murray, supra.

The fact that there is a limited demand within the state 
for the legal education of Negroes does not excuse this 
discrimination. Missouri ex rel. Gaines v. Canada, supra; 
Pearson, et al. v. Murray, supra. As an individual this ap­
pellee is entitled to the equal protection of the laws, and the 
state is bound to furnish him within its borders facilities for 
legal education equal to those which the state affords for 
persons of the white race, whether or not other Negroes 
seek the same opportunity Missouri ex rel. Gaines v. 
Canada, supra. This discrimination is not excused because

3 Appellee is also deprived of his liberty without due process of 
law through this denial of equal protection by the State of South 
Carolina as the right “to acquire useful knowledge” is one of those 
liberties long recognized at common law as essential to the orderly 
pursuit of happiness by free men.

As stated by the U. S. Supreme Court in M eyer  v. Nebraska, 262
U. S. 390, 399: “ ‘No state shall * * * deprive any person of 
life, liberty, or property, without due process of law.’ While this 
Court has not attempted to define with exactness the liberty thus 
guaranteed, the term has received much consideration, and some of 
the included things have been definitely stated. Without doubt, it 
denotes not merely freedom from bodily restraint, but also the right 
of the individual to contract, to engage in any of the common occu­
pations of life, to acquire useful knowledge, to marry, establish a 
home and bring up children, to worship God according to the dictates 
of his own conscience, and, generally, to enjoy those privileges long 
recognized at common law as essential to the orderly pursuit of happi­
ness of free men.” (Citing cases.)



1 1

it may be termed temporary pending the establishment of 
a law school for Negroes within the state Missouri ex rel. 
Gaines v. Canada, supra; Pearson, et al. v. Murray, 
supra.

Conclusion

In considering this question, appellee respectfully re­
quests this Court to examine carefully the violation of the 
equal protection clause of the Fourteenth Amendment by 
appellants in refusing to accept appellee into the only law 
school maintained by the State of South Carolina solely 
because of appellee’s race and color. The right violated is 
an individual one which the agents of the State of South 
Carolina acting under color of law within the State of South 
Carolina cannot justify. Equal protection and due process 
cannot be satisfied by continuously pointing to imaginary 
equality. As a matter of fact, the lower Court could have 
issued a permanent injunction at the time of the hearing 
admitting appellee into the only law school in the State of 
South Carolina.

It is respectfully submitted that the appeal be dismissed.

Respectfully submitted,

H arold R. B otjlware,
Columbia, S. C.,

T hurgood Marshall,
E dward R. D udley,

20 West 40th Street, 
New York City,

Attorneys for Appellees.



f





Lawyers Press, I nc., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300







I N  T H E

Imteii States Cirrrnt Court of Appeals
For the Fourth Circuit

B oard of T rustees of the University of 
South Carolina, Norman M. Smith , 
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants,
vs.

J ohn H. W righten,
Appellee.

No. 5667

MOTION TO DISMISS AND BRIEF 
IN SUPPORT THEREOF

W . F. R obinson, 
Columbia, S. C.

Of Counsel.

H arold R. B oulware, 
Columbia, S. C.,

E dward Dudley,
T hurgood Marshall,

20 W. 40th Street, 
New York, N. Y.,

Attorneys for Appellee.





I N D E X

PAGE

Motion to Dismiss ________________________________  1

Notice of M otion__________________________________  2

Statement of the Case______________________________  5

Statement of Facts________________________________  7

Argument:
I. This Court does not have jurisdiction of this 

cause because the order from which appellants
appeal is not a final order_____________________  8

II. This appeal is fragmentary and premature------  13

Conclusion_________________________________________ 16

Exhibit “ A ”  _____________________________________  17

Table of Cases.

Arnold v. United States for use of W. B. Guimarin &
Co., 263 U. S. 427 (1923)_______________________13,15

Beebe v. Bussell, 19 How. 283,15 L. Ed. 668 (1857) .10,12,13 
Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. Ed. 73

(1882) ________________________________________10,13
Bronson v. R. R. Co., 2 Black 524,17 L. Ed. 359 (1863). 12
Collins v. Metro-Goldwvn Pictures Corp., 106 P. (2d)

83 (1939) ______________________________________  10
Craighead v. Wilson, 18 How. 199,15 L. Ed. 332 (1856). 12
Crosby v. Buchanan, 23 Wall. 453, 90 IT. S. 137 (1875).. 12



11

PAGE

Farrelly v. Woodfolk, 19 How. 268, 15 L. Ed. 670
(1857) _________________________________________ 11,13

Fidelity & Casualty Co. of New York v. Turby (C. C.
A. 3rd), 81 F. (2d) 299 (1935)__________________ 12,13

Forgay v. Conrad, 6 How. 201, 12 L. Ed. 404 (1848)____ 12
France & Canada S. S. Co. v. French Republic (C. C.

A. 2d), 285 F. 290 (1922)_______ _________________ 13
Grant v. Phoenix Mutual Life Insurance Co., 106 TJ. S.

429,1 Sup. Ct. 414, 27 L. Ed. 237 (1882)___________ 11
Louisiana Nat. Bank v. Whitney, 121 TJ. S. 248, 7 Sup.

Ct. 897, 30 L, Ed. 961 (1887)_____________________  12
Martin y. National Surety Co. (C. C. A. 8th), 85 F. (2d)

135 (1936), aff. 300 TJ. S. 588, 81 L. Ed. 822, 57 Sup.
Ct. 531 (1937)____________________________   11

Mordecai v. Lindsay, 19 How. 199,15 L. Ed. 624 (1857)- 11
Norris Safe & Lock Co., et al. v. Manganese Steel Safe 

Co. (C. C. A. 9th), 105 F. 577 (1907)______________  12
Parcels v. Johnson, 20 Wall. 653, 87 TJ. S. 410 (1874) _  12
R. R. Co. v. Swasey, 23 Wall. 409, 9 TJ. S. 136 (1875)___12
Reeves v. Beardall, 316 TJ. S. 283, 62 Sup. Ct. 1085 

(1942) __________________________________________  11
St. Clair Co. v. Lovingston, 18 Wall. 628, 85 U. S. 813

(1873) ___ i_____________________________________  12
Steel & Tube Co. of America v. Dingess Rum Coal Co.

(C. C. A. 4th), 3 F. (2d) 805 (1925)____ _ 12.13
United States v. Bighorn Sheep Co. (C. C. A. 8th), 276 

F. 710 (1921)_______________________________ -____ 13
Western Contracting Corp. v. National Surety Corp.

(C. C. A. 4th), __ F. (2d) —, September 16, 1947— 13

Authorities.
7 Federal Code Annotated, Title 28, Sec. 225. 8



IN' THE

llnxUh States ©trrrnt (ta rt at Appeals
For the Fourth Circuit

Board of T rustees of the U niversity of 
South Carolina, Norman M. Smith ,
President of the University of South 
Carolina, Samuel P rince, Dean of the 
Law School and R. C. Needham, Regis­
trar, \ No. 566/

Appellants, 
vs.

J ohn H. W righten,
Appellee. * 1

Motion to Dismiss

Appellee moves the court to dismiss the appeal herein 
on the following grounds:

1. The Appeal in This Case Should be Dismissed for 
Lack of Jurisdiction because the Order from which 
Appellants Appeal is Not a Final Order.



2

2. The Appeal in This Case Should be Dismissed be­
cause it is Fragmentary and Premature.

H arold R. B oulware,
Harold R. Boulware,

1109V2 Washington Street,
Columbia 20, S. C.,

T htjrgood Marshall,
Thurgood Marshall,

20 West 40th Street,
New York 18, N. Y.,

Attorneys for Appellee.

Notice

T o :
J ohn M. Daniel,

Attorney General,

T. C. CALLISON,
Asst. Attorney General,

D avid W. R obinson, 
Columbia, S. C.,

P rice & P oag,
Greenville, S. C.,

Attorneys for Appellant.



3

Please take notice that on November 21, 1947, at the 
opening of court or as soon thereafter as counsel can be 
heard, the above motion will be submitted to the court.

H abold R. B ottlwabe,
Harold R. Boulware,

1109% Washington Street,
Columbia 20, S. C.,

T httkgood Mabshall,
Thurgood Marshall,

20 West 40th Street,
New York 18, N. Y.,

Attorneys for Appellee.

October 31, 1947.





1ST T H E

Ittttrfi States (Etrorit Court of Appeals
For the Fourth Circuit

Board oe Texjstees of the U niversity of 
South Carolina, Norman M. Smith , 
President of the University of South 
Carolina, Samuel Prince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Appellants,
vs.

John H. W righten,
Appellee.

No. 5667

BRIEF IN SUPPORT OF MOTION TO DISMISS 

Statement of the Case

On January 4, 1947, appellee, plaintiff below, filed in 
the District Court for the Eastern District of South Caro­
lina a complaint against appellants, defendants below, for 
refusing to admit him to the first year class of the School 
of Law of the University of South Carolina (A-l-7).

It was established upon a trial of this case that the 
University of South Carolina School of Law was the only 
law school maintained by the state to which appellee could 
make application (A-17). It was admitted that appellee was

5



6

qualified in all respects to attend the law school at the 
University of South Carolina except for th*e fact that he 
was a Negro (A-98). He would have been admitted to said 
school if he had been white.

Appellee sought a declaratory judgment and injunction 
enjoining the appellants from refusing to admit him to the 
law school of the University of South Carolina solely be­
cause of race and color thus violating the equal protection 
of the laws under the Fourteenth Amendment to the United 
States Constitution. At a pre-trial conference the Court 
determined that it would hear the equitable issues first 
(A-13). The appellee also sought damages. After a trial 
of these issues on June 5, 1947, the Court issued an order 
stating that appellee was entitled to a permanent injunc­
tion restraining the appellants from maintaining their 
policy of excluding qualified Negroes from admission to 
the law school of the University of South Carolina because 
of their race or color; provided no similar or equal law 
school was established and maintained by the State of 
South Carolina and in existence for the furnishing of simi­
lar and equal legal education to Negroes. The order stated 
further that:

“ In the event that the State of South Carolina 
does establish a law school within its borders which 
is open to the plaintiff and to others in like plight 
on a complete equality and parity in all respects 
with the Law School of the University of South 
Carolina on or before September 15, 1947, and con­
tinues to operate the same on a like equality and 
parity or else closes the Law School of the University 
and furnishes no legal education to any persons 
within the State; then this order as to the Trustees 
and officers of the University of South Carolina 
shall be suspended and of no effect.

“ This cause shall be kept open in order that any 
of the parties hereto may apply for further relief



7

showing- to this Court as to whether the terms of 
the order have been fully carried out so that the 
general intent of the same may be carried into full 
force and execution, namely, that any legal education 
furnished by the State of South Carolina shall be 
on a complete equality and parity to persons of the 
white race and of the Negro race”  (A-101).

Appellants thereupon appealed to this Court.

Statement of Facts

There is no controversy as to the facts in this case. The 
essential allegations of fact are not in dispute, and are as 
found by the United States District Court in its Findings of 
Fact. Appellee is a Negro, over 21 years of age, a citizen 
and resident of the State of South Carolina and has all of 
the lawful qualifications essential for admission to the law 
school of the University of South Carolina. Application 
was made for admission to said school on July 2, 1946, and 
again on August 17, 1946, but his admission was refused by 
the appellants because of appellee’s race. The University 
of South Carolina law school is the only law school main­
tained in the state for the legal education of either Negroes 
or whites. The trial of this cause established that there 
was no other law school in the State of South Carolina. 
Evidence was introduced to show that plans were on paper 
for the establishment of a law school at the State College 
at Orangeburg, the institution which South Carolina main­
tains for the mechanical, agricultural, normal and indus­
trial education of Negroes. However, as of the time of 
trial these plans had gone no further than the paper on 
which they were written. Appellee’s contention is that he 
is entitled to admission to the University of South Caro­
lina School of Law and the refusal of appellants to admit 
him to said school because of his race violates the Four­
teenth Amendment.



8

A R G U M E N T

I

This Court does not have jurisdiction of this cause 
as the order from which appellants appeal is not a 
final order.

By virtue of Title 28, Section 225 of the Judicial Code1, 
the Circuit Courts of Appeal have appellate jurisdiction to 
review by appeal only final decisions.

The appellee’s complaint in this case raised only one 
issue in the Court below, i. e., that he, a citizen of the State 
of South Carolina, is entitled to enter the law school at the 
University of South Carolina since it is the only law school 
maintained and operated by the State of South Carolina for 
the legal education of its citizens. He made three claims 
for relief (1) That be was entitled to a declaratory judg­
ment; (2) That he was entitled to an injunction; and (3) 
That he was entitled to damages.

With respect to this first claim, after trial and decision 
rendered, the District Court issued an order which stated 
that the appellee, and others in like plight are entitled to a 
legal education to be furnished by the State of South Caro­
lina on a complete equality and parity with any other citi­
zens and residents of the State of South Carolina and that 
the appellants are enjoined from excluding from admission 
to the law school of the University of Smith Carolina the 
appellee and any persons by reason of race or color, unless 
legal education on a complete equality and parity is offered 
and furnished to the appellee and other persons in like 
plight upon the same terms and conditions by some other

1 7 F. C. A. Title 28, Sec. 225.



9

institution established, operated and maintained by the 
State of South Carolina within its borders. The order ex­
pressly provided that:

“ 3. In the event that the State of South Caro­
lina does establish a law school within its borders 
which is open to the plaintiff and to others in like 
plight on a complete equality and parity in all re­
spects with the Law School of the University of 
South Carolina on or before September 15, 1947,* and 
continues to operate the same on a like equality and 
parity or else closes the Law School of the Uni­
versity and furnishes no legal education to any per­
sons within the State; then this order as to the Trus­
tees and officers of the University of South Carolina 
shall be suspended and of no effect.

“ 4. This cause shall be kept open in order that 
any of the parties hereto may apply for further re­
lief and make further showing to this Court as to 
whether the terms of the order have been fully car­
ried out so that the general intent of the same may 
be carried into full force and execution, namely, that 
any legal education furnished by the State of South 
Carolina shall be on a complete equality and parity 
to persons of the white race and of the Negro race.”

With respect to the third claim the order of the District 
Court expressly stated that:

“ This Court has not passed upon the demand of 
the plaintiff for damages and plaintiff may within 
a reasonable time after September 15, 1947, apply 
for a trial and hearing on that subject if he be so 
advised.”

It is clear that by the terms of this order the Court gave 
these appellants three alternatives, one of which was to be 
adopted and executed by September 15, 1947: (1) to admit 
appellee to the law school at the University of South Caro­
lina, or (2) to establish a law school for him within the state



10

on complete equality and parity with that provided for 
whites at the University of South Carolina, or (3) to dis­
continue providing facilities for legal training at the Uni­
versity of South Carolina and provide no legal education 
for any group. Both appellee and appellants were given 
the express opportunity to come into court on or after Sep­
tember 15, 1947, and show the Court that one of these al­
ternatives had or had not been acted upon, whereupon the 
Court would issue its final order disposing of this case. The 
District Court thus expressly retained jurisdiction of this 
case so that it could issue a final order in the event that ap­
pellants did or did not act by September 15, 1947. The rea­
son the District Court did this was because the ultimate is­
sue in this case is whether or not the appellee has been pro­
vided with facilities equal in every respect to those fur­
nished other citizens of the state at the University of South 
Carolina law school. This issue was not finally disposed of 
by the District Court because the Court, in its discretion, 
decided to give appellants the opportunity to provide this 
appellee with equal facilities if they so desired or admit him 
to the University of South Carolina law school. Once ap­
pellants have shown the District Court that they have pro­
vided appellee with equal facilities or appellee has shown 
that they have not, then the ultimate issue in this case will 
be decided upon and disposed of by the District Court.

The Court’s order was clearly temporary in nature. It 
merely set forth the legal framework within which a final 
determination was to be made. It merely stated the legal 
principles governing the disposition of this case. The 
order did not in any respect dispose completely or finally 
of the controversy or any part thereof as required by the 
final judgment rule. Bostwick v. Brinkerhoff, 106 U. 8. 3, 
27 L. Ed. 73 (1882); Beebe v. Russell, 19 How. 283, 15 L. 
Ed. 668 (1857); Collins v. Metro-Goldwyn Pictures Cory.,



11

106 F. (2d) 83 (1939); Farrelly v. WoodfolJc, 19 How. 268, 
15 L. Ed. 670 (1857); Mordecai v. Lindsay, 19 How. 199, 
15 L. Ed. 624 (1857); Beeves v. Beardall, 316 U. S. 283, 
62 Sup. Ct. 1085 (1942).

Certainly appellee could do nothing until September 15, 
1947, or within a reasonable time after this date at which 
time he could come into court and show that appellants 
had not furnished equal educational facilities to him, and 
had not discontinued furnishing legal training at the Uni­
versity of South Carolina. The Court would then, in ac­
cordance with its own decree expressly retaining jurisdic­
tion of the cause, grant appellee such further relief as 
would be necessary to secure his legal right to the equal 
protection of the laws.

Appellants could do nothing under this order except to 
show on or before September 15, 1947, that they had chosen 
one of the alternatives offered in the District Court’s order, 
and as a result of having made a decision request the Court 
to suspend the order in accordance with the terms of the 
order itself. Thus there remained something further to 
be done by the District Court before this case may be said 
to be finally disposed of by it.

The rule is, as set forth in Title 28, Section 225 of the 
Judicial Code, that before an appeal may be heard by the 
Circuit Court of Appeals the decision of the District Court 
must be final.

“ A decree to be final for the purpose of appeal, must 
terminate the litigation of the parties on the merits of the 
case, so that, if there is an affirmance, the Court below will 
have nothing to do but execute the decree appealed from.”  
Martin v. National Surety Co. (C. C. A. 8th), 85 F. (2d) 
135 (1936), affd. 300 U. S. 588, 81 L. Ed. 822, 57 Sup. Ct. 
531 (1937); Grant v. Phoenix Mut. Life Insur. Co., 106 U.



12

S. 429, 431, 1 Sup. Ct. 414, 27 L. Ed. 237 (1882); Louisiana 
Nat. Bank v. Whitney, 121 U. S. 284, 285, 7 S. Ct. 897, 30 
L. Ed. 961 (1887); Norris Safe <& Lock Co. et al. v. Manga­
nese Steel Safe Co. (C. C. A. 9th), 150 F. 577 (1907); R. R. 
Co. v. Swasey, 23 Wall. 409, 90 U. S. 136 (1875) ; Crosby v. 
Buchanan, 23 Wall. 453,90 U. S. 137 (1875) ;  For gay v. Con­
rad, 6 How. 201, 12 L. Ed. 404 (1848); Craighead v. Wilson, 
18 How. 199, 15 L. Ed. 332 (1856); Beebe v. Russell, supra; 
Bronson v. RR. Co., 2 Black 524, 17 L. Ed. 359 (1863); St. 
Clair Co. v. Lovingston, 18 Wall. 628, 85 H. S. 813 (1873); 
Parcels v. Johnson, 20 Wall. 653, 87 U. S. 410 (1874).

“ When a decree finally decides and disposes of the 
whole merits of the cause, and reserves no further ques­
tions or directions for the future judgment of the Court, 
so that it will not be necessary to bring the cause again 
before the Court for its final decision, it is a final decree.”  
Fidelity & Casualty Co. of New York v. Turby (C. C. A. 
3rd), 81 F. (2d) 299 (1935); Steel & Tube Co. of America 
v. Dingess Rum Coal Co. (C. C. A. 4th), 3 F. (2d) 805 
(1925). It remains for the District Court to determine 
whether or not the appellants have provided this appellee 
with a legal education equal in every respect to that offered 
other students at the University of South Carolina, or 
whether they have admitted him to the University of South 
Carolina, or have discontinued all legal education offered 
by the State of South Carolina. With respect to the claim 
for damages it cannot be doubted that no disposition has 
been made by the District Court. It is, therefore, clear 
that if there is an affirmance of the order of the District 
Court by this Court, something other than execution re­
mains to be done by the District Court before it can dis­
pose of this case.

Therefore, since the order appealed from is not a final 
order within the meaning of the statute as interpreted by



13

the: decisions, supra, this appeal must be dismissed as the 
appellate jurisdiction of the Circuit Courts of Appeal is en­
tirely statutory. Fidelity & C. Co. v. Turly (C. C. A. 3rd), 
81 F. (2d) 229 (1935); France <& Canada S. 8. Co. v. French 
Republic (C. C. A. 2d), 285 F. 290 (1922); U. S. v. Big­
horn Sheep Co. (C. C. A. 8th), 276 F. 710 (1921). It is 
controlled by 28 Judicial Code S. 225 which provides:

‘ ‘ The circuit courts of appeal shall have appellate 
jurisdiction to review by appeal final decisions.

First, In the district courts in all cases save where 
a direct review of the decision may be had in the 
Supreme Court under section 345 of this title * * * . ”

The plain meaning of this statute is that when an appeal 
is brought before a Circuit Court of Appeals based on an 
order which is not final, such an appeal must be dismissed 
for lack of jurisdiction. Fidelity & Casualty Co. of N. Y. 
v. Turby (C. C. A. 3rd), 81 F. (2d) 229 (1935); Steel & 
Tube Co. of Am. v. Dingess Rum Coal Co. (C. C. A. 4th), 
3 F. (2d) 805 (1925); Beebe v. Russell, supra; Farrelly v. 
Woodfolk, supra; Bostwick v. Brinkerhoff, 106 U. S. 3, 27 
L. Ed. 73 (1882).

II

This appeal is fragmentary and premature.

One of the most essential principles governing appellate 
jurisdiction of this Court is that it will not take jurisdiction 
of a cause piecemeal. Western Contracting Corp. v. National
Surety Corp. (C. C. A. 4th),---- F. (2 d )----- , September 16,
1947; Arnold v. United States For Use Of IF. B. Guimarin 
<& Co., 263 U. S. 427 (1923).

In the Arnold case the Supreme Court said at page 434:
“  * * * it is well settled that a case may not be 

brought here by writ of error or appeal in frag-



14

ments; that to he reviewable a judgment or decree 
must be not only final, but complete, that is, final not 
only as to all parties, but as to the whole subject 
matter and as to all the causes of action involved; 
and that if the judgment or decree be not thus final 
and complete, the writ of error or appeal must be 
dismissed for want of jurisdiction.”

In this case appellee sought a declaratory judgment, an 
injunction, and damages. The only claim which in any sense 
can be said to be determined is appellee’s claim that he is 
entitled to a declaratory judgment. The opinion of the 
lower Court and its order declared what the rights of the 
parties were, but postponed its decision as to whether or 
not an injunction would issue until after the 15th of Sep­
tember, 1947. The Court also determined that it would not 
hear the appellee’s claim for damages until it had deter­
mined the rights of the parties and appellee’s right to an 
injunction. The lower Court has not yet determined that it 
will issue an injunction as this cannot be determined until 
the Court has had an opportunity to decide whether or not 
these appellants have furnished appellee with a separate 
law school equal in every respect to the law school at the 
University of South Carolina. If the Court below decides 
that appellee will be granted an injunction enjoining these 
appellants from refusing to admit him to the law school 
at the University of South Carolina, the Court will then 
hear the issue as to damages since it will then be clear that 
the unlawful actions of these appellants have caused appel­
lee damages.

The Court below, in the process of deciding the equitable 
issues here involved, in its discretion, gave these appellants 
a reasonable opportunity to carry out what appellants, 
responsible state officers, declared to be their intention with 
regard to appellee’s constitutional rights, and to have this



15

suit dismissed if they so desired. On October 4, 1947, the 
plaintiff below filed in the lower Court a Motion for Further 
Relief, copy of which is set out herein as “ Exhibit A .”  
This motion is still pending. Appellants, by appealing to 
this Court, have deprived the Court below of its right to 
make a final determination of the issues involved.

It is thus clear that at least four questions in this cause 
remain undisposed of; (1) whether or not appellants have 
provided this appellee with a separate law school equal in 
every respect to the law school at the University of South 
Carolina; (2) whether or not an injunction will issue re­
straining these appellants from refusing to admit appellee 
to the first year law class at the University of South Caro­
lina; (3) whether or not this suit should be dismissed since 
the state has not denied appellee the equal protection of the 
laws; and (4) whether or not appellee is entitled to dam­
ages.

It is clear that this case does not come within what ap­
pears to be an exception to the rule that an adjudication, 
final in its nature as to a matter distinct from the general 
subject of the litigation, and affecting only the parties to the 
particular controversy, may be reviewed without awaiting 
the determination of the general litigation. Arnold v. 
United' States, etc., supra.

Here the controversy is between only two parties; the 
appellee, a citizen and resident of South Carolina, and ap­
pellants, officers of the State of South Carolina. The only 
issue between them is whether or not appellants have denied 
to this appellee the equal protection of the laws guaranteed 
by the federal constitution. In pursuing a determination 
of this issue, appellee made in the Court below three claims 
for relief, i. e., he claimed the right to a declaratory judg­
ment, an injunction, and damages. As pointed out above, all 
the Court below has done thus far is to outline the rights



1 6

of appellee, conditioned on appellants carrying out within a 
reasonable time their plan for securing to this appellee his 
right to the equal protection of the laws. Whether or not 
appellee has been denied the equal protection of the laws 
cannot be determined until appellants have shown to the 
Court below that they have carried out their plan in ac­
cordance with their declaration.

In short, there has been no determination of an issue 
separate and distinct from the main issue, affecting only 
the particular parties to the controversy.

Appellants, therefore, cannot bring this case to this 
Court until after the Court has declared what the rights of 
the parties will be under particular circumstances which 
prevail subsequent to September 15th. To hear the appeal 
now would do violence to the principle that' appellate 
courts will only hear appeals where there has been a final 
and complete determination of the rights of the parties in 
the Court below.

Conclusion
Therefore, since the order of the District Court 

in this case from which appellants appeal is not a 
final order but a conditional order, and since all 
claims to relief in this case have not been determined, 
it is respectfully submitted that this cause be dis­
missed for lack of jurisdiction.

Respectfully submitted,
H arold R. Boulware, 

Columbia, S. C.,
E dward D udley,
T hurgood Marshall,

20 W. 40th Street, 
New York, N. Y.,

Attorneys for Appellee.
W. F. R obinson, 

Columbia, S. C.
Of Counsel.



17

Exhibit A

I N  T H E

UNITED STATES DISTRICT COURT

E astern D istrict of South Carolina

John H. W righten,
Plaintiff,

vs.

Board of Trustees of the U niversity of 
South Carolina, N orman M. Smith , 
President of the University of South 
Carolina, Samuel Prince, Dean of the 
Law School and R. C. Needham, Regis­
trar,

Defendants.

Civil A ction 
No. 1670

Motion for Further Relief

Plaintiff moves the Court for further relief in the above 
entitled case and respectfully shows:

1. That on July 12, 1947 this Court entered an order 
which provides:

“ ORDERED:
“ 1. That the plaintiff, John H. Wrighten, and 

others in like plight are hereby declared to be en­
titled to a legal education to be furnished by the 
State of South Carolina on a complete equality and



1 8

parity with any other citizens and residents of the 
State of South Carolina.

“ 2. The defendants in this case, namely the 
Trustees and officers of the University of South 
Carolina (including its Law School) are enjoined 
from excluding from admission to the Law School 
of the University of South Carolina the plaintiff and 
any persons by reasons of race and color, unless legal 
education on a complete equality and parity is offered 
and furnished to the plaintiff and other persons in 
like plight upon the same terms and conditions by 
some other institution established, operated and 
maintained by the State of South Carolina within its 
borders.

“ 3. In the event that the State of South Carolina 
does establish a law school within its borders which 
is open to the plaintiff and to others in like plight 
on a complete equality and parity in all respects 
with the Law School of the University of South 
Carolina on or before September 15, 1947, and con­
tinues to operate the same on a like equality and 
parity or else closes the Law School of the University 
and furnishes no legal education to any persons with­
in the State; then this order as to the Trustees and 
officers of the University of South Carolina shall be 
suspended and of no effect.

“ 4. This cause shall be kept open in order that 
any of the parties hereto may apply for further re­
lief and make further showing to this Court as to 
whether the terms of the order have been fully car­
ried out so that the general intent of the same may 
be carried into full force and execution, namely that 
any legal education furnished by the State of South 
Carolina shall be on a complete equality and parity 
to persons of the white race and of the Negro race.



19

“ 5. This Court has not passed upon the demand 
of the plaintiff for damages and plaintiff may within 
a reasonable time after September 15, 1947, apply 
for a trial and hearing on that subject if he be so 
advised. ’ ’

2. Defendants have continued to maintain the law school 
at the University of South Carolina.

3. Defendants have continued to maintain their policy 
of excluding plaintiff and other Negro applicants from at­
tending the law school of the University of South Carolina 
solely because of race or color.

4. Although the State of South Carolina is establishing 
a separate law school for Negroes at Orangeburg, the said 
proposed law school did not on September 15, 1947 and does 
not at the present time offer a legal education on a com­
plete equality and parity to that offered to white students 
at the University of South Carolina.

W herefore, plaintiff moves the Court to issue an order 
requiring the defendants to show cause why they should 
not be enjoined from excluding the plaintiff and other 
qualified applicants from the Law School of the University 
of South Carolina because of race or color.

H abold R. B ottlwabe,
A. E. Parker,
T htjrgood Marshall, 
R obert L. Carter,

Attorneys for Plaintiff.



20

I, T hukgood Marshall, attorney for plaintiff in the 
above entitled motion hereby certify that on the 2d day of 
October, 1947 I served the attached Motion For Further 
Relief upon the attorneys for defendants by depositing 
copies in the United States mails, postpaid, addressed to 
them as follows:
W. F. R obinson, Esq.,

Attorney at Law,
Columbia, S. C.

John M. D aniel, Esq.,
Attorney General for S. C.,
Columbia, S. C.

J. H ough, Esq.,
Asst. Attorney General for S. C.,
Columbia, S. C.

T. C. Callison, Esq.,
Asst. Attorney General for S. C.,
Columbia, S. C.

David W. R obinson, Esq.,
Attorney at Law,
Columbia, S. C.

Messrs. Price & P oag,
Attorneys at Law,
Greenville, S. C.

T hurgood Marshall, 
Attorney for Plaintiff, 
20 West 40th Street, 
New York 18, N. Y.





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