Mannings v. Board of Public Instruction of Hillsborough County, Florida Transcript of Record

    TRANSCRIPT OF RECORD

Rnttrii States (tart uf Appeals
F ifth  Circuit

No. ................

A ndrew L. M annings, a minor, by his father and 
next friend, W illie M. M annings, et al.,

— V.—

Appellants,

T he B oard of P ublic I nstruction of H illsborough 
County, F lorida, et al.,

Appellees.

APPEAL FROM  T H E  U N ITED  STATES D ISTRICT COURT FOR T H E  

SO U TH E R N  D ISTRICT OF FLORIDA, T A M P A  DIVISION



I N D E X

PAGE

Complaint .............................................................................  1

Motion to Dismiss .............................................................. 7

Order Granting Motion to Dismiss .......................... —  12

Notice of Appeal.................................................................. 13

Stipulation Re Printing of Record Prior to 
Transmission ...................................................................  14

Clerk’s Certificate 15



I n the

UNITED STATES DISTRICT COURT 

F oe the S outhern D istrict op F lorida 

T ampa D ivision 

Civil A ction No. 3554

Complaint Filed December 12, 1958

A ndrew L. M annings, a minor, by Ms father and next 
friend, W illie M. M an n in g s ; Shayron B. R eed and 
Sandra E. R eed, minors, by their father and next friend, 
Sanders B. R eed ; N athaniel Cannon , N orman T homas 
Cannon , T yrone Cannon and Darnel Cannon , minors, 
by their father and next friend, N athaniel Cannon , Sr. ; 
and Gail R ene M yers, a minor, by her father and next 
friend, R andolph M yers,

Plaintiffs,

T he B oard op P ublic I nstruction op H illsborough 
County, F lorida and Clyde M cL oed, Al Chiaramonte, 
J ohn Coleman and M arvin Green, Members of the 
Board of Public Instruction of Hillsborough County, 
Florida and J. Crockett F arnell, Superintendent of 
Public Instruction in Hillsborough County, Florida,

Defendants.

Jurisdiction

1. The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, §1343(3), this being an action 
which is authorized by law, Title 42, United States Code, 
§1983, to be commenced by any citizen of the United States



2

to redress the deprivation under color of state law, statute, 
ordinance, regulation, custom or usage of rights, privileges 
and immunities secured by the Constitution and laws of 
the United States. The rights here sought to be redressed 
are rights guaranteed by the due process and equal pro­
tection clauses of the Fourteenth Amendment to the Con­
stitution of the United States and by Title 42, United States 
Code, §1981.

Complaint

Type of Proceeding

2. This is a proceeding for a permanent injunction en­
joining the defendants herein from continuing to pursue 
their policy, custom and usage of operating the public 
schools of Hillsborough County, Florida on a racially seg­
regated basis, in violation of rights secured to the plaintiffs 
by the due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United States 
and by Title 42, United States Code, §1981.

3. This proceeding is brought as a class action by the 
plaintiffs on behalf of themselves and on behalf of other 
persons similarly situated, pursuant to the provisions of 
Rule 23(a)(3) of the Federal Rules of Civil Procedure. 
The plaintiffs and the members of the class which they rep­
resent are minor Negro children and their parents, who 
are citizens of the United States and of the State of Florida, 
residing in the City of Tampa, Florida. All of the minor 
children are eligible to attend the public elementary schools 
maintained and operated by defendants. The minor chil­
dren are all similarly affected by the policy of the defen­
dants which is attacked in this complaint in that all the 
minor plaintiffs are required to attend public elementary



3

schools which are maintained and operated by defendants 
for Negro children exclusively and are denied the right to 
attend certain other schools which are more conveniently 
located for them solely because of their race and color. 
The persons which constitute this class are so numerous as 
to make it impracticable to bring each member of the class 
before the court, but there are common questions of law 
and fact involved affecting the several rights of the mem­
bers of the class and a common relief is sought for all of 
the members of the class. The minor plaintiffs and their 
adult parents adequately represent the class.

Plaintiffs

4. The plaintiffs in this case are Andrew L. Mannings, 
a minor, by his father and next friend, Willie M. Mannings; 
Shayron B. Reed and Sandra E. Reed, minors, by their 
father and next friend, Sanders B. Reed; Nathaniel Cannon, 
Norman Thomas Cannon, Tyrone Cannon and Darnel Can­
non, minors, by their father and next friend, Nathaniel 
Cannon, Sr.; and Gail Rene Myers, a minor, by her father 
and next friend, Randolph Myers. The minor plaintiffs 
and their fathers are Negro citizens of the United States 
and of the State of Florida, residing in the City of Tampa, 
Florida, which is located in Hillsborough County, Florida. 
Each minor plaintiff is eligible under the laws of the State 
of Florida to attend the public elementary schools operated 
by the defendants in this case. Each minor plaintiff, with 
the exception of one, Gail Rene Myers, is presently enrolled 
in a Negro elementary school under the jurisdiction, man­
agement and control of defendants. Gail Rene Myers will 
be eligible to enroll in school for the first time in September 
1959.

Complaint



4

Defendants

5. The defendants in this case are The Board of Public 
Instruction of Hillsborough County, Florida and Clyde 
McLoed, A1 Chiaramonte, John Coleman and Marvin 
Greene, members of The Board of Public Instruction of 
Hillsborough County, Florida and J. Crockett Farnell, 
Superintendent of Public Instruction of Hillsborough 
County, Florida. The Board of Public Instruction main­
tains and operates the public school system of Hillsborough 
County, Florida, pursuant to the laws of the State of Flor­
ida. The defendant J. Crockett Farnell is the Superinten­
dent of Public Instruction of Hillsborough County, Florida 
and, as such, is the chief administrative officer of the Board 
of Public Instruction of Hillsborough County, Florida. The 
individual members of the Board of Public Instruction of 
Hillsborough County, Florida, determine the policies of the 
Board.

Complaint

Policy of Which the Plaintiffs Complain

6. The plaintiffs herein allege that the defendants, acting 
under color of the authority vested in them by the laws of 
the State of Florida, have pursued and are presently pursu­
ing a policy of operating the public school system of Hills­
borough County, Florida on a racially segregated basis. 
Pursuant to this policy, 72 of the public schools of Hills­
borough County are limited to attendance by white students 
only and 18 schools are limited to attendance by Negro 
students. Pursuant to this policy, many Negro students, 
including some of the minor plaintiffs, who reside nearer 
to schools limited to white students are required to attend 
schools limited to Negro students which are considerably



5

removed from the places of their residences. In some in­
stances, some of the minor plaintiffs and other minor 
Negroes similarly situated are required to travel as much 
as ten miles to attend a Negro elementary school, whereas 
they reside only two blocks from a white elementary school.

Defendants’ Refusal to Change the Policy

7. On or about August 16, 1955, the defendants were 
formally petitioned by Negro parents of children eligible 
to attend the public schools of Hillsborough County, Flor­
ida, to abolish the segregation policy complained of herein. 
This formal petition was followed by several letters on 
behalf of the Negro parents requesting defendants to de­
segregate the public schools of Hillsborough County, Flor­
ida. Despite this petition and despite the several letters 
directed to the defendants, the defendants have refused to 
discontinue the policy of operating the public schools of 
Hillsborough County, Florida on a racially segregated basis. 
Defendants’ refusal to change the policy of operating the 
public schools of Hillsborough County on a racially seg­
regated basis operates to prevent the plaintiffs from being 
assigned to white schools nearer to their places of residence 
which they would attend if they were white and which they 
presently desire to attend.

Irreparable Injury

8. As a result of the refusal of the defendants herein to 
discontinue the policy of operating the public school system 
of Hillsborough County, Florida, on a racially segregated 
basis, the minor plaintiffs herein and the other minor Negro 
children similarly situated, have suffered and shall continue

Complaint



6

to suffer injury which is irreparable to them. It is, there­
fore, necessary for this court to issue an injunction enjoin­
ing the segregation policy in order that this irreparable 
injury to minor plaintiffs herein shall cease. The plaintiffs 
have no other speedy or adequate remedy at law to redress 
the injury complained of herein.

W herefore, plaintiffs respectfully pray that this court 
advance this cause on the docket and order a speedy hearing 
of this case and that after such hearing this court enter a 
permanent injunction forever restraining and enjoining 
the defendants, their agents, employees, attorneys and suc­
cessors and all persons in active concert and participation 
with them, from continuing to pursue the policy of operat­
ing the public schools of Hillsborough County, Florida on 
a racially segregated basis and enjoining them from refus­
ing to permit the minor plaintiffs, and other minor Negro 
children similarly situated, to attend schools nearer their 
places of residence solely because of the race and color of 
said minor plaintiffs.

Plaintiffs pray that this court will allow them their costs 
herein and grant them such other, additional, or alternative 
relief as may appear to the court to be equitable and just.

F rancisco A. R odriguez 
703 Harrison Street 
Tampa 2, Florida

Constance B aker M otley

T hurgood M arshall 
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs

Complaint



7

Now come the defendants in the above styled cause by 
their undersigned attorneys and jointly and severally move 
the Court to dismiss the complaint filed herein on the 
following grounds, and each of them severally, to-wit:

1. Lack of jurisdiction over the subject matter of the 
suit.

2. Lack of jurisdiction over the persons named as de­
fendants therein.

3. Insufficiency of process as directed to the defendants, 
either jointly, severally, or jointly and severally.

4. Insufficiency of the service of process upon the de­
fendants, corporate and individual.

5. The failure of the complaint to state a claim upon 
which relief can be granted.

6. It is not alleged in and by the complaint that the 
petitioners have exhausted the administrative remedies 
available to them under the laws of the State of Florida.

7. It is not alleged in the complaint that the plaintiffs 
have made application to attend any of the schools de­
scribed in the complaint as white schools or otherwise, and 
that such admission has been denied them because of their 
color.

8. It is not alleged in the complaint that the plaintiffs 
by due administrative process on the part of these defen­

Motion to Dismiss Filed February 2 , 1959



Motion to Dismiss

dants, or any -of them, have been denied any of their rights 
and privileges.

9. The legal conclusions alleged in the complaint are 
insufficient to state any grounds upon which relief can be 
granted to the plaintiffs.

10. Insufficient ultimate facts are alleged to support any 
relief sought in and by the complaint.

11. The complaint merely asks the Court to declare that 
the law forbids discrimination against all persons because 
of their race or color; therefore, the Court has no juris­
diction to grant any relief in said cause.

12. The plaintiffs have an adequate remedy at law under 
the laws of the State of Florida.

13. The allegations of the complaint and the relief 
prayed for therein require this Court to construe Florida 
law, to-wit: to pass upon the meaning, construction and 
application of Florida Statute relating to the assignment 
of pupils in the public schools by local school authorities, 
and to pass upon the meaning, construction and application 
of certain rules and regulations of the Board of Public 
Instruction of Hillsborough County, Florida, and that such 
meaning, construction and application must be determined 
in the Courts of the State of Florida prior to any con­
sideration thereof by the Federal Courts of the United 
States.

14. The allegations of the complaint and the relief 
prayed for therein require this Court to pass upon issues 
which are purely factual in nature, namely, the existence



9

of rules, regulations, customs or usage and other questions 
of fact, the existence of which must be determined before 
any constitutional issue is presented under the Constitution 
of the United States, and, if found non-existent, will obviate 
the necessity of any hearing before the Federal Courts of 
the United States.

15. The allegations of the complaint do not reflect a 
specific, identifiable order of the defendant School Board, 
which on its face requires segregation, and which can be 
reached by a decree of this Court.

16. Equitable considerations require the granting of 
this motion in that it would be impossible to frame an ef­
fective decree without setting the Court up as a continuous 
and perpetual supervisor of the multitude of duties of the 
defendant local School Board.

17. No facts are alleged in the complaint to show that 
an actual controversy exists, so as to give the Court juris­
diction to enter any judgment or decree declaring the rights 
of the plaintiffs, as alleged in the complaint.

18. It affirmatively appears that no federal constitu­
tional question is presently involved, and such federal 
constitutional question cannot be created until a definite 
determination of Chapter 31,380, Laws of Florida, Acts of 
1956, the 1956 Pupil Assignment Act, has been made by 
the Supreme Court of Florida, and there is an absence of 
any showing that the plaintiffs have availed themselves 
of the obvious means for securing a definitive ruling in the 
state court. No federal constitutional question can be 
raised until after, and only after, the applicable rules, 
regulations and orders o f the defendant School Board have

Motion to Dismiss



10

been ascertained, construed, interpreted and applied, and 
their effect determined.

19. It affirmatively appears upon the face of the com­
plaint that prospective and speculative relief only is sought 
as to one minor plaintiff who had no pretended cause of 
action or right in dispute at the time of institution of this 
action.

20. The cause fails to state sufficient ultimate facts that 
show that injunctive relief is necessary, but on the other 
hand it affirmatively appears from the allegations therein 
contained that there is no need for any injunctive relief.

John M. A llison, of Macfarlane, 
Ferguson, Allison & Kelly,
P. 0. Box 1531,
Tampa, Florida

Charles F. Blake,
First National Bank Building, 
Tampa, Florida

H arby Gr. M cD onald,
5309 Suwannee Avenue,
Tampa 3, Florida

M orbis E. W hite,
Citizens Building,
Tampa, Florida

Of Counsel for Defendants.

Motion to Dismiss



11

Certificate of Service

S tate of F lorida,
County of H illsborough

Before me, the undersigned authority, this day person­
ally appeared John M. Allison, who, being first duly sworn, 
says that he is of counsel for the defendants in the fore­
going cause, and that he did furnish a copy of the foregoing 
Motion to Dismiss on

Francisco A. Rodriguez 
703 Harrison Street 
Tampa 2, Florida

by mailing copy thereof to him on February 2, 1959.

J ohn M. A llison

Sworn to and subscribed before 
me this 2 day of February, 1959.

V elma M oore 
Notary Public 
State of Florida at Large.

My Commission Expires: 5/2/62



12

Pursuant to the order made and entered on June 9, 1959, 
setting down all of the motions then pending for argument, 
including the objections of the defendants to the several 
requests for admissions by the plaintiffs, this cause came 
on to be heard upon said motions. Counsel for the plaintiffs 
first withdrew their requests for admissions and for sub­
poenas duces tecum.

The Court having heard the arguments of counsel repre­
senting plaintiffs and defendants and being advised in the 
premises, being of the opinion that the several motions to 
dismiss the complaint should be sustained, since it does 
appear from the complaint, and it does appear from ad­
missions made before the Court, that the plaintiffs have not 
exhausted their administrative remedies under the Florida 
Pupil Assignment Act (F. S. A. Sec. 230.232), it is, there­
fore,

Ordered, adjudged and decreed that the motions to dis­
miss the complaint heretofore filed in this cause be and the 
same are hereby granted, and the complaint is hereby dis­
missed, without prejudice.

Since the complaint is dismissed, it is unnecessary to 
consider and rule upon the motions to strike portions of 
the complaint and other pending motions, nor proceed with 
the hearing on the motion for summary judgment.

Ordered, adjudged and decreed at Tampa, Florida, this 
the 7th day of August, 1959.

Order Granting Motion to Dismiss

/ s /  George W . W hitehurst 
United States District Judge



13

Notice of Appeal Filed August 11, 1959

Please take notice that the plaintiffs herein, Andrew L. 
Mannings, a minor, by his father and next friend, Willie M. 
Mannings; Shayron B. Reed and Sandra E. Reed, minors 
by their father and next friend, Sanders B. Reed; Nathaniel 
Cannon, Norman Thomas Cannon, Tyrone Cannon and 
Darnel Cannon, minors by their father and next friend, 
Nathaniel Cannon, Sr.; and Gail Rene Myers, a minor, by 
her father and next friend, Randolph Myers, hereby appeal 
to the United States Court of Appeals for the Fifth Circuit 
from the order of this Court, entered in this cause on the 
7th day of August 1959, granting defendants’ motion to 
dismiss the complaint.

F rancisco A. R odriguez 
703 Harrison Street 
Tampa 2, Florida

Constance B aker M otley

T hurgood M arshall 
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Plaintiffs



14

Stipulation Re Printing of Record 
Filed August 14, 1959

It is hereby stipulated and agreed by and between 
counsel for both parties to this cause that, pursuant to the 
provisions of Rule 23.(10) of the rules the United States 
Court of Appeals for the Fifth Circuit, the following 
portions of the record in this case be printed by plaintiffs 
prior to transmission to said Court of Appeals:

1. Complaint

2. Motion to Dismiss

3. Order of Court dated August 7, 1959

4. Notice of Appeal

5. This Stipulation

Signed:

F rancisco A . R odriguez 
703 Harrison Street 
Tampa 2, Florida

Attorney for Plaintiffs

J ohn M. A llison

Ferguson, Allison and Kelly 
P. 0. Box 1531 
Tampa 1, Florida

Attorney for Defendants



15

Clerk’s Certificate

U nited States oe A merica,
Southern D istrict of F lorida

I, Julian B lake, Clerk of the District Court of the 
United States in and for the Southern District of Florida, 
Tampa Division, do hereby certify that the foregoing pages, 
consecutively numbered one (1) through fourteen (14) is a 
true, correct and complete transcript of the record of the 
proceedings had in this court upon the case of Andrew L, 
Mannings, a minor, by his father and next friend, Willie M. 
Mannings, et al., Plaintiffs v. The Board of Public Instruc­
tion of Hillsborough County, Florida, et ah, Defendants, 
Civil Action No. 3554, Tampa Division, said transcript of 
the record containing the Notice of Appeal and other parts 
of the record and proceedings had in said case, as directed 
by law to be made and as may be necessary upon the review 
of said case by an appellate court.

In witness whereof, I have hereunto set my hand and 
affixed the seal of this court at Tampa, Florida, within said 
Southern District of Florida, this.......day of August, 1959.

Clerk, United Stales District Court, 
Southern District of Florida

(seal)

By