Covington v. Edwards Brief and Supplemental Appendix of Appellees

    No, 7802

United States Court of Appeals 
For The Fourth Circuit
HELEN COVINGTON, et al.; 

Plaintiffs-Appellants, 
vs.

J. S. EDWARDS, SUPERINTENDENT OF 
SCHOOLS OF MONTGOMERY COUNTY, 
NORTH CAROLINA, et al.,

Defendants-Appellees.

BRIEF AND SUPPLEMENTAL APPENDIX 
OF STATE BOARD OF EDUCATION AND 
STATE SUPERINTENDENT OF PUBLIC 
INSTRUCTION, Appellees.

MALCOLM B. SEAWELL 
Justice Building 
Raleigh, North Carolina

Attorney General of North Carolina

RALPH MOODY 
Justice Building 
Raleigh, North Carolina 

Assistant Attorney General

Attorneys for State Board of Education 
and State Superintendent of Public 

Instruction, Appellees.



I N D E X
Statement of the Case...................................................    1
Questions Presented ..............................................................................  3
Statement of Facts ................................................................................  3
Argument ...........................................................................................   3

I. Plaintiffs-Appellants Having Failed To Exhaust 
The State’s Administrative Remedy, The District 
Judge Was Correct In Dismissing The A ction ..............  5

II. The Members Of The State Board Of Education 
And The State Superintendent of Public Instruc­
tion have Nothing to Do With The Assignment Of 
Pupils In Local Schools And Are Not Indispens­
able And Necessary Parties To This A ction .................. 9

III. Plaintiffs-Appellants Have No Legal Status To
Attack The Constitutionality Of The Various 
Statutes Which Comprise the So-Called “Pearsall 
Plan” ......................................................................................  25

IV. The Motion to Dismiss Filed by These Appellees 
Should be Sustained Because the Supplemental and 
Amended Complaint Does Not Allege Any Cause
of Action Against State Officers......................................  29

Conclusion.............................................................................. ................ -  31
Appendix (Special Appearance and Motion) ............ .............. - ....... 33

TABLE OF CASES
Acheson, Topeka & S. Fe R. Co. v. Matthews, 174 IJ. S. 96,102 ....... 18
Adkins v. School Board of Newport News, 148 F. Supp. 430;

aff’d. 246 F. 2d 325 .........................................................................  6
Alabama State Fed. of Labor v. McAdory, 325 U. S. 450, 461;

89 L. ed. 1725, 1734 .........................................................................  27
Arizona v. California, 283 U. S. 423, 455 ........................ ....................... 18
Ashwander v. T. V. A., 297 U. S. 288, 324, 80 L. ed. 688, 699 ...... 28

Atkins v. McAden, 229 N. C. 752, 757 ..................................................  14

J



Avery v. Wichita Falls Independent School Dist., 241 F 2d 230 ...... 6
Bailey v. Richardson, 182 F. 2d 46, 62, aff’d. 341 U. S. 918.........  18
Baird v. Peoples Bk. & Trust Co., 120 F. 2d 1001................................  22
Blue v. Durham Public School District, 95 F. Supp. 441, 443 .......10, 19
Board of Education v. Walter, 198 N. C. 325, 328, 330 .....................  14
Board of Health v. Commissioners, 173 N. C. 250 ............................. 29
Bode v. Barrett, 344 U. S. 583; 97 L. ed. 567, 571 ................................ 27
Branch v. Board of Education, 233 N. C. 623, 625 ............................   15
Briggs v. Elliott, 132 F. Supp. 776 ........................................................  6
Brown v. Ford Motor Co., 48 F. 2d 732 ........ .................................... 30
Brunnell v. United States, 77 F. Supp. 68 ............................................ 30
Butler v. Thompson, 97 F. Supp. 17, a ff d. 341 U. S. 937 ................ 18
Calder v. Michigan, 218 U. S. 591, 598 ...................................................  18

Carson v. Board of Education of McDowell County, 227 F. 2d 789 .... 7
Carson v. Warlick, 238 F. 2d 724 .......................................................... 8, 9

Coggins v. Board of Education of Durham, 223 N. C. 763 .......... 13, 14
Cohn v. Public Housing Administration, 257 F. 2d 73, 78 ..............6, 7
Cohn v. United States, 129 F. 2d 730 .................................... ........ ......  30
C. I. O. v. McAdory, 325 U. S. 472, 475, 89 L. ed. 1741 ......................  28
Collie v. Commissioners, 145 N. C. 170, 176 ............. ..................  14
Colorado v. Toll, 268 U. S. 228, 69 L. ed. 927 ................................ 22, 23
Columbus & G. R. Co. v. Miller, 283 U. S. 96, 99; 75 L. ed. 861, 865 .... 28
Conductors of America v. Gorman, 133 F. 2d 273 ......................... 20, 22
Connor v. Board of Commissioners of Logan County, Ohio,

12 F. 2d 789, 795 ..............................................................................  19

Conrad v. Board of Education, 190 N. C. 389, 396 ............................. 14

Constantian v. Anson County, 244 N. C. 221, 93 S. E. 2d 163 ....10, 14, 22
County of Platte v. New Amsterdam Casualty Co., et als., 6

F. R. D. 475 .......................................................................................  21
Covington v. Edwards, 165 F. Supp. 957 ........................................2, 10
Covington v, Montgomery County School Board, 139 F. Supp.

161 ............................. ..................................................................... . 2

n



Currier v. Currier, D. C. N. Y., 1 F, R. D. 683 ................................  21
Dahnke v. Bondurant, 257 U. S. 282, 289; 66 L. ed. 239, 243 ..............  28
Daniel v. Family Security Life Ins. Co., 336 U. S. 220 ........ - ........... 18
Davenport v. Board of Education, 183 N. C. 570 ...................... .......... 14
Dean Oil Co. v. American Oil Co., 147 F. Supp. 414, 417.....................  28
Doremus v. Board of Education, 342 U. S. 429, 434; 96 L. ed.

475, 480; 72 S. Ct. 394; 50 L. ed. 382 ...............................................  28
Doyle v. Continental Ins. Co., 94 U. S. 535, 541; 24 L. ed. 148........  17

Ducker v. Butler, et al., 70 App. D. C., 103, 104 F. 2d 236, 238 ........  20
Duke Power Co. v. Greenwood County, 91 F. 2d 665 .........................  18
Fitzgerald v. Jandreau, 16 F. R. D. 578 ............................... ...............  22
Frasier v. Board of Trustees of the University of North Caro­

lina, 134 F. Supp. 589, 593 .............................................................. 8
Frasier v. Commissioners, 194 N. C. 49, 62 ........................................ 14
Gallup v. Caldwell, 120 F. 2d 9 0 ............................................................ 30
Gibson v. Board of Public Instruction, 246 F. 2d 913.........................  6

Green v. Brophy, 110 F. 2d 539 ............................................................  30
Helvering v. Griffiths, 318 U. S. 371 ................................................... 18
Henderson v. United States, 339 U. S. 816, 824, 70 S. Ct. 843; 94

L. ed. 1302 ................................................................................. ......  8
Holland v. Board of Public Instruction of Palm Beach County,

258 F. 2d 730 ....................................................................................5, 6
Holliday v. Long Manufacturing Co., 18 F. R. D. 45 .........................  22
Holt v. Raleigh City Board of Education, 164 F. Supp. 853 ........ 10, 15
Hood v. Board of Trustees of Sumter County School District

232 F. 2d 627, cert. den. 352 U. S. 870, 1 L. ed. 2d 76 ................ 9
Howell v. Howell, 151 N. C. 575, 581 ................................................... 14
Hynes v. Grimes Packing Co., 337 U. S. 86, 93 L. ed. 1231..............  24
In Re Application for Reassignment, 247 N. C. 413....................... . 15
In Re Assignment of School Children, 242 N. C. 500 .....................  15
In Re Doyle, 257 N. Y. 244, 177 N. E. 489, 87 A. L. R. 418, 49

Am. Jur. sec. 36, 81 C. J. S. sec. 40; 82 C. J. S. sec. 2 0 ........ 16

iii



Insurance Co. of New York v. Fire Association of Philadelphia,
152 F. 2d 239 ....................................................... .............................. 29

Insurance Society v. Brown, 213 U. S. 25, 29 S. Ct. 404 .....................  29
Jeffers v. Whitley, 165 F. Supp. 951 ...................................................  10

Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571, 576; 59 L.
ed. 364, 368 .........................................................................................  28

Joyner v. Board of Education of McDowell County, 244 N. C.
164, 92 S. E. 2d 795 .........................................................................  7

Kelly v. Board of Instruction of the City of Nashville, 159
F. Supp. 272 ...................................................................................... 5

Keys v. United States, 119 F. 2d 444, 447 ...........................................  30
Kirby v. Board of Education, 230 N. C. 619 ........................................ 14
Kistler v. Board of Education, 233 N. C. 400, 404, 407 .....................  14

Kuhn v. Yellow Transit Freight Lines, 12 F. R. D. 252 .....................  20
Lacy v. Bank, 183 N. C. 373, 378 ..........................................................  13
Lane v. Graham Co., 194 N. C. 723 ....................................................... 29
Larsen v. City of Colorado Springs, 142 F. Supp. 871, 873 ..............  28
LeClair v. Swift, 76 F. Supp. 729 ..........................................................  30
Lovett v. United States, 66 F. Supp. 142, 145 ....................................  19
Lucking v. Delano, 129 F. 2d 283, 286 ............................................... . 29
Massachusetts v. Melon, 262 U. S. 447, 484; 67 L. ed. 1078, 1084 ....... 28
Mills v. Lowndes, 26 F. Supp. 792 ....................................................... 22
Missouri v. Holland, 252 U. S. 416, 431; 64 L. ed. 641, 646;

11 A. L. R. 984; 40 S. Ct. Rep. 382 ...............................................  23
Moore v. Board of Education, 212 N. C. 499, 502 ................................  14
Moore Ice Cream Co. v. Rose, 289 U. S. 373, 383, 384 .........................  28
Mclnnish v. Board of Education, 187 N. C. 494, 495 .........................  14
McRanie v. Palmer, 2 F. R. D. 479 ...................................................... 19
Newport News Co. v. Schuffler, 303 U. S. 54, 57 ............................... 30

Niles-Bement-Pond Co. v. Iron Moulders’ Union, 254 U. S. 77,
80, 41 S. Ct. 39, 41; 65 L. ed. 145 ................................................... 20

Orleans Parish School Board v. Bush, 242 F. 2d 156, 164 ..................  9

Iv



Pacific States v. White, 296 U. S. 176, 185 ...........................................  30
Parker v. Anson County, 237 N. C. 78, 86 ...........................................  14
Pellican Oil & Gasoline Co. v. Commissioner of Internal

Revenue, 128 F. 2d 837 ................................................................. 30
Peterson v. Parsons, 73 F. Supp. 840 ...............................................  18
Philadelphia Co. v. Stimson, 223 U. S. 605, 619, 620; 56 L.

ed. 570, 576, 577; 32 S. Ct. Rep. 340 ...............................................  23
Photometric Products Corp. v. Radtke, 17 S. R. D. 103.................. 22
Porter v. Karadas, 157 F. 2d 984 ..........................................................  29
Premier-Pabst Sales Co. v. Grossup, 298 U. S. 266, 227; 80 L.

ed. 1155, 1156 .................................................................................... 28
Prudential Ins. Co. of America v. Carlson, 126 F. 2d 607 .................. 30
Pullman Co. v. Richardson, 261 U. S. 330; 67 L. ed. 682 .................. 28
Rast v. Van Deman & L. Co., 240 U. S. 342, 357, 366 .........................  18
Samuel Goldwyn, Inc. v. United Artists Corp., 3 Cir., 113 F.

2d 703 ................................................................................................. 21
Savoi Films A. I. v. Vanguard Films, 10 F. R. D. 6 4 .....................  20
School Board of the City of Charlottesville, Va., v. Allen, 240 F.

2d 5 9 .................................................................................................. 6, 9
School Board of the City of Newport News, Va., v. Adkins, 246

F. 2d 325 ...........................................................................................  6
School Committee v. Taxpayers, 202 N. C. 297, 299 .........................  14
Shields v. Barrow, 17 How. 130, 139, 15 L. ed. 158.........................19, 21
Shuttlesworth v. Birmingham Board of Education, 162 F. Supp.

372, Motion to Affirm granted 3 L. ed. 2 and 5 .........................  16
Smith v. School Trustees, 141 N. C. 143 ...........................................  14

So. Ry. Company v. King, 217 U. S. 524; 30 S. Ct. 594 ...................  29

Standard Stock Food Co. v. Wright, 225 U. S. 540, 550; 56 L.
ed. 1197, 1201 .................................................................................... 27

State Bank v. Weaver, 282 U. S. 765 ...............................................  30

State of Washington v. United States, et al., 9 Cir., 87 F. 2d 421....... 20

Stephenson v. Binford, 287 U. S. 241 ........................................... 18, 27

v



Sweatt v. Board of Education, 237 N. C. 653, 656 ............................. 14

Tate v. Board of Education, 192 N. C. 516, 520 ................................  14
Tenney v. Brandhove, 341 U. S. 357 ................................................... 18

Thompson v. County School Board of Arlington County, 144
F. Supp. 239 .................    6

Tileston v. Ullman, 318 U. S. 44, 46; 87 L. ed. 603 ............................. 28

United Public Workers v. Mitchell, 330 U. S. 75, 89; 91 L. ed.
754, 766 ............................................................................................... 26

United States v. Appalachian Power Co., 311 U. S. 377, 423; 85
L. ed. 243, 261 ..................................................................................  28

United States v. Des Moines Nav. & R. Co., 142 U. S. 510, 554 ......  18
United States v. Petrosky, 2 F. R. D. 422 ............................................ 22

United States v. Washington Institute of Technology, 3 Cir.,
138 F. 2d 25 ...................................................................................... 21

Watson v. Buck, 313 U. S. 387, 402; 85 L. ed. 1416, 1424 ......................  27
Weber v. Freed, 239 U. S. 325, 330 ......................................................  18
West v. Lee, 224 N. C. 79 .....................................................................  14

Williams v. Fanning, 332 U. S. 490; 92 L. ed. 95; 68 S. Ct. 188 .....24, 25
Williams v. Kansas City, Mo., 104 F. Supp. 848, 854 .........................  23

Wyoga Gas & Oil Corp. v. Schrack, et al., D. C. 27 F. Supp. 35 .... 20 
Young v. Garrett, 8 Cir., 149 F. 2d 223 ...............................................  21

S T A T U T E S
Article 2, Chapter 115 of the General Statutes of N. C.....................  34

Article 3, Chapter 115 of the General Statutes of N. C.....................  34
Article 7, Chapter 115 of the General Statutes of N. C....................   12
Article 9, Chapter 115 of the General Statutes of N. C.....................  12
Article 17, Chapter 115 of the General Statutes of N. C.................... 12
Article 20, Chapter 115 of the General Statutes of N. C................11, 12
Article 21, Chapter 115 of the General Statutes of N. C.........11, 34, 37
Article 22, Chapter 115 of the General Statutes of N. C.................... 12

vi



Article 34, Chapter 115 of the General Statutes of N. C........11, 34, 36

Article 35, Chapter 115 of the General Statutes of N. C........11, 34, 36

General Statutes of N. C., sec. 115-27.................................................. 12
General Statutes of N. C., sec 115-35..................................................  12
General Statutes of N. C., sec. 115-51 .................................................  12
General Statutes of N. C., sec. 115-53.................................................. 12

(All General Statutes Citations Refer to Cumulative 
Supplement of 1957)

Resolution 4, Session Laws of 1956 (Extra Session) .....................  16

Resolution 29, Session Laws of 1955 ................................................... 16

28 U. S. C. A. 1652 ..................................................................................  10

MISCELLANEOUS
11 A. L. R. 984 .........................................................................................  23

87 A. L. R. 418 .......................................................................................  16
158 A. L. R. 1126 .................................................................................... 25
11 Am. Jur. p. 748, sec. I l l  .................................................................. 25
49 Am. Jur. sec. 36 ................................................................................  16
Barron & Holtzoff, F. P. P., p. 81, sec. 515...........................................  25
Constitution of Alabama (1901) sec. 4 5 ..............................................  16
Constitution of North Carolina, Article I, secs. 3 & 5 .........................  11
Constitution of North Carolina, Article IX, sec. 2 ..................10, 22, 34

Constitution of United States, Article I I I ...........................................  26
Constitution of United States, Article VI ....................................11, 17

16 C. J. S., sec. 76, p. 226 .....................................................................  25

81 C. J. S„ sec. 4 0 .................................................................................... 16
82 C. J. S., sec. 20 .................................................................................. 16
Moore’s Federal Practice................................................................. 19, 21

vii



No. 7802

United States Court of Appeals 
For The Fourth Circuit

HELEN COVINGTON, et al„ 
Piaintiffs-Appellants,

vs.
J. S. EDWARDS, SUPERINTENDENT OF 
SCHOOLS OF MONTGOMERY COUNTY, 
NORTH CAROLINA, et at.,

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURl 
OF THE UNITED STATES FOR THE 
MIDDLE DISTRICT OF NORTH CARO­
LINA, ROCKINGHAM DIVISION.

BRIEF AND SUPPLEMENTAL APPENDIX 
OF STATE BOARD OF EDUCATION AND 
STATE SUPERINTENDENT OF PUBLIC 
INSTRUCTION, Appellees.

STATEMENT OF THE CASE

The plaintiffs originally instituted this action against the 
Superintendent of Schools of Montgomery County and against 
the Board of Education of Montgomery County. The plaintiffs 
did not allege in their original complaint, or in any of their 
amendments to the original complaint, nor do they allege in 
their Amended and Supplemental Complaint (Appellants 
Appendix, p. 39a) that they ever at any time exhausted the 
State’s administrative remedy provided for the assignment 
and enrollment of pupils. Nowhere in the pleadings do the



2

plaintiffs-appellants allege that any of the pupils named as 
plaintiffs in the complaint desire to be admitted to any specific 
public school in Montgomery County. For some reason coun­
sel for plaintiffs-appellants have been working hard to obtain 
a 3-Judge Court as witness their Amendment of December 16, 
1955 (Appellants’ Appendix, pp. 33a, 35a, 50a) and when this 
was denied (COVINGTON v. MONTGOMERY COUNTY 
SCHOOL BOARD, 139 F. Supp. 161) counsel for the plaintiffs- 
appellants then filed a Motion for Leave to File an Amended 
and Supplemental Complaint and to make the State Board 
of Education and the State Superintendent of Public Instruc­
tion parties defendant (Appellants’ Appendix pp. 36a, 39a). 
The Motion for Leave to File an Amended and Supplemental 
Complaint and add parties defendant was filed on September 
13, 1956. The matter was not immediately heard, and on 
March 26, 1958, the Attorney General of North Carolina in 
behalf of the State Board of Education and the State Superin­
tendent of Public Instruction entered a special appearance 
and opposed plaintiffs’ motion. The special appearance enter­
ed by the Attorney General, as well as the Answer to the 
Motion of plaintiffs, appears in the Supplementary Appendix 
to this Brief on p. 33. This matter was heard upon the motions 
on March 26, 1958, and the Attorney General was ordered to 
file a brief as to his positions on all the issues raised in the 
pleadings. On October 6, 1958, the Judge of the District Court 
of the United States for the Middle District entered judgment 
dismissing the action, denying the Motion to File the Amend­
ed and Supplemental Complaint, and also denied the Motion 
to Add the State Board of Education and the State Superinten­
dent of Public Instruction as parties defendant (Appellants’ 
Appendix, p. 55a). The District Judge issued an Opinion, 
giving his legal reasons for the Judgment, which is reported 
as COVINGTON v. EDWARDS, 165 F. Supp. 957.

While the Attorney General believes that any adequate 
reason for the dismissal of this action as to the County School 
Board and County Superintendent is available also in his 
behalf for the benefit of the State officers, it is further urged, 
however, and, it will be the Attorney General’s position in



3

this brief, that under the constitution and laws of North 
Carolina pertaining to the public schools the State officers 
have nothing to do with the cause of action alleged against 
the County Board and the County Superintendent, and, there­
fore, the ruling of the District Judge dismissing the Motion 
as to the State officers is correct.

QUESTIONS PRESENTED

These appellees submit that the dominant questions which 
are decisive of this case are as follows:

(1) Under existing decisions of the Circuit Court of Ap­
peals for the Fourth Circuit can plaintiffs maintain this action 
without exhausting the administrative remedy provided by 
the State statute?

(2) Under the Constitution and Laws relating to the public 
school system of North Carolina are the members of the State 
Board of Education and the State Superintendent of Public 
Instruction indispensable or necessary parties defendant in 
this case?

(3) Can the plaintiffs attack the constitutionality of State 
statutes which have never been applied to their status or 
situation by any process of administration?

(4) Do the allegations of the plaintiffs’ Amended and Sup­
plemental Complaint state a cause of action as against these 
appellees?

STATEMENT OF FACTS

As heretofore pointed out, plaintiffs instituted this suit as 
a class action against the Superintendent of Schools of Mont­
gomery County and the Board of Education of Montgomery 
County. In their original complaint the plaintiffs allege that 
the Board of Education of Montgomery County “maintains 
and generally supervises certain schools in said County for



4

the education of white children exclusively and other schools 
in said County for the education of Negro children exclusive­
ly.” In paragraph VIII of the original complaint it was alleged 
that the customs, practices and usages of the Montgomery 
County school officials, as applied to the plaintiffs, deprived 
them of constitutional rights in violation of the Fourteenth 
Amendment (Appellants’ Appendix, pp. 7a, 8a). The Court 
will further note that counsel for the plaintiffs kept amend­
ing their complaint in their efforts to secure a 3-Judge Court 
and finally wound up with this Motion to File an Amended 
and Supplemental Complaint and make the State officers 
parties defendant.

Appellants’ statement in their Brief that “The North Caro­
lina Advisory Committee on Education petitioned the Court 
for the right to appear in this case, take depositions and other­
wise participate” is not correct. The Court will note on p. 28a 
of Appellants’ Appendix that this Committee merely asked 
that its counsel be present at any legal proceedings in the 
action, including the taking of depositions and other prelim­
inary hearings. It is very plain that the Advisory Committee 
did not ask to take any depositions but wanted to be present 
when depositions were taken. The Court will further see on 
p. 29a of Appellants’ Appendix that the District Judge merely 
signed an Order allowing counsel for the Advisory Committee 
to be present “during any legal proceedings or preliminary 
hearings in the above entitled action.” On p. 32a of Appellants’ 
Appendix the Court will see that the District Judge amended 
the Order and allowed members of the Advisory Committee, 
as well as counsel, simply to be present during any legal 
proceedings.

If the Court will examine paragraphs 2, 3 and 4 of the 
Motion for Leave to File Supplemental Complaint and Add 
Parties Defendant (Appellants’ Appendix, p. 36a) the Court 
will see that it is nowhere alleged in the Motion that the State 
officers administer the enactments complained about nor is it 
alleged how or why the members of the State Board of Educa­
tion and the Superintendent of Public Instruction have now



5

become necessary parties. It is alleged in the Amended and 
Supplemental Complaint in Paragraph IVb (Appellants’ Ap­
pendix, p. 42a) that the State officers who are members of 
the State Board of Education “are charged with the general 
supervision and administration of a free public school system 
of said State” but this is merely some phraseology taken from 
the Constitution and statutes of the State and does not take 
into account the other statutes which vest certain sole and 
exclusive powers in the city and county administrative units. 
It is now alleged for the first time, in Paragraph VI of the 
Amended and Supplemental Complaint, that the Montgomery 
County Board of Education refuses to desegregate its schools 
“pursuant to orders, resolutions or directives of the State 
Board of Education and the Superintendent of Public Instruc­
tion.” This allegation is on information and belief, and no 
order or resolution or directive is designated or referred to. 
The allegations as to the so-called “Pearsall Plan” , referring to 
certain Acts passed by the General Assembly of North Caro­
lina, do not charge that these appellees have acted thereunder 
to deprive the plaintiffs of any constitutional rights. When the 
plaintiffs get to the actual paragraph in which it is alleged 
that their constitutional rights have been violated (see Par­
agraph VIII) these charges are made against the Montgomery 
County school officials and not these appellees, whom, they 
say, they should make parties defendant.

ARGUMENT

I

PLAINTIFFS-APPELLANTS HAVING FAILED TO EX­
HAUST THE STATE’S ADMINISTRATIVE REMEDY, 
THE DISTRICT JUDGE WAS CORRECT IN DISMISS­
ING THIS ACTION.

Counsel for the appellants attempt to bring this case within 
the purview of certain rulings in other circuits (HOLLAND 
v. BOARD OF PUBLIC INSTRUCTION OF PALM BEACH 
COUNTY, 258 F. 2d 730 - 5th Circuit, 1958; KELLY v. BOARD 
OF INSTRUCTION OF THE CITY OF NASHVILLE, 159 F.



6

Supp. 272 - M. D. Term., 1958; GIBSON v. BOARD OF PUB­
LIC INSTRUCTION, 246 F. 2d. 913 - 5th Cir., 1957). To this 
line of cases we could also add the Virginia cases where the 
administrative remedy and the placement statute were held 
to be unconstitutional and totally inadequate (ADKINS v. 
SCHOOL BOARD OF NEWPORT NEWS, 148 F. Supp. 430; 
affirmed 246 F. 2d 325 - 4th Cir.). In the case of GIBSON v. 
BOARD OF INSTRUCTION, supra, the Board of Public In­
struction of Dade County, Florida, had passed a resolution 
saying: “Until further notice the free school system of Dade 
County will continue to be operated, maintained and conduct­
ed on a nonintegrated basis.” This Court has always said 
(SCHOOL BOARD OF THE CITY OF CHARLOTTESVILLE, 
VIRGINIA, v. ALLEN, 240 F. 2d 59 - 4th Cir., 1956) that 
where an application, because of a preconceived order, resolu­
tion or policy, would always result in a referral to a segregated 
school, the proceedings would be futile. The case of HOL­
LAND v. BOARD OF INSTRUCTION OF PALM BEACH 
COUNTY, supra, is in the same category. It is quite evident 
that in the Holland case there was a strong feeling that the 
school districts had been gerrymandered and arranged so as 
to provide for segregated schools, and the Court of Apeals for 
the 5th Circuit, therefore, said:

“ In the light of compulsory residential segregation of the 
races by city ordinance, it is wholly unrealistic to assume 
that the complete segregation existing in the public 
schools is either voluntary or the incidental result of valid 
rules not based on race.”

Several cases have interpreted the meaning of the Brown 
case, and these interpretations have been given approval by 
this Court (SCHOOL BOARD OF CHARLOTTESVILLE, 
VIRGINIA, v. ALLEN, 240 F. 2d 59, 62; BRIGGS v. EL­
LIOTT, 132 F. Supp. 776; AVERY v. WICHITA FALLS IN­
DEPENDENT SCHOOL DISTRICT, 241 F. 2d 230; THOMP­
SON v. COUNTY SCHOOL BOARD OF ARLINGTON COUN­
TY, 144 F. Supp. 239; SCHOOL BOARD OF CITY OF NEW­
PORT NEWS, VIRGINIA, v. ADKINS, 246 F. 2d 325; 
COHN v. PUBLIC HOUSING ADMINISTRATION, 257 F. 2d



7

73, 78). The controlling principles in all these decisions are 
to the effect that: “The Constitution, in other words, does not 
require integration. It merely forbids discrimination. It does 
not forbid such segregation that occurs as the result of volun­
tary action. It merely forbids the use of governmental power 
to enforce segregation.” And, further: “No general reshuffling 
of the pupils in any school system has been commanded. The 
order of that Court is simply that no child shall be denied 
admission to a school on the basis of race or color.*** Con­
sequently, compliance with that ruling may well not neces­
sitate such extensive changes in the school system as some 
anticipate.” And, further, (COHN v. PUBLIC HOUSING 
ADMINISTRATION, supra,) the Circuit Court of Appeals for 
the Fifth Circuit says: “Neither the Fifth nor the Fourteenth 
Amendments appears postively to command integration of 
the races but only negatively to forbid governmentally enforc­
ed segregation.”

We think that the litigation connected with the McDowell 
County School is decisive of this point. In the first action 
(CARSON v. BOARD OF EDUCATION of McDOWELL 
COUNTY, 227 F. 2d 789) a large group of Negro children 
brought an action before the Brown case was decided in which 
they asked for substantially equal facilities. This was dismis­
sed on the ground that the decision in the Brown case made 
inappropriate the relief prayed for. This Court remanded the 
case, saying that the District Judge should consider not only 
the decision of the Supreme Court but also the administrative 
remedy provided by the State, and this Court further said that 
the administrative remedy must be exhausted. Thereafter 
(May 23, 1956) the Supreme Court of North Carolina inter­
preted the Assignment and Enrollment of Pupils Act of the 
State (JOYNER v. BOARD OF EDUCATION OF Mc­
DOWELL COUNTY, 244 N. C. 164, 92 S. E. 2d 795). The Su­
preme Court of North Carolina decided that under the statute 
school children could not apply for admission to any schools 
en masse but that applications must be prosecuted in behalf of 
the child or children by the interested parent, guardian, etc. of 
such child or children respectively and not collectively. In



other words, the application of each child must be considered 
on an individual basis. The fact that an applicant is colored 
does not remove or do away with the eligibility conditions that 
are applicable to all children irrespective of color (FRASIER 
v. BOARD OF TRUSTEES OF THE UNIVERSITY OF 
NORTH CAROLINA, 134 F. Supp. 589, 593). After the de­
cision of the Supreme Court of North Carolina the applicants 
in the McDowell County case applied to this Court for a man­
damus (CARSON v. WARLICK, 238 F. 2d 724-4th Circuit). In 
this application it was alleged that the Board of Education of 
the County was exercising discrimination on the grounds of 
race in refusing to admit them “to schools maintained in the 
Town of Old Fort.” This Court quoted from the opinion of the 
Supreme Court of North Carolina and stated in substance that 
the applicants had not attempted to comply with this statute 
but had merely written the Secretary of the Board of Educa­
tion a letter inquiring as to the steps being taken for the 
admission of the Negro children to the Old Fort School. The 
Secretary replied that no application had been made under the 
the statute. The applicants then made a Motion to File a 
Supplemental Complaint, and without alleging compliance 
with the statute, as interpreted by the Supreme Court of North 
Carolina, they asked for a declaratory judgment, and this was 
declined by the District Judge who stayed proceedings and 
ordered that the administrative remedies be exhausted. This 
Court held that the administrative remedy must be exhausted 
and denied the application for a mandamus, saying:

“There is no question as to the right of these school 
children to be admitted to the schools of North Carolina 
without discrimination on the ground of race. They are 
admitted, however, as individuals, not as a class or group; 
and it is as individuals that their rights under the Con­
stitution are asserted. Henderson v. United States, 339 
U. S. 816, 824, 70 S. Ct. 843, 94 L. ed. 1302. It is the state 
school authorities who must pass in the first instance on 
their right to be admitted to any particular school and 
the Supreme Court of North Carolina has ruled that in 
the performance of this duty the school board must pass 
upon individual applications made individually to the 
board.”



9

It will be seen from the Answer filed by the Board of 
Education of Montgomery County (Appellants’ Appendix, 
pp. 18a, 19a) that the Board used the same assignments that 
they had used in the School Year 1954-1955, and they did not 
say that they were going to operate segregated schools, but, 
to the contrary, (p. 19a) the Board said that the parent or 
guardian of any child who desired a child to be sent to another 
school should file written application and the matter would 
be considered by the Board as required by North Carolina 
Law. It is quite evident, therefore, that the Board of Educa­
tion of Montgomery County does not have any fixed policy of 
segregation and the case of CARSON v. WARLICK, supra, is 
decisive of this matter. Incidentally, CARSON v. WARLICK, 
supra, and the principles therein set forth have been approved 
in several cases (ORLEANS PARISH SCHOOL BOARD v. 
BUSH, 242 F. 2d 156, 164—5th Circuit; SCHOOL BOARD OF 
CITY OF CHARLOTTESVILLE, VA., v. ALLEN, 240 F. 2d 
59, 64—4th Circuit; HOOD v. BOARD OF TRUSTEES OF 
SUMTER COUNTY SCHOOL DISTRICT, 232 F. 2d 627, cert, 
den. 352 U. S. 870, 1 L. ed. 2d 76). It should also be noted that 
the Supreme Court of the United States denied certiorari in 
CARSON v. WARLICK, supra, which denial is reported in 
353 U. S. 910, 1 L. ed. 2d 664.

II

THE MEMBERS OF THE STATE BOARD OF EDUCATION 
AND THE STATE SUPERINTENDENT OF PUBLIC 
INSTRUCTION HAVE NOTHING TO DO WITH THE 
ASSIGNMENT OF PUPILS IN LOCAL SCHOOLS AND 
ARE NOT INDISPENSABLE AND NECESSARY PAR­
TIES TO THIS ACTION.

So far as the members of the State Board of Education and 
the State Superintendent of Public Instruction are concerned 
this is the important point in this case. The District Judge 
(Judge Stanley) was a North Carolina lawyer before he 
became Judge of the District Court of the United States, and 
it is believed that he knows the legal framework of the public 
school system of this State. We could very well rest our case



10

on this point with the discussion and authorities given in his 
opinions (HOLT v. RALEIGH CITY BOARD OF EDUCA­
TION, 164 F. Supp. 853—E. D. N. C., 1958; JEFFERS v. 
WHITLEY, 165 F. Supp. 951—M. D. N. C., 1958; COVING­
TON v. EDWARDS, 165 F. Supp. 957—M. D. N. C., 1958). 
The Supreme Court of North Carolina has many times inter­
preted the school laws of this State, and it has defined the 
duties and functions of the various officers and agencies that 
participate in the administration of the public school system. 
To a certain extent, therefore, these appellees rely upon State 
laws as Rules of Decision (28 U. S. C. A. 1652). In the case of 
CON ST ANT IAN v. ANSON COUNTY, 244 N. C. 221, 93 S. E. 
2d 163 (1956) the Supreme Court of North Carolina said:

“Full responsibility for the administration of school 
affairs and the instruction of children within each ad­
ministrative unit, including the assignment of pupils to 
particular schools, rests upon the school authorities of 
such units.”

Judge Johnson J. Hayes was a North Carolina lawyer before 
he became District Judge and is familiar with the legal back­
ground of the public school system of this State. In the case of 
BLUE v. DURHAM PUBLIC SCHOOL DISTRICT, 95 F. 
Supp. 441, 443—M. D. N. C., 1951, Judge Hayes in commenting 
on this situation said:

“ It appears from the foregoing statutes that the State 
officials are given broad general powers over the public 
school system which must be construed in connection 
with statutes which confer specific authority on local 
officials. The decisions of the North Carolina Supreme 
Court have consistently upheld the powers of the local 
authorities. * * * The mere discretionary powers of the 
State officials are not to be controlled by injunctive power 
of the court. It follows that the action against the state 
officials must be dismissed.”

It is no longer necessary to discuss Article IX, Sec. 2, of the 
Constitution of North Carolina, which provides for separate 
schools for the races, because the Supreme Court of North 
Carolina has said that this section is no longer valid. In 
CONSTANTIAN v. ANSON COUNTY, supra, the Supreme



11

Court of North Carolina stated that it thought the question of 
the administration of the State schools was a State matter, 
and then said:

“However that may be, the Constitution of the United 
States takes precedence over the Constitution of North 
Carolina. Constitution of North Carolina, Article I, sec­
tion 3 and 5; Constitution of the United States, Article 
VI. In the interpretation of the Constitution of the United 
States, the Supreme Court of the United States is the final 
arbiter. Its decision in the Brown case is the law of the 
land and will remain so unless reversed or ̂ altered by 
constitutional means. Recognizing fully that its decision 
is authoritative in this jurisdiction, any provision of the 
Constitution or statutes of North Carolina in conflict 
therewith must be deemed invalid.”  (Emphasis ours)

There is no doubt but what the enrollment, assignment and 
reassignment of pupils is entirely in the hands of the local 
school units (Article 21 of Chapter 115 of the General Statutes, 
Cumulative Supplement of 1957, Vol. 3A). There is no doubt 
but what the so-called Local Option Plan, providing for an 
election as to whether any particular school or schools shall 
be closed, is entirely a matter in the hands of the local school 
units and the voters in the various local units of the districts 
(Article 34 of Chapter 115 of the General Statutes, Cumulative 
Supplement of 1957, Vol. 3 A). There is no doubt but that the 
administration of the expense grants is entirely in the hands 
of local units except that the State Board of Education does 
one thing and that is it determines “the maximum amount 
of the grant to be made available to each child.” (Article 35 
of Chapter 115 of the General Statutes, Cumlative Supplement 
of 1957, VoL 3A). An examination of Article 20, Chapter 115 
of the General Statutes, Cumulative Supplement of 1957, Vol. 
3A, dealing with the compulsory attendance law, will show 
that this is in the hands of the local units, and any findings 
required to be made must be found and administered by the 
local units.

In addition to the above, we point out some more amend­
ments that have further decentralized the Public School 
System of the State, as follows:



12

(1) The transportation of the pupils; in other words, the 
school buses are in the hands of the local units (Article 22 of 
Chapter 115 of the General Statutes, Cumulative Supplement 
of 1957, Vol. 3A).

(2) State boards of education are now bodies corporate and 
can sue and be sued, which was formerly not the case, but was 
true and still is true of a county board of education (G. S. 115- 
27).

(3) Formerly the State officials held the power of approval 
of the budgets of the local units but this is not now required 
(Article 9 of Chapter 115 of the General Statutes).

(4) Formerly the enforcement of the Compulsory Atten­
dance Law had to be according to rules and regulations of 
the State Board of Education, and while this is now true under 
the present law, nevertheless, a State or county unit can put 
in force higher compulsory attendance requirements and not 
be subject to the rules of the State Board (Article 20 Chapter 
115 of the General Statutes).

(5) County and State Boards can now divide administra­
tive units into attendance areas without regard to district 
lines, which power they did not have under the former law 
(G. S. 115-35).

(6) Powers and duties of local school committees have 
now been enlarged (Article 7 of Chapter 115 of the General 
Statutes).

(7) Teachers no longer have continuing contracts (Article 
17 of Chapter 115 of the General Statutes).

(8) Local boards now have authority to secure liability 
insurance, waive governmental immunity and be liable to the 
extent of the insurance (G. S. 115-53).

(9) Local units can now operate lunchrooms on an official 
basis (G. S. 115-51).



13

There are perhaps other features that might be pointed out 
which show a greater measure of local autonomy granted by 
the General Assembly to county and city boards of education.

As a further indication of the judicial thinking of the State, 
we submit the views of the Supreme Court of North Carolina 
when the question arose as to whether or not secret societies, 
known as Greek letter fraternities and sororities, could be 
operated in the Public School System of Durham. The 
Supreme Court of North Carolina, after laying down the 
principle that city administrative units exercised the same 
powers as county administrative units, then said (COGGINS 
v. BOARD OF EDUCATION OF DURHAM, 223 N. C. 763):

“ Each County Board of Education is vested with author­
ity to fix and determine the method of conducting the 
public schools in its county so as to furnish the most 
advantageous method of education available to the child­
ren attending its public schools. Sec. 31. It may; (1) fix 
the time of opening and closing schools, sec. 32; (2) 
determine the length of the school day, sec. 33; (3) en­
force the compulsory school law, sec. 34; (4) provide for 
the teaching of certain subjects in elementary schools, 
sec. 39; (5) determine the necessity for kindergartens, 
sec. 40; (6) provide for a training school for each race, sec. 
41; (7) make rules and regulations not in conflict with 
State law for the guidance of the County Superintendent 
as the enforcement officer, sec. 47; (8) make all just and 
needful rules and regulations governing the conduct of 
teachers, principals, and supervisors, sec. 53; (9) provide 
for the training of teachers, sec. 54. In addition it is given 
general control and supervision over all matters pertain­
ing to the public schools within its county, sec. 30, and 
all powers and duties conferred and imposed by law 
respecting public schools, which are not expressly con­
ferred and imposed upon some other officials, are con­
ferred and imposed upon the county board of education. 
Sec. 29.”

We do not wish to multiply quotations and extend the 
length of this Brief but the same views of the Supreme Court 
of this State are set forth in a number of cases, which we cite 
as follows:

LACY v. BANK, 183 N. C. 373, 378;



14

TATE v. BOARD OF EDUCATION, 192 N. C. 516,520;

COLLIE v. COMMISSIONERS, 145 N. C. 170, 176;

McINNISH v. BOARD OF EDUCATION, 187 N. C. 494, 
495;

SMITH v. SCHOOL TRUSTEES, 141 N. C. 143;

DAVENPORT v. BOARD OF EDUCATION, 183 N. C. 
570;

HOWELL v. HOWELL, 151 N. C. 575, 581;

SCHOOL COMMITTEE v. TAXPAYERS, 202 N. C. 297, 
299'

FRASIER v. COMMISSIONERS, 194 N. C. 49, 62;

BOARD OF EDUCATION v. WALTER, 198 N. C. 325, 
328, 330;

CONRAD v. BOARD OF EDUCATION, 190 N. C. 389, 
396;

WEST v. LEE, 224, N. C. 79;

MOORE v. BOARD OF EDUCATION, 212 N. C. 499, 502;

COGGINS v. BOARD OF EDUCATION, 223 N. C. 763;

SWEATT v. BOARD OF EDUCATION, 237 N. C, 653, 
656;

KISTLER v. BOARD OF EDUCATION, 233 N. C. 400, 
404, 407;

CONSTANTIAN v. ANSON COUNTY, 244 N. C. 221, 225;

PARKER v. ANSON COUNTY, 237 N. C. 78, 86;

ATKINS v. McADEN, 229 N. C. 752, 757;

KIRBY v. BOARD OF EDUCATION, 230 N. C. 619;



15

BRANCH v. BOARD OF EDUCATION, 233 N. C. 623, 
625;

IN RE APPLICATION FOR REASSIGNMENT, 247 N. 
C. 413;

IN RE ASSIGNMENT OF SCHOOL CHILDREN, 242 
N. C .500.

A complete history of the Assignment and Enrollment of 
Pupils Act of this State and the proceedings leading up to its 
adoption will be found in the case of IN RE APPLICATION 
FOR REASSIGNMENT, 247 N. C. 413. There is not a single 
reference to the Public School Laws of the State of North 
Carolina (Chapter 115 of the General Statutes, Cumulative 
Supplement of 1957) dealing with race at all, at least so far as 
the colored race is concerned, and, as we pointed out when the 
case of HOLT v. RALEIGH CITY BOARD OF EDUCATION 
was before this Court, there have been approximately 110 
applications by colored pupils for reassignment to so-called 
white schools, and out of this number 15 colored students have 
been admitted but two colored students later on withdrew 
because of their own reasons and not by any action or com­
pulsion on the part of the school authorities.

The Report of the North Carolina Advisory Committee on 
Education, dated April 5, 1956, has been referred to by plain- 
tiffs-appellants, and we wish to refer to certain portions of 
this Report as follows:

“But we must in honesty recognize that: because the 
Supreme Court is the Court of last resort in this Country, 
what it has said must stand until there is a correcting 
constitutional amendment or until the Court corrects its 
own error. We must live and act now under the decision 
of that Court. We should not delude ourselves about that. 
***Defiance would alienate those who may be won to our 
thinking, that separateness of the races is natural and 
best. Defiance would forfeit the consideration we must 
have from the Federal Judges if we are to educate our 
children now. Defiance of the Supreme Court of the 
United States and of the law as declared by that Court 
could mean the closing of the public schools very quickly.



16

We cannot make a single plan about what we are going 
to do in our schools this year without giving paramount 
consideration to our relationship with the Federal 
Courts.”

This same Committee, in making its recommendations to 
the people of the State and the General Assembly, in Recom­
mendation No. 2 said:

“ Specifically, we recommend that all school units re­
cognize that since the Supreme Court decision there can 
be no valid law compelling the separation of the races in 
public schools.”

The plaintiffs-appellants refer to Resolution 29, which 
purports to state the policy of the State as to the mixing of the 
children of different races in the public schools (see Resolu­
tion 29, Session Laws of 1955). They also refer to Resolution 4, 
which protests the usurpation of power by the Supreme Court 
of the United States (see Resolution 4, Session Laws of 1956— 
Extra Session). The answer to this is that these Resolutions 
did not fix the policy of the State for we have already admitted 
colored children to so-called white schools. The same argu­
ment was made in the case of SHUTTLESWORTH v. BIR­
MINGHAM BOARD OF EDUCATION, 162, F. Supp. 372, 
Motion to Affirm granted, 3 L. ed 2nd 5, and in the Shuttles- 
worth case on this point the 3-Judge Federal Court said:

“With much force, the plaintiffs’ counsel point to the 
Resolution of Interposition and Nullification passed by 
the Special Session 1956 of the Alabama Legislature, 
effective February 2, 1956. While the concluding sentence 
of the resolution terms it an ‘Act’, it is in fact no more 
than a joint resolution and does not have the force and 
effect of law. See Alabama Constitution of 1901, Sec. 45; 
In re Doyle, 257 N. Y. 244, 177 N. E. 489, 87 A. L. R. 418, 
49 Am. Jur. States, etc., Sec. 36; 81 C. J. S. States Sec. 40; 
82 C. J. S. Statutes Sec. 20. It amounted to no more than a 
protest, an escape valve through which the legislators 
blew off steam to relieve their tensions. Though defiant 
in spirit, the intent expressed by the resolution was con­
fined to measures ‘constitutionally available to us.’ That 
resolution came before the adoption of the amendment 
which eliminated from the State constitution the require-



17

ment for segregated public schools. It cannot prevail over 
that amendment and over the subsequently amended and 
rewritten School Placement Law. The utmost benefit of 
the Interposition and Nullification Resolution to the 
plaintiffs’ case is to color the construction of the School 
Placement Law by its spirit of intransigence. By itself 
alone, that Resolution is not enough to permit us to 
declare the School Placement Law unconstitutional.

“The plaintiffs would have us conclude without further 
ado ‘that the whole intent is to continue the system of 
separate schools for Negro and white in the State of 
Alabama’. In dealing with an Act of the legislature of a 
sovereign State, we cannot lightly reach such a conclu­
sion, nor, indeed, are we permitted to do so except upon 
the most weighty and compelling of reasons.

“ In testing constitutionality ‘we cannot undertake a 
search for motive.’ ‘If the State has the power to do an act, 
its intention or the reason by which, it is influenced in do­
ing it cannot be inquired into.’ Doyle v. Continental Insur­
ance Co., 94 U. S. 535, 541, 24 L. ed. 148. As there is no 
one corporate mind of the legislature, there is in reality 
no single motive. Motives vary from one individual 
member of the legislature to another. Each member is 
required to ‘be bound by Oath or Affirmation to support 
this Constitution.’ Constitution of the United States, 
Article VI, Clause 3. Courts must presume that legisla­
tors respect and abide by their oaths of office and that 
their motives are in support of the Constitution.
“ If, however, we could assume that the Act was passed 
by the legislature with an evil and unconstitutional 
intent, even that would not suffice. As executive officers 
of the State, the members of the defendant Board are 
likewise required to ‘be bound by Oath or Affirmation to 
support this Constitution.’ Constitution of the United 
States, Article VI, Clause 3. No court, without evidence, 
can possibly presume that the members of the defendant 
Board will violate their oaths of office.
“ It is possible for the Act to be applied so as to admit 
qualified Negro pupils to nonsegregated schools. Upon 
oral argument, counsel for both sides expressed their 
understanding that the North Carolina Pupil Enrollment 
Act was actually being so applied. We cannot say, in 
advance of its application, that the Alabama Law will not 
be properly and constitutionally administered.



18

“The burden assumed by the plaintiffs is not simply to 
show that some one or more sections or parts of the 
Alabama School Placement Law are unconstitutional, 
but that said law is utterly void in toto. That is true 
because the plaintiffs are not in position to show upon 
what particular ground they were not permitted to attend 
the schools of their choice.”

As to the motives of legislators in passing Acts and Reso­
lutions, see the following:

ARIZONA v. CALIFORNIA, 283 U. S. 423, 455;

UNITED STATES v. DES MOINES NAV. & R. CO., 142 
U. S. 510, 554;

ACHESON, TOPEKA & S. FE R. CO. v. MATTHEWS, 
174 U. S. 96,102;

CALDER v. MICHIGAN, 218 U. S. 591, 598;

WEBER v. FREED, 239 U. S. 325, 330;

TENNEY v. BRANDHOVE, 341 U. S. 367;

RAST v. VAN DEMAN & L. CO., 240 U. S. 342, 357, 366;

HELVERING v. GRIFFITHS, 318 U. S. 371;

DANIEL v. FAMILY SECURITY L. INS. CO., 336 U. S. 
220;

BAILEY v. RICHARDSON, 182 F. 2d 46, 62, affirmed 
341 U. S. 918;

BUTLER v. THOMPSON, 97 F. Supp. 17, affirmed 341 
U. S. 937;

PETERSON v. PARSONS, 73 F. Supp. 840;

DUKE POWER CO. v. GREENWOOD COUNTY, 91 F. 
2d 665;

STEPHENSON v. BINFORD, 287 U. S. 241;



19

CONNOR v. BOARD OF COMMISSIONERS OF LOGAN 
COUNTY, OHIO, 12 F. 2d 789, 795;

LOVETT v. UNITED STATES, 66 F. Supp. 142, 145.

As we have pointed out above, the District Court for the 
Middle District in the case of BLUE v. DURHAM PUBLIC 
SCHOOL DISTRICT thoroughly explored and considered the 
relationship between the State Board of Education, State 
Superintendent of Public Instruction and the County and 
City Boards of Education, and as a result, sustained the 
State’s Motion to Dismiss. We think we have further shown 
the Court above that since the Blue case the relationship 
between these units has been of such a nature that the General 
Assembly has decentralized the System more and more and 
has granted more and larger local autonomy and greater 
powers to the County and City Boards of Education. In other 
words, if a Motion to Dismiss should have been sustained in 
the Blue case, there is all the more reason to sustain such 
Motion now or to refuse to have such Defendants made parties 
Defendants where such action has not already been taken.

This leads us to the conclusion, which we think is sound, 
that neither the State Board nor the State Superintendent are 
indispensable or necessary parties defendant to this ac­
tion, nor is their joinder authorized by the Federal Rules 
of Civil Procedure or the Federal Statutes as interpreted by 
the Federal Courts. In the case of McRANIE v. Palmer, 2 F. 
R. D. 479, the Court classifies the different types of parties 
under the Federal Practice, saying:

“ In the federal courts, parties to actions are divided into 
different classes: (1) formal, (2) proper, (3) necessary, 
and (4) indispensable. Moore’s Federal Practice, section 
19.01.***
***

“The leading case which states the rule with respect to 
indispensable parties is Shields et al. v. Barrow, 17 How. 
130, 139, 15 L. ed. 158. The court there said, in dealing 
with parties not before the court: '*** if their interests



20

are separable from those of the parties before the court, 
so that the court can proceed to a decree, and do complete 
and final justice, without affecting other persons not 
before the court, the latter are not indispensable parties’. 
See Ducker v. Butler et al., 70 App. D. C. 103, 104 F. 2d 
236, 238; State of Washington v. United States, et al., 9 
Cir., 87 F. 2d 421; and Wyoga Gas & Oil Corp. v. Schrack 
et al., D. C. 27 F. Supp. 35. In Niles-Bement-Pond Co. v. 
Iron Moulders’ Union, 254 U. S. 77, 80, 41 S. Ct. 39, 41, 65 
L. ed. 145, the court said: ‘There is no prescribed formula 
for determining in every case whether a person or corp­
oration is an indispensable party or not.’ ”

In KUHN v. YELLOW TRANSIT FREIGHT LINES, 12 
F. R. D. 252, on the question of parties ,the Court said:

“Decision on the applicability of this rule must turn on 
the character of the parties sought to be joined. The rule 
declares those parties whose presence is ‘required’ for 
granting of complete relief on the counterclaim shall be 
brought in. What meaning shall be given to the word 
required’? Use of that particular word indicates its use 
as synonymous with ‘indispensable’ parties. The three 
general classes of parties to any action were defined in 
Division 525, Order of Ry. Conductors of America v. Gor­
man, 8th Cir., 133 F. 2d 273, 276: ‘Proper’ or ‘formal’ 
parties include those who are not interested in the con­
troversy between the immediate litigants but have an 
interest in the subject matter which may be conveniently 
settled in the suit. ‘Necessary parties’ are those who have 
an interest in the subject matter and who are within the 
jurisdiction of the court, but who are not so indispensable 
to the relief asked as would prevent the court from enter­
ing a decree in their absence. ‘Indispensable’ parties are 
those whose interests are so bound up in the subject 
matter of litigation and the relief sought that the court 
cannot proceed without them, or proceed to a final judg­
ment without affecting their interests.’

“We conclude that ‘indispensable’ parties are the only 
class whose presence is ‘required’ in order to grant 
complete relief in this case. In the Gorman case the Court 
states in no uncertain language that an adjudication can 
be reached without the presence of mere ‘necessary’ 
parties, and certainly without ‘proper’ parties.”

In SAVOIA FILMS A. I. v. VANGUARD FILMS, 10 F. R.



21

D. 64, there was before the Court a suit between two film 
corporations. The plaintiff alleged that David 0. Selznick 
should be a party defendant because Vanguard Films made 
the agreement in question on behalf of itself and on behalf of 
Selznick. In sustaining the motion to drop Selznick as a party 
defendant, the Court said:

“Defendant Selznick is not an indispensable party to this 
action. He was not a party to the agreement and any 
determination of the rights of plaintiff and defendant 
Vanguard Films, Inc., under the contract will not affect 
the legal rights of Selznick. An indispensable party must 
be distinguished from a necessary party, who is a person 
having such an interest in the controversy that he ought 
to be made a party in order to finally determine the entire 
controversy, but whose interest is separable. Shields v. 
Barrow, 1854, 17 How. 130, 58 U. S. 130, 139. At best the 
defendants’ interests are joint and several, and in that 
event the joinder of all the parties as indispensable is not 
required, 3 Moore’s Federal Practice, 2d Ed., p. 2164. In 
the opinion of this Court, defendant David O. Selznick 
is not an indispensable party to this action but only a 
necessary party, and the action may be continued without 
him.”

The term ‘joint interest’ as used in 19 (a) of F. R. C. P. has 
been explained in the case of COUNTY OF PLATTE v. NEW 
AMSTERDAM CASUALTY CO. et als., 6 F. R. D. 475, where 
the Court said:

“The term ‘joint interest’, as used in Rule 19 (a), refers 
to parties designated as necessary or indispensable under 
the former practice, and means an interest which must 
be directly affected by the adjudication in the case. United 
States v. Washington Institute of Technology, 3 Cir., 138 
F. 2d 25; Currier v. Currier. D. C. N. Y., 1 F. R. D. 683; 
Samuel Goldwyn, Inc., v. United Artists Corporation, 3 
Cir., 113 F. 2d 703.
“Subdivision (a) of Rule 19 deals with the necessary 
joinder of indispensable parties and is declaratory of the 
law as it previously existed with respect to who are in­
dispensable parties. Under such previously existing law, 
the indispensability of parties depended upon state law. 
Young v. Garrett, 8 Cir., 149 F. 2d 223.



22

“The court will therefore look to the law of Nebraska in 
determining whether W. L. Boettcher, or his representa­
tives, are necessary or indispensable parties to the instant 
actions.”

On this question, see also the following:

HOLLIDAY v. LONG MANUFACTURING CO., 18 F. R. 
D. 45;

PHOTOMETRIC PRODUCTS CORPORATION v. RAD- 
TKE, 17 F. R. D. 103;

FITZGERALD v. JANDREAU, 16 F. R. D. 578;

CONDUCTORS OF AMERICA v. GORMAN, 133 F. 2d 
273;

BAIRD v. PEOPLES BANK & TRUST CO., 120 F. 2d 
1001;

COLORADO v. TOLL, 268 U. S. 228, 69 L. ed. 927; 

UNITED STATES v. PETROSKY, 2 F. R. D. 422.
In view of the fact that the Supreme Court of North Caro­

lina has already said in CONSTANTIAN v. ANSON COUNTY, 
supra, that the portion of Article IX, Sec. 2, of the Constitu­
tion, which attempts to separate the schools according to 
races, is void, invalid and of no effect, and also in view of the 
fact that the present school law has no reference whatsoever 
to races and has no provision requiring segregated schools, 
and when we consider further that enrollment and assignment 
of pupils is not in the hands of State officers at all but has 
been directly committed and vested in the local units by the 
General Assembly, there could not possibly be any foundation 
for legal liability as against the State officers and as to this 
action they are not even eligible to be formal or proper 
parties defendant much less necessary or indispensable parties 
defendant. As said by the Court in MILLS v. LOWNDES, 26 
F. Supp. 792:

“ In making an officer of the state a party defendant in a 
suit to enjoin the enforcement of an act alleged to be 
unconstitutional, it is plain that such officer must have



23

some connection with the enforcement of the act, or else 
it is merely making him a party as a representative of the 
state, and thereby attempting to make the state a party.”

Assuming for the sake of argument that the school system 
in this State was a hierocratical, authoritarian organization 
and there was a straight line of authority from the State 
officers to the local units (we have shown that this is not 
true) then in that event under the Federal decisions it 
would not be necessary to make the State officials parties 
defendant in these cases. This is true because of the nature of 
the North Carolina School Statutes and because the relief 
demanded by the plaintiffs can be effectively granted by 
decree operating on the subordinate units without requiring 
any action directly or indirectly on the part of the superiors, 
State officers. It is very plain that under these statutes an 
order or decree of this Court operating on the local units can 
be made without fear of the possibility that the decree may be 
rendered nugatory by any subsequent action on the part of 
the State officials. This has been demonstrated in the Federal 
Courts by many decisions. In COLORADO v. TOLL, 268 U. S. 
228, 69 L. ed. 927, on this point the Court said:

“The object of the bill is to restrain an individual from 
doing acts that it is alleged that he has no authority to 
do, and that derogate from the quasi sovereign authority 
of the state. There is no question that a bill in equity 
is a proper remedy, and that it may be pursued against 
the defendant without joining either his superior officers 
or the United States. Missouri v. Holland, 252 U. S. 416, 
431, 64 L. ed. 641, 646, 11 A. L. R. 984, 40 Sup. Ct. Rep. 
382; Philadelphia Co. v. Stimson, 223 U. S. 605, 619, 620, 
56 L .ed. 570, 576, 577, 32 Sup. Ct. Rep. 340.”

In WILLIAMS v. KANSAS CITY, MISSOURI, et al., 104 
F. Supp. 848, 854, suit was brought for an injunction and 
declaratory judgment in that plaintiffs were denied admit­
tance to the municipal swimming pool because of their color. 
The swimming pool was operated by a Board of Park Commis­
sioners which was an independent agency under the City 
Charter, and in this action the plaintiffs saw fit to make 
the Mayor of the City a party defendant. In ruling that the



24

Mayor of Kansas City was not a necessary or proper party, 
the Court said:

“ It should be pointed out now that the Board of Park 
Commissioners, as an independent agency under the 
charter of Kansas City, Missouri, is not subject to control 
or supervision of the Mayor of said City, or its City 
Manager. The latter mentioned officials of the City are 
brought into official contact with said Board only through 
appointive power resident in the Mayor, and in regard to 
fiscal matters controllable by the City Manager. Other­
wise the Mayor and City Manager of the City have no 
control over the administrative functions of such Board. 
As a consequence thereof the defendant William Kemp, 
as Mayor of Kansas City, Missouri, is not a necessary or 
proper party in the instant action. He is not connected, 
in the evidence or by operation of law, with the subject 
matter thereof.”

In HYNES v. GRIMES PACKING COMPANY, 337 U. S. 
86, 93 L. ed. 1231, the plaintiffs, a fish canning company, 
brought an action against the Regional Director for Alaska 
of the Fish and Wildlife Service to permanently enjoin the 
exclusion of their fishermen from a fishing reservation. In 
holding that the Secretary of the Interior did not have to be 
joined as a party defendant, the Court said:

“ (a) At the outset the United States contends that the 
Secretary of the Interior is an indispensable party who 
must be joined as a party defendant in order to give the 
District Court jurisdiction of this suit. In Williams v. 
Fanning, 332 U. S. 490, 92 L. ed. 95, 68 S. Ct. 188, the test 
as to whether a superior official can be dispensed with as 
a party was stated to be whether ‘the decree which is 
entered will effectively grant the relief desired by ex­
pending itself on the subordinate official who is before 
the court.’

“ Such is the precise situation here. Nothing is required 
of the Secretary; he does not have to perform any act, 
either directly or indirectly. Respondents merely seek an 
injunction restraining petitioner from interfering with 
their fishing. No affirmative action is required of petition­
er, and if he and his subordinates cease their interference, 
respondents have been accorded all the relief which they



25

seek. The issues of the instant suit can be settled by a 
decree between these parties without having the Secre­
tary of the Interior as a party to the litigation.”

In WILLIAMS v. FANNING, 332 U. S. 490, 92 L. ed. 95, it 
was held that the Postmaster General did not have to be 
joined as a party defendant in a suit against the local post­
master to restrain the enforcement of a fraud order. See also: 
Annotation in 158 A. L. R. 1126. See also: Text and Cases 
Cited in Notes in BARRON & HOLTZOFF: F. P. P. p. 81, sec. 
515 et seq.

Ill

PLAINTIFFS-APPELLANTS HAVE NO LEGAL STATUS 
TO ATTACK THE CONSTITUTIONALITY OF THE 
VARIOUS STATUTES WHICH COMPRISE THE SO- 
CALLED “PEARSALL PLAN”.

It is well established as one of the elementary principles of 
constitutional law that the constitutionality of a legislative 
act is open to attack only by a person whose rights are affected 
thereby. Such a person must show that the enforcement of the 
law would not only be an infringement of his rights but that 
he would be injuriously affected. The corollary to this rule is 
that one who is not prejudiced by an enforcement of an act 
of the legislature or one against whom no attempt has been 
made to enforce the statute may not challenge its constitution­
ality.

11 Am. Jur (Constitutional Law) p. 748, Sec. Il l ;
16 C. J. S. (Constitutional Law) p. 226, Sec. 76.

There has been no attempt to enforce the Local Option 
Article in the State of North Carolina. There has been no 
application for tuition expense grants made by the plaintiffs 
or any other persons in the State of North Carolina. No colored 
people or white people have invoked these statutes, and this 
also includes the plaintiffs in this action. Since the Pupil 
Assignment and Enrollment Statute has been declared to be



26

constitutional and since these other Articles of the School 
Law have in no manner been applied to the situation of the 
plaintiffs, they do not have sufficient legal status to attack the 
constitutionality of these statutes.

We are aware of the fact that in Virginia and perhaps in 
Florida placement or assignment acts have been declared to be 
unconstitutional because certain other collateral statutes re­
quired all schools to be closed if any integration took place 
and cut off all public funds for public school purposes. Such 
is not the situation in North Carolina, and, therefore, the 
plaintiffs have no basis for seeking to tie all these statutes 
together and having them all declared unconstitutional. The 
legal authorities support our view that the plaintiffs have no 
legal status to attack these statutes.

In UNITED PUBLIC WORKERS v. MITCHELL, 330 U. S. 
75, 89; 91 L. ed. 754, 766, the Court said:

“As is well known the federal courts established pursuant 
to Article III of the Constitution do not render advisory 
opinions. For adjudication of constitutional issues ‘con­
crete legal issues, presented in actual cases, not abstrac­
tions,’ are requisite. This is as true of declaratory judg­
ments as any other field. These appellants seem clearly 
to seek advisory opinions upon broad claims of rights 
protected by the First, Fifth, Ninth and Tenth Amend­
ments to the Constitution. ***

“ ***The power of courts, and ultimately of this Court, 
to pass upon the constitutionality of acts of Congress 
arises only when the interests of litigants require the use 
of this judicial authority for their protection against 
actual interference. A hypothetical threat is not enough. 
We can only speculate as to the kinds of political activity 
the appellants desire to engage in or as to the contents 
of their proposed public statements or the circumstances 
of their publication. It would not accord with judicial 
responsibility to adjudge, in a matter involving consti­
tutionality, between the freedom of the individual and 
the requirements of public order except when definite 
rights appear upon the one side and definite prejudicial 
interferences upon the other.”



27

In STEPHENSON v. BINFORD, 287 U. S. 251, 277; 77 L. 
ed. 288, 301, the United States Supreme Court said:

“So far as appears no attempt yet has been made to 
enforce the provision against any of these appellants,^and 
until this is done they have no occasion to complain.”

In ALABAMA STATE FEDERATION OF LABOR v. Mc- 
ADORY, 325 U. S. 450, 461; 89 L. ed. 1725, 1734, the Court 
said:

“The requirements for a justiciable case or controversy 
are no less strict in a declaratory judgment proceeding 
than in any other type of suit. ***This Court is without 
power to give advisory opinions. ***It has long been its 
considered practice not to decide abstract, hypothetical 
or contingent questions, ***or to decide any constitu­
tional question in advance of the necessity for its decision, 
***or to formulate a rule of constitutional law broader 
than is required by the precise facts to which it is to be 
applied, ***or to decide any constitutional question ex­
cept with reference to the particular facts to which it is 
to be applied.***”

In STANDARD STOCK FOOD CO. v. WRIGHT, 225 U. S. 
540, 550; 56 L. ed. 1197, 1201, Mr. Chief Justice Hughes, on 
this point, says:

“The case in this aspect falls within the established rule 
that ‘one who would strike down a state statute as 
violative of the Federal Constitution must bring himself 
by proper averments and showing within the class as to 
whom the act thus attacked is unconstitutional. He must 
show that the alleged unconstitutional feature of the law 
injures him, and so operates as to _deprive him of rights 
protected by the Federal Constitution.” ’

This rule is so well established that we will not bother the 
Court with further quotations but we do refer the Court to the 
following cases:

BODE v. BARRETT, 344 U. S. 583; 97 L. ed. 567, 571;

WATSON v. BUCK, 313 U. S. 387, 402; 85 L. ed. 1416, 
1424;



28

COLUMBUS & G. R. CO. v. MILLER, 283 U. S. 96, 99; 
75 L. ed. 861, 865;

MASSACHUSETTS v. MELON, 262 U. S. 447, 484; 67 L. 
ed. 1078, 1084;

DOREMUS v. BOARD OF EDUCATION, 342 U. S. 429, 
434; 96 L. ed. 475, 480; 72 S. Ct. 394. See Anno. 50 L, 

ed. 382;

PULLMAN CO. v. RICHARDSON, 261 U. S. 330; 67 L. 
ed. 682;

PREMIER-PABST SALES CO. v. GROSSUP, 298 U. S. 
226, 227; 80 L. ed. 1155, 1156;

DEAN OIL CO. v. AMERICAN OIL CO., 147 F. Supp. 
414, 417;

MOORE ICE CREAM CO. v. ROSE, 289 U. S. 373, 383, 
384;

LARSEN v. CITY OF COLORADO SPRINGS, 142 F. 
Supp. 871, 873;

C. I. O. v. McADORY, 325 U. S. 472, 475, 89 L. ed. 1741;

TILESTON v. ULLMAN, 318 U. S. 44, 46, 87 L. ed. 603;

ASHWANDER v. TYA, 297 U. S. 288, 324, 80 L. ed. 688, 
699;

UNITED STATES v. APPALACHIAN POWER CO., 311 
U. S. 377, 423; 85 L. ed. 243, 261;

JEFFREY MANUFACTURING CO. v. BLAGG, 235 U. 
S. 571, 576; 59 L. ed. 364, 368;

DAHNKE v. BONDURANT, 257 U. S. 282, 289; 66 L. ed. 
239, 243.



29

IV

THE MOTION TO DISMISS FILED BY THESE APPEL­
LEES SHOULD BE SUSTAINED BECAUSE THE
SUPPLEMENTAL AND AMENDED COMPLAINT
DOES NOT ALLEGE ANY CAUSE OF ACTION
AGAINST STATE OFFICERS

Under this contention these appellees admit that upon a 
Motion to Dismiss every material fact well pleaded in the 
Complaint is admitted and should be construed in the light 
most favorable to the plaintiff (PORTER v. KARADAS, 157 
F. 2d 984; INSURANCE CO. OF NEW YORK v. FIRE AS­
SOCIATION OF PHILADELPHIA, 152 F. 2d 239).

Under the practice of the State of North Carolina, where 
a demurrer is filed to a complaint, it will be constructed as 
admitting relevant facts well pleaded; but the principle is 
not extended to admitting conclusions or inferences of law 
nor to admissions of fact contrary to those facts of which the 
Court will take judicial notice nor will facts be admitted by a 
demurrer when such opposing facts and conditions are de­
clared and established by a valid applicable statute.

LANE v. GRAHAM COUNTY, 194 N. C. 723;

BOARD OF HEALTH v. COMMISSIONERS, 173 N. C.
250.

It is our contention that on a motion to dismiss, the Federal 
rule is identical with the State rule and that such a motion 
admits facts only when they are well pleaded and does not 
admit conclusions of law.

LUCKING v. DELANO, 129 F. 2d 283, 286;

INSURANCE SOCIETY v. BROWN, 213 U. S. 25, 29 S.
Ct. 404;

SO. RY. COMPANY v. KING, 217 U. S. 524, 30 S. Ct. 594;



30

PELLICAN OIL & GASOLINE CO. v. COMMISSIONER 
OF INTERNAL REVENUE 128 F. 2d 837;

KEYS v. UNITED STATES, 119 F. 2d 444, 447;

BRUNNELL v. UNITED STATES, 77 F. Supp. 68;

LeCLAIR v. SWIFT, 76 F. Supp. 729;

GREEN v. BROPHY, 110 F. 2d 539; (Case Note, p. 544)

PACIFIC STATES v. WHITE, 296 U. S. 176, 185;

NEWPORT NEWS CO. v. SCHUFFLER, 303 U. S. 54, 57.

The Federal Courts take judicial notice of States laws.

GALLUP v. CALDWELL, 120 F. 2d 90;

COHN v. UNITED STATES, 129 F. 2d 730;

PRUDENTIAL INSURANCE CO. OF AMERICA v. 
CARLSON, 126 F. 2d 607;

STATE BANK v. WEAVER, 282 U. S. 765;

BROWN v. FORD MOTOR CO., 48 F. 2d 732.

In brief, therefore, it is our contention that as to these de­
fendants, any allegations as to legal conclusions are not ad­
mitted by the Motion to Dismiss; nor are vague and general 
allegations admitted nor are any facts admitted which are 
opposed to an applicable and controlling statute. It is further 
contended that the Court takes judicial notice of the statutes 
of the State of North Carolina and that the duties of the 
defendants are fixed by State Constitution and Statutes. In 
brief we maintain that if the items of discrimination alleged 
are not within the scope and control of the duties of the 
defendants, as fixed by State Law and Constitution, that no 
cause of action is stated against the defendants.



31

The Amended and Supplemental Complaint of the plaintiffs, 
which they propose to file (Appellants’ Appendix, p. 39a), 
alleges that the Board of Education of Montgomery County 
has refused to desegregate the schools pursuant to orders, 
resolutions or directives of the State Board of Education and 
the Superintendent of Public Instruction. This is alleged on 
information and belief, and we are not told what these orders 
are, who gave them and when. It is alleged as a conclusion 
of law that the State Board of Education is charged with the 
general supervision and administration of a free public school 
system and that the State Superintendent of Public Instruc­
tion is the administrative head of the public school system. 
As we have shown, the pertinent statutes show that these 
officers do not control operations of the local schools, and, 
therefore, the Motion to Dismiss on the part of the State 
officers should be sustained.

CONCLUSION

This is an effort on the part of the plaintiffs-appellants to 
have Federal Courts take control of and administer the public 
schools of the State of North Carolina. We submit that the 
Supreme Court of the United States has already approved the 
principle of placement or assignment statutes, and if the plain­
tiffs wish to be admitted to any other schools they can very 
easily test out the operation of the school system of Mont­
gomery County by stating the schools which they wish to 
attend and the reasons therefor. They do not yet know what 
the action of the Board of Education of Montgomery County 
will be because they have made no individual applications 
as the State Law requires and which State Law has been 
approved by this Court. The so-called “administrative futility” 
has not been demonstrated, and there is nothing in the policy 
and resolutions of the Board of Education of Montgomery 
County that shows this “ administrative futility” . At any rate, 
the State officers, appellees herein, have nothing to do with 
the administration of the schools at the local level, and the 
plaintiffs-appellants can secure full and adequate relief, if 
they are entitled to any, without making the State officers 
parties defendant in this case. It is, therefore, submitted that



32

Judge Stanley was correct in refusing to make the State of­
ficers parties defendant and in refusing the filing of the 
Amended and Supplemental Complaint as against the State 
officers.

Respectfully submitted,

MALCOLM B. SEAWELL 
Justice Building 
Raleigh, North Carolina 
Attorney General of North Carolina

RALPH MOODY 
Justice Building 
Raleigh, North Carolina 
Assistant Attorney General

Attorneys for State Board of Education 
and State Superintendent of Public 

Instruction, Appellees.