Mills v. Woods Brief for Appellees

    Q o  /<?•

In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 13,369

S. W. Mills, et al., individually and as members of the 
Board of Trustees for the Euless, Tarrant County, 

Texas Independent School District No. 95, et al.,
Appellants,

v.

Roscoe Woods, Jr., and his father and next friend, 
Roscoe Woods, et al,

Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

BRIEF FOR APPELLEES

U. Simpson Tate,
1718 Jackson Street, 
Dallas, Texas.

C. B. Bunkley, Jr.,
814% North Good Street, 
Dallas, Texas,

Attorneys for Appellees.



I N D E X

Statement of the C ase....................................................  1
Summary of Argum ent...................................................  5
Argument ..........................................................................  6
Conclusion ........................................................................  28
Appendix I ........................................................................  29
Appendix II .................................................................  32
Appendix III ....................................................................  34
Appendix IV ....................................................................  36

Page



ii Cases Cited
Page

Alston v. School Board of the City of Norfolk, 112 
P. 2d 992 ......................................................................  27

American Machine & Metal Co. v. DeBothezat Impel­
ler Co., 166 F. 2d 535 ...................................................  21

Amherst College v. Ritch, 151 N. Y. 282, 45 N. E.
876 ................................................................................. 6

Ashley v. School Board of Gloucester County, 82 F.
Supp. 167 ......................................................................  19

Baltimore & P. Ry. Co. v. The Sixth Presbyterian 
Church, 91 U. S. 1 2 7 ..................................................  8

Baskin v. Brown, 174 F. 2d 391 ....................................  25
Bechtel v. U. S., 101 U. S. 597 ..................................... 23
Bottone v. Lindsley, 170 F. 2d 705 ................................  23
Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16 .......  25
Butler v. Wilemon, 86 F. Supp. 397 ............................  26
Canal Bank v. Hudson, 111 U. S. 6 6 ............................  7
Carter v. School Board of Arlington County, 182 F.

2d 531 ........................................................................... 16, 26
Corbin v. School Board of Pulaski County, 177 F.

2d 924 ............................................................................ 14, 26
Cook v. Wilbanks, 223 Ala. 312, 135 So. 435 .............  6
Daily v. Fitzgerald, 17 N. M. 137, 125 P. 625 ...........  6
Dameron v. Bayless, 126 P. 273 ..................................... 10
Davis v. Packard, 7 Pet. (U. S.) 276 ............................  7
Dalandy v. Carter Oil Co., 174 F. 2d 3 1 4 .................... 21
Dewey & Almy v. American Anode, 137 F. 2d 6 9 .......  21
Dowd v. Hercules Power Co., 66 Colo. 302, 181 P.

767 ................................................................................  8
Durland v. U. S., 161 U. S. 306, 16 S. Ct. 508 ...........  8



Cases Cited— (Continued) iii
Page

Elgin v. Marshall, 106 U. S. 578, 27 L. Ed. 249 ......  7
Elmore v. Rice, 165 F. 2d 387 ....................................... 25
Federal Security Co. v. Butler & Son, 51 F. 2d 2 4 .....  7
Franklin Life Insurance Co. v. Johnson, 157 F. 2d 

653 ................................................................................. 21
Genard v. Hasmer, 285 Mass. 259, 186 N. E. 4 6 .......  7
Gordon v. Garrson, 77 F. Supp. 477 ............................  23
Greer v. Standard, 85 Mont. 78, 277 Pac. 622 ...........  6
Hahn v. Kelly, 34 Calif. 3 9 1 ...........................................  7
Heck v. Heich, 163 Wis. 171, 157 N. W. 747 ...............  6
Henderson v. U. S., 338 U. S........, 70 S. Ct. 843 ........18, 26
Hill v. Texas, 316 U. S. 400, 62 S. Ct. 1159 ...............  18
Hirabayashi v. U. S., 320 U. S. 81, 63 S. Ct. 1375 .....  18
Hoffman v. Knitting Machines Corp., 123 F. 2d 456 22
Hodges v. Merriweather, 55 F. 2d 29 ..........................  6
Independent School District v. Salvatierra, 33 S. W.

2d 790 ..........   17,27
Johnson v. Board of Trustees of Univ. of Ky., 83 F.

Supp. 707 ......................................................................  26
Kerney v. Dean, 15 Wall. (U. S.) 5 1 ......    8
Klaber v. Lakenan, 64 F. 2d 86 ......................  7
Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872 ............... 19, 25
Lehew v. Brummell, 15 S. W. 765 ................................  11
Leland v. Morrison, 92 S. C. 501, 75 S. E. 889 . 6
Loring v. Frue, 104 U. S. 223 ................   7
Love v. City of Dallas, 40 S. W. 2d 2 0 ..........................  13
McCabe v. Atchison T. & S. F. Ry. Co., 235 U. S. 151,

35 S. Ct. 69 ..................................................................  25



McLaurin v. Board of Regents of Oklahoma, 338 U.
S.........., 70 S. Ct. 851 .................................................. 26

Martin v. Marks, 97 U. S. 345 ..................................... 6
Mills v. Board of Education City of Norfolk, 30 F.

Supp. 245 ......................................................................  24
Mendez v. Westminster School District, 64 F. Supp.

544, Affirmed 161 F. 2d 774 .............................. 17, 23, 27
Mitchell v. U. S., 313 U. S. 80, 61 S. Ct. 873 .............  25
Missouri ex rel Gaines v. Canada, 305 U. S. 337, 59 

S. Ct. 232 ......................................................................  25
Nixon v. Herndon, 273 U. S. 536, 47 S. Ct. 446 .........  25
Parkerson v. Thompson, 164 Ind. 609, 73 N. E. 109 6
Pennsylvania Casualty Co. v. Upchurch, 139 F. 2d 

892 ................................................................................  21
Pierre v. Louisiana, 306 U. S. 354, 69 S. Ct. 536 .......  24
Pound v. Turck, 95 U. S. 459 ......................................... 8
Redfield v. Parks, 130 U. S. 632, 9 S. Ct. 642 ...........  7
Sigal v. Wise, 114 Conn. 297, 158 A. 891 .................... 21
Sipuel v. Board of Regents, Oklahoma, 332 U. S.

631 ................................................................................  26
State v. Gordon, 32 N. D. 31, 155 N. W. 59 ................ 7
Southern Pipe Line Co. v. Empire Natl. Gas Co., 33 

F. 2d 248 ......................................................................  6
Strauder v. West Virigina, 100 U. S. 303, 25 L. Ed.

664 ................................................................................  24
Treemond Co. v. Schering, 122 F. 2d 702 .......................  22
Vistal v. Little Rock, 54 Ark. 321, 15 S. W. 891 .......  7
U. S. v. Clark, 20 Wall. (U. S.) 9 2 ................................. 6
Wright v. Board of Education City of Topeka, 248 P.

363 ................................................................................  12

iv Cases Cited— (Continued)
Page



Cases Cited— (Continued) v

Page

Weil v. Federal Life Ins. Co., 264 111. 425, 106 N. E.
426 ................................................................................. 7

Witcomb v. Witcomb, 85 Vt. 76, 81 A. 9 7 .................... 6
Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064   18
Yu Cong Eng v. Trinidad, 271 U. S. 500, 46 S. Ct.

619 ................................................................................. 18
Zimmerman v. Harding, 227 U. S. 489, 33 S. Ct. 387 8
Bochard, Declaratory Judgments, pp. 422-23 ..........  21

Statutes Cited
Federal Statutes:
Judicial Code, Sections 24(1) and 24(14)
Title 8 of the United States Code, Sections 41 and 43
Title 28 of the United States Code, Sections 41(1) 

and 41(14)
State Statutes:
Vernon’s Texas Statutes, 1948:

Article 2681 
Article 2695 
Article 2696 
Article 2697 
Article 2698 
Article 2699 
Article 2922-13



In the

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 13,369

S. W. Mills, et al, individually and as members of the 
Board of Trustees for the Euless, Tarrant County, 

Texas Independent School District No. 95, et al.,
Appellants,

v.

Roscoe Woods, Jr., and his father and next friend, 
Roscoe Woods, et al.,

Appellees.

Appeal from the United States District Court for the 
Northern District of Texas

BRIEF FOR APPELLEES

STATEM ENT OF THE CASE 

On October 11, 1949 plaintiffs herein filed their original 
complaint against the Superintendent of Schools and the 
School Board of the Euless Independent School District, 
against 0. H. Stowe, County Superintendent of Schools 
of Tarrant County, Texas in which county the Euless In­
dependent School District and the Fort Worth School Dis­
trict are situated, and against Joe P. Moore, Superintend­



2

ent of Schools, and the School Board of the Fort Worth 
Independent School District setting out the jurisdiction of 
the Court under the Judicial Code, Section 24(1), [28 
U. S. Code, Section 41(1 )] and Title 8, Sections 41 and 
43 of the U. S. Code.

The plaintiffs below, appellees here, further contend that 
the lower court had jurisdiction under Section 24(14) of 
the Judicial Code [28 U. S. Code, Section 41(14)], this 
being a case of alleged discrimination against the plain­
tiffs below, all of whom are admitted to be members of 
the Negro race and citizens of the United States, citizens 
of the State of Texas and domiciled in Tarrant County, 
Texas and within the Euless Independent School District, 
because of race and color.

The plaintiffs alleged in their complaint, and it was ad­
mitted at trial that all of the parties to this law suit were 
subject to the jurisdiction of the court below.

Plaintiffs allege that the defendants named herein, act­
ing as officers and agents of the State of Texas had dis­
criminated against them by unlawfully closing the school 
within the Euless Independent School District which had 
formerly been operated for these plaintiffs and others 
similarly situated, and transferring them, all of whom are 
members of the Negro race, out of their home school dis­
trict to the Fort Worth Independent School District, a 
distance of 15 or 16 miles away, while continuing to op­
erate and maintain public school facilities for resident 
white children of the district within the School District.



Plaintiffs prayed for a decree declaring the legal rela­
tions to the parties to the cause, for a declaratory judg­
ment and a writ of injunction permanently restraining the 
defendants from further discriminating against these 
plaintiffs and others similarly situated because of race and 
color.

On October 31, 1949 defendants filed their original an­
swer, to the plaintiffs’ original complaint, denying dis­
crimination and declaring that the act of transferring the 
plaintiffs out of their home district to an adjacent or con­
tiguous district was done by authority of the law of the 
State of Texas, and that the said act had been concurred 
in by the County Superintendent and the State Superin­
tendent of Education, and that certain indispensable par­
ties should be joined as necessary parties to this cause.

The other defendants, except one, answered in substan­
tially the same tone and adopted the answer of the de­
fendant Euless Independent School District.

With the consent of the court, plaintiffs filed their First 
Amended Complaint on December 2, 1949 joining other 
necessary parties. The original complaint was amended in 
no other respect.

Defendants stood on their original answer contending 
that their act of transferring plaintiffs and others simi­
larly situated was done according to the laws of the 
State of Texas. They admit plaintiffs’ allegations that a 
public school had been maintained for many years within 
the Euless Independent School District; that the school



4

vy

£4/  \
V

for Negroes which had been previously maintained had 
been closed and the pupils transferred to the Fort Worth 
Independent School District.

Honorable L. A. Woods, State Superintendent of Edu­
cation acting upon advice of the Attorney General’s office 
filed his motion to be dismissed on the grounds that he 
was not a proper party to the cause for the reason that 
he had no authority _under thê  Constitution of the State of 
Texas, or any of the laws thereunder, to grant or accom­
plish the relief prayed for by the plaintiffs. And for the 
further reason that under the Statutes of the State of 
Texas, he had no authority with regard to contracts for 
the transfer of the scholastics, such as the one which was 
allegedly made between the Euless Independent School 
District and the Fort Worth Independent School District.

Argument on this motion was had on March 20, 1950, 
and an order was entered by the court on that date dis­
missing Dr. Woods as a party, on the ground that the 
defendant, Dr. L. A. Woods has no power under the Con­
stitution of laws of this State to grant or accomplish any 
of the relief prayed for by the plaintiffs, and that the 
said defendant has no authority with regard to contracts 
for the transfer of scholastics such as the one allegedly 
made between the Euless Independent School District and 
the Fort Worth Independent School District. (See Ap­
pendix III, p. 34.)

The cause came on for trial before Honorable Joseph 
B. Dooley, United States District Judge, without jury, on 
the 20th day of March, 1950, where upon hearing the testi-



THE W ASH IN G TO N  POST,
Wednesday, Hay 30, 1951 *** g

Judges Get 
Segregation 
Case in S, C. ,

CHARLESTON, S, C.. May 29 
<U-R),...Negro leaders asked a fe d ­
eral court today to end school seg­
regation that amounts to "exclu­
sion” while South Carolina argued 
that the right to separate the 
races belongs to the State.

As both sides wound up their 
cases in a suit aimed at the 
South’s basic segregation pattern, 
one of the three special United 
States judges said he was "not 
much mipdessed” with the state’s 
main plea.

Circuit Judge John J. Parker, 
Senior jurist on the panel, asked 
State Attorney Robert McG. Figg, 
what decree he thought the court 
should render sonce the State ad­
mitted it did not provide equal 
school facilities for Negroes in 
Clarendon County, where the suit 
originated.

Figg then repeated his request 
of yesterday that the special court 
hold the case within its jurisdic­
tion until the State had time to 
put into effect a multi-million dol­
lar school equalization program.

I’m not much impressed with 
that,”  said Judge Parker. He added 
that he knew of no point of law to 
support such a course.

Judge Parker, was hearing the 
case with District Judges J. Waties 
Waring and George Bell Timmer­
man. Waring is the South Carolina 
judge who opened the South Caro­
lina primary to Negro voters in 
1947 and Parker was a member of 
the Circuit Court of Appeals in 
Charlotte, N. C., that hacked him 
up.

The judges took the case under 
advisement. No matter which side 
wins, a prompt appeal probably 
will be taken to the United States 
Supreme Court.

Witnesses for the plaintiffs—  
parents of 30 Clarendon County 
Negro pupils—expanded their con­
tention that segregation itself rep­
resents unequal education because 
it gives the negro a feeling of in­
feriority.



TH E W ASH ING TO N POS'I
Wednesday, May 30, 1951

1 0 ___________________ * * *

Pepco Earns 
36c a Share 
In 4 Months

By S. Oliver Goodman 
Potomac Electric Power Co. 

yesterday reported net income of 
$1,675,000 or 36 cents a share for 
the first four months of this year, 
compared with $1,628,000 or 42 
cents a share in the same 1950 
period. A lesser number of com­
mon shares was outstanding last 
year.

April net income of $373,000 
was 2.1 percent, under the like 
1.950 period. Effect of the rate 
increase, which went into effect 
on April 20, is expected to be re­
flected in the earnings report for 
May.
.. Operating revenues for the four- 
month period totaled $13,606,000, 
a gain of 8.1 percent , while oper­
ating expenses of $11,112,00 in­
creased 9.4 percent.

Total plant investment at the 
end of April amounted to 181 mil­
lion dollars, the company noted, 
an increase of 13 million over a 
year ago. Gross additions to plant 
during the first four months aggre­
gated $5,683,000.

INNOVATION: To speed np 
the cashing of checks, the Amer­
ican Security & Trust Co. will 
place in operation on Thurs­
day in its main office a new-type 
’machine. It will dispense rolls 
of currency. Any coin involved 
is served in the usual manner. 
The Burroughs Adding Machine 
Co, has built several experimen­
tal models to test customer re- 

- action throughout the Nation. 
Two machines will he In op­
eration at A. S. & T. through 
June 5.

; WHO’S NEWS: William A.
Boone, former field supervisor of
Aetna Casualty & 
assumed duties as

Surety Co., has 
manager of the 
firm’s Wa s h -  
in g t o n  office. 
He s u c  c e e d s  
Guy E. Mann, 
who has been 
named mana­
ger of the com­
pany’s Boston 
office . . . Carl­
ton H. Rose



5

mony given and the argument of counsel, the judgment and 
decree appealed from was entered on June 17, 1950. 
(R. 38.)

Plaintiffs below, Appellees herein contend that the judg­
ment and decree should be sustained.

We shall discuss the issues herein as set out below.

SUMMARY OF ARGUMENT

I.
Appellants’ appeal should be dismissed on the basis of 

the record before this court.

II.
The transfer of these Negro scholastics and others whom 

they represent from their home school district, while main­
taining public school facilities within the home school dis­
trict for white scholastics, was made contrary to the laws 
of the State of Texas and the laws of the United States.

III.
The plaintiffs below were entitled to a declaratory judg­

ment setting out the laws of the State of Texas and of 
the United States and declaring the legal relations of the 
parties hereto.

w .
This being a case of alleged illegal discrimination against 

the Negro plaintiffs herein and those whom they repre­
sent, on account of their race and color, by the defendants 
herein, while acting as agents of the State of Texas, the 
trial court had jurisdiction to try this cause.



6

ARGUM ENT

I— (Restated)

Appellants’ appeal should be dismissed on the basis of 

the record before this court.

Where an appellate court is called upon to review a judg­
ment rendered in a court of equity or in an action at law 
which has been tried before a court without a jury, the 
appellate court will indulge in every reasonable presump­
tion in favor of the findings made by the lower court upon 
which it rendered judgment.

Martin v. Marks, 97 U. S. 34,5;
U. S. v. Clark, 20 Wall. (U. S.) 92;
Hodges v. Merriweather, 55 F. 2d 29;
Southwest Pipe Line Co. v. Empire Natural Gas,. S3 

F. 2d 248;
Cooke v. Wilbanks, 223 Ala. 312, 135 So. 435;
Parkerson v. Thompson, 164 Ind. 609, 73 N. E. 109;
Blakenbary v. Comm., 273 Mass. 25, 172 N. E. 209;
Greer v. Standard, 85 Mont. 78, 277 P. 622;
Daily v. Fitzgerald, 17 N. M. 137, 125 P. 625;
Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876;
Leland v. Morrison, 92 S. C. 501, 75 S. E. 889;
Whitcomb v. Whitcomb, 85 Vt. 76, 81 A. 97;
Heck v. Hiech, 163 Wis. 171, 157 N. W. 747.

The presumption is that the evidence was sufficient to 
support the findings made and to justify the conclusions 
reached, especially where the record includes none of the 
evidence submitted at trial.



7

Klaber v. Lakenan, 64 F. 2d 86;
Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891;
Canal Bank v. Hudson, 111 U. S. 66;
Federal Surety Co. v. Butler & Son, 51 F. 2d 21+;
Gernard v. Hasmer, 285 Mass. 259, 186 N. E. 46.

An appellate court can look only to the record to ascer­
tain what evidence was submitted to the trial court, and 
to determine the validity and reasonableness of the find­
ings and conclusions of the court below.

Davis v. Packard, 7 Pet. (U. S.) 276;
State v. Gordon, 32 N. D. 31, 155 N. W. 59.

The right and duty of the appellate court to consider the 
cause must be apparent on the face of the record.

Elgin v. Marshall, 106 U. S. 578, 27 L. Ed. 21+9.

The party seeking relief in the appellate court must 
show by the record the commission of the errors by the trial 
court of which the movant complains.

Redfield v. Parks, 130 U. S. 632, 9 S. Ct. 642.

Where the record is silent the appellate court will pre­
sume that what ought have been done by the court below 
was done, and that what was done, was rightly done.

Hahn v. Kelley, 34 Calif. 391;
Weil v. Federal Life Insurance Co., 264 HI- 425, 106 

N. E. 246;
Loring v. Frue, 104 U. S. 223;
Bechtel v. U. S. 101 U. S. 597;



8

Baltimore & P. Ry. Co. v. Sixth Presbyterian Church, 
91 U. S. 127;

Kerney v. Dean, 15 Wall. (U. S.) 51.

This presumption arises when the record does not pur­
port to contain the evidence that was before the court below.

Zimmerman v. Harding, 227 U. S. 489, 33 S. Ct. 387;
Durland v. U. S. 161 U. S. 306, 16 S. Ct. 508;
Pound v. Turck, 95 U. S. 459.

The Appellant has the burden of showing to the appel­
late court that the evidence produced in court was not suf­
ficient to support the judgment of the trial court.

Dowd v. Hercules Power Co., 66 Colo. 302, 181 P. 
767.

The premises considered, Appellees respectfully submit 
that the Appellants’ appeal should be dismissed on the basis 
of the record before the court.

II— (Restated)
The transfer of these Negro scholastics and others whom 

they represent from their home school district, while main­
taining public school facilities within the home school dis­
trict for white scholastics, was made contrary to the laws 
of the State of Texas and the laws of the United States.

The record before this Court reveals on its face that the 
trial court found as a Finding of Fact, based upon the 
testimony given at trial, that the defendant school board 
is a duly constituted school district for the purposes of pub­
lic education; that in the school year 1948-1949 said school



9

district maintained schools for both white and colored 
scholastics and had so maintained such schools for some 
years before that time; that during the school year 1948- 
1949 there were more than forty Negro scholastics in de­
fendant school district (R. 30), and that the defendant 
school district closed the Negro school and has not pro­
vided any public school facilities within the said district 
for Negroes since that time. (R. 31.)

In Paragraph XIV of appellants’ answer, they admit 
that they have maintained and are now maintaining pub­
lic schools within the said school district for white scho­
lastics. (R. 25.)

It was the contention of Appellees that the closing of the 
Negro school and the transfer of the Negro Scholastics to 
the schools of Fort Worth, Texas, which is outside their 
home district, in the manner that the transfer complained 
of was made, was contrary to the laws of Texas and of 
the United States.

The trial court agreed with Appellees and found as a 
Conclusion of Law that the Trustees of the Euless Dis­
trict had no legal authority to undertake an involuntary 
transfer of only the Negro scholastics from their home 
district for the purposes of attending school. In this re­
spect the trial court concurred in a ruling of the Attorney 
General of Texas on this same question and made the 
ruling of the Attorney General a part of the record of this 
trial. (R. 36.)

In their answer and at trial, Appellants contended that 
the transfer complained of was made according to the laws



10

of Texas. Apparently they have abandoned that contention 
in this Court. (R. 27.)

In their brief, Appellants cite three cases, none of which 
are Texas cases, to support their proposition that the trans­
fer was legal, but no where do they point to any Texas 
case or statute to support their proposition.

In each of the cases cited by Appellants, separate or 
segregated schools were maintained for white and colored 
scholastics. In each instance the transfers made were from 
schools which were within the jurisdiction of the school 
authorities who made the transfer, to schools within the 
jurisdiction of the authorities making the transfer.

In Dameron v. Bayless, 126 P. 273 (Ariz.), 1912, which 
is cited by Appellants, the action was by a Negro parent 
to enjoin the school board from enforcing compulsory 
school attendance laws and thus compelling him to send his 
two children to a segregated school which had been pro­
vided for Negroes within the school district of Phoenix, 
Arizona.

His children had formerly attended the schools for white 
children within the said district.

At that time the laws of Arizona provided that when 
the number of Negro scholastics within the district ex­
ceeded eight, the school board in such district had au­
thority to provide separate schools for Negroes.

There were eight or more Negroes within the Phoenix 
School District and a separate school for Negroes had been 
provided. The trial court found that the facilities of the



Negro school were equal to or superior to those in the 
white school, but that the Negro children had to travel 
a greater distance to reach their school than white chil­
dren had to travel, and enjoined the transfer.

Reversing this the appellate court held that the matter 
of nearness of schools to the homes of the pupils had no 
place in determining the adequacy and sufficiency of the 
school facilities furnished within the school district.

In Lehew v. Brummell, 15 S. W. 765 (Mo.) 1891, ac­
tion was by five white parents of District Four of Grundy 
County, Missouri, against the school board and the teachers 
of the school district to enjoin them from teaching Negro 
children in the white schools. Brummell, a Negro parent 
was joined in the suit because he had four children of 
public school age and he was the only Negro parent in 
the school district.

Missouri laws provided at that time for separate or 
segregated schools for white and Negro children, provided 
that there were fifteen Negro children of school age within 
the school district to justify the operation of a Negro school. 
It was further provided that when there were less than 
fifteen Negro children of public school age within the 
school district, the Negro children may attend any school 
in any school district within the county where a school for 
Negroes was operated.

There was a school for Negroes in an adjoining district 
which was three and one-half miles from Brummell’s home. 
No white child in the district had to travel more than two 
miles to reach school, but the court held that this dif­



12

ference in distance was not sufficient grounds to avoid the 
laws of the State, and that this greater distance did not 
foul the Fourteenth Amendment to the Constitution of the 
United States.

In Wright v. Board of Education of the City of Topeka, 
28h P. 863 (Kans.) 1930, the action was by a Negro parent 
to enjoin the Board of Education from interfering with the 
attendance of his daughter at the school for white chil­
dren at which she had formerly attended.

Kansas law then provided that in cities of first class 
(over 60,000 population), the Board of Education had au­
thority to provide separate schools for white and Negro 
children of public school age. Topeka was a city of the 
first class and under the law, the Board provided separate 
schools for the races. There was no equation of the rela­
tive equality of the schools for white and Negro children. 
But the plaintiff’s child had to travel approximately 
twenty city blocks to the Negro school while the school at 
which she had previously attended was within a few blocks 
of her home. It was under these circumstances that the 
court held that the difference in distance was not unreason­
able and denied the relief sought.

It is significant that in each of the cases cited by Appel­
lants, the transfers complained of where made strictly 
according to the laws of the states in which they occurred. 
In the instant case, it has been the contention of Appellees 
that the transfer complained of was not made according 
to Texas law, and the trial court so found as a matter of 
law. (R. 35.)



13

Texas Law
Under the prevailing law of Texas the transfer of 

scholastics from one school district to another school dis­
trict can be made only under the transfer statutes of the 
State of Texas.

In Love v. City of Dallas, 40 S. W. 2d 20, Chief Justice 
Cureton, speaking for the Supreme Court of Texas said:

“ It is clear, we think, from a consideration of the 
various transfer statutes cited above, including the 
quoted provision from Article 2681, that scholastics 
cannot be transferred, under any circumstances, from 
the district in which they reside to another district, 
except under the transfer statute.”

The transfer statutes of the State of Texas are set out 
in the appendix. (See Appendix, p. 36.)

The new Foundation School Program of Texas, com­
monly known as the Gilmer-Akin Bill, which became ef- 
fective in June, 1949 provides for transfers by contract 
for one year under Article 2922-13:

“ * * * Provided further, that any school district 
which is not a dormant school district, * * * subject 
to the approval of the boards of trustees of the dis­
tricts concerned, the County Superintendent and the 
State Commissioner of Education, may contract for 
a period of one year to transfer its entire scholastic 
enrollment, both white and colored, to a contiguous 
district.”

Except as provided above, and in the appendix, no trans­
fer of a scholastic or scholastics may be properly made 
under the statutes and laws of Texas.



14

This proposition has been ruled upon by an opinion of 
the Attorney General of Texas, which ruling has been made 
a part of the record of this suit by the trial judge. (R. 36.) 
See also ruling by Judge Dixon, District Judge, Dallas 
County, Appendix I, p. 29.

The trial court found as a matter of fact that the trans­
fer complained of by these Appellees was made by the 
Appellants without any request or approval by the parents 
of these Appellees and that they did not acquiesce in the 
transfer and that almost without exception they objected 
to sending their children to the Fort Worth School Dis­
trict and in fact refused to send their children to public 
school at all during the school year 1949-1950, but sent 
them to a private school in the community. (R. 31-32.)

The record shows further that there were more than 20 
scholastics in the district (R. 30), the record fails to show 
the existence of any emergency, or excessive distance or 
that a school was not accessible, or that the Euless Inde­
dependent School District is in two or more counties or on a 
county line, or that all of the children, white and colored, 
were transferred.

It is to be observed that the transfer in the instant case 
does not fit into any of the transfer provisions set out 
above and Appellants have not pointed to any Article or 
statute in the Texas law under which it does fall. Therefore 
the appeal should be dismissed on the record.

Distance
Appellants suggested in their brief, and properly so, that 

Appellees would regard the case of Corbin v. County



15

School Board of Pulaski County, Virginia, 177 F. 2d 924, 
decided by the Fourth Circuit Court of Appeals as being an 
authority for their position.

Appellees contend that the Corbin case is authority for 
the holding in this case.

In the Corbin case the court said at page 927:
“ Negro pupils in Pulaski County, wherever they 

may live, can attend only the Christianburg In­
stitute in Montgomery County. These Negro children 
are transported in two busses, each of which, with 
many stops, travel around 60 miles per day. Negro 
children must thus leave home earlier in the morning, 
endure a longer ride and arrive home later than the 
white children. No shelters are provided for Negro 
children who must assemble at points from which they 
board the bus. In inclement weather, this is a real 
hardship and inconvenience. The Negro pupils and 
their parents, whose social and economic activities 
must be arranged accordingly, are amply brought 
out in the evidence. Owing to the longer ride, as com­
pared with white high school students, Negro children 
must forego many healthful activities at school and 
have less time for study, recreation and play. The toll 
thus imposed on Negro students and their parents is 
both real and severe

In that case the court held 60 miles of travel per day 
to be unreasonable and that such travel placed a dispropor­
tionate burden upon the Negro children and their parents. 
It will be observed by the court that those were high school 
children. In the case at bar, the children involved are ele­
mentary school children, of tender years, ranging from six 
to fourteen years of age.



16

It does not seem out of harmony with the Corbin case to 
contend that the travel of a daily distance of 32 miles, by 
these delicate infants, many of whom were away from the 
care of their mothers for the first time, is unreasonable.

In Carter v. School Board of Arlington County, Virginia, 
182 F. 2d 531 (Advance Sheet of August 7, 1950), the 
court reaffirmed its position in the Corbin case and said:

“ In further defense of the failure to furnish certain 
courses to the students at Hoffman-Boston, it is 
pointed out that the school authorities of Arlington 
County have adopted the policy of sending Negro vo­
cational pupils to the Manassas Regional school which 
is situated twenty-five miles distant in Prince Wil­
liam County, Virginia. Only one Negro student has 
availed himself of this opportunity. It does not offer 
in our opinion an equivalent advantage for colored 
students desiring courses which are given to white 
students at Washington-Lee in Arlington County. We 
had occasion to consider a similar situation in Corbin 
v. School Board of Pulaski County, 177 F. 2d 924, 
where the inconvenience and loss of time imposed by 
transportation to the regional school were pointed 
out.”  (Paragraph 1, p. 534.)

Speaking of the various forms of discrimination shown 
in the Carter case, the court said further:

“ * * * and it is no defense that they flow in part 
from variations in the size of the respective student 
bodies or locations of the buildings. The burdens in­
herent in segregation must be met by the state which 
maintains the practice. Nor can it be said that a 
scholar who is deprived of his due must apply to the 
administrative authorities and not to the courts for 
relief (Page 536).”



17

Arbitrary Discrimination

A school board may not use its powers, prerogatives or 
authority to arbitrarily discriminate against particular 
scholastics under its supervision and control.

Independent School District v. Salvatierra (Tex.), 33 
S. W. 2d 790;

Mendez v. Westminster School District (Calif.), 61 
F. Supp. 5U, Affirmed, 161 F. 2d 771.

In the Salvatierra case, the Texas Court of Civil Ap­
peals held that:

“ School authorities have no power to arbitrarily 
segregate Mexican children, assign them to separate 
schools, exclude them from schools maintained for 
children of other white races, merely or solely because 
they are Mexicans.”

In the Mendez case, the United States Circuit Court of 
Appeals, Ninth Circuit, held:

“ * * * We are aware of no authority justifying any 
segregation fiat by an administrative or executive 
decree as every case cited to us is based upon a 
legislative act. The segregation in this case is with­
out legislative support and comes into fatal collision 
with the legislation of the state.”  (p. 780.)

No contention was made at trial, nor could any be made, 
that Appellees and those whom they represent would not 
have been admitted to the schools maintained within the 
Euless Independent School District for white children, 
if they had not been Negroes. This being true, it follows 
that the unlawful discrimination enforced against Appel­



18

lees by transferring them out of their home district to 
the Fort Worth, Texas School District was done solely and 
only because of their race and color. But for their color,
there was a school within the district to serve them.

t e  *
In classifying these Appellswte as the class of children 

to be transferred out of the home district to a foreign 
school district, the classification was one based solely on 
race and color. Such classifications come into fatal col­
lision with the Constitution and laws of the United States.

Yick Wo v. Hopkins, 118 U. S. 856, 6 S. Ct. 1064,;
Yu Cong Eng v. Trinidad, 271 U. S. 500, 46 S. Ct.

619;
Hirabayashi v. U. S., 320 U. S. 81, 63 S. Ct. 1375; 
Hill v. Texas, 316 U. S. 400, 62 S. Ct. 1159.

In the Hirabayashi case, Mr. Chief Justice Stone said, 
at page 1385:

“ Distinctions between citizens solely because of their 
ancestry are by their very nature odious to a free 
people whose institutions are founded upon the doc­
trine of equality. For that reason, legislative classi­
fication or discrimination based on race alone has 
often been held to be a denial of equal protection.”

Sophisticated Discrimination

The Negro school was in a woeful state of repairs and 
of exceedingly low standard, so much so that the state 
authorities had threatened to remove the accredited status 
from the entire school district because of the low standards 
at the Negro school.



It was to avoid this eventuality that the Negro children 
were transferred to the Fort Worth Independent School 
District.

The trial court found as a matter of fact that the 
transfer of the Negro sfucfents resulted in, “ more public 
funds to provide a better and improved white school.”  (R. 
32.) See Amended Finding of Fact, VII, page 46 of the 
record.

This is a sophisticated form of discrimination, but one 
which was destined to bring the defendant school district 
into fatal conflict with the law.

Where the State of Oklahoma resorted to a clever device 
to thwart equality in the enjoyment of the right to vote, 
the Supreme Court of the United States struck down their 
efforts, saying:

“ The Amendment (Fifteenth) nullifies sophisti­
cated as well as simple-minded modes of discrimina­
tion.”
Lane v. Wilson, 307 U, S. 268, 59 S. Ct. 872.

Lack of funds is no defense against proof of failure to 
provide facilities for both races in a segregated school 
system.

Ashley v. School Board of Gloucester County, Vir­
ginia, 82 F. Supp. 167.

In the Ashley case, Judge Hutcheson, speaking for the 
court said:

“ I am aware of the familiar contentions that fi­
nancial difficulties facing the counties in the effort



20

to equalize facilities and opportunities for the races 
are so great as to raise doubt as to their ability to 
do so; and that the greater portion of the tax burden 
falls upon the white population. While I am not un­
mindful of the practical problem presented, a super­
ficial consideration of these suggestions is sufficient 
to bring a realization that under the prevailing law 
neither has any bearing upon the legal and factual 
questions here involved.” (p. 171.)

The premises considered, Appellees submit to the court 
that the transfer of these Negro scholastics and those 
whom they represent from their home rural Independent 
School District while maintaining public school facilities 
for white scholastics within the home rural Independent 
School District was done contrary to the laws of the 
State of Texas and the laws of the United States and the 
judgment and decree of the court below should be affirmed.

Ill— (Restated)
The plaintiffs below were entitled to a declaratory judg­

ment setting out the laws of the State of Texas and of 
the United States and declaring the legal relations of the 
parties hereto.

In their complaint filed herein, Appellees prayed for a 
declaratory judgment and injunctive relief. Upon the evi­
dence presented to the trial court the declaratory judg­
ment prayed for was granted. Appellees respectfully sub­
mit that the trial court was not in error in granting the 
declaratory judgment for which Appellees prayed.

The purpose of declaratory procedure is to remove un­
certainty from legal relations and clarify, quiet and stabil­



21

ize them before irretrievable acts have been undertaken, 
and also to enable an issue of questioned status or fact, on 
which a whole complex of rights may depend, to be ex­
peditiously determined.

Dalandy v. Carter Oil Co., 174, F. 2d 314, Certiorari 
denied, 338 U. S. 824, 70 S. Ct. 71;

American Machine and Metals v. DeBothezat Impel­
ler Co., 166 F. 2d 535.

In the American Machine case, it was said that:
“ Where there is an actual controversy over con- 

tigent rights, a declaratory judgment may neverthe­
less be granted.”
Pennsylvania Casualty Co. v. Upchurch, 139 F. 2d 

892;
Franklin Life Insurance Co. v. Johnson, 157 F. 2d 

653;
Sigal v. Wise, 114 Conn. 297, 158 A. 891;
Bochard, Declaratory Judgments, pp. 422-23.

In Dewey & Almy Chemical Co. v. American Anode, 137 
F. 2d 69, the court said:

“ In providing the remedy of a declaratory judg­
ment it was the Congressional intent to avoid accrual 
of avoidable damages to one not certain of his rights 
and to afford him an early adjudication without wait­
ing until his adversary should see fit to begin suit, 
after damages had accrued. E. Edelman & Co. v. 
Triple-A Specialty Co., 88 F. 2d 852, 854. This Court 
has emphasized that the Act should have a liberal 
interpretation, bearing in mind its remedial character 
and the legislative purpose.”



Hoffman v. Knitting Machines Corp., 123 F. 2d 4.56;
Treemond Co. v. Schering Corp., 122 F. 2d 702.

In the case at bar Appellees’ school had been closed by 
the defendants herein without the consent of the Appellees 
and their community was entirely devoid o f any school to 
which they could attend. They had refused to acquiesce 
in such arrangement. They were uncertain of their rights 
and of the authority of the defendants to enter into the 
arrangement for the transfer.

Appellees respectfully submit that the premises con­
sidered and the authorities cited the trial court was not 
in error in rendering a judgment declarative of the rights 
of the parties and definitive of their legal relations and 
the judgment of the trial court should be sustained.

IY— (Restated)
This being a case of alleged illegal discrimination against 

the Negro plaintiffs herein and those whom they repre­
sent, on account of their race and color, by the defendants 
herein, while acting as agents of the State o f Texas, the 
trial court had jurisdiction to try this cause.

In their First Amended Complaint filed herein, plain­
tiffs below, Appellees here, claimed jurisdiction under 
Title 28 of the United States Code, Section 41(14), now 
Title 28 U. S. C. Sec. 1343, and further claimed jurisdic­
tion under 8 United States Code, Sections 41 and 43, seek­
ing to redress the deprivation, under color of law, of rights 
and privileges secured to them by the Constitution of the 
United States.



23

They contended then, and they now contend, that the 
failure and refusal of the defendant Euless Independent 
School District, its officers and agents, who were and are 
now agents of the State of Texas, to provide and main­
tain public school facilities for these Negro Appellees under 
their supervision and control, within their home school 
district while maintaining and providing such public 
school facilities for white scholastics under their super­
vision and control was a denial of a civil right and a denial 
of equal protection under the law and a denial of rights 
and privileges secured to them by the Constitution and laws 
of the United States.

In such cases the amount in controversy is not a pre­
requisite to an action.

Bottone v. Lindsley, 170 F. 2d 705.

In such cases diversity of citizenship is not a pre­
requisite to an action.

Bottone v. Lindsley, supra;
Gordon v. Garrson, 77 F. Supp. 177.

In Westminster School District v. Mendez, 161 F. 2d 
771 at page 778, the court said:

“ It is said in Bell v. Hood, 327 U. S. 678, 66 S. Ct. 
773, that * * * the court must assume jurisdiction to 
decide whether the allegations state a cause of action 
on which the court can grant relief as well as deter­
mine issues of fact arising in the controversy. There­
fore the court was correct in taking jurisdiction.”

The Westminster case was a case of alleged racial dis­
crimination by a California school board. Many federal



courts have exercised jurisdiction in similar matters as 
the cases set out below will demonstrate.

In Mills v. The Board of Education of Anne Arundel 
County (Md.), 30 F. Supp. 245, where the action was by 
a Negro public school teacher to enjoin and prohibit the 
Board of Education from paying him a lesser salary be­
cause of his race and color than was paid by the Board to 
white public school teachers with the same training and 
experience. In holding that a discrimination as to pay of 
teachers in white and colored schools was violative of the 
constitutional provision, Judge Chestnut said: “ * * * that 
a colored teacher might invoke the poioer of the court to so 
declare.”

This is in accord with a long line of cases and decisions 
which have condemned discrimination on account of race 
or color in the exercise of governmental power by a state 
or its agencies.

The exclusion of Negro persons from service on petit 
juries was condemned as violative of the constitutional 
provision.

Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed.
66V

The exclusion of Negroes from grand juries was con­
demned as violative of the federal constitution.

Pierre v. Louisiana, 306 U. S. 354, 69 S. Ct. 536.

Discrimination on account of race or color was con­
demned as violative of the federal constitution where Ne-



25

groes were denied the right to participate in party 
primaries.

Nixon v. Herndon, 273 U. S. 536, 17 S. Ct. 116;

Baskin v. Brown, 17b F. 2d 391;

Elmore v. Rice, 165 F. 2d 387.

Discrimination on account of race or color was con­
demned as violative of the federal constitution where Ne­
groes were denied the right to participate in elections.

Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 872.

Denial by city ordinance of the right to Negroes to own 
and occupy property was condemned as violative of the 
federal constitution.

Buchanan v. Warley, 215 U. S. 60, 38 S. Ct. 16.

Discrimination by the state with respect to providing 
pullman accommodations for Negroes was condemned as 
violative of the federal constitution.

McCabe v. Atchison & S. F. Ry. Co., 235 U. S. 151, 35 
S. Ct. 69;

Mitchell v. U. S., 313 U. S. 80, 61 S. Ct. 873.

Discrimination because of race and color in failing to 
provide educational facilities within the state was con­
demned as violative of the federal constitution.

Missouri ex rel Gaines v. Canada, 305 U. S. 337, 59 
S. Ct. 232.



26

Discrimination on the basis of race or color in failing 
to provide facilities within the state at the same time 
that they were provided for white persons was condemned 
as violative of the federal constitution.

Sipuel v. Board of Regents of Oklahoma, 332 U. S. 
631.

Discrimination in seating arrangement within the class 
room, in the library and in the cafeteria at the University 
of Oklahoma on the basis of color and race was condemned 
as violative of the federal constitution.

McLaurin v. Board of Regents of Oklahoma, 338 U. 
S.........., 70 S.Ct. 851.

Discrimination in the seating arrangement on dining 
cars on the basis of race was condemned as violative of the 
federal constitution.

Henderson v. U. S., 338 U. S. , 70 S. Ct. 81,3.

Discrimination in providing courses and educational fa ­
cilities on the basis of race and color was condemned as 
violative of the federal constitution.

Corbin v. School Board of Pulaski County, Virginia, 
supra;

Carter v. School Board of Arlington County, supra;

Butler v. Wilemon, 86 F. Supp. 397;

Johnson v. Board of Trustees of Univ. of Ky., 83 F. 
Supp. 707.



27

Discrimination on account of race and color in assign­
ing scholastics to schools was condemned where Mexicans 
were segregated unlawful in California and Texas.

Mendez v. Westminster School District, 64 F. Supp. 
544, Affirmed 161 F. 2d 774;

Independent School District v. Salvatierra (Tex. Civ. 
App.), supra.

Underlying all of these decisions is the principle that 
the constitution of the United States, in its present form, 
forbids, so far as civil and political rights are concerned, 
discrimination by the general government, or by the states, 
or by the agencies thereof, against any citizen because of 
his race or color.

It is a fundamental tenet of our government that all 
citizens are equal before the law.

The protections of life, liberty and property are for all 
persons within the jurisdiction of the United States, or of 
any state, without discrimination against any because of 
race or color.

Those rights and guaranties, when their violation is 
properly presented in the regular course of proceedings, 
must be enforced in the courts, both of the nation and 
of the states, without references to considerations based 
upon race.

Alston v. School Board of the City of Nor fork, 112 
F. 2d 992.



28

CONCLUSION

For the reasons set forth herein, Appellees respectfully 
submit that the judgment of the court below should be 
affirmed.

Respectfully submitted,

U. Simpson Tate,
1718 Jackson Street,
Dallas, Texas.

C. B. Bunkley, Jr.,
814% North Good Street, 
Dallas, Texas,

Attorneys for Appellees.

A  copy of this brief has been delivered to M. Hendricks 
Brown, Esq., Attorney for Appellants on this the 27th 
day of October, 1950 by mailing one copy postage paid to 
his office, 502 Burk Burnett Building, Fort Worth 2, 
Texas.

Of Counsel.



29

APPEN D IX I.

IN THE
DISTRICT COURT

IN AND FOR THE 95TH JUDICIAL DISTRICT, 
DALLAS COUNTY, TEXAS

No. 39845-D

E. C. BAGSBY, EUGENE ROBINSON 
AND EDWARD RADFORD

V.
DISTRICT TRUSTEES OF PLEASANT GROVE IN­

DEPENDENT SCHOOL DISTRICT OF 
DALLAS COUNTY, TEXAS

JUDGMENT .
On the .......  day of February, A. D. 1950, in the above

entitled and numbered cause, wherein E. C. BAGSBY, 
EUGENE ROBINSON and EDWARD RADFORD are 
Plaintiffs, and the DISTRICT TRUSTEES OF PLEAS­
ANT GROVE INDEPENDENT SCHOOL DISTRICT OF 
DALLAS COUNTY, TEXAS are defendants, came all 
parties in person and by their attorneys of record and an­
nounced ready for trial; whereupon, a jury being waived, 
and the cause having been submitted to the Court, and the 
Court having heard the pleadings, the evidence and argu­
ment of counsel, is of the opinion and so finds that the 
material allegations contained in plaintiffs’ petition are 
true; that the District Trustees of Pleasant Grove Inde­
pendent School District of Dallas County, Texas are now



providing, within the said Pleasant Grove Independent 
School District of Dallas County, Texas, full course ele­
mentary and high school education for white children; 
that the Kirby school for negro children was closed by 
the said District Trustees, and that there is no school for 
the education of negro children within the said district. 
That the said District Trustees have failed to provide 
within the said district, educational opportunities and fa­
cilities for the education of negro children, residing within 
the said district, equal to those now being provided for the 
education of white children; and, that equal and impartial 
•provision has not been made for the education alike of 
white and colored children. That plaintiffs should be 
awarded a writ of MANDAMUS.

The Court further finds that the acts of the said District 
Trustees are in violation of the Constitution U. S., the 
Constitution of Texas, and the laws governing public edu­
cation in the State of Texas; and are a denial of the rights 
of negro children to equal educational opportunities and 
facilities within the said district.

IT IS THEREFORE ORDERED, ADJUDGED AND 
DECREED BY THE COURT, that a WRIT OF MAN­
DAMUS issue, directing and commanding the District 
Trustees of Pleasant Grove Independent School District 
of Dallas County, Texas, defendants herein, to forthwith 
proceed with all reasonable dispatch, to provide and main­
tain a school, as a full course elementary school for the 
education of negro children; and to provide and maintain 
within the Pleasant Grove Independent School District of 
Dallas County, Texas, educational opportunities and fa­



31

cilities for the education of negro children, equal to those 
now being provided for white children.

It is further ordered, adjudged and decreed that plain­
tiffs recover of defendants all costs expended in this be­
half, for which execution may issue.

To which judgment defendants excepted in open Court 
and gave notice of appeal to the COURT OF CIVIL AP­
PEALS, 5TH SUPREME JUDICIAL DISTRICT OF 
TEXAS, at Dallas, supersedeas bond set at $500.00.

Signed March 4, 1950.

/ s /  Dick Dixon 
JUDGE

The State of Texas i 
County of Dallas (

I, Bill Shaw, Clerk of the District Courts, in and for the 
county of Dallas, and State of Texas, do hereby certify 
that the above and foregoing is a true and correct copy of 
Judgment in the above numbered and styled cause, as the 
same appears of record in Book 34 page 294, of the Minutes 
of the 95th Judicial District of Texas, in and for Dallas 
County.

WITNESS: my official seal and signature, at office in 
the City of Dallas, Dallas County, Texas, on this 17 day 
of April 1950.

BILL SHAW
Clerk of the District Courts, 

Dallas County,
(Seal) / s /  Polly Chamberlain

Deputy



APPENDIX II.

No. 1898 CIVIL

DISTRICT COURT OF THE UNITED STATES 
NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

ROSCOE WOODS, JR., ET AL., 

V.
Plaintiffs,

0. H. STOWE, ET AL.,
Defendants.

MOTION OF CERTAIN DEFENDANT TO BE 
DROPPED AS PARTIES AND FOR DIS­

MISSAL AS TO HIM

Dr. L. A. Woods, Superintendent of Public Instruction of 
Texas, defendant in the above cause, moves the Court as 
follows:

1. For an order dropping him as party defendant herein 
for the following reasons:

a. Such defendant has no power under the con­
stitution of the State of Texas, or any of the Laws 
thereunder, to grant or accomplish any of the relief 
prayed for herein by the plaintiffs.

b. This defendant, by statute, has no authority 
with regard to contracts for the transfer of scholas­



tics, such as the one which was allegedly made be­
tween the Euless Independent School District and the 
Fort Worth Independent School District, and which 
is the basis of this cause.

2. The defendant named in Paragraph 1 hereof moves 
the Court to dismiss the action as to him because the com­
plaint fails to state a claim against the said defendant upon 
which relief could be granted.

PRICE DANIEL 
ATTORNEY GENERAL OF 

TEXAS
JOE R. GREENHILL 

FIRST ASSISTANT ATTOR­
NEY GENERAL

CHESTER E. OLLISON 
ASSISTANT ATTORNEY 

GENERAL
/&/ E. Jacobson 

E. JACOBSON 
ASSISTANT ATTORNEY 

GENERAL

The foregoing notice has been served on the above- 
named attorney for the plaintiffs by mailing the same to 
him on this the 31st day of December, 1949.



34

No. 1898— CIVIL

DISTRICT COURT OF THE UNITED STATES 
NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION

APPENDIX III.

ROSCOE WOODS, JR., ET AL.,
Plaintiffs,

V.

0. H. STOWE, ET AL.,
Defendants.

ORDER TO DROP CERTAIN DEFENDANT AS A 
PARTY AND TO DISMISS AS TO HIM

This cause came on to be heard at this term, upon de­
fendant’s, Dr. L. A. Woods, motion to he dropped as a 
party defendant and for dismissal as to said party of 
plaintiffs’ complaint, on the ground that defendant, Dr. 
L. A. Woods, has no power under the Constitution or 
laws of this State to grant or to accomplish any of the re­
lief prayed for by plaintiffs; further, that the said de­
fendant has no authority with regard to contracts for the 
transfer of scholastics, such as the one allegedly made be­
tween the Euless Independent School District and the Fort 
Worth Independent School District, the basis of this cause, 
and was argued by counsel; and thereupon, upon considera­
tion thereof, it was ORDERED, ADJUDGED, and DE-



35

CREED that said motion be sustained and that the defend­
ant, Dr. L. A. Woods, recover his costs and that the plain­
tiffs be adjudged to pay all costs incurred in this cause 
as to said defendant, for which let execution issue.

DATED March 20, 1950

/ s /  Jos. B. Dooley 
Jos. B, Dooley, District Judge



APPENDIX IV.
VERNON’S TEXAS STATUTES 1948 EDITION 

- Title 49— Education— Public 
Chapter 11-—Paragraph 2— Superintendent

Article 2681. School districts..— * * * In providing bet­
ter schooling for the children and in carrying out the pro­
visions of article 2678, the county superintendent shall, 
on the recommendation of the county school trustees, trans­
fer children of scholastic age from one school district to 
another, and the amount of funds to be transferred with 
each child of scholastic age shall be the amount to which 
the district from which the child is transferred is en­
titled to receive.

Article 2695. (2759) Transfers.— Each year after the 
scholastic census of the county is completed, the county 
superintendent shall, if any district has fewer than twenty 
pupils of scholastic age, either white or colored, have au­
thority to consolidate said district as to said white or 
colored schools with other adjoining districts, and to des­
ignate the board of trustees which shall control the white 
or colored school of such consolidated district * * *.

Article 2696. (2760) Application to transfer.— Any child 
lawfully enrolled in any district or independent district, 
may by order of the county superintendent, be transferred 
to the enrollment of any other district or independent dis­
trict in the same county upon a written application of the 
parent or guardian or person having lawful control of 
such child, filed with the county superintendent * * *.



37

Article 2697. (2761) Transfer to adjoining county.—  
Any child specified in the preceding article, and its por­
tion of the school fund, may be transferred to an adjoining 
district in another county, in the manner provided in said 
article. It must be shown to the county superintendent that 
the school in the district in which such child resides, on 
account o f distance or some uncontrollable and dangerous 
obstacle, is inaccessible to such child.

Article 2698. Emergency transfers.— In case of con­
ditions resulting from public calamity in any section of 
the State such as serious floods, prolonged drouth, or ex­
traordinary border disturbances, resulting after the schol­
astic census has been taken, in such sudden change of the 
scholastic population of any county as would work a hard­
ship in the support of the public free schools of the said 
county, the State apportionment of any child of school age 
may, on approval of the State Board, be ordered by the 
State Superintendent to be transferred to any other county 
or Independent School District in any other county; pro­
vided, that the facts warranting such transfer shall be 
sent to the State Superintendent by the county or district 
board of trustees of schools to which transfer is to be made 
with a formal request for the said transfer before the 
first of August of the year in which such unusual con­
ditions occur * * *.

Article 2699. (2762) By agreement of trustees.— Except 
as herein provided, no part of the school fund apportioned 
to any district or county shall be transferred to any other 
district or county; provided that districts lying in two or



38

more counties, and situated on the county line, may be 
consolidated for the support of one or more schools in 
such consolidated district; and, in such case, the school 
funds shall be transferred to the county in which the prin­
cipal school building for such consolidated district is lo­
cated; and provided, further, that all the children resid­
ing in a school district may be transferred to another dis­
trict, or to an independent district, upon such terms as 
may be agreed upon by the trustees of said districts 
interested.