upon the part of a state official in attempting by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States."

See also Lane v. Watts, 234 U.S. 525, 540, 34 S.Ct. 965, 58 L.Ed. 1440; Philadelphia Co. v. Stimson, 223 U.S. 605, 32. S.Ct. 340, 56 L.Ed. 570; State of Colorado v. Toll, 268 U.S. 228, 230, 45 S.Ct. 505, 69 L.Ed. 927; Ferris v. Wilbur, 4 Cir., 27 F.2d 262; Appalachian Electric Power Co. v. Smith, 4 Cir., 67 F.2d 451, 454.

[2-4] It is argued that the doctrine thus laid down must be confined to individuals and may not be applied to corporate agencies of the state such as school boards. We see no ground for such a distinction. If high officials of the state and of the federal government, [see Philadelphia Co. v. Stimson, supra] may be restrained and enjoined from unconstitutional action, we see no reason why a school board should be exempt from such suit merely because it has been given corporate powers. A state can act only through agents; and whether the agent be an individual officer or a corporate agency, it ceases to represent the state when it attempts to use state power in violation of the Constitution and may be enjoined from such unconstitutional action. While no such question was raised in the cases heard by the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873, and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the ques

tion was inherent in the record in those cases; and it is not reasonable to suppose that the Supreme Court would have directed injunctive relief against school boards acting as state agencies, if no such relief could be granted because of the provisions of the Eleventh Amendment to the Constitution.

There is nothing to the contrary in the decision of this court in O'Neill v. Early, 4 Cir., 208 F.2d 286, which was a suit against a state agency to establish a liability payable out of public funds controlled by the agency in its supervision of the state's educational system. We quoted from the decision of the Supreme Court, speaking through Mr. Justice Reed in Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 875, 88 L.Ed. 1121: "Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution." This is, of course, a very différent thing from enjoining a state officer or state agency from taking action violative of the Constitution.

[5–7] We think that the court was clearly right with respect to exhaustion of administrative remedies. The pupil placement law recently enacted by the General Assembly, Acts 1956, Ex.Sess., c. 70, had not become effective and, in so far as Section 22-57 of the Code of Virginia is concerned, that only provided for petition to a school board by joint action of five heads of families who felt themselves aggrieved by action of the board. If it could be held applicable to the plaintiffs here, its provisions were satisfied by the applications made to the boards without result in both cases here before us by counsel acting in behalf of plaintiffs. Defendants argue, in this connection, that plaintiffs have not shown themselves entitled to injunctive relief because they have not individually applied for admission to any particular school and been denied admission. The answer is that in view of the announced

policy of the respective school boards any such application to a school other than a segregated school maintained for Colored people would have been futile; and equity does not require the doing of a vain thing as a condition of relief. Reliance is placed upon our decision in Carson v. Warlick, 4 Cir., 238 F.2d 724. In that case, however, an adequate administrative remedy had been prescribed by statute, the plaintiffs there had failed to pursue the remedy as outlined in the decision of the Supreme Court of the State and there was nothing upon which a court could say that if they had followed such remedy their rights under the Constitution would have been denied them.

[8] There is no basis for the contention that either of the judges below abused his discretion in granting the injunction. It had been two years since the first decision of the Supreme Court in Brown v. Board of Education and, despite repeated demands upon them, the boards of education had taken no steps towards removing the requirement of segregation in the schools which the Supreme Court had held violative of the constitutional rights of the plaintiffs. This was not "deliberate speed" in complying with the law as laid down by the Supreme Court but was clear manifestation of an attitude of intransigence, which justified the issuance of the injunctions to dispel the misapprehension of school authorities as to their obligations under the law and to bring about their prompt compliance with constitutional requirements as interpreted by the Supreme Court. Very much in point is the decision of the Court of Appeals of the Fifth Circuit in Jackson v. Rawdon, 5 Cir., 235 F.2d 93, 96, certiorari denied 77 S.Ct. 221, which reversed the action of a District Judge in refusing an injunction in a somewhat similar case. Speaking for the court in that case, Chief Judge Joseph C. Hutcheson said:

"We think it clear that, upon the plainest principles governing cases of this kind, the decision appealed

from was wrong in refusing to declare the constitutional rights of plaintiffs to have the school board, acting promptly, and completely uninfluenced by private and public opinion as to the desirability of desegregation in the community, proIceed with deliberate speed consistent with administration to abolish segregation in Mansfield's only high school and to put into effect desegregation there.

"Had the court made such a declaration and retained the cause for further orders necessary to implement it, deferment to a later time of action on the prayer for injunctive relief, if necessary, may well have been within his discretion. The issuance of such a declaration of rights with retention of the case would have given the court the means of effectually dispelling the misapprehension of the school authorities as to the nature of their new and profound obligations and compelling their prompt performance of them."

[9] The decrees here are not harsh or unreasonable but merely require that the law be observed and discrimination on the ground of race be eliminated. The Arlington decree expressly states that local rules as to assignment to classes, so long as such rules are not based on race or color, are to be observed, and that administrative remedies for admission to schools must be exhausted before application is made to the court for relief on the ground that its injunction is being violated. While the Charlottesville decree does not contain this express provision, the provision is so eminently reasonable that we may safely assume that enforcement of that decree will not proceed upon different principles. As much was indicated by the Judge in his remarks denying the motion to dismiss.

Affirmed.

KEY NUMBER SYSTEM

Clarissa S. THOMPSON et al.

V.

COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, et al.

Civ. A. No. 1341.

(144 F. Supp. 239) United States District Court E. D. Virginia, Alexandria Division. July 31, 1956.

Suit was brought to restrain county school board and county superintendent of schools from refusing, on account of race or color, to admit or educate Negro children in certain schools. The District Court, Bryan, J., held that summary judgment should be granted the plaintiffs in absence of any genuine issue as to any material fact.

Judgment for plaintiffs.

1. Schools and School Districts 13

Decisions of the United States Supreme Court do not compel the mixing of different races in the public schools, and just so a child is not, through any form of compulsion or pressure, required to stay in a certain school, or is denied transfer to another school because of his race or color, the school heads may allow the pupil, whether white or Negro, to go to the same school he would have attended in absence of the rulings of the Supreme Court.

In suit to restrain county school board and county superintendent of schools from refusing, on account of race or color, to admit or educate Negro children in certain schools, county school board and county superintendent of schools were suable, over objection that they were acting as agents of the State, since the county school board and county superintendent of schools, if acting in violation of decisions of the United States Supreme Court as contended in complaint, were not acting as agents of the State.

3. Federal Civil Frocedure 2481

In suit to restrain county school board and county superintendent of schools from refusing, on account of race or color, to admit or educate Negro children in certain schools, summary judgment would be granted the plaintiffs in absence of any genuine issue as to any material fact.

Edwin C. Brown, Alexandria, Va., Spottswood W. Robinson, III, and Oliver W. Hill, Richmond, Va., for plaintiffs.

J. Lindsay Almond, Jr., Atty. Gen., James H. Simmonds, Arlington, Va., and Frank L. Ball, Sr., Arlington, Va., for defendants.

BRYAN, District Judge.

[1] It must be remembered that the decisions of the Supreme Court of the United States in Brown v. Board of Edu

cation, 1954, 847 U.S. 488, 74 S.Ct. 686, 98 L.Ed. 873 and 1955, 849 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, do not compel the mixing of the different races in the public schools. 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. Indeed, just so a child is not through any form of compulsion or pressure required to stay in a certain school, or denied transfer to another school, because of his race or color, the school heads may allow the pupil, whether white or Negro, to go to the

same school as he would have attended in the absence of the ruling of the Supreme Court. Consequently, compliance with that ruling may well not necessitate such extensive changes in the school system as some anticipate.

Order Granting Injunction

This cause came on to be heard on the 30th day of July, 1956 upon the complaint, upon the motion of the defendants to dismiss the complaint and the affidavits in support thereof, upon the motions of the plaintiffs to drop certain persons and add others as parties plaintiff, upon the stipulation of the parties that the action not be heard before July 23, 1956, and upon the documents offered in evidence at said hearing by agreement, and was argued by counsel.

Upon consideration whereof, after granting the said motions for the dropping and adding of parties, the court finds, concludes, and orders as follows:

1. The court treats said motion to dismiss as a motion for summary judgment and is of the opinion thereon as follows:

[2] (a) That the defendant, County School Board of Arlington County, is suable in this court, because if acting as charged in the complaint, it is not acting as an agency of the State of Virginia;

(b) That the defendant, T. Edward Rutter, Division Superintendent of Schools of the County of Arlington, is

suable in this action for the same reason as the said board is suable;

(c) That the complaint states a claim against each of said defendants upon which, if proved, relief can be granted;

(d) That, as appears from the said documentary evidence, the plaintiffs before instituting this suit had exhausted all administrative remedies then and now available to them, including the administrative steps set forth in section 22-57 Code of Virginia 1950, in that, they have since July 28, 1955, in effect maintained a continuing request upon the defendants, the County School Board and the Division Superintendent of Schools, for admission of Negro children to the public schools of Arlington County on a non-racial basis, and said request has been denied, or no action taken thereon, the equivalent of a denial thereof;

(e) That this suit is not otherwise premature; and

(f) That the granting of the relief prayed in the complaint would not constitute the regulation and supervision by this court of the public schools of Arlington County:

Therefore, it is adjudged, ordered and decreed that said motion to dismiss the complaint, including summary judgment for the defendants, be, and it is hereby, denied.

[3] 2. The court proceeding to inquire if final judgment may now be entered in the action, it appears to the court from an examination of the pleadings, the said affidavits, and the said documentary evidence, as well as from the interrogation of counsel, that there is no genuine issue as to any material fact in this case, and that on the admissions of record and the uncontrovertible allegations of the complaint, summary judgment should be granted the plaintiffs:

Therefore, it is further adjudged, ordered, and decreed that effective at the times and subject to the conditions hereinafter stated, the defendants, their successors in office, agents, representatives, servants, and employees be, and each of them is hereby, restrained and enjoined

from refusing on account of race or color to admit to, or enroll or educate in, any school under their operation, control, direction, or supervision any child otherwise qualified for admission to, and enrollment and education in, such school.

3. Considering the total number of children attending the public schools of Arlington County, Virginia, and the number of whites and Negroes, respectively, in the elementary schools, junior high schools, and senior high schools, the relatively small territorial size of the County, its compactness and urban character, and the requisite notice to the school officials, as well as the period most convenient to the children and school officials, of and for making the transition from a racial to a nonracial school basis, and weighing the public considerations, including the time needed by the defendants to conform to any procedure for such transition as may be prescribed by the General Assembly of Virginia at its extra session called by the Governor for August 27, 1956, and weighing also the personal interests of the plaintiffs, the court is of the opinion that the said injunction hereinbefore granted should be, and it is hereby made, effective in respect to elementary schools at the beginning of the second semester of the 1956-1957 session, to-wit, January 31, 1957, and in respect to junior and senior high schools at the commencement of the regular session for 19571958 in September 1957.

4. The foregoing injunction shall not be construed as nullifying any State or local rules, now in force or hereafter promulgated, for the assignment of children to classes, courses of study, or schools, so long as such rules or assignments are not based upon race or color; nor, in the event of a complaint hereafter made by a child as to any such rule or assignment, shall said injunction be construed as relieving such child of the duty of first fully pursuing any administrative remedy now or hereafter provided by the defendants or by the Commonwealth of Virginia for the hearing

and decision of such complaint, before applying to this court for a decision on whether any such rule or assignment violates said injunction.

And jurisdiction of this cause is retained with the power to enlarge, reduce, or otherwise modify the provisions of said injunction or of this decree, and this cause is continued generally.

KEY NUMBER SYSTEM

Aurelia S. BROWDER, and Susie McDon. ald, and Claudette Colvin, by Q. P. Colvin, next friend, and Mary Louise Smith, by Frank Smith, next friend, and others similarly situated, Plaintiffs,

V.

W. A. GAYLE, Clyde Sellers and Frank Parks, individually and as members of the Board of Commissioners of the City of Montgomery, Alabama, and Goodwyn J. Ruppenthal, individually and as Chief of Police of the City of Montgomery, Alabama, and The Montgomery City Lines, Inc., a Corporation, and James F. Blake, and Robert Cleere, and C. C. (Jack) Owen, Jimmy Hitchcock, and Sibyl Pool, as members of the Alabama Public Service Commission, Defendants.

No. 1147.

United States District Court M. D. Alabama, N. D. June 5, 1956.

(Cite as 142 F. Supp. 707)

Action for declaratory judgment that statutes of state and ordinances of City of Montgomery, Alabama, requiring segregation of white and colored races on motor buses of the City of Montgomery and its police jurisdiction were unconstitutional and also to enjoin enforcement of such statutes and ordinances. The District Court, Rives, Circuit Judge, held that statutes and ordinances requiring segregation violated due process and equal protection of law clauses of fourteenth amendment to Constitution of United States.

Order accordingly.

Lynne, District Judge, dissented.