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ual A court would not have jurisdiction to intervene until such individual had exhausted administrative remedies. This rule is made clear in the decision of the Court of Appeals for the Fourth Circuit in Carson v. Warlick, 238 F.2d 724, 729. "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 Constitution are asserted. · It is the state school authorities who must pass in the first instance on their right to be admitted

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(b) The majority opinion seems to infer that, because plaintiffs alleged that they were bringing a class action, other undisclosed persons might utilize the present suit to bring up new facts and ask new relief. That would not be possible even if this were in any proper

28. Lion Bonding & Surety Co. v. Karats,

1923, 262 U.S. 77, 43 S.Ct. 480, 67 L.Ed. 871; Hansberry v. Lee, 1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22; McClelland v. Rose, 5 Cir., 1918, 247 F. 721, 724; 3 Moore's Federal Practice, pp. 3418 et seq., 3422 and 3423; and 39 Am.Jur., Parties, 53, pp. 926, et seq.


29. The only possible source of such an idea is the statement of plaintiffs' counsel to the Trial Court: "This is a broader suit than just these twenty-four plaintiffs. This is a class action • ⚫ for a determination of how all the schools in this district shall be administered ⚫ But there is no syllable of proof tending to establish that counsel had any authority to speak for such a class or even for any plaintiff except the one who testified. And the Court would not be tempted, if otherwise justified, to indulge any presumptions in favor of the authority of plaintiffs' counsel in view of his recent experience in a District Court in Texas.

He had filed a motion on behalf of two minors by their parents to intervene for the purpose of citing the defendants for contempt of court in Civil Action No. 386, D.C.E.D.Texas, Texarkana Div., Wilma Dean Whitmore, et al. v. H. W. Stilwell, President of the Texarkana Junior College, et al. (see footnote 20, supra) and his authority to represent the

sense a class action, which, in my opinion, it is not.

In the first place, plaintiffs never purported to represent anybody but persons having a claim to attend Barwise School based solely upon their contiguity thereto. It is true that they made the general assertion that they spoke for others of their class. But the defendants in their pleadings denied that there was any such class, or that plaintiffs qualified as spokesmen for any class. This created an issue of fact with respect to which plaintiffs bore the burden and no proof at all was offered. The mere ipse dirit of the author of the complaint can, of course, avail plaintiffs nothing.23

(c) The majority opinion seems further to treat the action as a "true" class action, and to invest it with an outreach broad enough to encompass all of the rights of all of the pupils in all of the schools in the Wichita Falls Independent School District." But plaintiffs have

two complaining intervenors had been

When called to the witness stand in that
case he admitted that he had never been
employed by the complaining minors or
their parents, had never seen them until
the day of the trial, and that his authority
to represent them had come exclusively
through intermediaries essaying to speak
for them. A portion of the colloquy fol-
lowing his testimony and that of the two
minors at the hearing of September 27,
1956 follows:

"Mr. Tate: May it please the Court, I would like to move the Court to dismiss this suit with respect to this petitioner and ask that they both be dismissed without prejudice so if they want to hire another lawyer, they may.

"The Court: You mean you are disqualifying yourself?

"Mr. Tate: Yes, sir.

"The Court: Your motion will be granted. ⚫ • Now, just a minute, there has been some testimony here that this Court cannot overlook. And in making this statement that I am going to make, I want to say that as far as this Court is concerned, this type of lawsuit stands on the same basis as any other lawsuit filed in this Court and there are certain rules and demeanor that the attorneys of this bar must follow. I would suggest to you, Mr. Tate, that in the future if

never in their complaint aspired to the maintenance of a "true" class action, categorically limiting by specific averments, the class action they sought to bring to that provided in Rule 23(a) (3) F.R.C.P., commonly referred to as the "spurious class suit." 3 Moore, pp. 3442 et seq., and 3456.

The distinction is quite important as, in a true class suit, all members of the class are bound by the judgment." On the other hand, the spurious class action is merely a permissive joinder device, and the judgment binds only "those parties actually before the court." Martinez v. Maverick County Water Control, etc., District, 5 Cir., 1955, 219 F.2d 666, 672.

(d) The majority, in my opinion, misconceives the character of this proceed ing. The judgment rendered by the Court below was a summary judgment on the merits and completely disposed of all of the issues raised by the pleadings and the testimony. After filing their answer defining all of the issues raised in the case, defendants had moved the Court "to dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted, or in the alternative to grant summary judgment for defendant under Rule 56, The motion was supported by affidavits.

# "9

Plaintiffs moved to strike that motion because it was in the alternative (which motion the Court below denied), but requested "the right to take testimony on these issues and particularly to examine the defendants Joe B. McNeil

you expect to appear in this Court in connection with any of these cases or any lawsuit, regardless of what it is, that you be sure that you are properly employed in the case. "Mr. Tate: I want the Court to know I appreciate very much the situation.


and Leroy Stone with respect to the allegations made in their affidavits." The matter proceeded to hearing upon full oral testimony and all parties considered it as a hearing on the merits as is clearly reflected in the arguments and in the colloquies between the Court and counsel. The Court entered detailed findings of fact on every issue presented, and there is no room for the contention that there was any dispute in the testimony, or any material issue as to the facts. The order entered by it, regardless of the label put upon it, was an order for summary judgment 31 which is a final disposition of the case on the merits and there is

nothing left to remand.

30. Hansberry v. Lee, supra: Weeks v. Bareco Oil Co.. 7 Cir., 1911, 125 F.2d 84. 93, and cf. Troup v. McCart, 5 Cir., 1956. 238 F.2d 280.


In my opinion, even if we were vested with a discretion, we ought to follow the course so clearly sanctioned in the Supreme Court decisions, by approving the conciliatory action of the Court below in what appears to me to be a wise, tolerant and educated judgment. The net result of the course the majority now commands is to leave the whole delicate problem in the realm of controversy, to invest the participants with the trappings of combat, and to invite prolongation of the struggle. It arms one party with a weapon carefully leveled at the other, inviting one to put the weapon into operation, compelling the other to engage itself in protective measures.

This course represents, in my opinion, a strategic mistake of real magnitude. Practically every responsible person in a place of public leadership has stated that this problem will be solved only as men's

31. Rule 12(b) F.R.C.P. provides:

"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56,

And see Slagle v. United States, 5 Cir., 1956, 228 F.2d 673, and authorities therein cited; and 2 Moore's Federal Practice, p. 2256, and 1954 Cumulative Supplement, p. 148.

hearts are reached and touched. Weapons have never changed the human spirit, or fomented good will, and the threat of force they carry has never nurtured brotherhood. To tempt one litigant to keep his eyes glued to the gunsight, thus provoking the other inevitably to divert most of its energies from constructive and probably generous action to preparations for defense, is to perform a distinct disservice to both and, more important, to the public.

The Supreme Court has recognized as imposed upon the District Courts responsibilities of statesmanship in addition to the duty to pass upon legal points. Judicial fiats are not self-executing. It would be well if we should pause to ponder upon these words written by Mr. Justice Jackson in the last days of his life: 32

"It is not idle speculation to inquire which comes first, either in time or importance, an independent and enlightened judiciary or a free and tolerant society. Must we first maintain a system of free political government to assure a free judiciary, or can we rely on an aggressive, activist judiciary to guarantee free government? While each undoubtedly is a support for the other, and the two are frequently found together, it is my belief that the attitude of a society and of its organized political forces, rather than its legal machinery, is the controlling force in the character of free institutions.


"Judicial functions, as we have evolved them, can be discharged only in that kind of society which is willing to submit its conflicts to adjudication and to subordinate power to *." [Emphasis sup



Those words fit well into the admonition of the Supreme Court in Hecht that co-ordinated action between administrative body and Court is an absolute es

32. The Supreme Court in the American System of Government, by Robert H.

sential to the successful functioning of either; and that it is of supreme importance that neither shall look upon the other, and that the public shall look upon neither, as an "alien intruder." By leaving the problem before us in litigation, we contribute towards reducing it to a level which assumes that it possesses only a horizontal dimension. The truth is that the vertical dimension is of transcendent importance.


O. Nelson, Division Superintendent of
Schools of the City of Newport News,
Virginia, Appellants,

Jerome A. ATKINS et al., Appellees.
baker, Division Superintendent of
Schools of the City of Norfolk, Vir-
ginia, Appellants,

Leola Pearl BECKETT et al., Appellees.
Nos. 7430, 7438.
(246 F. 2d 325)

United States Court of Appeals
Fourth Circuit.

Argued June 11, 1957.
Decided July 13, 1957.

Proceedings against school board and superintendent of schools for injunctive decrees forbidding racial discrimina

tion in the public schools. The United States District Court for the Eastern District of Virginia at Norfolk, Walter E. Hoffman, J., 148 F.Supp. 430, entered injunctive decrees. On appeal the Court of Appeals held that although Pupil Placement Act had been passed after proceedings for injunctive relief had been commenced, Act furnished no adequate administrative remedy because of fixed and definite policy of school authorities with respect to segregation and because of provisions of other statutes, which provided for the closing of schools and withdrawal therefrom of state funds upon any departure from policy in any school, and was unconstitutional.


1. Administrative Law and Procedure 229


Schools and School Districts

Pupil Placement Act passed by Legislature during pendency of suit seeking injunctive decrees forbidding racial discrimination in public schools did not deprive District Court of jurisdiction on theory that act provided administrative remedy which had not been exhausted since act furnished no adequate remedy because of fixed and definite policy of school authorities with respect to segregation and was unconstitutional when considered in connection with other statutes providing for the closing of school and withdrawal therefrom of state funds upon any departure from policy. Acts Va.1956, Ex.Sess., cc. 68, 70.

2. Courts 101

Where no injunction was requested or granted against the enforcement of a Pupil Placement Act or the officials charged with its enforcement, a case for the constitution of a three-judge court was not presented, even though constitutionality of act relied on in a motion to dismiss was involved. Acts Va. 1956, Ex.Sess., cc. 68, 70.

did not provide reason for staying proceedings for injuctive decree forbidding racial discrimination in public schools. Acts Va.1956, Ex.Sess., cc. 68, 70.

3. Action


Fact that Supreme Court of Appeals of state had pending a case involving the validity of a Pupil Placement Act

T. Justin Moore, Richmond, Va. (Harry L. Nachman, City Atty., Newport News, Va., Archibald G. Robertson, John W. Riely, T. Justin Moore, Jr., Richmond, Va., on the brief), for appellants in No. 7430. W. R. C. Cocke, Norfolk, Va. (Leonard H. Davis, City Atty., Leigh D. Williams, Norfolk, Va., on the brief), for appellants in No. 7438. J. Lindsay Almond, Jr., Atty. Gen. of Virginia (Henry T. Wickham, Sp. Asst. to Atty. Gen. of Virginia, on the brief), for appellants in both cases.

Spottswood W. Robinson, III, Oliver W. Hill, Richmond, Va., for appellees in both cases (W. Hale Thompson, Philip S. Walker, Newport News, Va., on the brief for appellees in No. 7430; Victor J. Ashe, J. Hugo Madison, Norfolk, Va., Thurgood Marshall, New York City, on the brief, for appellees in No. 7438).

Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.


These are appeals from injunctive decrees forbidding racial discrimination in the public schools of Norfolk and Newport News, Virginia, and are controlled in all material respects by our decision in the City of Charlottesville School and Arlington County cases. Board of City of Charlottesville, Virginia v. Allen, 4 Cir., 240 F.2d 59, certiorari denied 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed. 2d 664. It is argued that, on the authority of Carson v. Warlick, 4 Cir., 238 F.2d 724, the cases here should be dismissed or proceedings therein be stayed until administrative remedies have been exhausted under the recent Pupil Placement Act, ch. 70, Acts of Assembly of Virginia, Extra Session 1956. As pointed out by the judge below, however, this statute furnishes no adequate remedy to plaintiffs because of the fixed and definite policy of the school authorities with re

spect to segregation and because of the provisions of chapter 68 of the Acts of the Extra Session, which provide for the closing of schools and withdrawal therefrom of state funds upon any departure from this policy in any school. Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, 162, certiorari denied 77 S.Ct. 1380.

[1-3] It is argued that the court was without jurisdiction of the cases and that only a three-judge court would have had jurisdiction because the constitutional validity of the Pupil Placement Act was involved. This question was not raised, however, in the applications for injunction, which were filed before the passage of that act and which merely sought the protection of constitutional rights in a suit for the hearing of which a court of three judges was not required. Davis v. County School Board of Prince Edward County, D.C., 142 F.Supp. 616. After the passage of the act motion was made to dismiss the cases on the ground that the act provided an administrative remedy which had not been exhausted. The trial judge held, as to this, that the act did not provide an adequate administrative remedy and that it was unconstitutional when considered in connection with other statutes passed at the same time and its manifest purpose. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220. As no injunction was asked or granted against the enforcement of the act or the officials charged with its enforcement, a case for the constitution of a three-judge court was not presented, even though the constitutionality of an act relied on in the motion to dismiss was involved. 28 U.S.C. § 2281; Bush v. Orleans Parish School Board, D.C., 138 F.Supp. 336; Id., D.C., 138 F.Supp. 337, 341, affirmed 5 Cir., 242 F.2d 156, 164-165, certiorari denied 77 S.Ct. 1380. For like reason, there is no occasion to stay proceedings pending action by the Supreme Court of Appeals of Virginia on a case involving the validity of the act.

It should be noted that the decrees appealed from do not require the assign

ment of children to particular schools nor do they require mixing of races in any school. They merely forbid defendants from refusing to admit plaintiffs to any school solely on account of race or color. The operative language of the decrees is as follows:

"1. That the defendants, and each of them, their successors in office, agents, representatives, servants, and employees, be, and they hereby are, restrained and enjoined from refusing, solely on account of race or color, to admit to, or enroll or educate in, any school under their operation, control, direction or supervision, directly or indirectly, any child otherwise qualified for admission to, and enrollment and education in, such school."

In construing very similar language used in his decree in the Arlington case, Judge Bryan used the following language which was quoted by us in our opinion on appeal (240 F.2d at page 62):

"It must be remembered that the decisions of the Supreme Court of the United States in Brown v. Board of Education, 1954 and 1955, 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, 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 the 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."

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