Carson v. Warlick

• Decision Date: 14 November 1956
• Docket Number: No. 7281.,7281.
• Citation: 238 F.2d 724
• Parties: Lionel C. CARSON, Infant, By His Next Friend, Martin A. Carson et al., Petitioners, v. Honorable Wilson WARLICK, United States District Judge for the Western District of North Carolina, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

238 F.2d 724 (1956)

Lionel C. CARSON, Infant, By His Next Friend, Martin A. Carson et al., Petitioners, v. Honorable Wilson WARLICK, United States District Judge for the Western District of North Carolina, Respondent.

No. 7281.

United States Court of Appeals Fourth Circuit.

Argued October 1, 1956.

Decided November 14, 1956.

Samuel S. Mitchell, Raleigh, N. C. (Herman L. Taylor, and Taylor & Mitchell, Raleigh, N. C., on brief), for petitioners.

Roy W. Davis, Marion, N. C., for respondent.

Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and BRYAN, District Judge.

PARKER, Chief Judge.

This is an application for a writ of mandamus in the case wherein Negro children of Old Fort in McDowell County, North Carolina, allege that the Board of Education of that county is exercising discrimination on the grounds of race in refusing to admit them to schools maintained in the town of Old Fort. When the case was before us on appeal, we held that the court below erred in dismissing the case as moot, but ruled that, in further proceedings therein, the court below should give consideration to whether administrative remedies provided by the North Carolina statute of March 30, 1955,^* had been exhausted. Carson v. Board of Education of McDowell County, 4 Cir., 227 F.2d 789. After our decision, the Supreme Court of North Carolina, in an action to which two of the applicants here were parties, rendered a decision on May 23, 1956, construing the act of March 30, 1955, Joyner v. McDowell County Board of Education, 244 N.C. 164, 92 S.E.2d 795, 798, in which it said:

"With respect to the provisions of G.S. § 115-178, this Court construes them to authorize the parent to apply to the appropriate public school official for the enrollment of his child or children by name in any public school within the county or city administrative unit in which such child or children reside. But such parent is not authorized to apply for admission of any child or children other than his own unless he is the guardian of such child or children or stands in loco parentis to such child or children. In the event a parent, guardian or one standing in loco parentis of several children should apply for their admission to a particular school, it is quite possible that by reason of the difference in the ages of the children, the grades previously completed, the teacher load in the grades involved, etc., the school official might admit one or more of the children, and reject the others. The factors involved necessitate the consideration of the application of any child or children individually and not en masse. Any interested parent, guardian or person standing in loco parentis to such child or children, whose application may be rejected, may appeal to the appropriate board for a hearing in accordance with the rules and regulations established by such board. Furthermore, if the board denies the application for admission of such child or children, the aggrieved party may appeal in the manner prescribed by statute, G.S. § 115-179, to the superior court, where the matter shall be heard de novo before a jury in the same manner as civil actions are tried therein.

"Therefore, this Court holds that an appeal to the superior court from the denial of an application made by any parent, guardian or person standing in loco parentis to any child or children for the admission of such child or children to a particular school, must be prosecuted in behalf of the child or children by the interested parent, guardian or person standing in loco parentis to such child or children respectively and not collectively.

* * * * * *

"An additional reason why this proceeding was properly dismissed is that while it purports to have been brought pursuant to the provisions of our school enrollment statutes, it is not based on an application for assignment relating to named individuals as contemplated by the enrollment statutes, but is in reality a class suit. It is in effect an application for mandamus, requiring the immediate integration of all Negro pupils residing in the administrative unit in which the Old Fort school is located, in the Old Fort school. Such a procedure is neither contemplated nor authorized by statute. Therefore, the appeal is dismissed."

The applicants did not attempt to comply with the provisions of the statute as so interpreted by the Supreme Court of North Carolina, but on July 11, 1956, counsel who are representing them before this court wrote a letter to the secretary of the Board of Education, inquiring what steps were being taken for the admission of Negro children to the Old Fort school. The secretary replied that "inasmuch as no Negro pupil has made application, nor has any parent or person standing in loco parentis made application for any Negro child to attend school in the town of Old Fort for the school year 1956-57, the Board had had no cause to take any action in this connection."

Upon receiving this reply, applicants here, plaintiffs in the court below, on the 12th day of July 1956 moved in the action there pending to file a supplemental complaint in which, without alleging compliance with the requirements of the North Carolina statute as interpreted by the Supreme Court, they asked a declaratory judgment and injunctive relief with respect to their right to attend the Old Fort school. The District Judge denied the motion on the ground that plaintiffs had not exhausted their administrative remedies and stayed proceedings in the cause until same should be exhausted, but stated that, as soon as it was made to appear that they had been exhausted, he would grant such relief as might be appropriate in the premises, saying:

"(1) That obedient to the per curiam decision of the Court of Appeals for the Fourth Circuit, 227 F.2d 789, this Court has up until this time and will consistently hereafter consider this case in the light of the decision of the Supreme Court of the United States in the so-called School Segregation Case, and of the North Carolina statute chapter 366, Laws 1955, G.S. 115-176 to 176-179, set out in the opinion in the 227 F.2d 789, and has consistently asserted and now reaffirms that it is the duty under the authority granted to stay all proceedings herein and to cause the matter to remain continuously at issue on the docket until it should be made to appear that the plaintiffs herein or some of them have exhausted the administrative remedies which are provided for them or some of them or any of them under the above statute, and that when such is made to appear the Court will immediately entertain a motion by counsel for the plaintiffs or some of them or any of them to file amendment to the complaint or to replead, indicating that the rights to which they are entitled have been denied them on account of their race or color, and immediately thereafter, and within twenty days, will require an answer to be filed thereto and will set the case down with a peremptory setting as the first cause to be disposed of, either at the regular term or some other called term of this court, dependent upon the requests of the parties or those who appear for them as counsel in said cause."

Upon the denial of the motion, application for writ of mandamus was filed here to require the District Judge to vacate the order staying proceedings, to allow the supplemental pleading to be filed and to proceed with the cause "as though the Pupil Enrollment Act had never been enacted".

We think it clear that applicants are not entitled to the writ of mandamus which they ask, for the reason that it nowhere appears that they have exhausted their administrative remedies under the North Carolina Pupil Enrollment Act, and are not entitled to the relief which they seek in the court below until these administrative remedies have been exhausted. See 227 F.2d at page 790. In the supplemental complaint which they proposed to file in the court below they did, indeed, allege that on August 24, 1955, they had presented their children at the Old Fort school for admission, that they were denied admission on the ground of race and that on August 27 they and certain other Negroes had filed a joint petition with the school board asking that their children be admitted to the school. This petition was denied by the Board in January 1956 and it was an appeal from this order of the Board to the Superior Court and thence to the Supreme Court of the State in which the...