Davis v. Cook

• Decision Date: 29 June 1944
• Docket Number: Civ. A. No. 2682.
• Citation: 55 F. Supp. 1004
• Parties: DAVIS v. COOK et al.
• Court: U.S. District Court — Northern District of Georgia

55 F. Supp. 1004

DAVIS v. COOK et al.

Civ. A. No. 2682.

District Court, N. D. Georgia, Atlanta Division.

June 29, 1944.

A. T. Walden, of Atlanta, Ga., and Thurgood Marshall, of New York City, for plaintiffs.

J. C. Savage, E. L. Sterne, J. C. Murphy, and Bond Almand, all of Atlanta, Ga., for defendants.

UNDERWOOD, District Judge.

Defendants' motion to dismiss the above cause came on regularly for hearing and was argued both orally and by brief.

For grounds of the motion, defendants allege that no claim upon which relief can be granted has been alleged; that no actual controversy exists between the parties which could sustain a declaratory judgment; that in effect the suit is one against the State of Georgia, an indispensable party, to which it has not consented; and that the Court is without jurisdiction of the suit for want of diversity of citizenship and sufficiency of amount involved and because not authorized by any Federal statute.

For further ground of the motion, defendants assert that the facts alleged are insufficient to authorize the injunction sought, which if granted would require defendants to adopt new schedules of payments for colored school teachers and in effect amount to a mandatory injunction without providing any specific rule for the guidance of defendants in their future practices.

Considering first the allegation of want of jurisdiction, this ground of the motion is overruled, the Court finding that jurisdiction over this cause is conferred upon this Court by Federal statute. 28 U.S.C.A. ß 41(1, 14). The provision of Section 41(1) with respect to the value of the matter in controversy is, by its express provision, "not be construed to apply" to Section 41(14) under which this suit was brought. Furthermore, the petition expressly alleges that the value of "the matter in controversy exceeds, exclusive of interest and costs, the sum of $3,000.00." Hague v. C.I.O., 307 U.S. 496, 519, 59 S.Ct. 954, 83 L.Ed. 1423.

The petition alleges the following as the basis of the suit. Plaintiff, and other colored teachers and principals of the public schools of Atlanta, for whom plaintiff proceeds in this class suit, are regular teachers in said schools and are required to have, and actually do have, teaching certificates as provided by the State Board of Education and State Superintendent of Schools (Georgia Code, ß 32-1016). These certificates are held by white and Negro teachers alike and the requirements therefor are the same for both white and Negro teachers. Defendants have consistently pursued and maintained for many years, "and are now pursuing and maintaining the policy, custom and usage of paying Negro teachers and principals in the public schools of Atlanta less salary than white teachers and principals in said public school system possessing the same professional qualifications, certificates and experience, exercising the same duties and performing the same services as Negro teachers and principals. Such discrimination is being practiced against the plaintiff and all other Negro teachers and principals in Atlanta and is based solely upon their race or color." By such treatment, plaintiff and all "members of the class on whose behalf he sues are being denied the equal protection of the laws in that solely by reason of their race and color they are being denied compensation from public funds for their services as teachers equal to the compensation provided from public funds for and being paid to white teachers with equal qualifications and experience for equivalent services pursuant to rules, regulations, custom and practice of the Commonwealth acting by and through" defendants. Such acts and practice of defendants deny plaintiff and the class for which he sues due process of law and the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution.

The petition further alleges that "to the extent that defendants in enforcing said discriminatory system are acting under color of statute, regulation, policy, custom or usage, said statute, regulation, policy, custom or usage is void and unconstitutional, and to the extent that defendants may be acting without benefit of statute, regulation, policy, custom or usage, their acts are nevertheless acts of the State, similarly void and unconstitutional," and that defendants have been requested by plaintiff and others of the class he represents to make their salaries the same as those paid other teachers in Atlanta, but that despite these requests, "defendants have refused and continue to refuse to abolish the discriminatory policy, custom and usage complained of."

The above allegations of the petition clearly charge an unconstitutional discrimination against petitioner and the class he represents based solely upon their race or color, and sufficiently state a claim upon which relief can be granted.

The question of the unconstitutionality of such discrimination between white and Negro teachers is comprehensively considered by the Circuit Court of Appeals for the Fourth Circuit in the case of Alston v. School Board of City of Norfolk, 112 F.2d 992, 996, 130 A.L.R. 1506, in which Judge Parker reviewed the decisions which condemn discrimination on account of race or color by a state or its agencies as in violation of the Fourteenth Amendment of the Constitution.

I quote the following from Judge Parker's well considered opinion: "In the later case of Mills v. Board of Education of Anne Arundel County, D.C., 30 F.Supp. 245, Judge Chesnut applied the principle so stated in holding that a discrimination as to pay of teachers in white and colored schools was violative of the constitutional provision, and that a colored teacher might invoke the power of the court so to declare. This we think is in accord with a long line of decisions which condemn discrimination on account of race in the exercise of governmental power by a state or its agencies. Thus, in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664, exclusion of colored persons from service on petit juries was condemned as violative of the constitutional provision. In Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, the same holding was made with respect to grand juries. In Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L. Ed. 984, 88 A.L.R. 458, and Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, discriminations with respect to participating in party primaries were condemned. In Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1291, and Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, L.R.A.1916A, 1124, like holdings were made with respect to discrimination relating to the right to participate in elections. Discriminations with respect to the right to own and occupy property were condemned in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L.R.A.1918C, 210, Ann.Cas. 1918A, 1201; with respect to Pullman accommodations on railroads in McCabe v. Atchison, Topeka & S. F. R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169; with respect to educational facilities, in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; with respect to the division of school funds in Davenport v. Cloverport, D.C., 72 F. 689; and with respect to the pursuit of a trade or vocation, in Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230." Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, 996, certiorari denied 311 U.S. 693, 61 S.Ct. 75, 85 L.Ed. 448. See also the case of Smith v. Allwright et al., 321 U.S. 649, 64 S.Ct. 757.

Two other grounds of the motion assert that no actual controversy exists between the parties which would sustain a declaratory judgment and that the facts alleged are insufficient to authorize the injunction sought. With respect to the latter ground, it may be noted that, under the Declaratory Judgments Act, 28 U.S. C.A. ß 400, the Court has jurisdiction "to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed," so that the question as to whether or not an injunction may or may not subsequently issue is not necessarily to be determined upon consideration of the motion to dismiss. Declaratory judgments in similiar cases have been granted by several courts. Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, certiorari denied 311 U.S. 693, 61 S. Ct. 75, 85 L.Ed. 448; Thomas v. Hibbitts, D.C., 46 F.Supp. 368; McDaniel v. Board of Public Instruction, D.C., 39 F.Supp. 638; and Mills v. Board of Education of Anne Arundel County, 30 F.Supp. 245. As to the first ground, it seems clear from the averments of the petition that not only does an actual controversy between the parties exist (?tna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000) but that there is present a justiciable controversy of the gravest importance which affects the constitutional rights of petitioner and the rights and liabilities of defendants.

The ground of the motion most seriously urged is that this suit is in effect one against the State and is in violation of the Eleventh Amendment since the State has not consented thereto.

If this is in substance a suit against the State, this ground is good and the suit may not be maintained; but if not, it must be overruled.

Of course, it is well settled that under the Eleventh Amendment a state cannot be sued without its consent.

Here it has not been sued eo nomine, but this fact is immaterial if the suit is in effect against the State.

However, the authorities are numerous and clear that suits against administrative agencies of the State may be instituted, without making the state a party and without its consent, where they are seeking to enforce an unconstitutional statute or a valid law in an unconstitutional manner.

The Supreme Court has so held in the following language:

"The many claims...