SCHOOL DIST. NO. 7, MUSKOGEE COUNTY, OKL. v. Hunnicutt, 4178.

• Decision Date: 15 January 1931
• Docket Number: No. 4178.,4178.
• Citation: 51 F.2d 528
• Parties: SCHOOL DIST. NO. 7, MUSKOGEE COUNTY, OKL., et al. v. HUNNICUTT, County Superintendent.
• Court: U.S. District Court — Eastern District of Oklahoma

51 F.2d 528 (1931)

SCHOOL DIST. NO. 7, MUSKOGEE COUNTY, OKL., et al. v. HUNNICUTT, County Superintendent.

No. 4178.

District Court, E. D. Oklahoma.

January 15, 1931.

J. J. Bruce and J. Bernard Smith, both of Muskogee, Okl., for plaintiffs.

B. B. Wheeler and John H. Dill, both of Muskogee, Okl., and Thomas H. Owen, of Oklahoma City, Okl., for defendant.

Before COTTERAL, Circuit Judge, and WILLIAMS and VAUGHT, District Judges.

PER CURIAM.

This suit was brought by the school district No. 7, of Muskogee county, Okl., and the trustees of that district, to obtain a decree enjoining the county superintendent of that county from changing the district school of the colored race to a separate school of that race and maintaining the same, in the said school district.

The facts disclose that previously the colored school was the district school and the white school the separate school, and the defendant has sought to reverse them, pursuant to his alleged power, under section 10569, Comp. Okl. Stat. 1921, which provides as follows: "The county separate school in each district is hereby declared to be that school in said school district of the race having the fewest number of children in said school district; provided that the county superintendent of public instruction of each county shall have authority to designate what school or schools in each school district shall be the separate school and which class of children, either white or colored, shall have the privilege of attending such separate school or schools in said school district. Members of the district school board shall be of the same race as the children who are entitled to attend the school of the district, not the separate school."

This section has been construed by the Oklahoma Supreme Court to mean that the schools shall exist as defined in the first part of the sentence, unless the county superintendent shall designate them as provided in the second part of the sentence, as he is invested with the authority to effect the change of the schools. Jumper v. Lyles, 77 Okl. 57, 185 P. 1084; State ex rel. Gumm v. Albritton, 98 Okl. 158, 224 P. 511. It is not questioned that this court is bound by that construction as to the meaning of the statute, but is free to judge of its validity under the Federal Constitution as thus construed. Truax v. Corrigan, 257 U. S. 312, 42 S. Ct. 124, 66 L. Ed. 254, 27 A. L. R. 375.

The statute is assailed on the ground it vests in the county superintendent an absolute and arbitrary power, without any legislative guide or basis for his action. Without reviewing the numerous cases cited, we refer to section 3, article 13, of the Oklahoma State Constitution, which provides for separate schools for white and colored school children, with like accommodations to be impartially maintained, and section 10567, C. O. S. 1921, which provides that separate schools shall be maintained with impartial facilities for both races. Thus, a guide was imposed in his action in the control of the schools, to which he was required to conform, and it was his duty if he sought to change them to secure the objects of the state Constitution and statute. Beyond this, we are of the opinion that section 10569 commits to him a permissible discretion in the administration of school affairs. 6 R. C. L. p. 179; 12 C. J. p. 844.

Another contention of the plaintiffs is that the action of the county...