Thompson v. Gibbes, Civ. No. 1273.

• Decision Date: 26 May 1945
• Docket Number: Civ. No. 1273.
• Citation: 60 F. Supp. 872
• Court: U.S. District Court — District of South Carolina
• Parties: THOMPSON v. GIBBES et al.

60 F. Supp. 872

THOMPSON v. GIBBES et al.

Civ. No. 1273.

District Court, E. D. South Carolina, Columbia Division.

May 26, 1945.

S. Morgan, of Orangeburg, S. C., Thurgood Marshall and Edward R. Dudley, both of New York City, and Arthur D. Shores, of Birmingham, Ala., for plaintiff.

Frank A. Graham and Fred D. Townsend, both of Columbia, S. C., for defendants.

WARING, District Judge.

This action is brought for the individual benefit of the plaintiff as well as class action on behalf of the negro teachers and principals in School District No. 1, in Richland County, South Carolina. The named defendants are members of the School Board of that district, except A C. Flora, who is the Superintendent of Schools. The jurisdiction of this court is invoked under Section 24(14) of the Judicial Code, 28 U.S.C.A. § 41(14), and the civil rights are claimed under 8 U.S.C.A. §§ 41, 43, based upon the constitutional rights of the plaintiff, and the class represented by him, as guaranteed by the Fourteenth Amendment of the Constitution of the United States. The prayer is for a declaratory judgment and injunction as authorized by the Judicial Code, 28 U.S.C.A. § 400.

I.

These jurisdictional questions are put in issue by the answer of the defendants. I do not think there need be any elaborate discussion of them. It is quite clear that the court has complete jurisdiction, and the matter to be decided is whether the proof as adduced supports the allegations of the complaint. The same issue has been raised in similar cases in various jurisdictions, but I deem it unnecessary to cite any long list of authorities, save only, to refer to the controlling decision in this circuit, namely, the case of Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992. Reference should also be had to a similar case arising in this jurisdiction wherein the court took jurisdiction and upon the evidence produced issued a decree, which was consented to by the parties. I refer to the case of Duvall v. School Board, decided by me orally from the bench, and in which later a consent decree was presented and filed granting the prayer of the complaint, but postponing the time for it to go into effect; and allowing defendants an opportunity to revise their schedule and make arrangements for equalization of pay. See Civil Number 1082, United States District Court for the Eastern District of South Carolina, Charleston Division (unreported).¹

II.

In the case at bar the answer, before going to the merits, sets up certain legal defenses, (1) res adjudicata, by reason of the fact that the County Board of Education of Richland County has already passed upon the question, and (2) that there is no justiciable controversy, and the matter is moot because of the recent action of the General Assembly of South Carolina providing for a certification plan for teachers. Before discussing the merits, these defenses should be briefly disposed of.

It appears that the General Assembly of South Carolina, in 1944, in a Supplemental Appropriation Act, made provision by which any school teacher, feeling discriminated against as to the fixing of his salary, was provided with a method for filing a complaint and having the matter passed upon by the County Board of Education, with the right of appeal to the State Board of Education, and thereafter an additional appeal to the Court of Common Pleas (the findings of fact by the State Board, however, being final and conclusive), and an additional appeal from the Common Pleas Court to the Supreme Court. This procedure will be found in Act Number 519 (erroneously referred to as Act No. 689 in the answer of defendants), which act was approved March 18, 1944, and the pertinent parts of same as relating to this case appear on pages 1561 to 1565, inclusive, of the 43rd volume of the Statutes at Large of South Carolina. It appears that the plaintiff in this case did, in June 1944, file a petition with the County Board of Education for Richland County, which Board heard the matters complained of and filed a decision adverse to the plaintiff's contention. This decision is attached as an exhibit to the answer. The defendants now take the position that such decision was res adjudicata as to the plaintiff and the group represented by him, and furthermore that such petition to the County Board, with appellate review by the State Board and courts, is his exclusive remedy and that this court is, therefore, precluded from passing upon the merits. I do not agree with this contention.

The plaintiff here bases his complaint upon his rights under the Constitution of the United States and upon the civil rights granted thereunder and implemented by the statutes hereinbefore referred to. He presents a question that can be adjudicated in this court. It is a federal question, and although the State of South Carolina may have provided a manner and method of testing the question of his salary, nevertheless, that does not, and can not, deprive this court of its jurisdiction, or the plaintiff of his right to appear here. It was claimed in argument that the state statute prescribes an exclusive method, and also that when the plaintiff started to make use of that method and he received an adverse decision that he was bound to continue through the various appeals provided. If that be done he may have to go through four separate hearings and the final decision be postponed unduly and in argument that was suggested as too great a hardship. That, however, is an argument based on convenience and does not go to the right to be here adjudicated. The real matter to be considered is whether the State of South Carolina has the right or authority to set up a system of hearings and appeals which will prevent the federal court from considering such a complaint.

This court has no criticism with the methods provided by the General Assembly and if parties wish to pursue the remedies therein offered they have a right so to do. However, this court holds equally that the General Assembly of South Carolina, or any other state, can not deprive the federal courts of the jurisdiction granted them under the Constitution and laws of the United States. If this were allowed them any state could enact laws depriving parties of the right to apply to federal courts in the protection of their civil rights.

But the defendants further claim, not only was the plaintiff required to pursue the methods of remedial relief offered by the State, but that having once made application to the County Board, it was requisite that he continue on the long road to the State Board; to the Common Pleas Court (wherein he would be bound as to facts by the findings of the State Board); and thence eventually to the Supreme Court of South Carolina. I do not agree with this contention. The plaintiff has not waived the civil rights and jurisdiction granted him by federal law by reason of an adverse decision of a County Board. There is such ample authority to support this declaration that I deem it unnecessary to quote a long line of decisions. The matter is tersely and succinctly handled in an opinion by Mr. Justice Holmes in Railroad & Warehouse Commission v. Duluth St. R. Co., 273 U.S. 625, 47 S.Ct. 489, 71 L.Ed. 807. See also Mississippi Mills v. Cohn, 150 U.S. 202, 14 S. Ct. 75, 37 L.Ed. 1052; Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763; and The Maccabees v. City of North Chicago, 7 Cir., 125 F.2d 330. The authorities cited by the defendants do not appear to me to be applicable and the defendants have failed to discern the basic difference between the right of a state to set up an exclusive method of procedure in its own boards and courts and the right of a state to set up forms of remedies to the exclusion of federal civil rights.

The next question raised by the answer is that there is no justiciable controversy because of the fact that the General Assembly of South Carolina has now adopted a plan for certification of teachers, which is mandatory. This mandatory certification applies only to funds furnished by the state and also applies only to the appropriation for this year (1945). The provisions referred to are a part of the general appropriation bill for the fiscal year beginning July 1, 1945 (not yet published, but a certified copy of Sec. 76 of same is on file in this cause). This section reads as follows: "For the fiscal year 1945-1946, and without committal for future years, State Aid for the payment of teachers' salaries shall be distributed monthly to the various counties and school districts for payment only to teachers who hold certificates issued by the State Board of Education under its new plan for certification of old and new teachers adopted by the State Board of Education on August 4 and September 19, 1944, and as may hereafter be amended by the State Board of Education, and such State Aid shall be disbursed to teachers in accordance with the following monthly salary schedule, to wit:"

There is then inserted a table for use in arriving at the salaries allocated to the respective groups, and the act thereafter goes more fully into the manner of computing the salaries. Section 77 provides for complaint and appeal similar to the method provided in the 1944 act, supra.

Attention should first be called to the first sentence in Section 76 hereinabove quoted, which starts with the words "For the fiscal year 1945-1946, and without committal for future years". This shows that the act is a temporary one, and that the General Assembly is frankly attempting to arrive at some solution of this difficult problem and does not hesitate to say that this is experimental. We are, therefore, warned at the outset that this is merely a one-year plan and there is not only no guarantee, but an express warning that the state does not guarantee for future years to continue this plan. Therefore, we are on notice that this is not a permanent settlement of the teacher disparity...