would furnish the basis for a charge of illegal conduct. Every plaintiff who applied for admission to the Barwise School had gained that admission by administrative action before the trial and there never had been any doubt about the purpose of the school board to comply with the requested admission as soon as physical properties could be changed to meet the new conditions. The timing and other details of the transfers were matters committed to administrative action and the Court was without jurisdiction to intervene in any event unless and until bad faith was shown. United States v. Western Pac. R. Co., supra.

(b) The opinion takes note of the suspicions voiced by plaintiffs' counsel that the school board did not intend to do in the future what they solemnly swore they were going to do. The opinion states, "but it is by no means certain that they [i. e. the Negroes] had the same free privilege of transfer to or attendance on any school of their choice as was accorded the white children." Such a reference tends to give substance to the suspicions voiced by plaintiffs which, in my opinion, were without the slightest foundation in the evidence. The fact is that the school board had gone "the second mile" both in action and in purpose in the discharge of its duties and the Trial Judge so thought.

(c) This disposition of the majority to characterize the actions of the school board as illegal because the board did not practice precipitate action to grant the plaintiffs the piecemeal relief they sought the minute it was demanded, based upon its concept that it must look to the public interest as well as plaintiffs' and must deal with the problem in its larger aspect; and to sanction court intervention before the administrative function had been given opportunity to express itself, calls for further discussion of this feature of the problem.

(d) There seems little doubt that the scheme approved by the Supreme Court contemplates that school boards shall

"

have exclusive jurisdiction in making the adjustments brought about by the Segregation Decisions, i. e. in “elucidating, assessing and solving these problems; and that courts have jurisdiction to intervene only after the administrative process has been exhausted (We leave out of view for the moment the question of bad faith, which certainly is not present here). The Supreme Court has at the current term, reiterated the rule: 25 "The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. 'Exhaustion' applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course." (Emphasis added.)

This Court has declared unequivocally that this principle applies to school boards dealing with charges of discrimination based upon assertion of Fourteenth Amendment rights, Bates, v. Batte, supra, 5 Cir., 1951, 187 F.2d 142, et seq: "The defendants moved to dismiss * * because plaintiffs had not first exhausted their administrative remedies provided by Mississippi administrative statutes governing education and controversies arising in and about schools. This motion

was

*

it is sufficient for us to say that we regard the case of Cook v. Davis as thoroughly considered and well decided and that the statutes of the two states are sufficiently alike to make the decision in Cook's case dispositive of the appeal. The judgment of dismissal for failure to exhaust administrative remedies was right, it is affirmed."

The Cook case had held, 178 F.2d at page 600: "The broad principle that administrative remedies ought to be exhausted before applying to a court for extraordinary relief, and especially where the federal power impinges on State activities under our federal system, applies to this case. 'No one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, at page 50 [58], 58 S.Ct. 459, at page 463, 82 L.Ed. 638, citing many cases relating to relief by injunction. We held in Bradley Lumber Co. [of Arkansas] v. National Labor Relations Board, 5 Cir., 84 F.2d 97, that the same principle applies to relief by declaratory decree."26

(e) In my opinion, what the majority orders to be done here, as well as what this Court ordered in the cases listed in footnote 20, supra, offends directly against these recognized principles. By putting this Court in conflict with the Supreme Court in the respects dis

26. Other Courts of Appeal are currently applying this principle to segregation cases coming before them. See, e.g., Carson v. Board of Ed. of McDowell Coun ty (N.C.), 4 Cir., 1955, 227 F.2d 789; and Hood v. Board of Trustees of Sumter County (S.C.), 4 Cir., 1956, 232 F. 2d 636, certiorari denied 352 U.S. 870, 77 S.Ct. 95, 1 L.Ed.2d 76.

27. Cf. Indemnity Ins. Co. of North America v. Moses, 5 Cir., 1929, 36 F.2d 219;

cussed-in which attitude, in my opinion, we have exhibited less sympathetic understanding of the complex problems facing school boards in the South than that shown by the Supreme Court-we invite the District Judges, under oath "to support and defend the Constitution," to base their decisions on their own conscientious convictions of what is constitutional and right under the facts of the cases coming before them.

VI.

(a) The action of the majority in sending this civil action back with instructions to keep it open on the docket is, in my opinion, without warrant in law or in fact. The idea seems to be that it may serve as a rallying point for plaintiffs or others if their distrust of the school board should prove well founded-that other situations in other schools may be dealt with in this suit. The obvious answer to this attitude is that relief which may be granted in this suit can never rise above the facts pleaded as the basis for that relief.27

The sole factual predicate for action here was the assertion that plaintiffs were entitled to attend Barwise School because it was nearest their homes. That right was vouchsafed them long before the case was tried, and there is nothing to be litigated under the facts alleged. No life can be breathed into the case by seeking to tack onto it claims for different relief based upon different facts which may arise in the future.

Much was said in the argument about the right to transfer from one school to the other. Of course, the right to transfer is single, belonging to each individ

6 Moore, Par. 54.62, p. 1208, and 2 Moore, Par. 3.13, p. 1653 and 1954 Cumulative Supplement, p. 107; and cf. Sylvan Beach v. Koch, 8 Cir., 1944, 140 F.2d 852, 861-862.

Rule 54(c) enlarges the relief which may be granted beyond the askings of prayer for relief; but it does not permit relief to be granted beyond that justified by the facts pleaded and proved. Thomas v. Pick Hotels Corporation, 10 Cir., 1955, 224 F.2d 664, 666.

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

(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 8.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 author. ity 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. 366, 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 dixit of the author of the complaint can, of course, avail plaintiffs nothing."

(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 challenged.

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 following 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 support

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.

VII.

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. 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

reason.

plied.]

It

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.

KEY NUMBER SYSTEM

The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA, and R. O. Nelson, Division Superintendent of Schools of the City of Newport News, Virginia, Appellants,

V.

Jerome A. ATKINS et al., Appellees. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA, and J. J. Brewbaker, Division Superintendent of Schools of the City of Norfolk, Vir. ginia, Appellants,

V.

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