Pearson v. Murray

• Decision Date: 15 January 1936
• Docket Number: 53.
• Parties: PEARSON ET AL. v. MURRAY.
• Court: Maryland Court of Appeals

182 A. 590

169 Md. 478

PEARSON ET AL. v. MURRAY.

No. 53.

Court of Appeals of Maryland

January 15, 1936

Appeal from Baltimore City Court; Eugene O'Dunne, Judge.

Mandamus by Donald G. Murray to compel Raymond A. Pearson and others officers and members of the Board of Regents of the University of Maryland, to admit petitioner as a student in the law school of the university. From an order directing issuance of the writ, respondents appeal.

Order affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Charles T. LeViness, 3d, and Wm. L. Henderson, Asst. Attys. Gen (Herbert R. O'Conor, Atty. Gen., on the brief), for appellants.

Thurgood Marshall, of Baltimore, and Charles H. Houston, of Washington, D. C. (William I. Gosnell, of Baltimore, on the brief), for appellee.

BOND Chief Judge.

The officers and governing board of the University of Maryland appeal from an order for the issue of the writ of mandamus commanding them to admit a young negro, the appellee, as a student in the law school of the university. The appellee and petitioner, Murray, graduated as a bachelor of arts from Amherst College in 1934, and met the standards for admission to the law school in all other respects, but was denied admission on the sole ground of his color. He is twenty-two years of age, and is now, and has been during all his life, a resident of Baltimore City, where the law school is situated. He contests his exclusion as unauthorized by the laws of the state, or, so far as it might be considered authorized, then as a denial of equal rights because of his color, contrary to the requirement of the Fourteenth Amendment of the Constitution of the United States. The appellants reply first, that by reason of its character and organization the law school is not a governmental agency, required by the amendment to give equal rights to students of both races. Or, if it is held that it is a state agency, it is replied that the admission of negro students is not required because the amendment permits segregation of the races for education, and it is the declared policy and the practice of the state to segregate them in schools, and that although the law school of the university is maintained for white students only, and there is no separate law school maintained for colored students, equal treatment has at the same time been accorded the negroes by statutory provisions for scholarships or aids to enable them to attend law schools outside the state. A further argument in defense is that if equal treatment has not been provided, the remedy must be found in the opening of a school for negroes, and not in their admission to this particular school attended by the whites.

The University of Maryland Law School was a private institution until the year 1920, when by statute, Acts 1920, c. 480, it was consolidated with the Maryland State College of Agriculture, then an institution of the state government. Regents of University of Maryland v. Williams, 9 Gill & J. 365, 31 Am.Dec. 72; Appeal Tax Court v. Regents of University of Maryland, 50 Md. 457. The agricultural college, during most of its career since the middle of the last century, had been a private institution, but later in that century, and during the early part of the present one, it was supported entirely from state funds, and the state owned an undivided half of its property, and after 1902 held a mortgage on the other half. A legislative enactment for the foreclosure of the mortgage of the college, "so that it become entirely a State institution," was passed in 1914 (chapter 128), and an Act of 1916 (chapter 372) provided a new corporation, to be known as the Maryland State College of Agriculture, to take the college over. All former property and powers were bestowed on the new corporation, and in accordance with the governmental character of it, the trustees were thenceforth to be appointed by the Governor of the State, by and with the advice and consent of the Senate, powers were given and duties were prescribed by the act for them and their officers, and they were required to make to the General Assembly at each session a report of the condition of the college and the property, and of their receipts and expenditures. The Attorney General of the state was designated as their adviser and attorney. That the corporation thus created is an instrumentality or agency of the state is plain, and we do not understand it to be disputed. "When the corporation is said, at the bar, to be public, it is not merely meant, that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control and direct the corporation, and its funds and its franchises, at its own good will and pleasure." Dartmouth College v. Woodward, 4 Wheat. 518, 671, 4 L.Ed. 629; Regents of University of Maryland v. Williams, 9 Gill & J. 365, 397, 31 Am. Dec. 72; Finan v. Cumberland, 154 Md. 563, 564, 141 A. 269.

The consolidating act of 1920, chapter 480, made the University of Maryland with its law school, and the College of Agriculture, one corporation, which under the name of the University of Maryland was to be governed by the board of trustees provided for the College of Agriculture by the act of 1916. "The government of the University of Maryland, after said consolidation shall become effective, as hereinafter provided, shall be vested in the Board of Trustees provided for by Section 2 of said Act of 1916, Chapter 372, which Board shall thereafter be known as the Regents of the University of Maryland." Acts 1920, c. 480. It was further provided, however, that the board might, until they thought it expedient to order otherwise, permit any of the previously existing faculties of the University of Maryland to govern themselves in whole or in part, to appoint teachers, and provide for their compensation, and for the expenses of the department, out of any available funds, including the tuition fees from students.

The consolidation was completed. And from the fact of consolidation with a state agency, under one and the same board of trustees appointed and controlled by the state, it would seem to follow inevitably that the law school maintained is a state agency, or part of one. The one corporation could not be both a public and a private one. It is argued that the school is "in the nature of a private corporation" because it receives the greater part of its support from the students' tuition fees, and therefore its freedom of selection and accommodation of students is not subject to the restriction by the Fourteenth Amendment. But a distinction between agencies which do and those which do not collect fees from individual users of their facilities would not support a distinction between private and public character. It is common practice for unquestionably public corporations to collect pay. Hospitals, and the various municipal corporations or agencies which make charges for utilities supplied, often with a margin of profit over expenses, remain none the less public in character. 1 Farnham, Waters, § 162; Dinneen v. Rider, 152 Md. 343, 363, 136 A. 754; Purnell v. McLane, 98 Md. 589, 56 A. 830; Twitchell v. Spokane, 55 Wash. 86, 104 P. 150, 24 L.R.A. (N.S.) 290, 133 Am.St.Rep. 1021; Wagner v. Rock Island, 146 Ill. 139, 34 N.E. 545, 21 L.R.A. 519; note with review of decisions, 24 L.R.A. (N.S.) 290. There is no escape from the conclusion that the school is now a branch or agency of the state government. The state now provides education in the law for its citizens. And in doing so it comes under the constitutional mandates applicable to the actions of the states. The fact that the school, in its career as a private institution, was maintained for white students exclusively, would have no bearing on a question of compliance at this time. With respect to constitutional mandates it is in the situation of a new institution opened by the state. Compare State v. Board of Trustees, 126 Ohio St. 290, 185 N.E. 196; Foltz v. Hoge, 54 Cal. 28; Lewis v. Whittle, 77 Va. 415.

As a result of the adoption of the Fourteenth Amendment to the United States Constitution, a state is required to extend to its citizens of the two races substantially equal treatment in the facilities it provides from the public funds. "It is justly held by the authorities that 'to single out a certain portion of the people by the arbitrary standard of color, and say that these shall not have rights which are possessed by others, denies them the equal protection of the laws.' * * * Such a course would be manifestly in violation of the fourteenth amendment, because it would deprive a class of persons of a right which the constitution of the state had declared that they should possess." Clark v. Maryland Institute, 87 Md. 643, 661, 41 A 126, 129. Remarks quoted in argument from opinions of courts of other jurisdictions, that the educational policy of a state and its system of education are distinctly state affairs, have ordinarily been answers to demands on behalf of non-residents, and have never been meant to assert for a state freedom from the requirement of equal treatment to children of colored races. "It is distinctly a state affair. * * * But the denial to children whose parents, as well as themselves, are citizens of the United States and of this state, admittance to the common schools solely because of color or racial differences without having made provision for their education equal in all respects to that afforded persons of any other race or color, is a violation of the provisions of the Fourteenth Amendment of the Constitution of the United States." Piper v. Big Pine School Dist., 193 Cal. 664, 226 P. 926, 928; Board of...