Boyer v. Garrett

• Decision Date: 30 December 1949
• Docket Number: Civ. No. 4152.
• Citation: 88 F. Supp. 353
• Parties: BOYER et al. v. GARRETT et al.
• Court: U.S. District Court — District of Maryland

88 F. Supp. 353

BOYER et al. v. GARRETT et al.

Civ. No. 4152.

United States District Court D. Maryland.

December 30, 1949.

I. Duke Avnet, Baltimore, Md., Edgar Paul Boyko, William H. Murphy, Dallas F. Nicholas, Baltimore, Md., for plaintiffs.

Thomas N. Biddison, City Sol., Allen A. Davis, John J. Ghingher, Jr., Hugo A. Ricciutti, Asst. City Sols., Baltimore, Md., for Mayor & City Council of Baltimore and Board of Recreation and Parks.

John Henry Lewin, Baltimore, Md. (Venable, Baetjer & Howard, Baltimore, Md.), for certain members of the Board sued individually.

CHESNUT, District Judge.

Counsel state that this is a test case. It differs, however, from the ordinary test case in that the latter is generally brought to establish some new point of law, while the present case seeks to disestablish presently existing law. The point of law referred to is the doctrine that segregation of races with respect to facilities afforded by the State for its citizens is within the constitutional exercise of the police power of the States respectively, provided, however, that the separate facilities afforded different races are substantially equal. This legal principle is, of course, not new. It has been the established doctrine of the Supreme Court of the United States for more than fifty years.¹

The classic statement of the rule is found in Plessy v. Ferguson, 1896, 163 U.S. 537, 544, 16 S.Ct. 1138, 1140, 41 L.Ed. 256, where it was said: "The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced." (Italics supplied.)

In accordance with this constitutional doctrine the policy and practice of segregation of the races (Negro and white) is now the established policy and practice in 17 of the 48 States, including Maryland.² Thus in Williams v. Zimmerman, 1937, 172 Md. 563, 192 A. 353, 355, the Maryland Court of Appeals said: "Separation of the races is normal treatment in this state." In University of Maryland v. Murray, 1935, 169 Md. 478, 182 A. 590, 592, 103 A.L.R. 706 the Court stated: "Equality of treatment does not require that privileges be provided members of the two races in the same place. The state may choose the method by which equality is maintained." Other Maryland cases to the same effect are Hart v. State, 100 Md. 595, 60 A. 457; State v. Jenkins, 124 Md. 376, 92 A. 773, and Durkee v. Murphy, 181 Md. 259, 29 A.2d 253.³

Any consideration of this legal principle should sharply distinguish between what constitutes the proper exercise of constitutional power on the one hand, and what is justifiable policy on the other. The question of constitutional power is for the courts, and is the only matter here to be considered. The proper policy, that is, whether segregation should be required or not, is for the legislative department of the State or for the executive departments operating under legislative authority.

The principal argument submitted by counsel for the plaintiffs against the legal doctrine that segregation is within the police power of the separate States is based on the view now earnestly advanced that segregation, by reason of changes in economic and other national conditions, since 1896 when Plessy v. Ferguson was decided, has become outmoded. This argument seems to me to be addressed to the wisdom of State policy rather than to the existence of State power.⁴ The argument is sought to be fortified by the contention that the doctrine of Plessy v. Ferguson has been somewhat weakened or impaired by subsequent decisions of the Supreme Court;⁵ but I am not persuaded that the contention is correct as it is very clear that the doctrine of Plessy v. Ferguson has never been in fact repudiated by the Supreme Court, nor, so far as I have been able to ascertain, is the present contention supported by any judicial decision, federal or state. On the contrary there are several very recent decisions expressly holding that the doctrine of Plessy v. Ferguson is still constitutional law. Certainly that has been the understanding of the Judges of this court as expressed in very recent cases. Mills v. Lowndes, D.C., 26 F.Supp. 792, 798; Henderson v. United States, D.C.Md.1945, 63 F.Supp. 906; Henderson v. Interstate Commerce Commission, D.C. Md.1948, 80 F.Supp. 32, now pending on appeal to the Supreme Court.⁶ Even more important is the very recent opinion of the Court of Appeals of the Fourth Circuit by Judge Dobie (imperative authority for me) in Corbin v. County School Board, 177 F.2d 924, affirming District Judge Barksdale's opinion in 84 F.Supp. 253, 254, 255; and to the same effect is Day v. Atlantic Greyhound Corp., 4 Cir., 1948, 171 F.2d 59, 60, where the court upheld a reasonable regulation of an interstate carrier with respect to segregation of races. In the opinion it was said: "This question, however, is not open to debate in this court. It is foreclosed by binding decisions of the Supreme Court which hold that an interstate carrier has a right to establish rules and regulations which require white and colored passengers to occupy separate accommodations provided there is no discrimination in the arrangement." However, where the separate facilities afforded by the State have been found not substantially equal, this court has not hesitated to enjoin State officials from unconstitutional discrimination. Mills v. Lowndes, D.C.Md.1939, 26 F.Supp. 792; Law v. Mayor & City Council of Baltimore, D.C.Md.1948, 78 F.Supp. 346; Mills v. Board of Education of Anne Arundel County, D.C., 30 F.Supp. 245.

As this case will be appealed it may be helpful to briefly analyze the pleadings and procedure by which the question to be tested is presented. The procedure is perhaps a little unusual because, while arising on a motion to dismiss the complaint or for judgment on the pleadings, the facts are to be found in a rather lengthy stipulation which in effect, for the purposes of the decision, limit and control, if they do not contradict, the rather general and somewhat vague averments in the five separate counts of the complaint.

The complainants in the second amended complaint are 21 individuals, some adults and some minors, some white and some Negroes, who sue the seven members of the Board of Recreation and Parks of the City of Baltimore in their official capacity as a Board, and also the Municipal Corporation, the Mayor and City Council of Baltimore. Robert Garrett and four other members of the Board, constituting a majority, are sued both individually and officially. R. Brooke Maxwell, Director of the Board, and Charles A. Hook, Superintendent, and other subordinate officials are also joined as defendants but their presence is unimportant in connection with the question presented. The object of the complaint is to obtain damages in the alleged amount of $500,000, and also separately an injunction against the Board to restrain it from enforcing a rule or practice which it had heretofore officially adopted providing for segregation of the races in athletic activities, including the sports of golf, basketball and tennis, in the public parks and places subject to the control of the Board. The jurisdiction of the court is based on certain sections of the Civil Rights Act, 8 U.S.C.A. particularly sections 43 and 47.⁷

The complaint embraces five separate counts. The first three set forth complaints by separate and different groups of the 21 plaintiffs, each seeking large monetary damages for alleged deprivation of equal rights in public facilities. The fourth and fifth counts are based on the conspiracy provision in section 47 of title 8 U.S.C.A., and seek damages in large amount in favor of all 21 plaintiffs jointly against the several defendants jointly based on the more specific incidents set out in the first three counts. More particularly the first count seeks damages on behalf of two white persons, and two Negroes, for the refusal of the defendants to permit them to play basketball as a team consisting of both whites and Negroes. In the second count another separate and different group of the plaintiffs, 14 being named, some white and some Negroes, demand damages for being refused permission to continue playing interracial tennis on courts in Druid Hill Park, and being forcibly ejected therefrom in consequence of their refusal to obey the order of the Park Police to desist by reason of the policy of the Board against interracial tennis in the public parks.⁸ In the third count damages are claimed by one of the plaintiffs, a white man, for being refused permission to play golf on the Clifton Park Municipal Golf Course on a particular day on which, by order of the Board, the course was reserved exclusively for use by Negro players; and in the same count another plaintiff, a Negro, likewise demands damages for similar refusal to be allowed to play golf on the same golf course but on a different day on which, by order of the Board, the particular golf course was reserved for the use of white players only.

All defendants answered the original complaint and all except Baltimore City likewise answered the first...