Culver v. City of Warren

• Decision Date: 06 July 1948
• Citation: 83 N.E.2d 82,84 Ohio App. 373
• Parties: CULVER et al. v. CITY OF WARREN et al.
• Court: Ohio Court of Appeals

83 N.E.2d 82

84 Ohio App. 373

CULVER et al. v. CITY OF WARREN et al.

Court of Appeals of Ohio, Seventh District, Trumbull.

July 6, 1948

William H. Brooks, of Columbus, J. Franklin Spruill, of Akron, and W. M. Howard, of Youngstown, for plaintiffs-appellants.

Mark J. Williams, City Sol., and H. A. Burgess, both of Warren for defendants-appellees.

HURD Presiding Judge.

This action in equity now in this court on appeal on questions of law and fact originated in the common pleas court of Trumbull County wherein a judgment was rendered in favor of the defendants-appellees denying the prayer of the plaintiffs-appellants' amended petition for a declaratory judgment, injunction and equitable relief.

For brevity and convenience the parties will be designated hereinafter as plaintiffs and defendants as they appeared in the trial court.

The defendants are the City of Warren, the duly elected qualified and acting Mayor of the city, the duly appointed qualified and acting Public Service and Safety Director of the city, the Superintendent of Parks, the Veterans Swim Club, a corporation not for profit organized under the laws of Ohio, the Attorney General of Ohio, the latter being made a party defendant because under the laws of Ohio it is so required.

This action relates exclusively to the rights of colored citizens to use and enjoy the Warren Municipal swimming pool built at public expense with Federal and Municipal funds, located on Mahoning Avenue adjacent to Packard Park in the City of Warren.

In their amended petition the plaintiffs allege that they are citizens, residents and taxpayers of the City of Warren, Ohio, and are the president and secretary respectively of the Warren, Ohio, Branch of the National Association for the Advancement of Colored People, an unincroporated association formed for the purpose of obtaining equal rights and opportunities for Negro citizens and residents of the city of Warren and to fight injustices in courts when based on race prejudice, on behalf of themselves and other persons similarly affected at the time of the grievances complained of in the petition.

In August, 1933, the Council of the City adopted Resolution No. 1143 'declaring the necessity for the construction of a concrete swimming pool with filters and bath house facilities upon city lands adjacent to Packard Park at an estimated cost of $40,000.00; to take advantage of the benefits available under the 'National Recovery Act' by constructing such public works as a means of providing employment and authorizing an application to the Federal Emergency Public Works Administration for a grant of thirty percent of such sum and a loan of seventy percent thereof to be acquired by mortgage upon the improvement.' Section 1 of the Resolution is as follows: 'Warren City Council does hereby find and determine the necessity for the construction of a reinforced concrete swimming pool with filter and bathhouse facilities, at an estimated cost of $40,000.00 to be constructed upon city owned park lands adjacent to Packard Park; as a means of providing work for numerous unemployed citizens of the City of Warren.'

The property upon which the swimming pool was constructed had been originally purchased by the city with municipal funds for the benefit of Packard Park Commission by Ordinance No. 208 adopted in February, 1913. In February, 1934, Ordinance No. 208 was amended by Ordinance No. 2683 whereby the property was purchased for the city, removed from the control of the Packard Park Commission and placed under the jurisdiction of the Public Service Director of the City. A reinforced concrete swimming pool with bathhouse and filtration facilities, denominated as the Warren Municipal Swimming Pool was constructed and completed some time in 1934 and was open to the use of the general public without discrimination as to race or color during the successive summer seasons from the time of its opening to the year 1946. However, in the year 1946 as appears from the record, difficulties arose concerning the use of the pool by members of the Negro race. The testimony of the mayor of the city of Warren under cross-examination is illuminating on this subject and is in part as follows:

'Q. Directing your attention to the opening of the swimming pool for the season of 1946 was there any discussion between you and a representative of the colored people as to the use of the swimming pool by them? A. Yes sir.

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'Q. What was the substance of the discussion? A. That some arrangement might be made whereby we could arrive at a date or some compromise as to the use of the pool because the pool the year before had been closed, because of this particular situation arising.

'Q. At first I believe you took the position that the swimming pool should be open for all citizens regardless of all races or creeds?

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'A. I wanted to open the swimming pool for use of the public. I got the legal opinion from Mr. Del Bene that under the laws of Ohio I could--there was no way we could open it with discrimination and we opened it under that basis.

'Q. In other words, as I get it, you got the opinion from Mr. Del Bene the city solicitor? A. That's right.

'Q. To the effect that there was no way to open the pool unless you opened it to all citizens? A. That's right.

'Q. And that was your position? A. That's right.'

It appears further that during the swimming season of 1946 a number of white citizens who objected to swimming in the pool with persons of the negro race, started going to Niles, Ohio and other adjoining cities to swim in their pools. The Negro citizens were then approached through such organizations as the Warren branch of the N.A.A.C.P. the Warren Urban Society and requested to agree to restrict their use of the swimming pool to one day per week which they declined to do. Thereafter on July 16, 1946 the city council of Warren enacted Emergency Ordinance No. 3518 authorizing the Public Works Director to lease the pool for the swimming season of 1946 and 1947. The pool was not leased during the swimming season of 1946 but was leased for the season of 1947 to the defendant: Veterans Swim Club. This is a private corporation not for profit, evidently formed for the purpose of taking over the operation of the swimming pool since its charter is dated January 20, 1947 and its constitution was adopted June 3, 1947, three days before it acquired the lease from the city.

The purposes of the corporation set forth in its constitution are as follows:

'(a) To incorporate swimming in the recreation program of veterans and their families;

'(b) To provide a place for swimming and recreation for veterans of the United States Armed Forces, all wars, and their families.' Under the membership clause appears the following:

'(a) All prospective members shall be recommended for membership of the club.

'(b) All members must be veterans of the United States Armed Forces and relatives of a veteran.

'(c) All new members shall have the status of social members for a period of one year;

'(d) All applicants must pass a twothirds vote (by secret ballot) of the Executive Board.' (All emphasis added.)

On June 6, 1947 the City of Warren leased the Warren Municipal Pool to the Veterans Swim Club for the season of 1947 without any consideration other than the provision in the lease contained in Item 15 as follows: 'The successful bidder agrees to pay to the City of Warren on a bi-weekly rental equal to ten percent of the gross receipts collected by the successful bidder, incident to the operation and maintenance of such leased premises.' Other covenants are:

'The successful bidder shall keep proper books of accounts and records and the city shall have the right to audit such books and records as it deems necessary by its proper officers.'

'The City shall furnish all the buildings and equipment connected with the area and now located on the premises, described in Ordinance No. 3518-46 except the personnel needed to manage and conduct the said premises.'

'The City reserves the right to make all the necessary repairs and alterations as it deems necessary during the term of the lease.' (Emphasis added.)

The record indicates that after the lease was executed the Veterans Swim Club through its agents and servants started circulating applications for membership at public schools, business places and private clubs approaching and inviting only persons of the Caucasian race. The plaintiffs herein attempted to secure membership application blanks but were unable to do so.

When the swimming pool was opened for the season of 1947 the plaintiffs presented themselves to the Warren Municipal Swimming Pool and attempted to gain admittance but were refused. The record also shows that all of the Negroes of the city who attempted to gain admission to the pool were refused even though a number of them were World War Veterans who were well qualified under the provisions of the Constitution adopted by the Veterans Swim Club as veterans who had been honorably discharged from service. It is a peculiar fact appearing of record that applications of these Negro veterans would be received in some instances together with the required fees and then later the applications and the fees were returned without explanation. At no time were any Negro veterans or their families allowed the use of the swimming pool by the Veterans Swim Club.

There is evidence showing that before and after these incidents committees of Negro citizens called upon the city officials for the purpose of securing permission to use the facilities of the swimming pool but their efforts were unavailing. Thereafter on July 24, 1947, a petition was filed by plaintiffs for a declaratory judgment and...