Durkee v. Murphy, s. 54-56.

Citation29 A.2d 253
Decision Date08 December 1942
Docket NumberNos. 54-56.,s. 54-56.
PartiesDURKEE et al. v. MURPHY (three cases).
CourtCourt of Appeals of Maryland
29 A.2d 253

DURKEE et al.
v.
MURPHY (three cases).

Nos. 54-56.

Court of Appeals of Maryland,

Dec. 8, 1942.


Rehearing Denied Jan. 28, 1943.

29 A.2d 254

Appeals from Superior Court of Baltimore City; Eugene O'Dunne, Judge.

Action by D. Arnett Murphy against Frank H. Durkee and others, constituting the Board of Park Commissioners of Baltimore City, Md., and others, for a writ of mandamus to remove restriction segregating negro golf players on one of the four courses maintained by defendant city in its public parks and to admit plaintiff, a negro, to the other courses. From order for issuance of writ of mandamus entered upon verdict of the jury and from an order refusing to fix penalty on the appeal bond offered in order to stay execution and from the writ issued in accordance with the court's order, defendants appeal.

Orders appealed from in first two appeals reversed with costs and new trial awarded and appeal from writ issued dismissed.

Before BOND, C. J, and SLOAN, JOHNSON, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

Wilson K. Barnes, Deputy City Sol, and J. Gilbert Prendergast, Asst. City Sol, both of Baltimore (F. Murray Benson, City Sol, of Baltimore, on the brief), for appellants in all three cases.

Jesse Slingluff, Jr., of Baltimore, on the brief, for Maryland Committee of American Civil Liberties Union.

Dallas F. Nicholas and Robert P. McGuinn, both of Baltimore (Nicholas & Gosnell, of Baltimore, Md, and Charles H. Houston, of Washington. D. C, on the brief), for appellee in all three cases.

BOND, Chief Judge.

The case raises a question of the legality and constitutionality of a segregation of Negro golf players on one of the four courses maintained by Baltimore City in its public parks. A petitioner for the writ of mandamus to remove the restriction and admit him to the other courses, now appellee, is a Negro citizen. Upon the verdict of a jury sworn in the case, under the Code, article 60, section 7, the writ was ordered issued as prayed and the respondents have appealed.

Since the year 1934 on the one course referred to, that in Carroll Park, colored players have been so restricted except for a short time in the year 1942. For the first two years they alternated with white players at Carroll Park in the exclusive use of certain days of the month, and in May, 1936, they were given the exclusive use of that course at all times. On May 6, 1942, the Board of Park Commissioners in charge ordered all restrictions removed, and admitted white and colored players indiscriminately to all courses. The action is alleged in the petition to have caused an outcry by white players and their sympathizers, and on June 9, 1942, it was recalled; and the Carroll Park course was again assigned exclusively to colored players, and they were excluded from the other three courses. Thereupon the petitioner presented himself at one of the others, the Mt. Pleasant course, to buy a ticket to play there, and was refused admission in accordance with the Park Board's order.

29 A.2d 255

On the 18th day of June he filed his petition for the writ, complaining that the Carroll Park course was an inferior one, that the Park Board was not authorized by law so to segregate the players of his race, and if its act was authorized it amounted to a deprivation of equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States because it excluded him from better courses solely because of his color.

The Carroll Park course, one of nine holes, covers a smaller acreage than the other courses, has shorter fairways, has sand greens which are not so well constructed as those on well-known courses elsewhere, has metal discs marking the holes rather than flags, has no accommodation for washing balls, and has no golf professional present. There was evidence on behalf of the City, however, that professionals are not employed by it anywhere, and are present on other city courses, where there are more players, only of their own initiative, to profit by fees that players are willing to pay for their services. The club house at Carroll Park is not a subject of any complaint. The other City courses are of eighteen holes each, with turf greens, and longer fairways. They have two alternating tees for each hole, whereas the Carroll Park course has one. It was testified for the City, further, that of the rounds played on the four courses ninety per cent. are by white players, ten by Negro players, and that if the Negroes are to be taken as playing two rounds on the nine hole course, they number about five per cent. of all players; and the longer courses were provided with a view to accommodating the greater number of players.

It is argued on behalf of the City that golf is only one form of recreation of many provided for the enjoyment and benefit of the citizens in one park and another, and that substantially equal opportunities for recreation in compliance with the constitutional requirements may be furnished the one race in other forms, so that a golf course need not be provided in...

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