Durkee v. Murphy

• Decision Date: 08 December 1942
• Docket Number: 54-56.
• Parties: DURKEE et al. v. MURPHY (three cases).
• Court: Maryland Court of Appeals

29 A.2d 253

181 Md. 259

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

Nos. 54-56.

Court of Appeals of Maryland

December 8, 1942

Rehearing Denied Jan. 28, 1943.

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.

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.

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

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. 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 Carroll Park at all if other facilities for recreation there are adequate to the needs and requirements of Negroes who use the park; and the court is impressed with the argument. The requirements of equality of treatment may be refined too far. In State v. Wirt, 203 Ind. 121, 177 N.E. 441, 447, a colored girl student in a public school demanded admission to a school attended by white students because that school had a swimming pool attached and hers had none, but this was denied as not required by equal treatment. The court explained: 'Swimming is merely one physical activity which may be elected by students in part satisfaction of the requirements of physical training; and, since sufficient physical training is offered in Virginia Street school to satisfy all requirements in that respect, the inability of the relatrix to engage in swimming while a student in Virginia Street school does not represent any actual interference with her educational privileges and opportunities; and especially so since in only two of the nine high school centers in Gary do the pupils have the opportunity to participate in swimming.' The distinction in the forms of recreation was regarded as merely an incident to educational facilities, and negligible in consideration of the constitutional requirements. Only on an unreal conception of the case could it have been held that the child was excluded from the swimming pool because of her race and color. One form of gymnastic machine might be provided in one park while a different form is provided in others. There might well be some hesitation at finding that a grass tennis court in one park only would entail an unequal and unconstitutional treatment of players restricted to another park where there are only dirt courts. Again, differences might be found of too little importance to show unequal protection of the laws because of race or color, as for instance, differences in the lighting, or in the stairs to be climbed, in a school building assigned to Negro pupils. Williams v. Zimmerman, 172 Md. 563, 568, 192 A. 353. Whether the jury sworn in this case considered any of the differences in the golf courses so negligible, we have no means of determining, and that is one reason why a jury verdict is unsatisfactory as an aid in ascertaining whether there has been a lack of equal protection of the laws; the jury, confined to a narrow issue, cannot make necessary distinctions, and mark out what equal treatment requires. And as application of the constitutional prohibition is largely a matter of its construction in the particular case, a question of law not to be submitted to a jury (Creager v. Hooper, 83 Md. 490, 504, 35 A. 159), it is difficult to put any helpful issue at all to that body

Distinction between golf facilities and the incidental swimming pool in the case cited must be narrow and difficult to state, for it is one of degree, or one of principal facility and mere incidental form. It has seemed to this court, however, that if Negro players were excluded altogether from municipal golf courses, there would be a deprivation of equal protection, and the same result must follow from their being relegated to a course which is substantially inferior. The game, we conclude, should not be treated for constitutional purposes as a mere incident of recreational facilities, but a facility in itself from which Negroes cannot be excluded without having other substantially equal provision made for them.

Section 18 of the Baltimore City Charter, which derives its authority directly from the state constitution, article XI, provides that the Board of Park Commissioners, heading the Department of Public Parks and Squares, 'shall have charge and control of all public parks belonging to and controlled by or in the custody of the Mayor and City Council of Baltimore.' Section 119 gives the Board power 'to make such rules and regulations for the government and preservation of order within the parks as it may deem expedient.' And these provisions must, we conclude, be construed to vest in the Board the power to assign the golf courses to the use of the one race and the other in an effort to avoid any conflict which might arise from racial antipathies, for that is a common need to be faced in regulation of public facilities in Maryland, and must be implied in any delegation of power to control and regulate. There can be no question that, unreasonable as such antipathies may be, they are prominent sources of conflict and are always to be reckoned with. Many statutory provisions recognize this need, and the fact needs no...