Garrett v. Faubus

• Decision Date: 27 April 1959
• Docket Number: No. 5-1824,5-1824
• Citation: 230 Ark. 445,323 S.W.2d 877
• Parties: Mrs. Gertie GARRETT, Appellant, v. Orval E. FAUBUS, Governor of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 877

323 S.W.2d 877

230 Ark. 445

Mrs. Gertie GARRETT, Appellant, v. Orval E. FAUBUS, Governor of Arkansas, Appellee.

No. 5-1824.

Supreme Court of Arkansas.

April 27, 1959.

Kenneth Coffelt, Little Rock, for appellant.

Bruce Bennett, Atty. Gen., by Clyde Calliotte, Asst. Atty. Gen., Walter Pope, Kay Matthews, Little Rock, and Thomas Harper, Ft. Smith, for appellee.

Thomas E. Downie, Little Rock, amicus curiae.

WARD, Justice.

On this appeal it is contended that Act 4 of the Second Extraordinary Session of the 1958 General Assembly is in conflict with the Constitution of Arkansas and the Constitution of the United States.

Briefly and generally stated, said Act 4 gives the Governor the right to close any school or schools in any particular school district whenever: (a) He determines there is actual or impending domestic violence endangering lives or property; (b) Federal troops are stationed in, on or about a public school; (c) He determines an efficient educational system cannot be maintained because of integration of the races in school. The Act also provides: In the event of a closing, an election shall be held within 30 days and if a majority so vote the school or schools shall be opened on an integrated basis; If any superintendent, or other employee of the school fails to cooperate in carrying out the closing order he or they will be replaced by the Governor until the next regular school election; Any schools so closed shall not be reopened except by the Governor; If any section or provision of the Act is held unconstitutional it will not affect the remaining portions; and: The provisions of the Act shall be activated by proclamation of the Governor. The emergency clause sets forth the reasons for the passage of the Act and its immediate effective date.

On September 12, 1958, the Governor, pursuant to the provisions of the above Act, ordered the Senior High Schools in the Little Rock School District closed as of September 15, 1958, at 8:00 o'clock a. m. The reasons given by the Governor for the closing order, as they are set out in his proclamation, were: 'I have determined that domestic violence within the Little Rock School District is impending, and that a general, suitable, and efficient educational system cannot be maintained in the Senior High Schools of the Little Rock School District because of integration of the races in such schools.'

On the same day the proclamation was issued, appellant, as a citizen and taxpayer, filed a complaint against the Governor alleging that Act 4 violated the Constitution of the United States and the Constitution of Arkansas, and particularly Article 14 of the latter Constitution. The prayer was that, in event the schools were closed, a mandatory injunction issue against the Governor directing him to vacate and nullify the proclamation. The court was also asked to enter a declaratory judgment construing the constitutionality of Act 4.

To the above complaint demurrers were filed by the Attorney General and also by appellee's private attorneys on the ground that the complaint failed to state a cause of action. The private attorneys also denied that the trial court had jurisdiction of appellee or the subject matter, and the Attorney General joined appellant in requesting a declaratory judgment. The trial court sustained the demurrer filed by the Attorney General, and dismissed the complaint--hence this appeal.

The only ground relied on by appellant for a reversal is thus stated in her brief:

'Act 4 of the Extraordinary Special Session of the General Assembly of Arkansas for 1958, is unconstitutional in that it violates Article 14 of the Constitution of Arkansas. Hence any act of the Governor based upon Act 4 is void for lack of constitutional authority, same being in violation of said Article 14 of the State Constitution.'

The brief filed by amicus curiae attorneys, however, assumes that Act 4 will be considered in relation to both the State and Federal Constitutions and it is our purpose to do so.

Does the Act Violate the State Constitution? In our opinion Act 4 does not necessarily violate the State Constitution. We use the word 'necessarily' advisedly. It is a well-established principle of law that an Act of the Legislature which is constitutional on its face may become unconstitutional in its operation or under changed conditions. The landmark case announcing this principle is Yick Wo v. Hopkins, 118 U.S. 356, quoting from page 373, 6 S.Ct. 1064, page 1073, 30 L.Ed. 220:

'Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.'

Essentially the same principle was announced by this court in Board of Trustees, University of Ark. v. Pulaski County, 315 S.W.2d 879, 882, in these words: 'The principle is well settled that a statute may be valid when enacted but may become invalid by changes in the conditions to which it applies.' In Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W.2d 679, 680, we quoted with approval 'that purposeful discrimination in the enforcement of an ostensibly fair law may violate the constitution. If the unlawful administration of the statute results 'in its unequal application to those who are entitled to be treated alike,' there is a denial of equal protection.' Since Act 4 is unquestionably an attempt to exercise the police powers of the State about which more will be said later, and since this case comes to us on a demurrer, and since acts of the Legislature are presumed to be constitutional, it is not incumbent on us to speculate on facts that might tend to invalidate this Act. In this connection, in the case of Harlow v. Ryland, D.C., 78 F.Supp. 488, 493, affirmed 8 Cir., 172 F.2d 784, the court, in considering the validity of a statute said: '* * * it is not incumbent upon the court to find the actual existence of facts which would justify the legislation; but if a state of facts which would justify the legislation can reasonably be conceived to exist, the court must presume that it did exist and that the law was passed for that purpose.'

The remaining question then is: Does Act 4, on its face, violate Section 1 of Article 14 of our State Constitution, as claimed by appellant? This section reads:

'Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.'

It is our conclusion that no such constitutional violation exists. Article 14, Section 4, of our Constitution reads: 'The supervision of public schools and the execution of the laws regulating the same shall be vested in and confided to such officers as may be provided for by the General Assembly.' Therefore, from a strictly constitutional standpoint, the Legislature had the same right to authorize the Governor to take charge of schools as it has always exercised to authorize school boards to do so. There is nothing in the Constitution requiring schools to be maintained in any fixed number at any fixed standard, or in any fixed places. If it did and if the requirements were those existing on September 27, 1958, then the Constitution has been flagrantly violated for more than 75 years following 1874.

We have read with much interest the case of Harrison v. Day, 106 S.E.2d 636, 637, 647, decided January 19th of this year, where the Supreme Court of Virginia held several segregation acts in conflict with the Constitution of that state. Section 129 of the Virginia Constitution, in language essentially the same as in Section 1, Article 14 of our Constitution, requires the State to maintain a system of free public schools. However, Section 133 of their Constitution places 'The supervision of schools in each county and city * * * in a school board, to be composed of trustees * * *' etc. The court held that this provision prevented the Legislature from placing the supervision in the Governor. Of course no such restriction is found in our Constitution as we have already pointed out. It is interesting to point out that the Virginia Supreme Court, in considering an Act which permitted schools to be closed because of the presence of Federal Troops, had this to say: '* * * While we agree that the State, under its police power, has the right under these conditions to direct the temporary closing of a school, the provision divesting the local authorities of their control and vesting such authority in the Governor runs counter to Section 133 of the Constitution.'

We repeat that we find nothing in Act 4 which conflicts with Section 1, Article 14 of the Arkansas Constitution. The degree to which the police powers of the State may be extended will be further discussed later.

Regarding the United States Constitution. Technically speaking, the question posed for our solution is: Does Act 4 conflict with the first section of the 14th Amendment of the United States Constitution? This section, in substance, says: (a) All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens; (b) No state shall make or enforce any law abridging the privileges or immunities of such citizen; (c) No state shall deprive such citizens of life, liberty, or property without due process of law, and: (d) No state shall deny such citizen equal protection of the laws. The Supreme Court of the United States in the case of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 692, 98 L.Ed. 873 (on May 17, 1954) interpreted said section to forbid discrimination in the public schools. Ordinarily, it...