Heintz v. Board of Ed. of Howard County

• Decision Date: 10 May 1957
• Docket Number: No. 179,179
• Citation: 213 Md. 340,131 A.2d 869
• Parties: Ernest HEINTZ et al. v. BOARD OF EDUCATION OF HOWARD COUNTY.
• Court: Maryland Court of Appeals

Page 340

213 Md. 340

131 A.2d 869

Ernest HEINTZ et al. v. BOARD OF EDUCATION OF HOWARD COUNTY.

No. 179.

Court of Appeals of Maryland.

May 10, 1957.

George Washington Williams, Baltimore, and C. Maurice Weidemeyer, Annapolis, for appellants.

Thomas F. Cadwalader, Baltimore, filed brief amicus curiae.

Jerome A. Loughran, Ellicott City, for appellee.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

COLLINS, Judge.

This is an appeal from a judgment for costs entered as a result of the sustaining of a demurrer, without leave to amend, to the petition of the appellants, for a writ of mandamus, and dismissing that petition.

The petitioners, residents and taxpayers of Howard County, allege that the law requires the operation of separate schools for white and negro children in Howard County and in the State generally, and ask that a writ of mandamus be issued to the Board of Education of Howard County and the members thereof commanding them to establish and maintain separate schools for colored children under the requirements of Code 1951, Article 77, Section 207 and 208, which provide for separate schools for colored youths. A demurrer, filed to the petition by the Board of Education, alleges, among other things, that the matters raised in said petition for said writ of mandamus are res judicata.

The contention of the appellants is that the decisions of the United States Supreme Court in the segregation cases both on the merits and constitutional grounds, were erroneous. In Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 688, 98 L.Ed. 873, decided May 17, 1954, the Supreme Court of the United States held that the segregation of children in public schools, solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprives children of the minority group of equal educational opportunities and amounts to a deprivation of the equal protection of the laws which is guaranteed by the Fourteenth Amendment to the Federal Constitution and, further, that the doctrine of 'separate but equal' has no place in the field of public education because separate educational facilities are inherently unequal. The case of Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, decided May 17, 1954, construed the Fifth Amendment to the Federal Constitution as requiring the same result as to the public schools in the District of Columbia. These cases, without any change in the statute laws of the Federal Government and without any further amendment to the Constitution of the United States on that matter, specifically overruled Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, decided in 1896, and which had been the leading authority on segregation questions since that date.

The primary contention of the appellants is that the Fourteenth Amendment to the Federal Constitution was never constitutionally proposed or adopted for the reason that more than one-fourth of the states voted to reject it, and its promulgation by the Secretary of State did not validate the amendment, and, further, that the sole power to enforce the Fourteenth Amendment is constitutionally reposed in the Congress. In Leser v. Garnett, 258 U.S. 130, 137, 42 S.Ct. 217, 218, 66 L.Ed. 505, it was argued that the Nineteenth Amendment to the Federal Constitution had not been validly ratified because several of the states named in the proclamation of the Secretary of State as having ratified it, had not in fact done so in accordance with the provisions of their several constitutions. It was there said: ...