Kerr v. Enoch Pratt Free Library of Baltimore City

• Decision Date: 17 April 1945
• Docket Number: No. 5273.,5273.
• Citation: 149 F.2d 212
• Parties: KERR et al. v. ENOCH PRATT FREE LIBRARY OF BALTIMORE CITY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

149 F.2d 212 (1945)

KERR et al. v. ENOCH PRATT FREE LIBRARY OF BALTIMORE CITY et al.

No. 5273.

Circuit Court of Appeals, Fourth Circuit.

April 17, 1945.

Charles H. Houston, of Washington, D. C. (W. A. C. Hughes, of Baltimore, Md., on the brief), for appellants.

John Henry Lewin, of Baltimore, Md. (Harry N. Baetjer and Allen A. Davis, both of Baltimore, Md., on the brief), for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit is brought by Louise Kerr, a young Negress, who complains that she has been refused admission to a library training class conducted by The Enoch Pratt Free Library of Baltimore City to prepare persons for staff positions in the Central Library and its branches. It is charged that the Library is performing a governmental function and that she was rejected in conformity with the uniform policy of the library corporation to exclude all persons of the colored race from the training school, and that by this action the State of Maryland deprives her of the equal protection of the laws in violation of § 1 of the Fourteenth Amendment of the Constitution of the United States and of the Civil Rights Act codified in 8 U.S.C. A. § 41. She asks for damages, as provided in that act, 8 U.S.C.A. § 43, for a permanent injunction prohibiting the refusal of her application, and for a declaratory judgment to establish her right to have her application considered without discrimination because of her race and color. Her father joins in the suit as a taxpayer, and asks that, if it be held that the library corporation is a private body not bound by the constitutional restraint upon state action, the Mayor and City Council of Baltimore be enjoined from making contributions to the support of the Library from the municipal funds on the ground that such contributions are ultra vires and in violation of the Fourteenth Amendment since they constitute a taking of his property without due process of law.

The defendants in the suit are the library corporation, nine citizens of Baltimore who constitute its board of trustees, the librarian and the Mayor and City Council of Baltimore. The defendants first named defend on two grounds: (1) That the plaintiff was not excluded from the Training School solely because of her race and color; and (2) that the Library is a private corporation, controlled and managed by the board of trustees, and does not perform any public function as a representative of the state. The municipality joins in the second defense and also denies that its appropriations to the Library are ultra vires or constitute a taking of property without due process of law. The District Judge sustained all of the defenses and dismissed the suit.

In our view it is necessary to consider only the first two defenses which raise the vital issues in the case It is not denied that the applicant is well qualified to enter the training school. She is a native and resident of Baltimore City, twenty-seven years of age, of good character and reputation, and in good health. She is a graduate with high averages from the public high schools of Baltimore, from a public teachers' training school in Baltimore, has taken courses for three summers at the University of Pennsylvania, and has taught in the elementary public schools of the City. We must therefore consider whether in fact she was excluded from the training school because of her race, and if so, whether this action was contrary to the provisions of the federal constitution and laws.

There can be no doubt that the applicant was excluded from the school because of her race. The training course was established by the Library in 1928, primarily to prepare persons for the position of library assistant on the Library staff. There is no other training school for librarians in the state supported by public funds. Applicants are required to take a competitive entrance examination which, in view of the large number of applications for each class, is limited to fifteen or twenty persons who are selected by the director of the Library and his assistants as best qualified to function well in the work in view of their initiative, personality, enthusiasm and serious purpose. Members of the class are paid $50 monthly during training, since the practical work which they perform is equivalent to part time employment. In return for the training given, the applicant is expected to work on the staff one year after graduation, provided a position is offered. All competent graduates have been in fact appointed to the staff as library assistants, and during the past two or three years there have been more vacancies than graduates.

During the existence of the school, more than two hundred applications have been received from Negroes. All of them have been rejected. On June 14, 1933, the trustees of the Library formally resolved to make no change in the policy, then existing, not to employ Negro assistants on the Library service staff "in view of the public criticism which would arise and the effect upon the morale of the staff and the public." This practice was followed until 1942 when the trustees engaged two Negroes, who had not attended the Training School, as technical assistants for service in a branch of the Library which is patronized chiefly by Negroes. There are in all seventy senior and eighty junior library assistants employed at the Central Building and the twenty-six branches. There is no segregation of the races in any of them and white and colored patrons are served alike without discrimination. The population of Baltimore City is approximately eighty per cent white and twenty per cent colored.

Notwithstanding the appointment of two colored assistants in one branch of the Library, the board of trustees continued to exclude Negroes from the Training School for the reasons set forth in the following resolution passed by it on September 17, 1942:

"Resolved that it is unnecessary and unpracticable to admit colored persons to the Training Class of The Enoch Pratt Free Library. The trustees being advised that there are colored persons now available with adequate training for library employment have given the librarian authority to employ such personnel where vacancies occur in a branch or branches with an established record of preponderant colored use."

It was in accordance with this policy that the application made by the plaintiff on April 23, 1943, was denied.

The view that the action of the Board in excluding her was not based solely on her race or color rests on the contention that as the only positions as librarian assistants, which are open to Negroes, were filled at the time of her application, and as a number of adequately trained colored persons in the community were then available for appointment, should a vacancy occur, it would have been a waste of her time and a useless expense to the Library to admit her. The resolution of September 17, 1942, and the testimony given on the part of the defendants indicate that these were in fact the reasons which led to the plaintiff's rejection, and that the trustees were not moved by personal hostility or prejudice against the Negro race but by the belief that white library assistants can render more acceptable and more efficient service to the public where the majority of the patrons are white. The District Judge so found and we accept his finding. But it is nevertheless true that the applicant's race was the only ground for the action upon her application. She was refused consideration because the Training School is closed to Negroes, and it is closed to Negroes because, in the judgment of the Board, their race unfits them to serve in predominantly white neighborhoods. We must therefore determine whether, in view of the prohibition of the Fourteenth Amendment, the Board is occupying tenable ground in excluding Negroes from the Training School and from positions on the Library's staff.

The District Judge found that the Board of Trustees controls and manages the affairs of the Library as a private corporation and does not act in a public capacity as a representative of the state. Hence he held that the Board is not subject to the restraints of the Fourteenth Amendment which are imposed only upon state action that abridges the privileges or immunities of citizens of the United States or denies to any person the equal protection of the laws. His opinion, D.C., 54 F.Supp. 514, reviews at length the corporate history of the institution and applies the rule, enunciated in state and federal courts, that to make a corporation a public one its managers must not only be appointed by public authority, but subject to its control. See 18 C.J.S., Corporations, § 19, p. 394 et seq.; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 671, 4 L.Ed. 629.

The Court of Appeals of Maryland has used this test in somewhat similar cases and has held corporations to be private in character although public funds have been placed at their disposal to aid them in serving the public in the exercise of functions which could appropriately be performed by the state itself. For example, the rule was applied in Clark v. Maryland Institute, 87 Md. 643, 41 A. 126, where a colored youth was refused admission to an educational institution to which he had been appointed by a member of the City Council of Baltimore under a contract between the City and the Institute which authorized each member of the Council to make one appointment in consideration of an annual appropriation by the City of $9,000 per year for the education of the pupils. It was held that the Institute was within its rights in excluding colored persons because it was a private corporation and not an agency of the state, subject to the provisions of the Fourteenth Amendment. See also St. Mary's Industrial School v. Brown, 45 Md. 310; Finan v. City of Cumberland, 154 Md. 563, 141 A. 269; University of Maryland v. Murray, 169 Md. 478, 182 A. 590, ...