Lawrence v. Hancock

• Decision Date: 11 February 1948
• Docket Number: Civ. A. No. 795.
• Citation: 76 F. Supp. 1004
• Parties: LAWRENCE v. HANCOCK et al.
• Court: U.S. District Court — Southern District of West Virginia

76 F. Supp. 1004

LAWRENCE v. HANCOCK et al.

Civ. A. No. 795.

District Court, S. D. West Virginia.

February 11, 1948.

T. G. Nutter, of Charleston, W. Va., for plaintiff.

Mahan, White, Higgins & Laird, of Fayetteville, W.Va. (J. H. White, of Fayetteville, W. Va., of counsel), for defendants.

MOORE, District Judge.

The question presented by this action for a declaratory judgment and for an injunction is:

Can a municipality, by leasing a swimming pool constructed with public funds to a private association of persons, relieve itself of the constitutional obligation to afford colored citizens equal rights with those of white citizens in the use of the public recreational facilities thereby provided?

In the year 1940 the City of Montgomery, West Virginia, submitted to the voters of the City the question of issuing general revenue bonds in the amount of $15,000 for the purpose of constructing a public swimming pool. The bond issue was approved by the voters on June 28, 1940. The proceeds, together with other funds supplied by the Federal Government, were used for the intended purpose, but were exhausted before the project was completed. Late in the year 1942 the City floated an additional issue of so-called "self-liquidating" bonds (that is, bonds which were a lien only on revenues derived from the operation of the swimming pool, and were not otherwise obligations of the City). These self-liquidating bonds produced $19,800. With these additional funds the swimming pool and its appurtenances were completed and ready for operation, with the exception of a fence, in August, 1945. Because of the short time remaining in which the pool could have been used during the season of 1945, together with the lack of a fence, it was not opened to the public in that year.

Shortly before the bond election of June 28, 1940, a group of colored persons representing various Negro organizations appeared before the City Council to make inquiries concerning the policy which would be pursued with reference to use of the pool by Negroes. No assurance was given that Negroes would be allowed to use the pool. On the contrary, a statement was made by the City Attorney in the presence of the group of colored citizens to the effect that he would resign rather than advise the City to permit such use.

Afterwards, and before the pool was opened, other efforts were made by members of the Negro race to secure an official declaration of policy. The testimony is not entirely clear as to how many times delegations of Negroes waited on the Council for this purpose; but there was one conference with Mayor Skaggs, who held office from February, 1942, to February, 1946; and at least one other visit of a Negro delegation to a meeting of the City Council, probably in the early part of 1946. At no time did they get an answer to their question. When completion of the swimming pool was delayed for several years, public opinion, as generally expressed by members of both the white and colored races, was that the delay was due to hesitancy on the part of city officials to take a stand either for or against its use by Negroes.

In February, 1946, the present city administration took office. On May 27, 1946, pursuant to a resolution passed by the Council, the swimming pool property was leased for a term ending September 15, 1946, to the Montgomery Park Association. This was a private corporation, evidently formed for the purpose of taking over the operation of the swimming pool, since its charter was dated May 25, 1946. The terms of the lease, which expresses only a nominal consideration of One Dollar, are as follows:

"1. All net revenue derived by the lessee from the operation of the property and its appurtenances shall be used for the improvement and development of the property and its appurtenances, and providing additional recreational facilities.

"2. The lessee shall keep the property in good repair and pay all utilities and other proper charges against said property.

"3. The lessee shall provide all employees necessary for the efficient and proper management of the property.

"4. The lessor may, at all reasonable hours, through its agents and employees, inspect said property, but the lessor shall not have any duty to make such inspection.

"5. The lessee covenants and agrees to use the best known methods and means for the operation of like properties in order to provide safe, wholesome and efficient management of the pool, and to provide wholesome recreational facilities.

"6. The lessee covenants and agrees that if said property, or any portion thereof, during the term of this lease, shall be damaged by the act, default or negligence of the lessee, or of the lessee's agent, employee or employees, patrons, guests, or any persons admitted to said premises by said lessee, the said lessee will promptly restore said premises to their present condition. The lessee hereby assumes full responsibility for the character, acts and conduct of all persons admitted to said premises, or to any portion of said premises by the consent of the said lessee, or by or with the consent of said lessee's employees or any person acting for and on behalf of said lessee.

"7. The lessor assumes no responsibility whatever for any property placed on or in said property, and the said lessor is hereby expressly released and discharged from any and all liability for any loss, injury or damage to persons or property that may be sustained by reason of the occupancy of said property under this lease.

"8. The lessee shall not assign this lease, nor suffer any use of said premises other than herein specified, nor sublet the premises or part thereof, without the written consent of the lessor.

"9. The lessee shall not use said premises for any purpose or purposes than that of providing recreational and cultural facilities, in accordance with the charter granted to the lessee by the State of West Virginia on May 25, 1946.

"10. The lessee shall have the complete and full control of said property during the term hereof and shall establish and enforce proper rules and regulations governing the operation and management of said property and its appurtenances."

In the summer of 1946 the plaintiff in this suit, who has been a citizen of Montgomery for thirty-six years, together with four other Negroes, applied at the main office of the swimming pool for season tickets, tendering in cash the amount which was posted over the door as the proper fee for season tickets. They were refused permission to buy tickets, and this action was later confirmed by the manager of the Montgomery Park Association on the ground that "he didn't have any orders to sell tickets to colored people." On appealing to the president of the Park Association, defendant F. B. Eberhart, they got the same answer: "they hadn't made arrangements to sell colored people tickets."

Since the lease contained no renewal provisions, it expired by its terms on September 15, 1946; but again on February 1, 1947, a new lease was made on exactly the same terms, expiring on September 30, 1947. Since the expiration date of this second lease, the Montgomery Park Association has had no interest in the swimming pool.

In the early part of the summer of 1947, Dr. Robert A. Meade, one of the Negroes who had been with the plaintiff when they tried to obtain tickets to the swimming pool in the summer of 1946, called the present Mayor, defendant R. M. Holstine, by telephone and "asked him if we (Negroes) would be able to use the pool this year." The Mayor's reply was: "That won't do for you to use the pool."

The plaintiff again, in the summer of 1947, applied at the ticket office for admission to the swimming pool and was again refused permission to use it.

On September 10, 1947, this action was begun, praying for a declaration of plaintiff's rights to use of the swimming pool and for an injunction against the defendants to restrain them from discriminating against him because of his race.

The Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States, all of which were ratified and proclaimed soon after the end of the Civil War, are, in a peculiar sense, the Negro's birthright of American citizenship. Lincoln's Emancipation Proclamation, purely a war measure, freed the Negro from slavery; but not until the constitutional changes were made was his status as a free man with all the rights of citizenship incontrovertibly established.

Customs and prejudices which grew up through many years of Negro slavery have not been easily eradicated. Deep-seated feelings and aversions cannot be readily changed by the passage of a law, even though it be a constitutional amendment. It is not to be wondered at, therefore, that the Negro has continued to be the object of racial antagonism, intolerance and discrimination on the part of many of his white brethren whose grandfathers were the masters while his was merely the slave.

It is not within the province of the Court to attempt to regulate the feelings, the attitude, or even the conduct of individuals of the white race towards persons of another race, so long as such conduct involves no illegal act; and purely private acts of racial discrimination are not as such illegal. However desirable it may be that mutual respect and amity be maintained and fostered between two different races occupying the same country as citizens, this is an end to be achieved, if at all, by other means than an action in Court.

When, however, governmental rather than individual discrimination is charged, it becomes the duty of the Court to examine the facts, and, if the facts support the charge, to prevent the discrimination.

The complaint alleges and the answer admits that the swimming pool was authorized and established pursuant to Article 14 of Chapter 8, Michie's Code of West Virginia. This statute prescribes the procedure which is to be followed by municipalities which may elect to avail...