McKinney v. Blankenship

• Decision Date: 12 October 1955
• Docket Number: No. A-5483,A-5483
• Citation: 154 Tex. 632,282 S.W.2d 691
• Parties: R. E. McKINNEY et al., Plaintiffs, v. W. C. BLANKENSHIP et al., Defendants.
• Court: Texas Supreme Court

Page 691

282 S.W.2d 691

154 Tex. 632

R. E. McKINNEY et al., Plaintiffs, v. W. C. BLANKENSHIP et al., Defendants.

No. A-5483.

Supreme Court of Texas.

Oct. 12, 1955.

Carlton & Street, Dallas, for appellants.

Guilford Jones, Big Spring, for appellees, Big Spring Independent School District and others.

John Ben Shepperd, Atty. Gen., and Billy Lee, Burnell Waldrep and John Davenport, Asst. Attys. Gen., for appellees, J. W. Edgar and others.

BREWSTER, Justice.

This is a direct appeal in an action for a declaratory judgment as well as an injunction, filed by R. E. McKinney, Ted O. Groebl, John W. Currie, and Roy Bruce, residents of Big Spring, Texas, and McKinney and Bruce as representatives of a group organization of Dallas, Dallas County, as plaintiffs, against Clyde Angel, R. W. Thompson, Tom McAdams, Omar Jones, Robert Stripling, and John Dibrell, composing the Board of Trustees of Big Spring Independent School District, W. C. Blankenship, Superintendent of Big Spring Independent School District, J. W. Edgar, State Commissioner of Education, and R. S. Calvert, Comptroller of Public Accounts, as defendants.

Appellants alleged in their petition that the Board of Trustees of Big Spring School District had made and entered an order integrating white and Negro students in grades one through six in the elementary schools of the District. They sought an injunction to restrain the allocation or expenditure of public free school funds in any manner inconsistent with and contrary to the provisions of Section 7 of Article VII, Vernon's Ann.St. Constitution of Texas, Article 2900, Revised Civil Statutes of Texas, and Section 1 of Article 2922-13, Vernon's Annotated Texas Civil Statutes. They also sought a declaratory judgment declaring that the foregoing constitutional and statutory provisions were valid and enforceable, and declaring the rights, duties and obligations of the defendants thereunder. In their answer to the petition the Board of Trustees and Superintendent of Big Spring School District also asked a declaratory judgment declaring their rights, duties and legal obligations 'under all appropriate and applicable laws and statutes.' The Attorney General of Texas intervened and aligned the State with the plaintiffs except in so far as the State Commissioner of Education and the Comptroller of Public Accounts were concerned.

The trial court denied the injunction and by its judgment declared unconstitutional and void Section 7 of Article VII of the Constitution, Article 2900, R.C.S., and certain language, to be noted later, of Section 1 of Article 2922-13. It then declared the remaining portions of Article 2922-13 valid and enforceable.

Appellants' first three points of error assert that the trial court should have granted the injunction to restrain the various defendants from certifying, paying and expending public free school funds in any manner inconsistent with the constitutional and statutory provisions.

The duties of the Commissioner of Education to certify the funds to which a school district is entitled and of the State Comptroller to issue and transmit warrants therefor are purely ministerial and mandatory. Article 2922-20, V. A.T.C.S.; Article 2663, R.C.S.; Austin Independent School Dist. v. Marrs, 121 Tex. 72, 41 S.W.2d 9. The injunction against these parties was properly denied. To this all parties agree.

As to the other defendants, the trial court's judgment was undoubtedly predicated on the decision of the Supreme Court of the United States in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, decided on May 17, 1954, in which final decree was entered on May 31, 1955, 349 U.S. 294, 75 S.Ct. 753, 757. Brown v. Board of Education was one of four cases from the states of Kansas, South Carolina, Virginia and Delaware, respectively, which were argued together before the Supreme Court because they had to do with segregation of white and Negro students in the public schools. The South Carolina, Virginia and Delaware cases involved the constitutionality of state constitutional and statutory provisions requiring segregation. The Kansas statute permitted forced segregation in cities of more than 15,000 population. Rejecting the doctrine "equal but separate", announced in 1896 in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 1139, 41 L.Ed. 256, the Supreme Court held, in an opinion written by Chief Justice Warren, that separate educational facilities are inherently unequal, and that, therefore, the plaintiffs and others similarly situated for whom the four suits were brought had been, by reason of their segregation, deprived of the equal protection of the laws as granted by the Fourteenth Amendment.

In its final decree the Court said it had declared in its original opinion (349 U.S. 294, 75 S.Ct. 755) 'the fundamental principle that racial discrimination in public education is unconstitutional,' and it then proceeded to declare that 'all provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.'

At the threshold of our considerations of the issues in this case we are met with the argument that since the constitutional and statutory provisions requiring segregation in Texas schools were not before the Supreme Court in the Brown case they were not condemned and we should hold them valid and enforceable. That proposition is so utterly without merit that we overrule it without further discussion, except to say that clause 2 of Article VI of the Constitution of the United States declares: 'This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.'

Section 7 of Article VII of the Constitution and Article 2900 of our statutes, declared unconstitutional and void by the trial court, read as follows: 'Sec. 7. Separate schools shall be provided for the white and colored children, and impartial provision shall be made for both.' 'Art. 2900. All available public school funds of this State shall be appropriated in each county for the education alike of white and colored children, and impartial provision shall be made for both races. No white children shall attend schools supported for colored children, nor shall colored children attend schools supported for white children. The terms 'colored race' and 'colored children,' as used in this title, include all persons of mixed blood descended from negro ancestry.' To the extent that these constitutional and statutory provisions require segregation of white and Negro students in the public schools they are unconstitutional and void and cannot stand as a bar to the expenditure of public funds in integrated schools. It does not follow, however, that Section 7 of Article VII of the Constitution and Article 2900 of the statutes are unconstitutional and void as applied to other subject matter which by their terms they were intended to cover.

Even a casual reading of Section 7 of Article VII of the Constitution and Article 2900 of the statutes will make clear that they have a two-fold purpose: they require segregation of white and Negro students in the public schools of this state and they require that equal and impartial provision be made for the education of both. The extent of their invalidity should be determined in the light of what was said by the Supreme Court of the United States as limited by the facts of the cases before it. When the language of the Court is so limited it will be evident that what the Court condemned as unconstitutional and void, and all it condemned, was constitutional, statutory, and local law provisions which require or permit forced segregation through and by governmental officers and agencies.

The Supreme Court did not direct immediate and complete integration in all schools. To declare Section 7 of Article VII of the Constitution and Article 2900 of the statutes unconstitutional and void in their entirety would destroy the safeguards found therein which guarantee equal and impartial provision for students in schools not yet integrated. No judgment which would lead to that result should be rendered unless it is necessary, and we find it unnecessary. While it is often said that a law unconstitutional and void for one purpose is unconstitutional and void for all purposes, it is nevertheless held that a state law which may be unconstitutional and void when applied to a subject matter prohibited by the Constitution or laws of the United States may be constitutional and valid when applied to a subject matter not so prohibited. State v. Bevins, 210 Iowa 1031, 230 N.W. 865, appeal dismissed, Bevins v. State of Iowa, 282 U.S. 815, 51 S.Ct. 216, 75 L.Ed. 729; Ratterman v. Western Union Telegraph Co., 8 S.Ct. 1127, 32 L.Ed. 229, 127 U.S. 411; Cooley's Constitutional Limitations, 8th Ed., Vol. 1, p. 366; 11 Am.Jur. 857, Constitutional Law, § 163. We conclude that Section 7 of Article VII of the Constitution and Article 2900 are unconstitutional and void in so far as they require segregation of white and negro students in the public schools of Texas.

The most difficult problem in the case involves a determination of whether Article 2922-13, V.A.C.S., one of several articles (Article 2922-11 through Article 2922-22, V. A.T.C.S.) which were a part, and together constituted the whole, of the Foundation School Program Act, Acts 1949, 51st Leg., p. 625, ch. 334, popularly known as the Gilmer-Aikin Law, prohibits the expenditure of public funds in integrated schools. It is asserted by appellants that it does.

The trial court's declaratory judgment held certain portions of the first two sentences unconstitutional. These two sentences, with the parts declared unconstitutional being italicized (underscored), are as follows:

'The number of...