State ex rel. Bluford v. Canada, 37449.

• Decision Date: 08 July 1941
• Docket Number: No. 37449.,37449.
• Parties: STATE OF MISSOURI at the relation of LUCILE BLUFORD, Appellant, v. S.W. CANADA, Registrar of the University of Missouri.
• Court: Missouri Supreme Court

153 S.W.2d 12 STATE OF MISSOURI at the relation of LUCILE BLUFORD, Appellant,
v.
S.W. CANADA, Registrar of the University of Missouri. No. 37449. Supreme Court of Missouri. Division One, July 8, 1941. Rehearing Denied, July 25, 1941.

[153 S.W.2d 13]

Appeal from Boone Circuit Court. — Hon. W.M. Dinwiddie, Judge.

AFFIRMED.

Sidney R. Redmond, Henry D. Espy, John A. Davis and Charles H. Houston for appellant.

(1) The judgment of the trial court in refusing to issue the peremptory writ of mandamus against respondent to compel him to issue appellant forthwith a permit to register in the graduate school of the University of Missouri for graduate work in journalism, and to register her and admit her to said school at the next regular registration period upon her paying the lawful uniform fees and meeting the lawful uniform requirements, denied her the equal protection of the laws guaranteed her by Section 1 of the Fourteenth Amendment to the Constitution of the United States. State ex rel. Gaines v. Canada, 344 Mo. 1238; State ex rel. Gaines v. Canada, 305 U.S. 337; Gong Lum v. Rice, 275 U.S. 78; University v. Murray, 169 Md. 478. (2) The judgment of the trial court in refusing to issue the peremptory writ of mandamus prayed for was an abuse of judicial discretion. State ex rel. Gaines v. Canada, 344 Mo. 1238; State ex rel. Gaines v. Canada, 305 U.S. 337. (a) The admission of a qualified citizen to a state university is not a mere privilege, but a right of substance upon which all his future earnings and property may depend. Gleason v. Univ. of Minnesota, 104 Minn. 359. (b) The State cannot destroy the right indirectly by withholding the only appropriate remedy for its enforcement. Marbury v. Madison, 1 Cranch, 137; Poindexter v. Greenhow, 114 U.S. 270; Brinkerhoff-Faris Trust Co. v. Hill, 281 U.S. 673; University v. Murray, 169 Md. 478. (c) Respondent was under a plain, legal ministerial duty to issue appellant her permit to register, and to register and admit her to the graduate school of the University of Missouri for graduate work in journalism. The resolution of the University of Missouri Board of Curators March 27, 1936, re Lloyd L. Gaines is void. Ex parte Siebold, 100 U.S. 371, 397 (1879); Hauenstein v. Lynham, 100 U.S. 483; Connolly v. Union Sewer Pipe Co., 184 U.S. 540. There is no defect of parties defendant. Tape v. Hurley, 66 Cal. 473. A void order of a superior authority is no excuse for failure to perform a ministerial duty. Nixon v. Condon, 286 U.S. 73; Lane v. Wilson, 307 U.S. 268. (d) Prior demand by appellant on Lincoln University for graduate work in journalism was not a condition precedent to this action. State ex rel. Gaines v. Canada, 344 Mo. 1238.

Rubey M. Hulen, Kenneth Teasdale and William S. Hogsett for respondent.

(1) Mandamus should be denied because this suit is not prosecuted in good faith for the purpose alleged in the alternative writ. State ex rel. Hahn v. Westport, 135 Mo. 120, 36 S.W. 663; State ex rel. Hyde v. Jackson County Medical Society, 295 Mo. 144, 243 S.W. 341; State ex rel Haeusler v. German Mut. Life Ins. Co., 169 Mo. App. 354, 152 S.W. 618; State ex rel. Cusack Co. v. Shinnick, 208 Mo. App. 284, 232 S.W. 1053; Funck v. Farmers' Elevator Co., 121 N.W. 53; People ex rel. Durant Land Improvement Co. v. Jeroloman, 34 N.E. 726; Teeple v. State ex rel. Bowen, 86 N.E. 49; State ex rel. Hale v. Risley, 37 N.W. 570; Donahue v. State ex rel. Seieroe, 96 N.W. 1038; 38 C.J. 574. The finding on the issue of good faith must be ascertained from the judgment and not from the memorandum opinion. Smith v. Pettis County, 136 S.W. (2d) 282; Missouri-Kansas & Eastern Ry. Co. v. Holschlag, 144 Mo. 253, 45 S.W. 1101; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; Smith v. Holdoway Const. Co., 344 Mo. 862, 129 S.W. (2d) 894; Easton Food Center v. Beatrice Creamery Co., 119 S.W. (2d) 987. Mandamus is a proceeding at law; and the trial court's finding in respondent's favor on this issue, being supported by substantial evidence, should not be disturbed on appeal. State ex rel. Dolman v. Dickey, 280 Mo. 536, 219 S.W. 363; State ex rel. Journal Ptg. Co. v. Dreyer, 183 Mo. App. 463, 167 S.W. 1123; State ex rel. Haeusler v. German Mut. Life Ins. Co., 169 Mo. App. 354, 152 S.W. 618; State ex rel. First Natl. Bank v. Bourne, 151 Mo. App. 104, 131 S.W. 896. (2) Mandamus should be denied because respondent registrar does not owe relator the alleged legal duty to issue to her a permit to register as a student in the University of Missouri. (a) Under present laws of this State, a negro can have no cause of action for admission to the University of Missouri. Secs. 10774, 10779, R.S. 1939; Laws 1939, pp. 76-79. Mandamus will not issue to compel the University of Missouri to do something which it has no lawful authority to do, and which Lincoln University alone is authorized and required to do, namely, to furnish higher education to negro residents of this State. State ex rel. Kent v. Olenhouse, 324 Mo. 49, 23 S.W. (2d) 82; State ex rel. Nick v. Edwards, 260 S.W. 454; State ex rel. Hamilton v. Brown, 172 Mo. 374, 72 S.W. 640; State ex rel. Blue v. Waldo, 222 Mo. App. 396, 5 S.W. (2d) 653; State ex rel. Hemmerla v. Newburg Special Road Dist., 217 S.W. 605; State ex rel. Laclede Gas Light Co. v. Murphy, 170 U.S. 78; State ex rel. Onion v. Supreme Temple Pythian Sisters, 227 Mo. App. 557, 54 S.W. (2d) 468; United States ex rel. Fisher v. Board of Liquidation, 60 Fed. 387; State ex rel. Peoples Bank of Greenville v. Goodwin, 62 S.E. 1100; America Book Co. v. Marrs, 253 S.W. 817; 38 C.J. 554; Mills v. Lowndes, 26 Fed. Supp. 792; State ex rel. Relief Assn. v. Wilmington, 118 Atl. 640; Sims v. Fitzgerald, 191 Mass. 382, 77 N.E. 714; Holtzclaw v. Riley, 113 Ga. 1023, 39 S.E. 425; State ex rel. Whidden v. Jones, 125 Fla. 829, 170 So. 168; Mayer v. Police Commissioners, 136 Cal. App. 534, 29 Pac. (2d) 458; 38 C.J. 848-9. The decisions in the Gaines case are inapplicable, because they involved and were controlled by a radically different statute. State ex rel. Gaines v. Canada, 305 U.S. 337; State ex rel. Gaines v. Canada, 344 Mo. 1238, 131 S.W. (2d) 217. If, upon application by any qualified negro, Lincoln University should refuse to establish a department of journalism, such applicant would have an adequate remedy by mandamus to compel the Lincoln Board to perform its duty to establish such department. State ex rel. Johnson v. Sevier, 339 Mo. 483, 98 S.W. (2d) 677; State ex rel. McCleary v. Adcock, 206 Mo. 550, 105 S.W. 270; State ex rel. Kelleher v. President & Directors of Public Schools, 134 Mo. 296, 35 S.W. 617; State ex rel. Journal Ptg. Co. v. Dreyer, 183 Mo. App. 463, 167 S.W. 1123; Cumming v. Richmond County Board of Education, 175 U.S. 528; State ex rel. Morehead v. Cartwright, 122 Mo. App. 257, 99 S.W. 48; School District v. Hunnicutt, 51 Fed. (2d) 528; Board of Education v. Excise Board, 86 Okla. 24, 206 Pac. 517; Black v. Lenderman, 156 Ark. 476, 246 S.W. 876; Jones v. Board of Education of Muskogee, 90 Okla. 233, 217 Pac. 400; Cory v. Carter, 48 Ind. 327. (b) Relator has made no demand upon Lincoln University for instruction, and therefore is in no position to demand admission to the University of Missouri, even on her own theory of the case. Bluford v. Canada, 32 Fed. Supp. 707; Myers v. Bethelhem Shipbuilding Corp., 303 U.S. 41; Highland Farms Dairy v. Agnew, 300 U.S. 608; Bourjois, Inc., v. Chapman, 301 U.S. 183; Petroleum Exploration, Inc., v. Public Service Comm., 304 U.S. 209; Natural Gas Co. v. Slattery, 302 U.S. 300; Gundling v. Chicago, 177 U.S. 183; Smith v. Cahoon, 283 U.S. 553; Hall v. Geiger-Jones Co., 242 U.S. 539; Lehmann v. State Board of Public Accountancy, 263 U.S. 394; Utah P. & L. Co. v. Pfost, 286 U.S. 165; Dalton Adding Machine Co. v. State Corporation Comm. of Virginia, 236 U.S. 699; Plymouth Coal Co. v. Commonwealth of Pennsylvania, 232 U.S. 531; Goldsmith v. Board of Tax Appeals, 270 U.S. 117; Bradley v. Richmond, 227 U.S. 477; State ex rel. v. Seibert, 130 Mo. 202, 32 S.W. 670; State ex rel. Onion v. Supreme Tent Pythian Sisters, 227 Mo. App. 557, 54 S.W. (2d) 468; State ex rel. Cammann v. Tower Grove Turnverein, 206 S.W. 242; State ex rel. v. Wenom, 326 Mo. 352, 32 S.W. (2d) 59; State ex rel. v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Nick v. Edwards, 260 S.W. 454; State v. Cape Girardeau County Court, 109 Mo. 248, 19 S.W. 23; State ex rel. v. Smith, 48 S.W. (2d) 891, 330 Mo. 252; State ex rel. v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. v. Bank of Conception, 174 Mo. App. 589, 163 S.W. 945. The rule of reason is applicable in the construction of all statutes. Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; St. Louis v. Christian Brothers College, 257 Mo. 541, 165 S.W. 1057; Standard Oil Co. v. United States, 221 U.S. 1; United States v. American Tobacco Co., 221 U.S. 106. (c) Respondent registrar is a mere subordinate of the board of curators, and his lawful duty is to obey the rules and regulations of the board. Mandamus should not issue to compel him to violate his lawful duty. The government of the University of Missouri is vested in its Board of Curators (Sec. 10782, R.S. 1939). Relator has no cause of action against respondent registrar, a mere subordinate of the Board of Curators, to compel him to violate his lawful duty to follow the rules and regulations of the Board. State ex rel. Laclede Gas Light Co. v. Murphy, 170 U.S. 78; United States ex rel. Fisher v. Board of Liquidation, 60 Fed. 387; State ex rel. Dodd v. Tison, 175 La. 235, 143 So. 59; American Book Co. v. Marrs, 253 S.W. 817; Holtzclaw v. Riley, 39 S.E. 425. (3) Mandamus is a discretionary remedy, and not a writ of right; and under all the circumstances of this case the exercise of a sound judicial discretion requires that the writ should be denied. State ex rel. Jacobsmeyer v. Thatcher, 338 Mo. 622, 92 S.W. (2d) 640; People ex rel. Wood v. Board of Assessors of...