State ex rel. Gaines v. Canada

• Decision Date: 01 August 1939
• Docket Number: 35286
• Parties: State of Missouri at the relation of Lloyd L. Gaines, Appellant, v. S. W. Canada, Registrar of the University of Missouri, and the Curators of the University of Missouri, a Body Corporate
• Court: Missouri Supreme Court

131 S.W.2d 217

344 Mo. 1238

State of Missouri at the relation of Lloyd L. Gaines, Appellant, v. S. W. Canada, Registrar of the University of Missouri, and the Curators of the University of Missouri, a Body Corporate

No. 35286

Supreme Court of Missouri

August 1, 1939

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Reversed and remanded.

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

Respondents seek to avoid admitting appellant to the School of Law of the University of Missouri, in spite of the mandate of the United States Supreme Court, on two grounds: That the Taylor Law House Bill 195, set out at length in respondents' brief on second hearing, pages 3-4, which became law May 4, 1939, subsequent to the mandate of the United States Supreme Court, now furnishes appellant the equal protection of the laws and justifies his exclusion from the University of Missouri. That even if appellant has a clear legal right to be admitted to the School of Law of the University of Missouri, this court, on the balance of public convenience and in the exercise of a discretionary power, should refuse to order the circuit court to issue its writ of mandamus to compel respondents to admit him there. The contentions of the respondents in both particulars are unsound, and, in obedience to the mandate of the United States Supreme Court, this court should order the circuit court to issue the peremptory writ as prayed.

Fred L. Williams, Nick T. Cave, William S. Hogsett and Ralph E. Murray for respondents.

(1) All questions not decided by the Supreme Court of the United States are left open for decision by this court upon this hearing. Ex parte Union Steamboat Co., 178 U.S. 319; In re Sanford Fork & Tool Co., 160 U.S. 256; Mason v. Pewabic Mining Co., 153 U.S. 361; Illinois Bell Tel. Co., v. Slattery, 102 F.2d 64. (2) This court will give effect to the amendment of the Lincoln University Act, enacted pending the appeal. Simpson v. Stoddard County, 173 Mo. 476; Totten v. James, 55 Mo. 494; Hubbard v. Gilpin, 57 Mo. 441; Pugh v. McCormick, 14 Wall. 361; United States v. Schooner Peggy, 1 Cranch, 103; Duplex Co., v. Dearing, 254 U.S. 464; Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 432; Texas Co. v. Brown, 258 U.S. 474; Townley v. Scarborough, 91 Miss. 584; In re Stickney's Estate, 77 N.E. 993; Densmore v. Southern Express Co., 183 U.S. 120; McCann v. Retirement Board, 331 Ill. 193, 162 N.E. 859; Merlo v. Johnson City & Big Muddy Coal & Mining Co., 258 Ill. 328; Home Savs. & L. Assn. v. Plass, 57 F.2d 117. This court will take judicial notice of the amendment of Section 9618, Revised Statutes 1929, and of the status of the pending appropriation bill to provide money for new departments in Lincoln University. State ex rel. Karbe v. Bader, 336 Mo. 266, 78 S.W.2d 835; State v. Adams, 323 Mo. 729, 19 S.W.2d 673; Utz v. Dormann, 328 Mo. 258, 39 S.W.2d 1055; Bowen v. Mo., Pac. Ry. Co., 118 Mo. 541; Gibson v. C. G. W. Ry. Co., 225 Mo. 473; Shohoney v. Q. O. & K. C. Ry. Co., 231 Mo. 131. (3) The Lincoln University Act, as amended, gives relator equal protection; and mandamus should be denied as a matter of right. (a) The laws and long-established public policy of the State require separation of the white and negro races for purposes of higher education. State ex rel. Gaines v. Canada, 342 Mo. 131, 113 S.W.2d 786; State v. Canada, 59 S.Ct. 234. (b) In providing the facilities for higher education the State has the undoubted right to separate the races. State v. Canada, 59 S.Ct. 234; Plessy v. Ferguson, 163 U.S. 544, 16 S.Ct. 1140, 41 L.Ed. 256; McCabe v. A. T. & S. F. Ry. Co., 235 U.S. 160, 35 S.Ct. 70, 59 L.Ed. 169; Gong Lum v. Rice, 275 U.S. 86, 48 S.Ct. 93, 72 L.Ed. 172; Cumming v. Board of Education, 175 U.S. 545, 20 S.Ct. 200, 33 L.Ed. 262. (c) The Lincoln University Act (as now amended) makes proper provision for relator's legal training within the borders of the State and provides for him an opportunity for legal instruction equal to that available to whites at the University of Missouri. House Bill No. 195, duly passed by the General Assembly, approved and signed by the Governor on May 4, 1939, now on file in the office of the Secretary of State. The duty imposed by this amended act is unquestionably mandatory. Lincoln University v. Hackmann, 295 Mo. 124; State ex rel. Gaines v. Canada, 342 Mo. 121, 113 S.W.2d 791. (d) The law presumes that the Lincoln University curators will perform their legal duty to establish a school of law in that institution equal to the one in the University of Missouri. State ex rel. Murphy v. Burney, 269 Mo. 611, 191 S.W. 983; Curtain v. Zerbst Pharmacal Co., 333 Mo. 349, 62 S.W.2d 772; Little Prairie Special Road District v. Pemiscot County, 297 Mo. 576, 249 S.W. 601; State ex rel. Clinton Const. Co. v. Johnston, 272 S.W. 931; State ex rel. Hiemburger v. Wells, 210 Mo. 615, 109 S.W. 758; Otto v. Young, 227 Mo. 218, 127 S.W. 9; Hall v. Geiger-Jones Co., 242 U.S. 554; Lehmann v. State Board of Public Accountancy, 263 U.S. 398; Utah P. & L. Co. v. Pfost, 286 U.S. 190; Dalton Adding Machine Co. v. Corporation Comm. of Va., 236 U.S. 701; Plymouth Coal Co. v. Commonwealth of Pennsylvania, 232 U.S. 545; Bradley v. Richmond, 227 U.S. 483. (e) Relator has a plain administrative remedy under Section 9618, as amended; and he is not entitled to mandamus unless and until he exhausts that remedy. State ex rel. v. Seibert, 130 Mo. 222; State ex rel. Onion v. Supreme Tent Pythian Sisters, 54 S.W.2d 470; State ex rel. Cammann v. Tower Grove Turnverein, 206 S.W. 243; State ex rel. v. Wenom, 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 Girardean County Court, 109 Mo. 248; State ex rel. v. Smith, 48 S.W.2d 891; State ex rel. v. Hudson, 226 Mo. 266; State ex rel. v. Bank of Conception, 174 Mo.App. 593; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 51, 58 S.Ct. 463; Highland Farms Dairy v. Agnew, 300 U.S. 617; Petroleum Exploration, Inc., v. Pub. Serv. Comm., 304 U.S. 222, 58 S.Ct. 841; Bourjois, Inc., v. Chapman, 301 U.S. 188; Natural Gas Co. v. Slattery, 302 U.S. 309; Goldsmith v. Board of Tax Appeals, 270 U.S. 123; Gundling v. Chicago, 177 U.S. 186; Smith v. Cahoon, 283 U.S. 561; Porter v. Investors' Syndicate, 286 U.S. 471; Lehon v. Atlanta, 242 U.S. 55; Leiberman v. Van De Carr, 199 U.S. 562.

Leedy, J. All concur, except Hays, J., absent.

OPINION

LEEDY

This is the second submission of this cause in this court. In our former opinion, it was held, among other things, that in view of the public policy of the State with reference to the separation of the races for the purpose of education, the opportunity offered appellant (a negro) for a law education in the university of an adjacent state was substantially equal to that offered white students by the University of Missouri, and, therefore, the refusal to admit him as a student in the School of Law of the latter institution, did not deny him equal protection of the laws, in violation of the Fourteenth Amendment to the Federal Constitution. And the judgment of the Boone Circuit Court, which quashed an alternative writ of mandamus and denied a peremptory writ to compel his admission therein was affirmed. [342 Mo. 121, 113 S.W.2d 783.] Thereafter relator sued out a writ of certiorari in the Supreme Court of the United States, where, on oral argument and submission, in an opinion by a divided court, our judgment was reversed, and the cause remanded for further proceedings not inconsistent with said opinion. [59 S.Ct. 232, 83 L.Ed. 208.]

It is conceded that all questions not decided by the Supreme Court of the United States are left open for decision, and, as thus narrowed, respondents urge only two propositions: (1) The effect of certain State legislation enacted since the rendition of said decision; and (2) a challenge of appellant's right, independently of the new law, to appeal to the discretion of this court to grant mandamus in the premises.

Proceeding, then, to a consideration of the first of these questions, it is appropriate to note that no controversy arises between the parties with respect to the fundamental position of appellant, which is tersely stated in his brief, as follows: "That while he cannot compel the State to offer him legal instruction at any particular school within the State, nevertheless the State cannot bar him solely on account of color from the only existing public law school in the State."

In holding we had erred in denying the Federal question set up by appellant, the opinion of the Supreme Court of the United States, by way of summary, says, "We are of the opinion that the ruling was error, and that petitioner was entitled to be admitted to the law school of the State University in the absence of other and proper provision for his legal training within the State." (Italics ours.) Since that decision, and before the cause was again submitted at the present term, the 60th General Assembly, by enacting House Bill No. 195, with an emergency clause (approved and signed by the Governor on May 4, 1939) amended the Lincoln University Act (Secs. 9616-9624, R. S. 1929, Secs. 9616-9624, Mo. Stat. Ann., pp. 7327-7329), by repealing former Sections 9618 and 9622, and enacting in lieu thereof two new sections, bearing the same numbers, and reading, respectively, as follows:

"Section 9618. The Board of Curators of the Lincoln University shall be authorized and required to reorganize said institution so that it shall afford to the negro people of the state opportunity for training up to the standard furnished at the State University of Missouri. To this end the board of curators shall be authorized to purchase necessary additional...