State ex rel. Hawkins v. Board of Control of Fla.

• Decision Date: 01 August 1950
• Citation: 47 So.2d 608
• Parties: STATE ex rel. HAWKINS v. BOARD OF CONTROL OF FLORIDA et al.
• Court: Florida Supreme Court

Page 608

47 So.2d 608

STATE ex rel. HAWKINS v. BOARD OF CONTROL OF FLORIDA et al.

Supreme Court of Florida, en Banc.

Aug. 1, 1950.

Alex Akerman, Jr., Orlando, for relator.

Richard W. Ervin, Attorney General, and Frank J. Heintz, Assistant Attorney General, for respondents.

SEBRING, Justice.

The relator, Virgil D. Hawkins, is a Negro citizen and resident of the State of Florida. He possesses all the scholastic, moral and other qualifications, except as to race and color, prescribed by the laws of Florida and the rules and regulations of the State Board of Control for admission to the first year class of the College of Law of the University of Florida.

In April 1949 Hawkins applied for admission to the University of Florida, for attendance at a summer session of the first-year law class to begin in the summer of 1949. His application was denied by the Board of Control, the governing body of the State University system, solely because of certain provisions of the Constitution and statutes of Florida prohibiting the admittance of any but white students to the University, including the Law College. Hawkins thereupon instituted this mandamus action against the members of the Board of Control, alleging the matters above set forth, averring that the College of Law of the University of Florida is the only tax-supported law school in the State of Florida, and charging that the refusal of the governing authorities to admit him to the College of Law solely because he was a Negro constituted an arbitrary and illegal denial of the equal protection of the law guaranteed him by the Fourteenth Amendment to the Federal Constitution.

In due course the members of the Board of Control filed their return to the alternative writ issued in the cause, setting up as an answer to the charges made by the relator that under the Constitution and laws of the State of Florida only members of the white race may be lawfully admitted as students to the University of Florida and hence that the Board had no choice other than to deny the application of the relator; that after relator's original application for admission to the 1949 Summer Term of the first year law class, which term had expired prior to the filing of the answer, no further application had been made by him for admission to any subsequent term or semester of the University and hence that the Board did not have before it when it filed its answer any application by the relator for instruction in any course in any institution, nor was the Board advised as to whether relator desired instruction in his requested courses at any future term of semester at any State institution of higher learning; that at the time of his application for admission to the University, the relator was informed that because there was no actually functioning state supported institution of higher learning in Florida open to members of the Negro race which offered the courses desired by the relator, the Board was prepared to provide for him such courses of study at a college or university agreeable to him in another state, fully equal and as valuable as any such course offered at any tax-supported school in the State of Florida.

For further answer to the writ the respondents alleged, that the Constitution and statutes of the State of Florida provide that white and Negro students shall not be taught in the same schools but that impartial provision shall be made for both and that in pursuance of these requirements the State of Florida has established certain institutions of higher learning in the State, among which are the University of Florida, at Gainesville, Florida, and the Florida State University, at Tallahassee, Florida, both maintained for white students, and the Florida Agricultural and Mechanical College for Negroes, at Tallahassee, Florida, maintained exclusively for Negroes; that these three state institutions have been in operation for many years and are under the management and control of the Board of Control, subject to the supervising power of the State Board of Education, who, through a long established and fixed policy of providing substantially equal educational opportunities to white and Negro races alike have from time to time added additional schools and courses of instruction at each of these institutions as the need for such additional schools and courses have been made to appear; that whatever rights the relator may have for instruction in his requested courses at a state operated institution of higher learning within the State, should it be determined by the court that he has such rights, would be at the Florida Agricultural and Mechanical College for Negroes and could not be lawfully given him at the University of Florida; that in pursuance of the longestablished policy of the State to make impartial provisions for instruction to members of the white and Negro races alike, where the need for such instruction is made to appear, the Board of Control had set up and established, on December 21, 1949--a date subsequent to the date of the institution of this suit but prior to the time that the Board of Control was required to make its answer--a school of law at the Florida Agricultural and Mechanical College for Negroes and had directed the governing head of said college to acquire the necessary personnel, facilities and equipment for such course of instruction at the school on the earliest possible date; that if, as authorized in the resolution establishing the school of law at the Florida Agricultural and Mechanical College for Negroes, 'the relator still declines to accept out-of-state scholarship or other provision which may be made for his instruction in the courses he has requested elsewhere than at a State institution established for white students exclusively, and it should be held that said arrangement is insufficient to satisfy the relator's lawful demands, the respondent, Board of Control, has made provision for relator's immediate admission and enrollment at the Florida Agricultural and Mechanical College for Negroes, in its law school, established at that institution, and is ready to there admit him, provided the relator shall make his application for instruction in said course within the time allowed for members of any other group to apply for admission to said course at any State institution of higher learning. And, in the event the necessary facilities, equipment and personnel for said course of study should not be immediately available at the Florida Agricultural and Mechanical College for Negroes in Tallahassee, upon his renewed timely application for instruction in said course of study, the Board of Control has made provision for his instruction in said course of study, as in said resolution provided, at the only other institution of higher learning in the State of Florida offering such course, until such time as adequate and comparable facilities and personnel for such course of study, substantially equal to those provided at any tax-supported institution of higher learning in the State, can be obtained and physically set up at the Florida Agricultural and Mechanical College for Negroes, in Tallahassee, Florida.'

Upon the coming in of the answer the relator moved for the issuance of a peremptory writ of mandamus, the return of the respondents notwithstanding, and the cause is now before this court for final disposition.

As to the effect to be given the motion for the issuance of the peremptory writ the return of the respondents notwithstanding, it is well to state at the outset that under our decided cases such a motion stands as the equivalent of a demurrer to a pleading in a law action. It operates as an admission by the relator of the truth of the facts well pleaded by the respondent but claims that in law the return presents no sufficient reason why the relief sought in the alternative writ should not be granted. Lamb v. Harrison, 91 Fla. 927, 108 So. 671; State v. Seaboard Air Line Ry. Co., 92 Fla. 1139, 111 So. 281, 735; State ex rel. Atlantic Peninsular Holding Co. v. Butler, 121 Fla. 417, 164 So. 128; State ex rel. American United Life Ins. Co. v. Howell, 152 Fla. 866, 13 So.2d 214; State ex rel. Enby v. Wood, 140 Fla. 185, 191 So. 769; State ex rel. Dixie Inn v. City of Miami, 156 Fla. 784, 24 So.2d 705, 163 A.L.R. 577; Permenter v. Younan, 159 Fla. 226, 31 So.2d 387. Such being its effect, the hearing on such a motion contemplates the entry of a final order without the submission of evidence, either quashing or dismissing the alternative writ or granting the peremptory writ to the extent that the prayer of the alternative writ is wellfounded; State v. Seaboard Air Line Ry. Co., 92 Fla. 61, 109 So. 656; Leonard Bros. Transfer & Storage Co. v. Carter, 127 Fla. 198, 172 So. 924; State ex rel. Raulerson v. Smith, 157 Fla. 838, 26 So.2d 898.

Applying the rule just stated to the issues made by the writ and answer, it will be observed that the allegations of the answer raise two questions for determination: (1) Does the plan whereby the Board of Control offers to provide a legal education for the relator at a law school over whch it has no jurisdiction and which is located outside the State of Florida, the relator being unwilling to accept the provisions of the plan, accord to the relator the equal protection of the law guaranteed him under the Fourteenth Amendment to the Federal Constitution? (2) If this proposed plan does not afford to the relator the equal protection of the laws, does the alternative plan for enrolling the relator in the school of law recently established at the Florida Agricultural and Mechanical College for Negroes and making temporary provision for his instruction in the College of Law of the University of Florida until such time as adequate and comparable facilities and personnel for such course of study can be obtained and physically set up at the Florida Agricultural and Mechanical College for Negroes, satisfy the constitutional...