State ex rel. Hawkins v. Board of Control

• Decision Date: 08 March 1957
• Citation: 93 So.2d 354
• Parties: The STATE of Florida ex rel. Virgil D. HAWKINS, Relator, v. BOARD OF CONTROL, a body corporate, et al., Respondents.
• Court: Florida Supreme Court

Page 354

93 So.2d 354

The STATE of Florida ex rel. Virgil D. HAWKINS, Relator, v. BOARD OF CONTROL, a body corporate, et al., Respondents.

Supreme Court of Florida, En Banc.

March 8, 1957.

Horace E. Hill, Daytona Beach, and Robert L. Carter, New York City, for relator.

Richard W. Ervin, Atty. Gen., Ralph E. Odum, Asst. Atty. Gen., and John J. Blair, Sp. Asst. Atty. Gen., for respondents.

ROBERTS, Justice.

This litigation is concerned with the rights of the relator, a Negro, to be admitted to the University of Florida Law School, provided he meets the entrance requirements applicable to all students. The history of the litigation is set forth in State ex rel. Hawkins v. Board of Control, Fla.1955, 83 So.2d 20, our latest decision in the controversy, referred to hereafter as the '1955 decision.'

Our 1955 decision was entered in response to the mandate of the United States Supreme Court in State ex rel. Hawkins v. Board of Control, May 1954, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112, directing this court to reconsider its decision in State ex rel. Hawkins v. Board of Control, Fla.1952, 60 So.2d 162 (the '1952 decision' hereafter), 'in the light of the Segregation Cases decided May 17, 1954, Brown v. Board of Education, etc. [347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 833] and conditions that now prevail.' Since this court has held in a long line of decisions that it is bound by the decisions of the United States Supreme Court 'construing the meaning and effect of acts of Congress and those provisions of the national Constitution which restrict the powers of the states,' Miami Home Milk Producers Ass'n v. Milk Control Board, 1936, 124 Fla. 797, 169 So. 541, 544, we held in our 1955 decision, under the authority of Brown v. Board of Education, etc., supra, 347 U.S. 483, 74 S.Ct. 686, that the relator could not be denied admission to the University of Florida Law School solely because of his race. In the exercise of our discretion, however, we decided to withhold the issuance of a peremptory writ of mandamus in the cause, pending a subsequent determination of law and fact as to the time when the relator should be admitted to that institution; and the Honorable John A. H. Murphree, Resident Circuit Judge of the circuit in which the University is located, was appointed as the commissioner of this court to take testimony on behalf of the relator and the respondents, members of the Board of Control, relating to the factual issue. Our decision in this respect was based on two considerations, one a federal and the other state ground: (1) the application to the controversy of the formula set out in the so-called 'implementation decision,' Brown v. Board of Education of Topeka, 349 U.S. 294, 295, 75 S.Ct. 753, 99 L.Ed. 1083; and (2) the exercise of our traditional power as a state court to decline to issue the extraordinary writ of mandamus if to do so would tend to work a serious public mischief. City of Safety Harbor v. State, 1939, 136 Fla. 636, 187 So. 173, State ex rel. Carson v. Bateman, 131 Fla. 625, 180 So. 22; State ex rel. Gibson v. City of Lakeland, 126 Fla. 342, 171 So. 227; State ex rel. Bottome v. City of St. Petersburg, 126 Fla. 233, 170 So. 730.

The relator then filed a petition for certiorari in the United States Supreme Court to review our 1955 decision on the ground that the decision in the Brown case, 347 U.S. 483, 74 S.Ct. 686, did not apply to 'State junior colleges, colleges, graduate and professional schools.' The court disposed of this petition by a short but not entirely unambiguous opinion, dated March 12, 1956, 350 U.S. 413, 76 S.Ct. 464, 100 L.Ed. 486, reading as follows:

Per Curiam.

'The petition for certiorari is denied.

'On May 24, 1954, we issued a mandate in this case to the Supreme Court of Florida. 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112. We directed that the case be reconsidered in light of our decision in the Segregation Cases decided May 17, 1954, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. In doing so, we did not imply that decrees involving graduate study present the problems of public elementary and secondary schools. We had theretofore, in three cases, ordered the admission of Negro applicants to graduate schools without discrimination because of color. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; cf. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. Thus, our second decision in the Brown case, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, which implemented the earlier one, had no application to a case involving a Negro applying for admission to a state law school. Accordingly, the mandate of May 24, 1954, is recalled and is vacated. In lieu thereof, the following order is entered:

'Per Curiam: The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded on the authority of the Segregation Cases decided May 17, 1954, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. As this case involves the admission of a Negro to a graduate professional school, there is no reason for delay. He is entitled to prompt admission under the rules and regulations applicable to other qualified candidates. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; Sipuel v. Board of Regents of the University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; cf. McLaurin v. Oklahoma State Regents for Higher Education, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149.'

The cause is now before this court on the relator's motion for a peremptory writ of mandamus to compel the respondents to admit him to the University of Florida Law School, his contention being that the above-quoted opinion entitles him to immediate admission, provided he is otherwise qualified, without regard to the outcome of the factual study which was in progress at the time of the filing of his motion and which has now been concluded.

There can be no doubt that, by revising its May 1954 mandate directed to our 1952 decision in the manner above noted, the Supreme Court of the United States neatly, albeit laconically, cut off the federal prop that supported, in part, our 1955 decision. But it will have been noted that the opinion stated that '[t]he petition for certiorari is denied', presumably referring to our 1955 decision; and, this being so, our 1955 decision still stands, nonetheless firmly, on the state ground mentioned therein and referred to above.

Indeed, it is unthinkable that the Supreme Court of the United States would attempt to convert into a writ of right that which has for centuries at common law and in this state been considered a discretionary writ; nor can we conceive that that court would hold that the highest court of a sovereign state does not have the right to control the effective date of its own discretionary process. Yet, this would be the effect of the court's order, under the interpretation contended for by the relator. We will not assume that the court intended such a result.

In what appears to be a progressive disappearance of State sovereignty, it is interesting to read certain decisions (among others) which the United States Supreme Court has handed down in recent months. See: Railway Employees Dept. v. Hanson, 1956, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed. 1112, holding that a union shop agreement negotiated between certain railroads and certain organizations of employees of such railroads which had been authorized by an act of the Congress superseded the right-to-work provisions of the Constitution of the State of Nebraska and the state statutes enacted pursuant thereto; Rea v. United States of America, 1956, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, holding that it was within the power of the federal courts to enjoin an officer of the executive department of the federal government from testifying in a state court in a case involving a violation of a criminal statute of that state; Commonwealth of Pennsylvania v. Nelson, 1956, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, outlawing antisedition laws in 42 states, Alaska and Hawaii; Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, requiring the states to finance appeals by penniless persons convicted of crimes; Slochower v. Board of Higher Education of the City of New York, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, limiting the power of states and cities to discharge public employees when they plead the Fifth Amendment against self-incrimination in duly authorized inquiries affecting the general welfare; Browder v. Gayle, D.C.M.D.Ala.1956, 142 F.Supp. 707, affirmed by the Supreme Court, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, holding invalid statutes and ordinances requiring the segregation of the white and colored races in motor buses operating in the City of Montgomery, Alabama.

It is a 'consummation devoutly to be wished' that the concept of 'states' rights' will not come to be of interest only to writers and students of history. Such concept is vital to the preservation of human liberties now. And whatever one's ideology may be--whether one is a strong defender of state sovereignty or an equally fervent advocate of centralized government--we think the great majority of persons would agree that if the death knell of this fundamental principle of Jeffersonian democracy is to be tolled, the bell should be rung by the people themselves as the Constitution contemplates. President Lincoln's words of warning are just as true today as they were almost a century ago, when he said in his first inaugural address on March 4, 1861:

'If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court * * * the people will have ceased to be their own rulers, having to that extent...