Sipuel v Board of Regents of UOK Brief of Defendants in Error

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In the Supreme Court of the 
State of Oklahoma

No. 32,756

A da Lois Sipuel ,
Plaintiff in Error,

VERSUS

Board of Regents of the U niversity of Oklahoma, 
George L. Cross, Maurice H. Merrill, 

George W adsack and Roy Gittinger,
Defendants in Error.

Appeal from the District Court of Cleveland County, Oklahoma 

Honorable Ben F. Williams, Judge

BRIEF OF DEFENDANTS IN ERROR

Mac Q. W illiamson,
Attorney General of Oklahoma, 
Fred Hansen ,
First Assistant Attorney General, 
Oklahoma City, Oklahoma,
Maurice H. Merrill,
John B. Cheadle,
Norman, Oklahoma,

January, 1947 Attorneys for Defendants in Error.

KING LAW BRIEF COMPANY, 418 NORTHWEST THIRD, OKLAHOMA CITY— PHONE 3-2969



I N D E X

Statement of the Case __________________________  1
Petition ___________________________  2
Alternative Writ of Mandamus___________________ 6
Answer ______________________________________  7
Agreed Statement of Facts_______________________ 13
Journal Entry ________________________________  16
Motion for New Trial and Order Overruling the

Same _____________________________________ 17
Petition in E rro r____________ ,________________  17
Argument ____________________________________ 17
Constitutional Provisions _______________________ 19

Authority:—
Board of Education of City of Guthrie v. Excise 

Board of Logan County et al., 86 Okla, 24,
206 Pac. 5 1 7 _____________________________  20

Section 1, Article 5, Constitution of Oklahoma—. 20 
Section 3, Article 5, Constitution of Oklahoma— 20

Statutory Provisions ___________________________  20
Authority:—
70 O.S. 1941, Section 455____________________  21

The Real Issue _______________________________  21
Propositions _________________________________  22

PROPOSITION 1
Mandamus will not lie to require defendants:

(a) To violate the public policy of the State as 
evidenced by the foregoing constitutional and 
statutory provisions, or

PAGE



(b) To in effect maintain and operate the School 
of Law of the University of Oklahoma in 
violation of 70 O.S. 1941, Section 455 (same 
being a criminal statute of this State that has 
never been held unconstitutional by an Ap­
pellate Court thereof and which carries the 
presumption of constitutionality), thereby 
subjecting themselves to criminal prosecution,

by directing defendants to admit plaintiff, a colored 
person, as a pupil in said school, same being at­
tended only by white persons. ________________ 23
Authority:—
State of Missouri ex rel. Gaines v. Canada (1939),

305 U.S. 337, 83 L. ed. 208 _______________ 23
70 O.S. 1941, Sections 1591, 1592 and 1593___  24

Right to Writ of Mandamus __________________  25
Authority:—
Payne, County Treasurer et al. v. Smith, Judge,

107 Okla. 165, 231 Pac. 469 ______________ 25
Stone v. Miracle, Dist. Judge, 196 Okla. 42,

162 Pac. (2d) 534 ______________________  25
State ex rel. Westbrook v. Oklahoma Public 

Welfare Comm, et al., 196 Okla. 586,
167 Pac. (2d) 71 ________________________ 26

12 O.S. 1941, Section 1451 _________________  25
Pertinent Oklahoma Cases_____________________  27

Authority:—
Huddleston v. Dwyer (C.C.A. 10),

145 Fed. (2d) 311 ______________________  29
State ex rel. v. Boyett, 183 Okla. 49

80 Pac. (2d) 201 __________________ _____  29
State ex rel. Decker v. Stanfield, 34 Okla. 524,

126 Pac. 239 ____________________________  27
Witt et al. v. Wentz et al., 142 Okla. 128,

286 Pac. 798 ________________________  28
Chapter 80, S. L. 1910-1911 ________________  27
Section 6, Article 2, Constitution of Oklahoma__ 27

II
PAGE



I l l
PAGE

Pertinent Cases from Other States_______________ 29
Authority: —
Comley v. Boyle (Conn.). 162 Atl. 26 _______  31
Mueller Furnace Co. v. Crockett (Utah),

227 Pac. 270 ___________________________ 30
Sharpless v. Buckles (Kan.), 70 Pac. 886 ______  29
State v. Police Jury of Vernon Parish (La.),

3 So. (2d) 186 __________________________ 32
State of Missouri ex rel. Gaines v. Canada (Mo.),

113 S.W. (2d) 783 _____________________ 33
State ex rel. Hunter v. Winterrowd (Ind),

92 N.E. 650 ____________________________  30
State ex rel. Michael v. Witham et al. (Tenn.),

165 S.W. (2d) 368 _____________________ 33
Whigham v. State (Ohio), 177 N.E. 229_____  31
34 Amer. Jur., Page 866, Section 76__________ 33
70 O.S. 1941, Section 455 ______________ 32,'33
70 O.S. 1941, Section 456 _______________  33
70 O.S. 1941, Section 457 _______________  33

Conclusion as to Proposition 1 _________________  34

PROPOSITION 2
Mandamus will not lie to require defendants to vio­

late the public policy and criminal statutes of Okla­
homa by directing defendants to admit plaintiff, 
a colored person, to the School of Law of the 
University of Oklahoma, same being attended only 
by white persons, especially since plaintiff has not 
applied to the State Regents for Higher Education 
for them, under authority of Article 13-A of the 
Constitution of Oklahoma, to prescribe a school 
of law as a part of the standards of higher educa­
tion of Langston University, and as one of the 
functions and courses of study thereof, said Uni­
versity being a State institution of higher education 
attended only by colored persons. _____________ 35



Authority:—
Article 21, Constitution of Oklahoma------------- 38
70 O.S. 1941, Section 1451 -------------------------- 36
70 O.S. 1941, Sections 1451 to 1509 (As amended

in 1945) _______________   35
Section 1 of Article 13-A, Constitution of Okla­

homa (Adopted March 11, 1941)----------------  35
Section 2 of Article 13-A, Constitution of Okla­

homa (Adopted March 11, 1941)----------------  36
Section 3 of Article 13-A, Constitution of Okla­

homa (Adopted March 11, 1941)---------------  36
Duty of State Regents for Higher Education---------  39

Authority:—
State ex rel. Bluford v. Canada (Mo.),

153 S.W.(2d) 12 ______________________  39
Section 1, Article 1, Constitution of Oklahoma— 39
Section 1, Article 15, Constitution of Oklahoma.... 40

Plaintiff Failed to Make Due Demand----------------  40
Authority:—
Bluford v. Canada (U.S. D.C. W.D. Mo.),

(1940), 32 Fed. Supp. 707 _______________ 44
State ex rel. Michael v. Witham et al. (Tenn.),

165 S.W. (2d) 378 ____________________ 44, 48
State of Missouri ex rel. Gaines v. Canada,

305 U.S. 337, 83 L. ed. 208 ______________ 41
State of Missouri ex rel. Gaines v. Canada (Mo.),

131 S.W. (2d) 2 1 7 ______________________  42
Necessity of Law School for Negroes___________  45

Authority:—
Bluford v. Canada, 32 Fed. Supp. 707------------- 47
Gong Lum v. Rice, 275 U.S. 78, 86, 72 L. ed. 172,

177 ____________________________________ 50
State ex rel. Bluford v. Canada (Mo.),

153 S.W. (2d) 12 _______________

IT
PAGE

46, 47



PAGE

State ex rel. Michael v. Witham (Tenn),
165 S.W.(2d) 378 ______________________  48

Knowledge of Pendency of This Suit____________  50
Authority:—
Bluford v. Canada, 32 Fed. Supp. 707 at 710___50, 51
State ex rel. Bluford v. Canada (Mo.),

153 S.W. (2d) 12 ______________________  50
State ex rel. Witham v. Michael (Tenn.),

165 S.W. (2d) 378 ______________________  50
Availability of Funds _________________________ 52

Authority:—
State ex rel. Michael v. Witham (Tenn),

165 S.W. (2d) 378 ______________________  53
Conclusion as to Proposition 2__________________  54



In the Supreme Court of the 
State of Oklahoma

No. 32,756

Ada Lois Sipuel ,
Plaintiff in Error,

VERSUS

Board of Regents of the U niversity of Oklahoma, 
George L. Cross, Maurice H. Merrill, 

George W adsack and Roy Gittinger,
Defendants in Error.

Appeal from the District Court of Cleveland County, Oklahoma 

Honorable Ben F. Williams, Judge

BRIEF OF DEFENDANTS IN ERROR

STATEM ENT OF THE CASE

For convenience and sake of clarity the parties to this 
appeal will be hereinafter referred to as they appeared in 
the trial court, that is, the plaintiff in error, Ada Lois

A

Sipuel, as plaintiff, and the defendants in error, Board of 
Regents of the University of Oklahoma et al., as de­
fendants.



o Sipuel v. Board of Regents et al.

The statement of the case which appears on Pages 
1 to 4 of plaintiff’s brief under the heading “Statement 
of Case” and “Statement of Facts” is substantially correct, 
but since the same does not set forth or abstract the plead­
ings and the material orders of the trial court, defendant, 
for the information of this Court will hereinafter quote 
or abstract said pleadings and orders in proper sequence.

Petition

The petition in this case was filed by plaintiff in the 
District Court of Cleveland County, Oklahoma, on the 
6th day of April, 1946. Said petition (C.-M. 4-11), 
omitting its caption, signatures and verification, is as fol­
lows:

“Now comes the plaintiff, Ada Lois Sipuel, and for 
her cause of action against the defendants and each 
of them alleges and states:

“ 1. That she is a resident and citizen of the United 
States and of the State of Oklahoma, County of 
Grady, and city of Chickasha. She desires to study 
law in the School of Law of the University of Okla­
homa, which is supported and maintained by the tax­
payers of the State of Oklahoma, for the purpose of 
preparing herself to practice law in the State of Okla­
homa and for public service therein and has been arbi­
trarily refused admission.

“2. That on January 14, 1946, plaintiff duly ap­
plied for admission to the first year class of the school 
of law of the University of Oklahoma. She then pos­
sessed and still possesses all the scholastic, moral and 
other lawful qualifications prescribed by the Con­
stitution and statutes of the State of Oklahoma, by 
the Board of Regents of the University of Oklahoma 
and by all duly authorized officers and agents of the 
said University and the school of law for admission



Brief of D efendants in Error 3

into the first year class of the school of law of the said 
University. She was then and still is ready and willing 
to pay all lawful uniform fees and charges and to 
conform to all lawful uniform rules and regulations 
established by lawful authority for admission to said 
class. Plaintiff’s application was arbitrarily and il­
legally rejected pursuant to a policy, custom or usage 
of denying to qualified Negro applicants the equal 
protection of the laws solely on the ground of her 
race and color.

“3. That the school of law of the University of 
Oklahoma is the only law school in the state main­
tained by the state and under its control and is the 
only law school in Oklahoma that plaintiff is quali­
fied to attend. Plaintiff desires that she be admitted 
in the first year class of the school of law of the Uni­
versity of Oklahoma at the next regular registration 
period for admission to such class or at the first regu­
lar registration period after this cause has been heard 
and determined and upon her paying the requisite 
uniform fees and conforming to the lawful uniform 
rules and regulations for admission to such classes.

“4. That the defendant Board of Regents of the 
University of Oklahoma is an administrative agency 
of the State and exercises overall authority with ref­
erence to the regulation of instruction and admission 
of students in the University, a corporation organized 
as a part of the educational system of the State and 
maintained by appropriations from the public funds 
of the State raised by taxation from the citizens and 
taxpayers of the State of Oklahoma. The defendant, 
George L. Cross, is the duly appointed, qualified and 
acting President of the said University and as such 
is subject to the authority of the Board of Regents 
as an immediate agent governing and controlling the 
several colleges and schools of the said University. 
The defendant, Maurice H. Merrill, is the Dean of the 
school of law of the said University whose duties 
comprise the government of the said law school in­
cluding the admission and acceptance of applicants 
eligible to enroll as students therein, including your



4

plaintiff. The defendant, Roy Gittinger, is the Dean 
of admissions of the said University and the defendant 
George Wadsack is the Registrar thereof, both possess­
ing authority to pass upon the eligibility of applicants 
who seek to enroll as students therein, including your 
plaintiff. All of the personal defendants come under 
the authority, supervision, control and act pursuant 
to the orders and policies established by the defendant 
Board of Regents of the University of Oklahoma. 
All defendants herein are being sued in their official 
capacity.

“5. That the school of law specializes in law and 
procedure which regulates the courts of justice and 
government in Oklahoma and there is no other law 
school maintained by the public funds of the state 
where plaintiff can study Oklahoma law and pro­
cedure to the same extent and on an equal level of 
scholarship and intensity as in the school of law of 
the University of Oklahoma. The arbitrary and il­
legal refusal of defendants Board of Regents, George L. 
Cross, Maurice H. Merrill, George Wadsack and Roy 
Gittinger, to admit plaintiff to the first year of the 
said law school solely on the ground of race and color 
inflicts upon your plaintiff an irreparable injury and 
will place her at a distinct disadvantage at the bar 
of Oklahoma and in the public service of the afore­
said state with persons who have had the benefit of 
the unique preparation in Oklahoma law and pro­
cedure offered to white qualified applicants in the law 
school of the University of Oklahoma.

“6. That the requirements for admission to the 
first year class of the school of law are as follows: 
applicants must be at least eighteen (18) years of 
age and must have graduated from an accredited high 
school and completed two full years of academic col­
lege work. In addition applicants must have main­
tained at least one grade point for each semester car­
ried in college or two grade points during the last 
college year of not less than thirty semester hours. 
Plaintiff is over eighteen (18) years of age, has com­
pleted the full college course at Langston University,

Sipuel v. Board of Regents et al.________



Brief of D efendants in Error 5

a college maintained and operated by the State of 
Oklahoma for the higher education of its Negro citi­
zens. Plaintiff maintained one grade point for each 
semester point carried and graduated from the above 
named college with honors. She is of good moral 
character and has in all particulars met the qualifica­
tions necessary for admittance to the school of law of 
the University of Oklahoma which fact defendants 
have admitted. She is ready, willing and able to pay 
all lawful charges and tuition requisite to admission 
to the first year of the school of law and she is other­
wise ready, willing and able to comply with all law­
ful rules and regulations requisite for admission there­
in.

“7. On January 14, 1946, plaintiff applied for 
admission to the school of law of the University of 
Oklahoma and complied with all the rules and regu­
lations entitling her to admission by filing with the 
proper officials of the University an official transcript 
of her scholastic record. Said transcript was duly 
examined and inspected by the President, Dean of the 
School of Law and Dean of Admissions and Registrar 
of the University; defendants aforementioned, and 
found to be an official transcript as aforesaid entitling 
her to admission to the school of law of the Univer­
sity. Plaintiff was denied admission to the school of 
law solely on the ground of race and color in violation 
of the Constitution and laws of the United States and 
of the State of Oklahoma.

“8. Defendants have established and are main­
taining a policy, custom and usage of denying to 
qualified Negro applicants the equal protection of the 
laws by refusing to admit them into the law school 
of the University of Oklahoma solely because of race 
and color and have continued the policy of refusing 
to admit qualified Negro applicants into the said school 
while at the same time admitting white applicants 
with less qualifications than Negro applicants solely 
on account of race and color.

“9. The defendants, George L. Cross, Maurice H. 
Merrill, George Wadsack and Roy Gittinger refuse



G Sipuel v. Board of Regents et al.

to act upon plaintiff’s application and although ad­
mitting that plaintiff possesses all the qualifications 
necessary for admission to the first year in the school 
of law, refused her admission on the ground that the 
defendant Board of Regents had established a policy 
that Negro qualified applicants were not eligible for 
admission in the law school of the University of Okla­
homa solely because of race and color. Plaintiff ap­
pealed directly to the Board of Regents for admission 
to the first year class of the law school of said Univer­
sity and such board has so far refused to act in the 
premises.

“ 10. Plaintiff further shows that she has no 
speedy, adequate remedy at law and that unless a Writ 
of Mandamus is issued she will be denied the right and 
privilege of pursuing the course of instruction in the 
school of law as hereinbefore set out.

“WHEREFORE, plaintiff being otherwise remediless, 
prays this Honorable Court to issue a Writ of Manda­
mus requiring and compelling said defendants to com­
ply with their statutory duty in the premises and 
admit the plaintiff in the school of law of the said 
University of Oklahoma and have such other and fur­
ther relief as may be just and proper.”

Alternative Writ of Mandamus
Thereafter, and on the 9th day of April, 1946, the 

District Court of Cleveland County issued its alternative 
writ of mandamus (C.-M. 11-18), but since the allega- 
gations of Paragraphs 1 to 10 thereof are identical with 
Paragraphs 1 to 10 of Plaintiff’s petition (heretofore 
quoted), and since the only difference between said peti­
tion and alternative writ is that at the conclusion of said 
writ the order of the trial court is set forth instead of the 
prayer of said petition, defendant, for sake of brevity, is 
quoting herein only said order of said writ (C.-M. 16-17), 
as follows:



Brief of D efendants in Error 7

“T herefore, the Court being fully advised in the 
premises finds that an Alternative Writ of Mandamus 
should be issued herein.

“It Is T herefore Ordered, Considered and 
ADJUDGED that all of the said defendants, Board of 
Regents of the University of Oklahoma, George L. 
Cross, Maurice H. Merrill, and George Wadsack, each 
and all of them, are hereby commanded that immedi­
ately after receipt of this writ, you admit into the 
School of Law of the said University of Oklahoma, 
the said plaintiff, Ada Lois Sipuel, or that you and 
each and all of you, the said defendants, appear be­
fore this court at 10:00 o’clock A.M., on the 26th 
day of April, 1946, to show cause for your refusal 
so to do and that you then and there return this writ 
together with all proceedings thereof.’’

Answer

Thereafter, and on the 14th day of May, 1946, de­
fendants filed their answer (C.-M. 24-32) to the petition 
of plaintiff and to said alternative writ of mandamus. 
Said answer, omitting its caption, signatures and verifi­
cation, is as follows:

“Comes now the above-named defendants, and each 
of them, and in answer to the petition of plaintiff 
and the alternative writ of mandamus issued herein, 
allege and state:

“ 1. That the material allegations of fact set forth 
in plaintiff’s petition and in said alternative writ of 
mandamus are not sufficient to constitute a cause of 
action in favor of plaintiff and against defendants, 
or either of them.

“2. That defendants, and each of them, deny 
the material allegations of fact set forth in Paragraphs 
1 to 10, inclusive, plaintiff’s petition and in said al­
ternative writ of mandamus (said paragraphs being 
identical in said petition and writ both as to number 
and phraseology), except such allegations as are here­
inafter alleged or admitted.



“3. Defendants admit the material allegations of 
fact set forth in Paragraph 1 of said petition and writ, 
except the allegation that plaintiff was ‘arbitrarily re­
fused admission to the School of Law of the Uni­
versity of Oklahoma.

“4. Defendants admit the material allegations of 
fact set forth in Paragraph 2 of said petition and writ, 
except the allegation that plaintiff possessed all ‘other 
lawful qualifications’ for admission to the first year 
class of the School of Law of the University of Okla­
homa, and the allegation that plaintiff's application 
for admission to said class was ‘arbitrarily and illegally 
rejected.’

“5. Defendants admit the material allegations of 
fact set forth in Paragraph 3 of said petition and writ, 
except the allegation which implies that plaintiff is 
‘qualified to attend’ the School of Law of the Uni­
versity of Oklahoma.

“6. Defendants admit the material allegations of 
fact set forth in Paragraph 4 of said petition and writ.

“ 7. Defendants admit the material allegations of 
fact set forth in Paragraph 5 of said petition and writ, 
except the allegation which implies that the refusal 
of defendants to admit plaintiff to the first year class of 
the School of Law of the University of Oklahoma was 
an ‘arbitrary and illegal refusal.’

“8. Defendants admit the material allegations of 
fact set forth in Paragraph 6 of said petition and writ, 
except the allegation that plaintiff has ‘in all particu­
lars met the qualifications necessary for admittance to 
the School of Law of the University of Oklahoma 
which fact defendants have admitted,’ and in this con­
nection allege that while plaintiff is ‘scholastically 
qualified for admission to the Law School of the Uni­
versity of Oklahoma’ (which fact has been admitted 
by defendant), she does not have the qualifications 
necessary for admittance at said school for the reason 
that under the constitutional and statutory provisions 
of this State, hereinafter cited and reviewed (Para­
graphs 14 to 21 hereof), only white persons are eli­
gible for admission to said school.

8 _______ Sipuel v. Board of Regents et al.________



Brief of D efendants in Error <)

“9. Defendants admit the material allegations of 
fact set forth in Paragraph 7 of said petition and 
writ, but deny the conclusion of law therein that the 
refusal of defendants to admit plaintiff to the School 
of Law of the University of Oklahoma on the ground 
of race and color was ‘in violation of the Constitution 
and laws of the United States and of the State of 
Oklahoma.’

“ 10. Defendants admit the material allegations of 
fact set forth in Paragraph 8 of said petition and writ, 
but deny the conclusion of law therein that the ‘policy, 
custom and usage’ of defendants in refusing to admit 
negro applicants, otherwise qualified, to the School 
of Law of the University of Oklahoma, while con­
tinuing to admit white applicants, otherwise qualified, 
is a denial to said negro applicants of ‘the equal pro­
tection of the laws.’

“ 11. Defendants admit the material allegations of 
fact set forth in Paragraph 9 of said petition and writ, 
except the allegation which implies that the defend­
ants, George L. Cross, Maurice H. Merrill, George 
Wadsack and Roy Gittinger, have admitted that plain­
tiff ‘possesses all the qualifications necessary for ad­
mission to the first year in the school of law’ of the 
University of Oklahoma, and the allegation which 
implies that plaintiff was denied admission by de­
fendants to said school solely ‘on the ground that the 
defendant, Board of Regents, had established a policy 
that negro qualified applicants were not eligible for 
admission in the law school of the University of 
Oklahoma solely because of race and color,’ and in 
this connection allege that plaintiff was denied admis­
sion by said defendants to said school not only by 
virtue of said policy, but by reason of the constitu­
tional and statutory provisions of the State of Okla­
homa, hereinafter cited and reviewed (Paragraphs 14 
to 21 hereof).

“ 12. Defendants deny the conclusions of law set 
forth in Paragraph 10 of said petition and writ.

“ 13. Defendants, and each of them, allege and 
admit that the plaintiff, Ada Lois Sipuel, a colored



10 Sipuel v. Board of Regents et al.

or negro citizen and resident of the United States of 
America and the State of Oklahoma, duly and timely 
applied on January 14, 1946, for admission to the 
first year class of the School of Law of the Univer­
sity of Oklahoma for the semester beginning Janu­
ary 15, 1946, and that she then possessed and still 
possesses all the scholastic and moral qualifications 
required for such admission by the constitution and 
statutes of this State and by the Board of Regents of the 
University of Oklahoma, but deny that she was then 
possessed and still possesses all ‘other qualifications’ 
required by said constitution, statutes and board, for 
the reason that under the public policy of this State 
announced in the constitutional and statutory pro­
visions hereinafter cited and reviewed (Paragraphs 
14 to 21 hereof), colored persons are not eligible for 
admission to a State school established for white per­
sons, such as the School of Law of the University of 
Oklahoma.

“ 14. That Section 3, Article 13 of the Constitu­
tion of Oklahoma provides, in part, that:

“ ‘Separate Schools for white and colored chil­
dren with like accommodation shall be provided 
by the Legislature and impartially maintained.’

“ 15. That 70 O. S. 1941 § 363 provides in part 
that:

“ ‘All teachers of the negro race shall attend 
separate institutions from those for teachers of 
the white race, *

“ 16. That 70 O. S. 1941 § 455 makes it a mis­
demeanor, punishable by a fine of not less than $100.- 
00 nor more than $500.00, for

“ '* * any person, corporation or association of 
persons to maintain or operate any college, school 
or institution of this State where persons of both 
white and colored races are received as pupils for 
instruction, * *’

and provides that each day same is so maintained or 
operated ‘shall be deeded a separate offense.’



Brief of D efendants in Error 11

“ 17. That 70 O. S. 1941 § 456 makes it a mis­
demeanor, punishable by a fine of not less than $10.00 
nor more than $50.00, for any instructor to teach

“ ‘* * in any school, college or institution where 
members of the white race and colored race are 
received and enrolled as pupils for instruction, * *’

and provides that each day such an instructor shall 
continue to so teach ‘shall be considered a separate 
offense.’

“ 18. That 70 O. S. 1941 § 457 makes it a mis­
demeanor, punishable by a fine of not less than $5.00 
nor more than $20.00, for

“ * any white person to attend any school,
college or institution, where colored persons are 
received as pupils for instruction, * *’

and provides that each day such a person so attends 
‘shall be deemed a distinct and separate offense.’

“ 19. That 70 O.S. 1941 § § 1591, 1592 and 
1593, in effect, provide that if a colored or negro resi­
dent of the State of Oklahoma who is morally and 
educationally qualified to take a course of instruction 
in a subject taught only in a State institution of higher 
learning established for white persons, the State will 
furnish him like educational facilities in comparable 
schools of other States wherein said subject is taught 
and in which said colored or negro resident is eligible 
to attend.

“20. That the material part of Senate Bill No. 
9 of the Twentieth Oklahoma Legislature (same be­
ing the general departmental appropriation bill for the 
fiscal years ending June 30, 1946 and June 30, 1947), 
which was enacted to finance the provisions of 70 
O.S. 1941 § § 1591, 1592 and 1593, supra, is as 
follows:



1 2 Sipuel v. Board of Regents et al.

‘STATE BOARD OF EDUCATION
Fiscal Year Fiscal Year 

ending ending
June 30, 1946 June 30, 1947 

‘For payment of Tui­
tion Fees and trans­
portation for certain 
persons attending in­
stitutions outside the 
State of Oklahoma as
provided by law. ___$15,000.00 $15,000.00.’

“21. That 70 O. S. 1941 § § 1451 to 1509, as 
amended in 1945, established a State institution of 
higher learning now known as ‘Langston University’ 
for ‘male and female colored persons’ only, which in­
stitution, however, does not have a school of law.

“22. That the constitutional and statutory pro­
visions of Oklahoma, heretofore cited and reviewed 
(Paragraphs 14 to 21 hereof), have been uniformly 
construed by defendants and their predecessors as pro­
hibiting the admission of persons of the colored or 
negro race to the School of Law of the University of 
Oklahoma, and pursuant to such interpretation it 
has been their administrative practice to admit only 
white persons, otherwise qualified, to said school.

“23. That petitioner has not applied, nor in her 
petition and/or alternative writ of mandamus alleged 
that she has applied, to the Board of Regents of Higher 
Education of this State for it, under authority of Ar­
ticle 13a of the Constitution of Oklahoma, to pre­
scribe a school of law similar to the school of law of 
the University of Oklahoma as a part of the standards 
of higher education of Langston University, and as 
one of the courses of study thereof, so that she will 
be able as a negro citizen of the United States and 
the State of Oklahoma to attend said school without 
violating the public policy of said State as evidenced 
by the constitutional and statutory provisions of Okla­
homa heretofore cited and reviewed (Paragraphs 14 
to 21 hereof).



Brief of D efendants in Error 13

“24. That by reason of the foregoing constitu­
tional and statutory provisions and administrative 
interpretation and practice, it cannot properly be said 
that ‘the law specifically enjoins’ upon defendants, 
or either thereof (within the meaning of 12 O. S. 
1941 § § 1451 to 1462, inclusive, relating to ‘Man­
damus’), the duty of admitting plaintiff to the School 
of Law of the University of Oklahoma.

“WHEREFORE, premises considered, defendants, and 
each of them, respectfully ask the court to decline to 
issue the writ of mandamus prayed for in this cause, 
that plaintiff take nothing by her petition, and that 
defendants recover their cost herein expended.’’

Agreed Statement of Facts

The case came on for hearing (C.-M. 34-37) before 
the Honorable Ben T. Williams, District Judge, on the 
9th day of July, 1946, at which time plaintiff introduced 
in evidence as “Plaintiff’s Exhibit 1” an “Agreed State­
ment of Facts” (C.-M. 38-42). Said statement, omitting 
its caption and signatures, is as follows:

“That the Plaintiff is a resident and citizen of the 
United States and of the State of Oklahoma, County 
of Grady and City of Chickasha, that she desires to 
study law in the School of Law in the University of 
Oklahoma for the purpose of preparing herself to 
practice law in the State of Oklahoma.

“2. That the School of Law of the University of 
Oklahoma is the only Law School in the State main­
tained by the State and under its control.

“3. That the Board of Regents of the University 
of Oklahoma is an administrative agency of the State 
and exercising overall authority with reference to the 
regulation of instruction and admission of students 
in the University: that the University is a part of the 
educational system of the State and is maintained by 
appropriations from the public funds of the State



u Sipuel v. Board of Regents et al.

raised by taxation from the citizens and taxpayers 
of the State of Oklahoma; that the School of Law 
of Oklahoma University specializes in law and pro­
cedure which regulates the Court of Justice and Gov­
ernment of Oklahoma; that there is no other law 
school maintained by the public funds of the State 
where the plaintiff can study Oklahoma law and pro­
cedure to the same extent and on an equal level of 
scholarship and intensity as in the School of Law of 
the University of Oklahoma; that the plaintiff will 
be placed at a distinct disadvantage at the bar of 
Oklahoma and in the public service of the aforesaid 
State with persons who have had the benefit of the 
unique preparation in Oklahoma law and procedure 
offered to white qualified applicants in the School of 
Law of the University of Oklahoma, unless she is 
permitted to attend the School of Law of the Uni­
versity of Oklahoma.

“4. That the plaintiff has completed the full col­
lege course at Langston University, a college main­
tained and operated by the State of Oklahoma for 
the higher education of its Negro citizens.

“5. That the plaintiff duly and timely applied 
for admission to the first year class of the School of 
Law of the University of Oklahoma on January 14, 
1946, for the semester beginning January 15, 1946 
and that she then possessed and still possesses all the 
scholastic and moral qualifications required for such 
admission.

“6. That on January 14, 1946, when plaintiff 
applied for admission to the said school of law, she 
complied with all of the rules and regulations en­
titling her to admission by filing with the proper 
officials of the University, an official transcript of her 
scholastic record; that said transcript was duly ex­
amined and inspected by the President, Dean of Ad­
missions and Registrar of the University and was 
found to be an official transcript, as aforesaid, en­
titling her to admission to the School of Law of the 
said University.



Brief of D efendants in Error 15

“7. That under the public policy of the State of 
Oklahoma, as evidenced by the constitutional and 
statutory provisions referred to in defendants' answer 
herein, plaintiff was denied admission to the School 
of Law of the University of Oklahoma solely because 
of her race and color.

“8. That the plaintiff at the time she applied for 
admission to the said law school of the University 
of Oklahoma was and is now ready and willing to 
pay all of the lawful charges, fees and tuitions re­
quired by the rules and regulations of the said Uni­
versity.

“9. That plaintiff has not applied to the Board 
of Regents of Higher Education of the State of Okla­
homa for it, under authority of Article 13-A of the 
Constitution of Oklahoma, to prescribe a School of 
Law similar to the School of Law of the University 
of Oklahoma as a part of the standards of higher 
education of Langston University, and as one of the 
courses of study thereof.”

Thereafter, and at said hearing, plaintiff introduced 
as “Plaintiff’s Exhibit 2” an additional stipulation (C.-M. 
43), same being as follows:

“It is hereby stipulated and agreed by and between 
counsel for plaintiff and defendants that the court 
may consider the following as an admitted fact:

“That after the filing of this cause the Board of 
Regents of Higher Education, having knowledge there­
of, met and considered the questions involved therein: 
that it had no unallocated funds in its hands or under 
its control at that time with which to open up and 
operate a law school and has since made no allocation 
for that purpose; that in order to open up and operate 
a law school for negroes in this State, it will be nec­
essary for the board to either withdraw existing allo­
cations, procure moneys, if the law permits, from 
the Governor’s contingent fund, or make an applica­
tion to the next Oklahoma Legislature for funds suffi­
cient to not only support the present institutions of



16 Sipuel v. Board of Regents et al.

higher education but to open up and operate said 
law school; and that the Board has never included 
in the budget which it submits to the Legislature an 
item covering the opening up and operation of a law 
school in the State for negroes and has never been re­
quested to do so.”

Journal Entry

Thereafter, and on the 6th day of August, 1946, 
the ‘‘Journal Entry” in said case (C.-M. 52-54), approved 
by counsel for both plaintiff and defendants, was duly 
filed in the trial court. Said Journal Entry, omitting its 
caption, signature and approvals, is as follows:

‘‘This cause coming on to be heard on this the 9th 
day of July, 1946, pursuant to regular assignment for 
trial, the said plaintiff being present by her attorney, 
Amos T. Hall, and the said defendants by their attor­
neys, Fred Hansen, First Assistant Attorney General, 
and Maurice H. Merrill; and both parties announcing 
ready for trial and a jury being waived in open court, 
the court proceeded to hear the evidence in said case 
and the argument of counsel, said evidence being pre­
sented in the form of a signed ‘Agreed Statement of 
Facts’ and a supplemental agreed statement of facts.

‘‘And the court, being fully advised, on considera­
tion finds that the allegations of plaintiff’s petition 
are not supported by the evidence and the law, and 
the judgment is, therefore, rendered for the defendants, 
and it is adjudged that the defendants go hence with­
out day and that they recover their costs from the 
plaintiff; to which findings and judgment plaintiff 
then and there excepted, and thereupon gave notice 
in open court of her intention to appeal to the Supreme 
Court of the State of Oklahoma, and asked that such 
intentions be noted upon the minutes, dockets and 
journals of the Court and it is so ordered and done, 
and plaintiff praying an appeal is granted an exten­
sion of 15 days in addition to the time allowed by 
Statute to make and serve case-made, defendants to



Brief of D efendants in Error 17

have 3 days thereafter to suggest amendments there­
to, same to be settled and signed upon 3 days notice 
in writing by either party.”
Motion for New Trial and Order Overruling the Same

Thereafter, and on the 11th day of July, 1946, a 
motion for a new trial (C.-M. 46-47) was duly filed by 
plaintiff, which motion was on the 24th day of July, 
1946 overruled by order of the trial court (C.-M. 47- 
48), at which time plaintiff gave notice in open court of 
her intention to appeal to this Court.

Petition in Error
The appeal in this case was duly lodged in this Court 

on the 17th day of August, 1946, the petition in error 
alleging:

“ 1. Error of the court in denying the petition of 
the plaintiff for a writ of mandamus.

“2. Errors of law occurring at the trial which 
were accepted to by the plaintiff.”

ARGUMENT

There is but one real issue involved in this case and 
that is whether or not the trial court erred in declining to 
issue a writ of mandamus, as prayed for by plaintiff, to 
require the defendants, Board of Regents of the Univer­
sity of Oklahoma, George L. Cross, Maurice H. Merrill, 
George Wadsack and Roy Gittinger, to admit the plain­
tiff, Ada Lois Sipuel, to the School of Law of the Uni­
versity of Oklahoma.

In this connection it will be noted that plaintiff, as 
a basis for this action in mandamus, alleged in her peti­



1 8 Sipuel v. Board of Regents et al.

tion that although she was duly qualified to attend the
School of Law of the University of Oklahoma when she
on January 14, 1946, “duly applied for admission to
the first year class’’ of said school, she was by defendants

“* * arbitrarily refused admission” (Para. 1 of pltf’s, 
pet.),

and
“* * arbitrarily and illegally rejected” (Para. 2 of 
pltf’s. pet.),

solely because of her race and color, and that said refusal 
or rejection was

“* * arbitrary and illegal” (Para. 5 of pltf’s. pet.).

It will also be noted that while said charge of ar­
bitrary and illegal action on the part of defendants was 
specifically denied thereby (Paragraphs 3, 4 and 7 of de­
fendants’ answer), they admitted in Paragraph 13 of said 
answer that plaintiff

“* * duly and timely applied on January 14, 1946 
for admission to the first year class of the School of 
Law of the University of Oklahoma for the semester 
beginning January 15, 1946, and that she then pos­
sessed and still possesses all the scholastic and moral 
qualifications required for such admission by the con­
stitution and statutes of this State and by the Board 
of Regents of the University of Oklahoma, * *”

but denied in said paragraph that plaintiff was legally 
qualified to attend said school

“* * for the reason that under the public policy of 
this State announced in the constitutional and statu­
tory provisions hereinafter cited and reviewed (Para­
graphs 14 to 21 of said answer), colored persons are 
not eligible for admission to a State school established 
for white persons, such as the School of Law of the 
University of Oklahoma.”



Brief of D efendants in Error 19

It will be further noted that the reason given by de­
fendants, as aforesaid, for rejecting plaintiff’s said appli­
cation of January 14, 1946, is in harmony with the seventh 
numbered paragraph of the “Agreed Statement of Facts” 
herein (Page 15 of this brief), same being as follows:

“That under the public policy of the State of Okla­
homa, as evidenced by the constitutional and statutory 
provisions referred to in defendants’ answer herein, 
plaintiff was denied admission to the School of Law 
of the University of Oklahoma solely because of her 
race and color.”

It is, therefore, clear that if this Court finds that when 
plaintiff applied on January 14, 1946, for admission to 
the first year class of the School of Law of the University 
of Oklahoma for the semester beginning January 15, 1946, 
her application was arbitrarily and illegally refused or re­
jected by defendants, the writ of mandamus prayed for by 
plaintiff should be issued.

It is likewise clear that if by reason of the constitu­
tional and statutory public policy of Oklahoma as to seg­
regation of the white and negro races in educational in­
stitutions of the state, defendants did not act arbitrarily 
and illegally in refusing or rejecting said application, the 
writ of mandamus prayed for by plaintiff should not be 
issued.

Constitutional Provisions
The constitutional provisions referred to in said sev­

enth numbered paragraph of the “Agreed Statement of 
Facts” herein (Page 15 of this brief), are set forth as Sec­
tions 1 and 3, Article 5 of the Constitution of this State, 
as follows:



20

“ 1. The Legislature shall establish and maintain 
a system of free public schools wherein all the chil­
dren of the State may be educated.

“3. Separate schools for white and colored chil- 
ren with like accommodation shall be provided by the 
Legislature and impartially maintained. The term 
'colored children,’ as used in this section, shall be con­
strued to mean children of African descent. The term 
‘white children’ shall include all other children.”

Said sections were treated as valid by this Court in 
Board of Education of City of Guthrie V. Excise Board 
of Logan County et al., 86 Okla. 24, 206 Pac. 517, the 
first paragraph of the syllabus of said case being as follows:

‘‘Under Sections 1 and 3 of Article 13 of the Con­
stitution of Oklahoma, it is the duty of the Legis­
lature to provide for the maintenance of a system of 
free public schools wherein all of the children of the 
state may be educated, and to provide for separate 
schools for white and colored children with like 
accommodations, and impartially maintain such 
schools.”
While the above constitutional provisions may not 

be directly applicable to state institutions of higher learn­
ing, such as the University of Oklahoma, they at least 
reveal a public policy which is in harmony with the statu­
tory provisions hereinafter cited which are directly appli­
cable to state institutions of higher learning, including 
the University of Oklahoma.

Statutory Provisions

The statutory provisions referred to in the seventh 
numbered paragraph, supra, of the ‘‘Agreed Statement of 
Facts” herein (Page 15 of this brief), are set forth as Para­
graphs 15 to 21 of defendants’ answer (Pages 10-12 of

Sipuel v. Board of Regents et al.



Brief of D efendants in Error 21

this brief). Said statutory provisions, for sake of brevity, 
are not quoted here, but the Court’s attention is respect­
fully invited thereto.

However, as the statutory provisions chiefly relied 
upon by defendants are set forth in Paragraph 16, supra, 
said paragraph is quoted herein, as follows:

“70 O. S. 1941 § 455 makes it a misdemeanor pun­
ishable by a fine of not less than $100.00 nor more 
than $500.00, for

* any person, corporation or association of 
persons to maintain or operate any college, school 
or institution of this State where persons of both 
white and colored races are received as pupils for 
instruction,’

and provides that each day same is so maintained or 
operated ‘shall be deemed a separate offense.’ ”

The Real Issue

The real and only issue involved in this case is set 
forth in the first paragraph (Page 17 of this brief) of our 
“Argument” herein, same being as follows:

“There is but one real issue involved in this case and 
that is whether or not the trial court erred in declining 
to issue a writ of mandamus, as prayed for by plain­
tiff, to require the defendants, Board of Regents of 
the University of Oklahoma, George L. Cross, Maurice 
H. Merrill, George Wadsack and Roy Gittinger, to 
admit the plaintiff, Ada Lois Sipuel, to the School 
of Law of the University of Oklahoma.”

In discussing the above issue defendants deem it ad­
visable to present their argument under two propositions, 
same being as follows:



22 Sipuel v. Board of Regents et al.

1.
Mandamus will not lie to require defendants:
(a) to violate the public policy of the State as evi­

denced by the foregoing constitutional and statu­
tory provisions, or

(b) to in effect maintain and operate the School of 
Law of the University of Oklahoma in violation 
of 70 O. S. 1941 § 455 (same being a criminal 
statute of this State that has never been held 
unconstitutional by an appellate court thereof 
and which carries the presumption of constitu­
tionality), thereby subjecting themselves to crim­
inal prosecution,

by directing defendants to admit plaintiff, a colored 
person, as a pupil in said school, same being attended 
only by white persons.

2.

Mandamus will not lie to require defendants to 
violate the public policy and criminal statutes of Okla­
homa by directing defendants to admit plaintiff, a 
colored person, to the School of Law of the University 
of Oklahoma, same being attended only by white per­
sons, especially since plaintiff has not applied to the 
State Board of Regents for Higher Education, under 
authority of Article 13-A of the Constitution of 
Oklahoma, to prescribe a school of law as a part of 
the standards of higher education of Langston Uni­
versity, and as one of the functions and courses of 
study thereof, said university being a State institution 
of higher education attended only by colored persons.



Brief of D efendants in Error 23

PROPOSITION 1
Mandamus will not lie to require defendants:

(a) To violate the public policy of the State as evidenced 
by the foregoing constitutional and statutory provisions,
or

(b) To in effect maintain and operate the School of Law 
of the University of Oklahoma in violation of 70 O. S. 
1941, § 455 (same being a criminal statute of this 
State that has never been held unconstitutional by an 
Appellate Court thereof and which carries the presump­
tion of constitutionality), thereby subjecting themselves 
to criminal prosecution,

by directing defendants to admit plaintiff, a colored person, 
as a pupil in said school, same being attended only by white 
persons.

Before discussing the above proposition defendants 
desire to call attention to Pages 4 to 19 of plaintiff’s brief, 
where, under the heading

“The refusal to admit plaintiff in error to the School 
of Law of the University of Oklahoma constitutes a 
denial of rights secured under the Fourteenth Amend­
ment,”

argument is set forth in Subheads A to E to the effect 
that the Fourteenth Amendment of the Constitution of the 
United States is violated by State constitutional and statu­
tory provisions unless the same permits colored persons to 
attend schools attended by white persons, and that this 
is true even though separate schools for the colored are 
equal in every respect to those for the white.

Defendants deem it unnecessary to answer said argu­
ment other than to call attention to the decision of the 
Supreme Court of the United States in the case of State 
of Missouri ex rel. Gaines V. Canada (decided January 3, 
1939), 305 U.S. 337, 83 L.ed. 208, which is the case



24: Sipuel v. Board of Regents et al.

chiefly relied upon by plaintiff here. In this connection
we quote the following language therefrom:

“* * the state court has fully recognized the obligation 
of the State to provide negroes with advantages for 
higher education substantially equal to the advantages 
afforded to white students. The State has sought to 
fulfill that obligation by furnishing equal facilities in 
separate schools, a method the validity of which has 
been sustained by our decisions. Plessy v. Ferguson, 
163 U.S. 537, 544, 41 L. ed. 256, 258, 16 S. Ct. 
1138; McCabe V. Atchison, T . & S. F. R. Co., 235 
U.S. 151, 160, 59 L. ed. 169, 173, 35 S. Ct 69; 
Gong Lum  v. Rice, 275 U.S. 78, 86, 72 L. ed. 172, 
176, 177, 48 S. Ct. 91.”

However, under Subhead E of said heading, plain­
tiff properly argues that under the decision of the United 
States Supreme Court in the Gaines case, supra, it is the 
duty of a State having laws providing for segregation of 
the colored and white races in its schools to provide sub­
stantially equal educational facilities for both colored and 
white students, and that such facilities are not furnished 
under State laws, such as are set forth in 70 O. S. 1941 
§ § 1591, 1592 and 1593, which, as stated in Paragraph 9 
of defendants’ answer brief herein (Page 9 of this brief),

“* * in effect, provide that if a colored or negro resi­
dent of the State of Oklahoma who is morally and 
educationally qualified to take a course of instruction 
in a subject taught only in a State institution of higher 
learning established for white persons, the State will 
furnish him like educational facilities in comparable 
schools of other States wherein said subject is taught 
and in which said colored or negro resident is eligible 
to attend.”



Brief of D efendants in Error 25

Right to Writ of Mandamus

In relation to the right of issuance of a writ of 
mandamus in this State, attention is called to 12 O. S. 
1941, § 1451, same being as follows:

“The writ of mandamus may be issued by the Su­
preme Court or the district court, or any justice or 
judge thereof, during term, or at chambers, to any in­
ferior tribunal, corporation, board or person, to com­
pel the performance of any act which the law specially 
enjoins as a duty, resulting from an office, trust or 
station; but though it may require an inferior tribunal 
to exercise its judgment or proceed to the discharge 
of any of its functions, it cannot control judicial dis­
cretion.”

This Court, in construing the right to the issuance 
of a writ of mandamus under the above section, held in 
the second paragraph of the syllabus of Payne, County 
Treasurer et al. V. Smith, Judge, 107 Okla. 165, 231 
Pac. 469, as follows:

“To sustain a petition for mandamus petitioner 
must show a legal right to have the act done sought 
by the writ, and also that it is plain legal duty of the 
defendant to perform the act.”

In the case of Stone V. Miracle, Dist. Judge, 196 
Okla. 42, 162 Pac. (2d) 534, the syllabus is as follows:

“Mandamus is a writ awarded to correct an abuse 
of power or an unlawful exercise thereof by an in­
ferior court, officer, tribunal or board by which a liti­
gant is denied a clear legal right, especially where the 
remedy by appeal is inadequate or would result in 
inexcusable delay in the enforcement of a clear legal 
right.”



2G Sipuel v. Board of Regents et al.

In the recent case of State ex rel. Westbrook V. Okla­
homa Public Welfare Comm, et al, 196 Okla. 586, 167 
Pac. (2d) 71, this Court held in the second paragraph of 
the syllabus, as follows:

“Where the state has created a board and vested in 
it power to make final decisions on issues of fact and 
does not provide for an appeal to a court for a ju­
dicial review of the correctness of the finding, the dis­
cretion of that board, based upon the evidence taken 
by it, will not, in the absence of arbitrary or capricious 
action, be controlled by the courts of Oklahoma by 
writs of mandamus

The principles of law announced in the above cases 
are in harmony with the general rule which appears in 
34 Am. Jur., Page 867, § 78, as follows:

“The office of mandamus is to compel the perform­
ance of a specific and positive duty imposed by law, 
and the writ will not be granted unless it appears that 
there has been a plain breach or dereliction of duty 
on the part of the respondent.’’

In the case at bar plaintiff evidently recognizes the 
principles of law announced in the above decisions and 
general rule, since in the second numbered paragraph of 
her petition (Page 2 of this brief) she alleges that her 
application

“was arbitrarily and illegally rejected” 
by defendants.

Said allegation was denied by defendants in the fourth 
numbered paragraph of their answer (Page 8 of this brief), 
wherein it is stated:

“Defendants admit the material allegations of fact 
set forth in Paragraph 2 of said petition * * except 
* * the allegation that plaintiff’s application for ad-



27

mission to said class was ‘arbitrarily and illegally re­
jected.’ ”

The essential question, therefore, involved in this 
case is whether or not defendants on January 14, 1946. 
“arbitrarily and illegally rejected’’ the application of plain­
tiff for admission to the School of Law of the University 
of Oklahoma.

________Brief of D efendants in Error

Pertinent' Oklahoma Cases

Proposition 1 of this brief is supported by the case 
of State ex rel. Decker V. Stanfield, 34 Okla. 524, 126 
Pac. 239, wherein this Court held that while under the 
provisions of Section 6, Article 2 of our State Constitution 
a person accused of crime has the right “to a speedy trial” 
etc., such fact did not mean that he could enforce said con­
stitutional right if the enforcement thereof would require 
expenses to be incurred in violation of “Chapter 80, Sess. 
Laws 1910-11.” In this connection attention is called to 
the second paragraph of the syllabus of said case, same 
being as follows:

“When the court expense fund has been exhausted, 
mandamus will not issue to compel the district judge 
to impanel a jury or incur expenses payable out of 
that fund, as Chapter 80, Sess. Laws 1910-11, pro­
hibits any officer from incurring, authorizing, or ap­
proving a charge against an exhausted fund.”

In the body of the opinion, at Page 528, it is stated:
“It is argued, however, that Section 6 of Article Z 

of the Constitution, which provides that ‘the courts 
of justice of the state shall be open to every person, 
and speedy and certain remedy afforded for every 
wrong and for every injury to person, property, or 
reputation, and right and justice shall be administered



28 Sipuel v. Board of Regents et al.

without sale, denial, delay, or prejudice, ‘requires that 
this provision of the state (Chapter 80, Sess. Laws 
1910-11) be submerged in the necessity of granting 
to persons accused of crime the right to a speedy trial. 
We do not think so. We think this section of the 
Constitution must be enforced, but that it must be en­
forced in accordance with the law. We do not think 
it means that, regardless of the statute, regardless of 
the fiscal arrangements of the state, and regardless of 
the interests of the taxpayers, courts shall proceed in 
violation of the law. The courts, being charged with 
the duty of administering the law, should be most 
astute not to violate it.”

In the case of W itt et at. V. Wentz et al., 142 Okla.
128, 286 Pac. 798, this Court held that mandamus will
not issue to require an executive officer to perform a duty
(such as is involved here) which requires him to exercise

“* * his judgment and discretion in the construction 
of the law or in determining the existence and effect 
of the facts.”

In this connection we quote the pertinent part of 
the first paragraph of the syllabus of said case, as follows:

‘‘A writ of mandamus * * may not lawfully issue 
to command or control the executive officer in the 
discharge of those of his duties which involve the exer­
cise of his judgment and discretion in the construction 
of the law or in determining the existence and effect 
of the facts.”

It should be here noted that for defendants to have 
approved plaintiff's instant application would have in ef­
fect required them to construe the foregoing constitutional 
and statutory provisions of this State as being violative 
of the Fourteenth Amendment of the Constitution of the 
United States.



Brief of D efendants in Error 29

In the recent case of State ex rel. V. Boyett, 183 Okla. 
49, 80 Pac. (2d) 201, the sixth paragraph of the syllabus 
is as follows:

“In awarding or denying writs of mandamus, 
courts exercise judicial discretion and are governed by 
what seems necessary and proper to be done, in the 
particular instance, for the attainment of justice, and 
in the exercise of such discretion may, in view of the 
serious public consequences attendant upon the issu­
ance of the writ, refuse the same in a proper case, 
though the petitioner would otherwise have a clear 
legal right for which mandamus is an appropriate rem­
edy.”

In the case of Huddleston V. Dwyer, 145 Fed. (2d) 
311, the Tenth Circuit Court of Appeals, in a case appealed 
from the United States District Court for the Eastern Dis­
trict of Oklahoma, held in the eleventh paragraph of the 
syllabus, as follows:

“Mandamus cannot be used as a means to compel 
county or municipal officers to do that which they 
are not authorized to do by the laws of the State.”

r  p  ♦  ( * 4 - ‘

Pertinent Cases from Other States:
In the case of Sharpless V. Buckles (Kan.), 70 Pac. 

886 (referred to on Pages 19 and 20 of plaintiff’s brief), 
the second paragraph of the syllabus is as follows:

“The duty of a county canvassing board is minis­
terial only. If the election returns made to the county 
clerk are genuine and regular, the board has no other 
duty to perform than to make the footings and de­
clare the result. Mandamus will not lie to require a 
county canvassing board to recanvass returns and ex­
clude from the county certain votes because cast and 
returned under a law that is claimed to be unconstitu­
tional. since the determination of such question is not 
a duty imposed upon the board, nor within its power.”



30 Sipuel v. Board of Regents et al.

In the case of State ex rel. Hunter V. Winterrowd 
(Ind.). 92 N.E. 650 (referred to on Pages 19 and 21 of 
plaintiff’s brief), the second paragraph of the syllabus is 
as follows:

“The writ of mandamus, under Indiana Statutes, 
only issues to compel the performance of an act which 
the law enjoins, or of a duty resulting from an office, 
trust, or station, in which cases it will issue as a mat­
ter of right, in absence of other adequate remedy, if 
petitioner shows a clear legal right to the thing de­
manded and a duty by respondent to do such thing: 
the function of the writ not being to compel disobedi­
ence to a law or statute, or litigate its validity.”

In the body of the opinion of said case appears the 
following language:

“In the citation of authorities, counsel fail to dis­
tinguish between cases in which the respondent asserts 
the unconstitutionality of a statute in excuse of non­
performance of its requirements, and those in which 
the relator seeks to compel performance of an act which 
the law prohibits. This court has permitted respon­
dents in mandamus proceedings to raise constitutional 
questions, although it does not well accord with pub­
lic policy to allow ministerial officers to obstruct the 
administration of law, by refusing to execute such 
statutes as they may deem invalid, and many courts 
decline to tolerate such practice. It is quite a different 
thing to hold that such an officer must at his peril 
disobey the specific commands of a law duly enacted 
and promulgated, at the behest of any one who may 
be of the opinion .that such law is unconstitutional. 
The proper function of mandamus is to enforce obedi­
ence of law, and not disobedience, or even to litigate 
its validity.”

In the case of Mueller Furnace Co. V. Crockett 
(Utah), 227 Pac. 270, the fourth paragraph of the sylla­
bus is as follows:



Brief of D efendants in Error 31

“Application for writ commanding secretary of state 
to accept and file copy of articles of incorporation, 
by-laws, and amendments, and acceptance of pro­
visions of Constitution as provided in Comp. Laws 
1917, § 945, as amended by Sess. Laws 1923, c. 66, 
without payment of fees required by Section 2511, 
on ground that latter section is unconstitutional, must 
be denied, because it does not appear to be plain duty 
of defendant to file papers, in view of Sections 7391, 
7392.” .

In the body of the opinion of the above case many 
decisions are cited in support of the rule that a person 
seeking a writ of mandamus cannot prevail, if to do so 
would require the Court to hold a statute, relied upon by 
the officer sought to be mandamused, to be unconstitu­
tional.

In the case of Whigham V. State (Ohio), 177 N.E. 
229, the first and second paragraphs of the syllabus are as 
follows:

“ 1. Marshal, seeking mandamus compelling vil­
lage officials to pay $3,000 salary under former ordi­
nance, could not raise constitutionality of later ordi­
nance fixing salary at $10 yearly (Gen. Code, § 
12283).

“2. Respecting propriety of mandamus, attacking 
constitutionality of ordinance, city officials cannot be 
expected to determine validity of ordinances, their 
duty being to comply therewith until ordinances are 
invalidated.”

In the case of Comley V. Boyle (Conn.), 162 Atl. 26, 
the tenth paragraph of the syllabus is as follows:

‘‘On application for mandamus to obtain building 
permit, court properly refused to consider constitution­
ality of ordinance (17 Sp. Acts 1915, P. 564, § 132 
et seq.; P. 565, § 140).



32 Sipuel v. Board of Regents et al.

“Court in such case properly refused to consider 
constitutionality of the ordinance, whether such con­
clusion be based upon the trial court’s valid exercise 
of its discretion in refusing the building permit or 
upon the broader ground that it was not the province 
of that court to pass upon the question.”

In the case of State V. Police Jury of Vernon Parish 
(La.), 3 So. (2d) 186, the third paragraph of the syllabus 
is as follows:

“Where statute undertook to divide a parish ward 
and an election was held in the new ward at which 
it was determined that no licenses for the sale of in­
toxicating liquors, wines, and beer should be issued, 
mandamus will not tie to compel police jury to issue 
license at suit of former licensee on theory that both 
statute and election were void.”

While we realize there are certain cases holding that 
a person seeking a writ of mandamus can properly challenge 
the constitutionality of a state statute relied upon by the 
defendant officer, we have been unable to find a single case 
applying said rule to a criminal statute of the state that 
had never been held unconstitutional by an appellate court 
thereof and which hence carried the presumption of con­
stitutionality by mandamusing said officer to do an act 
which would require him to either directly or indirectly 
violate said criminal statute and subject himself to prose­
cution by reason thereof.

In this connection it will be noted that in the case 
of Missouri ex rel. Gaines V. Canada, supra, the Supreme 
Court of the United States did not consider a criminal 
statute such as is set forth in 70 O.S. 1941, § 455. In 
fact, no criminal statute of Missouri was even mentioned



Brief of D efendants in Error 33

in said case, and the only such statute referred to by the 
Missouri court in its decision [113 S.W. (2d) 783] which 
was reversed by the United States Supreme Court in the 
Gaines case, supra, is quoted in the Missouri decision, as 
follows:

“Section 9216, R. S. 1929 (Mo. St.Ann. § 9216, 
P. 7087) provides: ‘Separate free schools shall be es­
tablished for the education of children of African de­
scent; and it shall hereinafter be unlawful for any 
colored child to attend any white school, or for any 
white child to attend a colored school.’ ”

The above Missouri statute is similar to 70 O. S.
1941, § 457 (abstracted on Page 11 of this brief), but
apparently Missouri does not have a criminal statute such
as is set forth in 70 O. S. 1941, § 455, supra, or in 70
O.S. 1941, § 456 (abstracted on Page 11 of this brief).

In the case of State ex rel. Michael V. Witham et al.
(Tenn. 1942), 165 S.W. (2d) 368, the State’s demurrer
was in part predicated upon the ground

“that the relators were seeking by mandamus to com­
pel defendants to violate the criminal statutes of Ten­
nessee, viz., Code, Sections 11395-11397, which make 
it a misdemeanor for any school, college, or other place 
of learning, or any teacher or professor thereof, to 
permit white persons and colored persons to attend 
the same school or classes.”

The above Tennessee statutes, unlike said Missouri 
statute, are similar to 70 O.S. 1941, § § 455 and 456, 
but the Tennessee case was decided on other issues in favor 
of the State, and hence said statutes were not further re­
ferred to therein. Said ground of said demurrer, however, 
is supported by the general rule set forth in 34 Am. Jur., 
Page 866, Section 76, as follows:



34 Sipuel v. Board of Regents et al.

“Much less will the writ be awarded to coerce the 
performance of acts which are forbidden by statute 
or law, or are contrary to public policy, or tend to aid 
in an unlawful purpose or transaction.’’

Conclusion As To Proposition 1

Inasmuch as under the principles of law announced
in cases heretofore cited, and since we have been unable to
find a single case, as aforesaid, applying the rule (laid
down in some cases but denied in others) that a person
seeking mandamus can challenge the constitutionality of a
state statute relied upon by the defendant

“* * to a criminal statute of this state that had never 
been held unconstitutional by an appellate court there­
of and which hence carried the presumption of con­
stitutionality by mandamusing said officer to do an 
act which would require him to violate said criminal 
statute and subject himself to prosecution by reason 
thereof” ,

it would appear that the writ of mandamus prayed for 
herein should be denied.

The rule above stated is especially applicable in Okla­
homa, since a decision of this Court as to the constitu­
tionality of a criminal statute of this State is not binding 
on our Criminal Court of Appeals in a criminal action 
based on said statute, which action is properly appealed 
to said court.



Brief of D efendants in Error 35

PROPOSITION 2
Mandamus will not lie to require defendants to 

violate the public policy and criminal statutes of Okla­
homa by directing defendants to admit plaintiff, a 
colored person, to the School of Law of the University of 
Oklahoma, same being attended only by white persons, 
especially since plaintiff has not applied to the State 
Regents for Higher Education for them, under authority 
of Article 13-A of the Constitution of Oklahoma, to pre­
scribe a school of law as a part of the standards of higher 
education of Langston University, and as one of the 
functions and courses of study thereof, said University 
being a State institution of higher education attended 
only by colored persons.

The constitutional and statutory provisions of this 
State which establish its public policy of segregation of 
the white and negro races in educational institutions of 
Oklahoma are cited and abstracted in Paragraphs 14 to 
21 of defendants’ answer brief herein (pp. 10-12 of this 
brief), which public policy is tacitly admitted in Para­
graph 7 of the “Agreed Statement of Facts” (Page 15 of 
this brief). Certain of said provisions are also cited and dis­
cussed in Proposition 1 hereof. Therefore, for sake of 
brevity, said constitutional and statutory provisions (other 
than certain provisions of 70 O. S. 1941, § § 1451 to 
1509, as amended in 1945) will not be quoted here.

However, in connection with the instant proposition, 
attention is called to Section 1, the material part of Section 
2, and Section 3 of Article 13-A of the Constitution of 
the State of Oklahoma (adopted by the people on March 
11, 1941), same being as follows:

“§ 1. All institutions of higher education sup­
ported wholly or in part by direct legislative appro­



36 Sipuel v. Board of Regents et al.

priations shall be integral parts of a unified system to 
be known as ‘The Oklahoma State System of Higher 
Education.’

Ҥ 2. There is hereby established the Oklahoma 
State Regents for Higher Education, consisting of nine 
(9) members, whose qualifications may be prescribed 
by law. * * *

“The Regents shall constitute a co-ordinating board 
of control for all State institutions described in Sec­
tion 1 hereof, with the following specific powers: 
(1) it shall prescribe standards of higher education 
applicable to each institution. (2) it shall determine 
the functions and courses of study in each of the in­
stitutions to conform to the standards prescribed; (3) 
it shall grant degrees and other forms of academic 
recognition for completion of the prescribed courses 
in all of such institutions; (4) it shall recommend to 
the State Legislature the budget allocations to each 
institution, * *

“§ 3. The appropriations made by the Legisla­
ture for all such institutions shall be made in con­
solidated form without reference to any particular in­
stitution and the Board of Regents herein created shall 
allocate to each institution according to its needs and 
functions.”

Attention is also called to 70 O. S. 1941, § § 1451 to
1509, as amended in 1945, supra, relating to Langston
University, which prior to 1941 was called “The Colored
Agricultural and Normal University.” The material part
of Section 1451, is as follows:

“* *. The exclusive purpose of such school shall be 
the instruction of both male and female colored per­
sons in the art of teaching, and the various branches 
which pertain to a common school education; and in 
such higher education as may be deemed advisable by 
such board *



Brief of D efendants in Error 37

The Board above referred to, since April 10, 1945, 
has been the “Board of Regents for Oklahoma Agricul­
tural and Mechanical Colleges.”

It will thus be seen that prior to March 11, 1941 
(the date Article 13-A was adopted by the people), the 
governing board of Langston University had authority, 
if it deemed it “advisable” and sufficient funds were avail­
able, to open up a school of law as a part of said university, 
said school to be located either at Langston or elsewhere 
in this State.

It will also be seen that after March 11, 1941, the 
State Regents for Higher Education not only had author­
ity under Article 13-A, as stated in Paragraph 23 of de­
fendants’ answer (Page 12 of this brief) to

“prescribe a school of law similar to the school of 
law of the University of Oklahoma as a part of the 
standards of higher education of Langston University, 
and as one of the courses of study thereof,”

but it presumably also had sufficient funds derived from 
the consolidated appropriations made thereto under Sec­
tion 3 of said article to open up a school of law as a part 
of Langston University, that is, if the “needs and func­
tions” thereof required the same.

It would, therefore, appear that under the public pol­
icy of this State requiring segregation of the white and 
negro races in the schools and colleges thereof, and the 
principles of law announced by the Supreme Court of the 
United States in the Gaines case, supra, it is the mandatory 
duty of the State Regents for Higher Education, if a proper 
and timely demand is made thereto, to open up a school



38 Sipuel v. Board of Regents et al.

of law as a part of Langston University, said school to be 
located, as aforesaid, either at Langston or elsewhere in the 
State.

In this connection it will be noted that under the 
provisions of Article 13-A, supra, the State Regents for 
Higher Education have vested in them all the power of the 
State in respect to prescribing the functions and courses 
of study of the several institutions of higher learning of 
Oklahoma, including the prescribing of the functions and 
courses of study of Langston University. Said power is in 
harmony with Article 21 of our State Constitution, which 
in part provides:

“Educational * * * institutions shall be established 
and supported by the State in such manner as may be 
prescribed by law.”

The State, therefore, has placed in the power of the 
State Regents for Higher Education, and not in the power 
of the governing board of any particular institution of 
higher learning, such as the Board of Regents of the Uni­
versity of Oklahoma, the prescribing of the functions and 
courses of study of each such institution, and hence has 
placed in the hands of the State Regents for Higher Edu­
cation the duty of making provision, at the educational 
institutions of higher learning selected by them, of what­
ever higher or professional education plaintiff may be en­
titled constitutionally to demand from the State of Okla­
homa.

Moreover, the State Regents for Higher Education, 
and not the Board of Regents of the University of Okla­
homa, have under their control all of the financial resources



Brief of D efendants in Error 39

allotted or appropriated by the State of Oklahoma to and 
for higher education in this State. Clearly, it is the func­
tion and duty of said Regents, and not of said Board, to 
provide plaintiff with such facilities for legal education 
as she may rightfully demand under the Constitution 
of this State and of the United States, and to determine in 
what state institution of higher learning she shall receive 
it.

Duty of State Regents for Higher Education

It is the duty of the State Regents for Higher Educa­
tion to exercise their constitutional power so as to afford 
plaintiff, upon due demand, her constitutional rights, and 
at the same time maintain the State's policy of segregation 
of the white and negro races in its educational institutions. 
In this connection attention is called to State ex rel. Bluford 
V. Canada (Mo. 1941), 153 S.W.(2d) 12, wherein it 
is held:

It is the duty of this court to maintain Missouri’s 
policy of segregation so long as it does not come in 
conflict with the Federal constitution. It is also our 
duty to follow the interpretation placed on the Fed­
eral constitution by the Supreme Court of the United 
States. The Supreme Court has many times approved 
the policy of segregation. Mr. Chief Justice Hughes, 
citing authorities, again approved the policy in the 
Gaines case, provided substantially equal facilities for 
colored persons be furnished within the State.”

This is as good law for administrators as it is for 
judges, and it acquires emphasis from Oklahoma consti­
tutional provisions and the decisions of Oklahoma courts. 
In this connection it will be noted that Section 1, Article 1 
of our State Constitution provides:



40 Sipuel v. Board of Regents et al.

“The State of Oklahoma is an inseparable part of 
the Federal Union, and the Constitution of the United 
States is the supreme law of the land”,

and that Section 1, Article 15 of said Constitution, pre­
scribing the oath of office of all State officers, including 
that of members of the State Regents for Higher Edu­
cation, requires said officers to swear that they will

“* * support, obey and defend the Constitution of the 
United States, and the Constitution of the State of 
Oklahoma, *

This Court has consistently construed statutes, if 
same are susceptible thereof, to operate in harmony with 
constitutional provisions.

It is, therefore, clear that it is the duty of the State 
Regents for Higher Education, upon due demand by plain­
tiff, to exercise their constitutional power so as to afford 
her whatever facilities for legal education that may 
accord with her constitutional rights, separate from mem­
bers of the white race, as prescribed by the public policy 
of Oklahoma set out in the foregoing constitutional and 
statutory provisions of this State.

Plaintiff Failed To Make Due Demand
Since the State has established an agency (State Re­

gents for Higher Education) that is authorized and obliged 
to afford plaintiff any educational privileges to which she 
may be entitled, she may not insist upon admission to a 
particular institution of higher learning (School of Law 
of the University of Oklahoma) maintained for persons 
of the white race, until she has requested said agency to 
provide such educational privileges, has afforded it a reason­



Brief of D efendants in Error 41

able opportunity to comply with her request, and said 
agency has failed to do so.

In support of the above conclusion attention is called 
to the decision of the Supreme Court of the United States 
in the Gaines case, supra, 305 U.S. 337, 83 L. ed. 208, 
wherein it is stated:

“Respondents’ counsel urge that if, on the date 
when petitioner applied for admission to the Uni­
versity of Missouri, he had instead applied to the 
curators of Lincoln University it would have been 
their duty to establish a law school: that this ‘agency 
of the State,’ to which he should have applied, was 
‘specifically charged with the mandatory duty to fur­
nish him what he seeks.’ We do not read the opinion 
of the Supreme Court as construing the statute to 
impose such a ‘mandatory duty,’ as the argument seems 
to assert. The state court quoted the language of 
§ 9618, Mo. Rev. Stat. 1929, set forth in the margin, 
making it the mandatory duty of the board of cura­
tors to establish a law school in Lincoln University 
‘whenever necessary and practicable in their opinion.’ 
This qualification of their duty, explicity stated in 
the statute, manifestly leaves it to the judgment of 
the curators to decide when it will be necessary and 
practicable to establish a law school, and the state 
court so construed the statute.”
The above language indicates that the Supreme Court 

of the United States was of the opinion that if the Missouri 
law referred to therein had made it the mandatory duty 
of the curators of Lincoln University to establish a law 
school at which the petitioner, Gaines, could attend, he 
would not have been entitled to a writ of mandamus to 
attend the law school of the University of Missouri until 
he had applied to said curators to establish a school of 
law at Lincoln University at which he could attend, and 
his application had been denied.



42 Sipuel v. Board of Regents et al.

In this connection it will be noted that in the second 
decision of the Supreme Court of Missouri in said case 
[131S.W .(2d) 217]. The writ of mandamus prayed for 
by Gaines was denied by reason of the fact that in 1939 
the laws of Missouri were amended so as to make it the 
mandatory duty of the curators of Lincoln University to 
establish a school of law at said university, and that pur­
suant to said law said school had been, or was being, 
established.

Attention is also called to the case of State ex rel. 
Bluford V. Canada, supra (Mo. 1941), 153 S.W.(2d) 
12, wherein the Supreme Court of Missouri declined to 
compel the admission of a negro to the graduate courses 
in journalism at the University of Missouri, despite the 
fact that no similar courses were then offered in Lincoln 
University, the institution established by the State of Mis­
souri for the higher education of the negro race. The eighth 
paragraph of the syllabus of said case is as follows:

“A demand by negro on board of curators of state’s 
university for negroes to open journalism department 
and such board’s refusal to do so within reasonable 
time are prerequisites to issuance of writ of mandamus 
compelling state university registrar to admit such 
negro as student in state university school of journal­
ism.”

In the body of the opinion of said case appears the 
following language:

“Since the mandate in the Gaines case came down, 
the General Assembly has repealed and re-enacted Sec­
tion 9618 (now Section 10774, R.S. 1939, Mo. Stat. 
Ann. § 9618, P. 7327) to read as follows: ‘The 
Board of Curators of the Lincoln University shall be



Brief of D efendants in Error 43

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 nec­
essary additional and, erect necessary additional build­
ings, to open and establish any new school, depart­
ment or course of instruction, to provide necessary 
additional equipment, and to locate the respective units 
of the university wherever in the State of Missouri in 
their opinion the various schools will most effectively 
promote the purpose of the article.’

* * * * *

“In this case appellant made no demand upon Lin­
coln University to establish a school of journalism 
or to furnish her instruction in that subject. The al­
ternative writ does not allege any such demand. 

* * * * *
“It is the duty of this court to maintain Missouri’s 

policy of segregation so long as it does not come in 
conflict with the Federal constitution. It is also our 
duty to follow the interpretation placed on the Fed­
eral constitution by the Supreme Court of the United 
States. The Supreme Court has many times approved 
the policy of segregation. Mr. Chief Justice Hughes, 
citing authorities, again approved the policy in the 
Gaines case, provided substantially equal facilities for 
colored person be furnished within the State. Since 
that opinion, Missouri, by legislative enactment, has 
ordered that equal facilities be provided within her 
borders and has designated the Board of Lincoln Uni­
versity as the proper authority to furnish such facili­
ties. The duty of the Lincoln Board to open new 
departments on proper demand is now mandatory. 
True, the Board cannot operate without funds. If 
its funds are insufficient to provide all courses taught 
at Missouri University, the Board shall allocate its 
funds to the courses most needed. But that very fact 
entitles the Board to have a demand made upon it 
before being required to open a new department, for 
surely the Board is not required to maintain depart­
ments for which there are no students. We think also



44 Sipuel v. Board of Regents et al.

that the Board is entitled to a reasonable time in which 
to open a new department after demand is made. If, 
upon proper demand, the Lincoln Board had refused 
to establish a course in journalism within a reasonable 
time, or had informed appellant that it was unable to 
do so, appellant would have been entitled to admission 
to that course in the Missouri University.”

Prior to the decision of the Supreme Court of Missouri 
in the above case, issues similar to those involved therein 
were passed on by the United States District Court for the 
Western District of Missouri, Central Division, in the case 
of Bluford V. Canada (1940), 32 Fed. Supp. 707. The 
sixth paragraph of the syllabus of said case is as follows:

‘‘Missouri having provided educational facilities for 
negroes equal to those provided for white students, 
and having placed the mandatory duty upon desig­
nated authorities to provide those facilities, a negro 
citizen who was refused admission to the University 
of Missouri in the graduate school of journalism by 
the registrar because she was a negro could not com­
plain that the registrar had deprived her of her con­
stitutional rights until she applied to the proper au­
thorities for those rights and was unlawfully refused, 
and she could not anticipate such refusal.”

Attention is further called to the case of State ex rel. 
Michael et al. V. Witham et al., supra, 165 S.W. (2d) 378, 
wherein it is held:

‘‘Upon the demand of a negro upon the State Board 
of Education for training and instruction in any branch 
of learning taught in the University of Tennessee, 
it is the duty of the Board to provide such negro with 
equal facilities of instruction in such subjects as that 
enjoyed by the students of the University of Tennessee. 
The State Board of Education is entitled to reasonable 
advance notice of the intention of a negro student to 
require such facilities. Bluford V. Canada (D. C.), 
32 F. Supp. 707, appeal dismissed, 8 Cir., 119 F. (2d)



Brief of D efendants in Error 45

799. No such advance notice by appellants is shown 
in the record.”

Therefore, in consideration of the principles of law 
announced in the above cases, and since, as stated on Page 
35 of this brief,

“* * under the public policy of this State requir­
ing segregation of the white and negro races in the 
schools and colleges thereof and the principles of law 
announced by the Supreme Court of the United States 
in the Gaines case, supra,' it is the mandatory duty 
of the Board of Regents of Higher Education, if a 
proper and timely demand is made thereto, to open 
up a school of law as a part of Langston University, 
said school to be located, as aforesaid, at Langston or 
elsewhere in this State’',

and since, as set forth in Paragraph 23 of defendants’ 
answer (Page 12 of this brief),

* * plaintiff has not applied, nor in her petition 
and/or alternative writ of mandamus alleged that 
she has applied, to the Board of Regents of Higher 
Education of this State for it, under authority of 
Article 13-A of the Constitution of Oklahoma, to pre­
scribe a school of law similar to the school of law of 
the University of Oklahoma as a part of the standards 
of higher education of Langston University, and as 
one of the courses of study thereof, so that she will 
be able as a negro citizen of the United States and 
the State of Oklahoma to attend said school without 
violating the public policy of said State * *”,

the writ of mandamus prayed for by plaintiff should be 
denied.

Necessity of Law School for Negroes

The State Regents for Higher Education are not re­
quired by the Constitution of the United States to estab­
lish and maintain a school of law in this State for negroes, 
cqu'pped and ready for operation, until:



46 Sipuel v. Board of Regents et al.

(a) a demand is made on them by a qualified negro 
for training in law, and

(b) a reasonable time is thereafter afforded them to 
establish said school.

In this connection, it will be noted that if and when 
such a demand is made, said Regents will need at least some 
time lo decide whether it will be advisable to establish 
and maintain a separate school of law for negroes in (his 
State, or, under the broad powers vested in them by Article 
13 A of our State Constitution, to abandon our present 
public policy of segregation by prescribing that the teach 
ing of negroes in the School of l aw of the University of 
Oklahoma shall be a pan of the "functions and courses 
of study" of said school, 'This decision can only he made 
hy said Regents, I'lainlill does not have the light or pre 
rog,dive of making said decision for them.

This view is borne out by (lie decisions. The Missouri 
court ruled thus in State ex tel. Htufonl V. Canada, ttU/mt 
| m  S.W . ( /d)  I / | , saying

"The duty of the Lincoln Board to open new 
departments on proper demand is now mandatory. 
I rite, the Board cannot operate without funds. II 
its Iiinds are insufficient to provide all courses taught 
at Missouri University, the Board should allocate its 
funds to the courses most needed. Hat that vert/ fact 
entitles the Hoard to have a demand made upon it 
before being required to open a neiv department, for 
surely the Board is not required to maintain depart­
ments for which there are no students. We think also 
that the Board is entitled to a reasonable time in which 
to open a new department after demand is made. If, 
upon proper demand, the Lincoln Board bad refused 
to establish a course in journalism within a reasonable 
time, or had informed appellant that it was unable to



do so, appellant would have been entitled to admission 
to that course in the Missouri University. The proof 
does not make that kind of a case. It shows no demand 
upon or refusal by the Lincoln Board. On the con­
trary, it shows a desire and effort by the Board to es­
tablish the course by February 1, 1941, which if 
accomplished, would have delayed appellant for two 
semesters, reckoned from the date of suit, or for one 
semester reckoned from the date of trial. For that 
matter, appellant might have avoided all delay in re­
ceiving instruction by m aking demand on L incoln  
U niversity  a reasonable time in advance of the open­
ing o f the school term. We do not think that is an 
unreasonable* requirement. T h e  purpose to attend  
school is not often the result of a sudden im pulse or 
happening, but is usually planned well in advance,
I hat is true ol appellant as shown by her own testi 

mony, She had formed the purpose to take a graduate 
course in journalism many months before she made her 
application, Iml her purpose was to lake n at Missouri 
11nivpcstly, not at some other school m Missouri,"

To the same effect was the view expressed by Judge 
Collet when, in Rtuford V. Canada, supra, M Fed, Supp, 
707, lie met the eon tent itm that

'' 1 although plaint ill should be the lion to mines! 
the desired inslruction, she Is entitled to it at the lJnl 
versify of Missouri insiunter, it it be now furnished 
there to while students and is not immediately avail 
aide at Lincoln University",

by responding:
I he State has the constitutional right to furnish 

equal facilities in separate schools if it so desires. Plcssy 
V, Ferguson, 163 U.S. 537, 16 S. Ct. 1 138, 41 L. ed. 
256; McCabe V. Atchison, T. & S. F. Ry. Co., 235 
U.S. 151, 35 S. Ct. 69, 59 L. ed. 169. Absent notice 
and a reasonable opportunity to furnish facilities not 
theretofore requested, the State’s right to follow its 
established policy is destroyed for reasons noted. Such 
a result should not be brought about absent an im­

_________ Brief of D efendants in Error 47



48 Sipuel v. Board of Regents et al.

pelling necessity to secure to the citizen his or her 
constitutional rights.

^  5jc

“Furthermore, if plaintiff may maintain this action 
without alleging previous notice of her desires and 
opportunity for compliance, will on tomorrow the 
individual members of the Board of Curators of Lin­
coln University or the University of Missouri be li­
able in damages to another negro, if, perchance, late 
today he or she demands instruction at Lincoln Uni­
versity for which facilities are lacking, and then in 
the morning demands admittance to the University? 
Yet such would seem to be the result contended for 
by plaintiff unless the curators should maintain at 
Lincoln University at all times all departments of 
instruction, whether used or not, which are available 
at the University of Missouri. It does not appear 
that ‘a clear and unmistakable disregard of rights se­
cured by the supreme law of the land’ would result 
from a failure on the part of those curators to keep 
and maintain in idleness and non-use facilities at Lin­
coln University which no one had requested or indi­
cated a desire to use.”

Plaintiff’s position here is essentially an attack upon 
the whole policy of segregated education, and her conduct in 
failing to apply to the agency (State Regents for Higher 
Education) charged with providing for the functions and 
courses of study of the several state institutions of higher 
learning, accords with our above appraisal of her position.

Attention is again called to the case of State ex rel. 
Michael V. Witham, supra, 165 S.W. (2d) 378, in which 
the Supreme Court of Tennessee held:

“The State Board of Education is entitled to reason­
able advance notice of the intention of a negro student 
to require such facilities.”



Brief of D efendants in Error 49

The authorities cited by plaintiff (Plaintiff’s brief, 
Page 25, Footnote 29) are not in point. In this connection 
it will be noted that the cases of Missouri ex rel. Gaines 
V. Canada and Pearson V. Murray, both involve situations 
in which there was no agency set up by the State with the 
power and duty to afford to plaintiffs the educational facili­
ties to which constitutionally they were entitled.

On the other hand we have in Oklahoma a “co-ordi­
nating board of control for all State institutions,” known 
as the State Regents for Higher Education, which is fully 
empowered to prescribe the standards of higher educa­
tion and to determine the functions and courses of study 
in each educational institution of higher learning. It is the 
duty of said Regents to exercise said power so as to afford 
to negroes an opportunity for legal education within the 
State, and it has at its command every dollar that has 
been appropriated by the Legislature for the support of 
higher education therein. This creates a situation anal­
ogous in every way to that in the two Bluford cases and 
the Witham case, which cases clearly distinguish the Gaines 
case and do not fall within the scope of its authority.

The cases of McCabe v. Atchison, T . & S. F. R. Co. 
and Mitchell V. United States, also cited by plaintiff, are 
manifestly irrelevant to the issues envoked here. Trans­
portation facilities are more flexible than are educational 
facilities, and commonly are purchased or arranged for 
upon short notice. Journeys, unlike educational programs, 
do not call for long-term planning in advance. Hence, 
both the opportunity and the need for advanced notice



of a demand for equal but separate facilities do not apply 
in the case of transportation. This difference was recog­
nized by the Supreme Court of the United States in Gong 
Lum  V. Rice, 275 U.S. 78, 86, 72 L. ed. 172, 177, same 
being a case involving the compulsory segregation of the 
white and colored races in railway coaches, which the 
court said presented “a more difficult question than this.”

Knowledge of Pendency of This Suit
On Page 26 of plaintiff’s brief it is apparently con­

tended that demand by plaintiff on the State Regents for 
Higher Education for legal training was unnecessary be­
cause of the stipulation (Page 15 of this brief) that after 
the institution of this suit said Regents, with notice thereof, 
considered the questions involved and took no action to­
ward setting up a law school for negroes. Obviously, 
this had no bearing on the issues involved here.

In the first place, plaintiff’s rights must be adjudged 
as of the time she instituted this action. (State ex rel. Blu- 
ford V. Canada, Bluford V. Canada, and State ex rel. 
Witham V. Michael, supra). Plaintiff cannot base an al­
legation of denial of constitutional right upon action or 
inaction occurring when the school year is far spent and 
obligations and commitments of funds have been made 
without the State Regents for Higher Education being no­
tified by plaintiff of her demands. As for the future, neither 
said Regents nor this Court can know what her plans are. 
In the absence of a demand on her part, it may well be 
assumed that she is content to stand upon the position 
she takes in this action, to-wit: that the mere fact that

50______ Sipuel v. Board of Regents et al._______



Brief of D efendants in Error 51

there is no established course in law at this time at any 
other state institution confers on her the right to enter 
the School of Law of the University of Oklahoma. As 
Judge Collet said in Bluford V. Canada, supra, 32 Fed. 
Supp, 710,

“Since the State has made provision for equal edu­
cational facilities for negroes and has placed the man­
datory duty upon designated authorities to provide 
those facilities, plaintiff may not complain that de­
fendant has deprived her of her constitutional rights 
until she has applied to the proper authorities for those 
rights and has been unlawfully refused. She may not 
anticipate such refusal.”

In the second place, giving the fullest scope to the 
knowledge possessed by the State Regents for Higher Edu­
cation of the pendency of this suit, it falls far short of the 
equivalent of a demand for the installation of a course in 
law to which the plaintiff could be admitted consistently 
with the laws of this State.

Plaintiff has not made the Regents parties defendant. 
She asks nothing at their hands in this litigation, and out­
side of it she has asked nothing from them. She has asked 
merely for admission to the School of Law of the Univer­
sity of Oklahoma. For aught that appears, she would be 
unwilling to attend any law school that might be set up 
for negro students under authority of said Regents. Her 
position throughout this case is not merely consistent with 
a purpose to insist upon entry to the School of Law of the 
University of Oklahoma and to thus break down the State’s 
policy of segregation in education, but it clearly indicates 
such a purpose.



52 Sipuel v. Board of Regents et al.

Her conduct, pleadings and argument are equivalent 
to a notification directed to the State Regents for Higher 
Education in the following terms: “I demand that you 
provide a legal education for me at the University of Okla­
homa, despite the prohibitions of State law.” Would 
anyone contend that such a notification would impose 
upon said Regents a duty to set up a separate school of law 
for negroes, willingness to enter which she nowhere in­
dicates?

Availability of Funds
A demand for facilities for legal training by plaintiff 

on the State Regents for Higher Education is not excused 
by reason of the stipulation (Pages 15 and 16 of this brief) 
concerning the existence of funds out of which a school 
of law for negroes might be established and maintained.

The statement in said stipulation that the State Re- 
gents for Higher Education had no unallocated funds in 
their hands or under its control at that time with which 
to open up and operate a law school for negroes, refers 
to the date of the meeting of said Regents ‘‘after the filing 
of this cause.” This case was filed April 6, 1946. The 
stipulation shows nothing whatever as to the amount of 
available funds on January 14, 1946, when plaintiff made 
application for admission to the School of Law of the 
University of Oklahoma.

If the Regents had been properly and timely advised 
of a demand for a legal education by plaintiff, they could 
have surveyed the field of the resources and obligations 
of the Oklahoma state system of higher education, deter­
mined how such a demand could best be met, and make 
necessary allocations in the light of that determination. 
This reinforces the need for reasonable advance notice of



Brief of D efendants in Error 53

such a demand and establishes the inadvisability of mak­
ing the demand late in a fiscal year. Moreover, plaintiff’s 
argument takes no account of the possibility of adjustment 
of allocations by the Regents if notice of the need therefor 
is given at a proper time.

The facts stipulated as to the limited sources from 
which funds could be procured for the operation of a 
school of law for negroes of this State in the future, and 
as to the Regents past failure to include in their budgetary 
estimates to the Legislature sums specifically designated 
for the purpose of opening a school of law for negroes, are 
equally irrelevant. Until a proper demand is made, the 
Regents have no reason to act. The Regents have been 
held by the Attorney General to have the broad general 
power to transfer allocated funds. It cannot be assumed 
that they will fail to perform their full duty when the 
occasion arises.

In this connection, the following language from State 
ex rel. Michael V. Witham, supra, 165 S.W. (2d) 378, is 
relevant.

“It is contended for appellants that funds are not 
available for the establishment of the desired training 
and instruction. It is provided in Section 2, Chapter 
43, Public Acts 1941: ‘That the cost of providing 
such facilities shall be paid out of the appropriations 
made to the State Board of Education or from any 
other available funds.' This provision is quite definite. 
But other funds are made available to the Board under 
Section 5, Chapter 87, Public Acts 1941.”
In the case at bar the State Regents for Higher Edu­

cation have available to them all the funds appropriated 
to higher education in the State. They have full authority 
to grant plaintiff her full rights. She has not applied to 
them.



54 Sipuel v. Board of Regents et al.

Conclusion As To Proposition 2

We respectfully submit that plaintiff’s application for 
writ of mandamus requiring the authorities in charge of 
the University of Oklahoma to admit her as a student in 
the School of Law thereof was properly refused by the 
trial court for the reason (a) that the State Regents for 
Higher Education have the power, and are under the man­
datory obligation, to provide for her all educational facili­
ties to which she may be constitutionally entitled, (b) that 
provision for such facilities may be made consistently with 
the public policy of the State as to segregation of the races 
and without violation of the criminal statutes thereof, 
and (c) that plaintiff has never demanded from the said 
Regents that they make provision for her legal education.

P R A T E |

Wherefore, premises considered, defendants, and each 
of them, respectfully ask the Court to affirm the decision 
of the trial court herein.

Respectfully submitted,
Mac Q. W illiamson,
Attorney General of Oklahoma,
Fred Hansen ,
First Assistant Attorney General, 

Oklahoma City, Oklahoma,

Maurice H. Merrill,
John B. Cheadle,
Norman, Oklahoma,
Attorneys for Defendants in Error.

January, 1947