Mayor and City Council of Baltimore City v. Dawson Jurisdictional Statement

    In  The

Supreme Court of the United States
O ctober T e r m , 1955

No.
MAYOR AND CITY COUNCIL OF BALTIMORE CITY, 

JAMES C. ANDERSON, P r e sid e n t , et  a l .,
Appellants,

vs.
ROBERT M. DAWSON, JR., et  a l .,

Appellees.

R. BROOKE MAXWELL, C h a ir m a n ; BERNARD I. 
GONDER; H. LEE HOFFMAN, SR.; J. MILES LANK­
FORD; J. WILSON LORD, C o n s t it u t in g  t h e  C o m m is ­
s io n  o f  F orests  a n d  P arks  o f  M aryland , e t  a l .,

Appellants,
vs.

MILTON LONESOME, et  a l .,
Appellees.

O n  A p p e a l  f r o m  t h e  U n it e d  S ta tes  C o u rt  of  A ppea ls  
fo r  t h e  F o u rth  C ir c u it

JURISDICTIONAL STATEMENT

C. FERDINAND SYBERT,
Attorney General of Maryland, 

NORMAN P. RAMSEY,
Deputy Attorney General of Maryland, 

AMBROSE T. HARTMAN,
Asst. Attorney General of Maryland, 

1201 Mathieson Building,
Baltimore 2, Maryland,

THOMAS N. BIDDISON,
City Solicitor of Baltimore,

EDWIN HARLAN,
Deputy City Solicitor of Baltimore, 

HUGO RICCIUTI,
FRANCIS X. GALLAGHER,

Assistant City Solicitors,
Court House,
Baltimore 2, Maryland,

Attorneys for Appellants.

The Daily Record Co., Baltimore 3, Md.



I N D E X

S u bject  Index
page

S ta tem en t  as to J u risd ictio n .................................................. 1

Opinion Below .................................................................  2

Jurisdiction ..................................................................  2
Questions Presented ....................................................... 3
Statutes Involved ...................................................... 3

Statem ent of F ac ts :
Lonesome Case .................................................... 7
Dawson C a se ........................................................ 9

The Questions Are Substantial.................................... 12

A lternate Certiorari A ppl ic a t io n ................................... 20

A ppen d ix  “A” :
I. Opinion of United States Court of Appeals for

Fourth  Circuit (per cu riam ).................................... 21
II. Opinion of U nited States D istrict Court for

D istrict of M aryland 25

A ppen d ix  “B” :
I. Constitution of M aryland, Article XI-A 49

II. A nnotated Code of M aryland (Flack’s 1951
Ed.), Article 66C, Sections 340, 342 54

III. Charter and Public Local Laws of Baltim ore
City (Flack’s 1949 Ed.), Sections 96 and 6 56



T able  o f  C it a t io n s  

Cases
PAGE

Bolling v. Sharpe, 347 U.S. 497, (subseq. op., 99 L.
Ed. 653) ................................................................7, 12, 14, 16

Boyer v. G arrett, 88 Fed. S. 353, aff’d. 183 F, 2nd 582,
cert, denied 340 U.S. 912............................................ 4, 14

Bradford Electric Light v. Klapper, 284 U.S. 221.......  20
Brown v. Board of Education, 347 U.S. 492 (subseq.

op, 99 L. Ed. 653)......................................... 7, 12, 14,16,19
City of Richmond v. Deans, 281 U.S. 704, 50 S. Ct.

407, 74 L. Ed. 1128........................................................  3
Durkee v. M urphy, 181 Md. 259, 29 Atl. 2nd

253 ...................................................................... 4 ,5 ,13,14,17
Eclipse Mills Co. v. Dep’t. of Labor and Industry, 277

U.S. 136 .................................................................... 3
Henderson v. U. S , 339 U.S. 816..................................... 14
Keating v. Public Nat. Bank, 284 U.S. 587, 52 S. Ct.

137, 76 L. Ed. 507.......................................................... 2, 3
King Mfg. Co. v. Augusta, 277 U.S. 100, 104-5.............  3
Koram atsu v. U. S , 323 U.S. 214, 216.............................  16
Law v. Mayor & City Council of Baltimore, 78 F.

Supp. 346 ...................................................................... 4̂  14
McCarrol, Commissioner of Revenues of Arkansas v.

• Dixie Greyhound Lines, In c , 309 U.S. 176, 60
S. Ct. 504, 84 L. Ed. 683.............................................  2

McLaurin v. Oklahoma Bd. of Regents, 339 U.S. 637 14
New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.

Ct. 371, 76 L. Ed. 747.................................................  2
People of State of N. Y. v. Latrobe, 279 U.S. 421,

49 S. Ct. 377, 73 L, Ed. 776.......................................  2
Plessy v. Ferguson, 163 U.S. 537......................... 3, 4, 12, 14, 15
Republic Pictures Corp. v. Kappler, 327 U.S. 757, 66 

S. Ct. 523, 90 L. Ed. 991, rehearing denied 327 
U.S. 817, 66 S. Ct. 804, 90 L. Ed. 1040 2



I l l

PAGE
Williams v. Bruffy, 96 tLS. 176, 183...............................  3
Williams v. Zimmerman, 172 Md. 563, 567, 192 Atl.

353, 355 ..........................................................................  13, 14

Sta tu tes and other Authorities
Title 8, U.S.C., Secs. 41, 43...............................................  2
Title 28, U.S.C., Sec. 1254(2)...........................................  2, 3
Title 28, U.S.C., Sec. 1331.................................................  \
Title 28, U.S.C., Sec. 1343.................................................  2
Title 28, U.S.C., 1946, Sec. 347
Title 28, U.S.C, Sec. 2201-2...............................................  2
Federal Rules of Civil Procedure Rules 23A, 57, 65 2
Constitution of M aryland, Article XI-A.......................6, 9, 49
Annotated Code of M aryland (1951), Article 66C,

Sections 340 et seq................................................ 6, 7, 13, 54
C harter and Public Local Laws of Baltim ore City,

Sec. 6(19) .............................................................6,9,19,57
C harter and Public Local Laws of Baltimore City,

Section 96 ..................................................................6, 10, 56



In  T h e

Supreme Court of the United States
O ctober T e r m , 1955

No______

MAYOR AND CITY COUNCIL OF BALTIMORE CITY, 
JAMES C. ANDERSON, P r e sid e n t , e t  a l .,

Appellants,
vs.

ROBERT M. DAWSON, JR., et  a l .,
Appellees.

R. BROOKE MAXWELL, C h a ir m a n ; BERNARD I. 
GONDER; H. LEE HOFFMAN, SR.; J. MILES LANK­
FORD; J. WILSON LORD, C o n s t it u t in g  t h e  C o m m is ­
s io n  of F orests a n d  P a rk s  of  M aryland , e t  a l .,

Appellants
vs.

MILTON LONESOME, et  al .,
Appellees.

On  A ppe a l  f r o m  t h e  U n it e d  S ta tes  C ourt  of  A ppea ls  
fo r  t h e  F o u rth  C ir c u it

JURISDICTIONAL STATEMENT

Appellants appeal from  the  judgm ents of the United 
States Court of Appeals for the Fourth  Circuit, entered on 
M arch 14, 1955, reversing the final judgm ents of the United 
States D istrict Court for the D istrict of M aryland, and sub­
m it this S tatem ent to show tha t the Suprem e Court of the 
United States has jurisdiction of the appeal and tha t a sub­
stantial question is presented.



2

OPINION BELOW
The opinion of the United States Court of Appeals for 

the Fourth  Circuit is reported at 220 Fed. 2d 386.

The opinion of the U nited States D istrict Court for the 
D istrict of M aryland is reported in 123 Fed. Supp. 193.

Copies of the opinions of each of the Courts are attached 
hereto as Appendix A.

JURISDICTION
These suits w ere brought under Title 28 U.S.C., Section 

1331; Title 8 U.S.C., Sections 41 and 43; T itle 28 U.S.C., 
Section 1343; Title 28 U.S.C., Sections 2201-2202; and Rules 
23A, 57 and 65 of the Federal Rules of Civil Procedure. The 
judgm ents of the D istrict Court w ere entered on the  25th 
day of August, 1954; notice of appeal was filed in tha t Court 
on the 17th day of September, 1954; the judgm ents of the 
United States Court of Appeals for the Fourth  Circuit w ere 
entered on the 14th day of March, 1955; and notice of ap­
peal was filed in tha t Court on April 30, 1955. The ju ris­
diction of the Supreme Court to review this decision by 
appeal is conferred by Title 28 U.S.C., Section 1254(2). The 
following decisions sustain the jurisdiction of the Suprem e 
Court to review the judgm ents in these cases: McCarrol, 
Commissioner of Revenues of Arkansas v. D ixie G rey­
hound Lines, Inc., 309 U.S. 176, 60 S. Ct. 504, 84 L. Ed. 683; 
New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 
76 L. Ed. 747; People of the State of New Y ork  v. Latrobe, 
279 U.S. 421, 49 S. Ct. 377, 73 L. Ed. 776; Republic Pictures 
Corp. v. Kappler, 327 U.S. 757, 66 S. Ct. 523, 90 L. Ed. 991, 
rehearing denied 327 U.S. 817, 66 S. Ct. 804, 90 L. Ed. 1040; 
Keating v. Public Nat. Bank, 284 U.S. 587, 52 S. Ct. 137, 76



3

L. Ed. 507; City of Richmond v. Deans, 281 U.S. 704, 50 S. 
Ct. 407, 74 L. Ed. 1128.

W hile the above cases w ere decided under section 240 
of the Judicial Code (Title 28, U.S. Code, 1946, sec. 347) 
before its recent revision, the present section, as revised by 
the Act of June  25, 1948 (Title 28, U.S. Code, sec. 1254(2)), 
is substantially identical. See reviser’s notes to revised 
section 1254. See particu la rly : Williams v. Bruffy, 96 U.S. 
176, 183; King M anufacturing Co. v. Augusta, 277 U.S. 100, 
104-105; Eclipse Mills Co. v. Dept, of Labor & Industry, 277 
U.S. 136.

QUESTIONS PRESENTED
I. W here S tate  and City adm inistrative bodies exercis­

ing legislative pow er m aintain separate bu t adm it­
tedly physically equal public beach and bathhouse 
facilities for Negroes and whites, does the m ainte­
nance of such public recreational facilities on a segre­
gated basis violate any right guaranteed by the Four­
teenth  Amendm ent to the Constitution of the United 
States?

II. If the action of State and City A dm inistrative bodies 
exercising legislative power in m aintaining separate 
bu t adm ittedly physically equal facilities in the field 
of public recreation is violative of the Fourteenth 
Amendm ent to the Constitution of the United States, 
w hen and in w hat m anner m ust redress or rem edy be 
afforded to the Appellees?

STATUTES' INVOLVED
Segregation on the basis of race has been the accepted 

practice in M aryland for m any years. This practice, based 
on the “separate but equal” doctrine of Plessy v. Ferguson,



4

163 U.S. 537, has been specifically applied to the field of 
public recreation. Durkee v. M urphy  (1942), 181 Md. 259, 
29 A. 2d 253; Law v. Mayor and City Council (D.C.-Md. 
1948), 78 Fed. Supp. 346; Boyer v. Garrett (D.C.-Md. 1949), 
88 Fed. Supp. 353, aff’d. (CCA 4) 183 Fed. 2d 582, cert. den. 
340' U.S. 912.

The instant proceeding involves the actions of the  Appel­
lants, Mayor and City Council of Baltim ore and its Board 
of Recreation and Parks on the municipal level, and the 
Commissioners of Forests and Parks of the S tate of M ary­
land, and the Superintendent of Sandy Point S tate P ark  
and Beach on the S tate level, in carrying out the established 
practices of the State, w ith respect to segregation on a racial 
basis in recreational facilities.

The policies and practices of the Appellants have become 
established over the years and have the force of law under 
both S tate and Federal judicial interpretations. Durkee v. 
M urphy, supra, and Boyer v. Garrett, supra. I t  was con­
ceded in the District Court and on appeal to the Court of 
Appeals for the Fourth  Circuit tha t the policies and prac­
tices of the adm inistrative bodies of the S tate and City 
supervising the recreational facilities involved constitute 
an exercise of legislative power, in th a t the policies and 
practices had become accepted as rules and regulations 
w ith  the force of law in the S tate of M aryland. On this 
m atter, the D istrict Judge, in his opinion (123 Fed. Supp. 
193, a t pages 195-196) made the following findings:

(As to the S tate of M aryland)
“* * * The facilities a t Sandy Point S tate P ark  aside 

from the bathing beaches and bath  houses, are entirely 
unsegregated, bu t the Commission has provided sep­
ara te  bathing beaches and bath  houses for whites and 
Negroes, by rules and regulations adopted by the Com-



5

mission in the exercise of its adm inistrative powers.
4: * 4*

(As to the City of Baltimore)
“ * * * Over the years the Board of Recreation and 

Parks has made and modified various rules and regula­
tions dealing w ith segregation in the  public parks. A t 
the present tim e no parks, as such, are segregated, bu t 
certain  recreational facilities, including the bathing 
beaches, the swimming pools, some tennis courts and 
fields for competitive sports, and some playgrounds and 
social activities are operated on a segregated basis.”

That these regulations and rules, which w ere enforced 
against the Appellees in the instant proceedings, are State 
actions w ith the force of law, has been agreed and, indeed, 
the present proceedings w ere brought on the prem ise tha t 
they have such effect. The proceeding was designed to ob­
ta in  a judicial determ ination tha t the actions were consti­
tutionally invalid.

Like most such well established and defined policies, 
which are known and accepted by the public over a long 
period of years, no explicit restatem ent of the rules and 
regulations enforced as respects segregation a t public recre­
ational facilities has been made in recent years. As was 
pointed out by the Court of Appeals of M aryland in the 
Durkee v. M urphy  case, 181 Md. 259, 29 A. 2d 253 at p. 265:

“ * * * Many statu tory  provisions recognize this need, 
and the fact needs no illustration. ‘Separation of the 
races is norm al treatm ent in this State.’ W illiams v. 
Zim m erm an, 172 Md. 563, 567, 192 A. 353, 355. No ad­
ditional ordinance was required therefore to authorize 
the Board to apply this norm al treatm ent; the authority  
would be an implied incident of the power expressly 
given.”



6

In each instance, jurisdiction of the recreational facilities 
herein concerned is committed to the care of the Appel­
lants. As to State facilities, jurisdiction over recreational 
facilities, including bathing beaches and bathhouses for the 
benefit of citizens and residents of the S tate of M aryland, 
is expressly committed to the Commission of Forests and 
Parks of M aryland by the provisions of A rticle 66C, Sec­
tions 340, et seq. of the Annotated Code of M aryland (1951 
Ed.). The duty of operation, maintenance and supervision 
of Sandy Point State P ark  and Beach falls w ithin this ex­
press supervisory authority. There is, as an adjunct to the 
power to supervise, the express power to prom ulgate rules 
and regulations w ith respect to use, availability and admis­
sion to Sandy Point S tate P ark  and Beach.

As to the municipal authorities, the Mayor and City 
Council of Baltimore is expressly authorized, under Article 
XIA of the Constitution of M aryland, and Section 6(19) 
of the C harter and Public Local Laws of Baltimore (1949 
Ed.), to establish and supervise bathing beaches, bath 
houses and other recreational facilities for the benefit of 
the citizens and residents of the City of Baltimore. By 
the term s and provisions of Section 96 of the C harter and 
Public Local Laws of Baltimore City (1849 E d.), the Board 
of Recreation and Parks of Baltimore, an instrum entality  
of the City, is authorized to exercise the C ity’s power of 
supervision and control over the operation of bathing 
beaches and recreational facilities.

The acts of the Appellants under the legislative powers 
delegated to them  are under attack in this case. That the 
m unicipal and State agencies have expressly acted under 
proper authority  and in a m anner giving their actions the 
force of law is apparent.



7

As w ill be hereinafter more fully set out, the  D istrict 
Court sustained the actions of the agencies, m unicipal and 
State, on the ground tha t the objectives sought to be ob­
tained w ere proper governmental objectives and the regu­
lations w ere in and of themselves reasonable. In  reversing 
the D istrict Court, the Fourth Circuit Court of Appeals ex­
pressly found tha t the legal basis of the rules and regula­
tions before the D istrict Court had been swept away by 
this Court’s decision in the School Segregation Cases 
(Brown v. Board of Education, 347 U.S. 492; Bolling v. 
Sharpe, 347 U.S. 497 and consolidated opinion in the cases 
reported a t 99 L. Ed. 653). I t is therefore apparent tha t 
S tate statutes w ithin the meaning of tha t term  have been 
squarely ruled unconstitutional as contrary to the Four­
teenth  Amendm ent to the Constitution of the United States, 
and, accordingly, this Court should take jurisdiction.

STATEMENT OF FACTS (Lonesome Case)
Appellants, members of the Commission of Forests and 

Parks of M aryland, are empowered, under A rticle 66C, 
Sections 340, et seq., of the A nnotated Code of M aryland 
(1951 E d .), to establish and supervise recreational facilities, 
including bathing beaches and bathhouse facilities for the 
benefit of the citizens and residents of the S tate of M ary­
land. Pursuant to such authority, Appellants have estab­
lished and are maintaining and operating bathing and recre­
ational facilities. They are charged w ith the duty of main­
taining, operating and supervising Sandy Point S tate Park  
and Beach as a part of their supervisory control and au­
thority. They have the exclusive power to prom ulgate rules 
and regulations w ith respect to use, availability and admis­
sion to Sandy Point State Park  and Beach. The Appellants 
had, prior to Ju ly  4, 1952, by adm inistrative regulation, pro-



8

vided for racial segregation in the use of the bathhouses 
and beaches a t Sandy Point.

On Ju ly  4, 1952, the Appellees sought the use of these 
facilities and w ere denied admission to the South Beach a t 
Sandy Point Beach and P ark  and w ere directed to use the 
East Beach which was set aside for the exclusive use of 
Negroes.

In  August, 1952, Appellees, adult and minor Negroes, 
brought suit in the U.S. D istrict Court for the D istrict of 
M aryland, against the Appellants and the Superintendent 
of the Sandy Point S tate Park  and Beach to restrain  the 
Appellants from operating the bathhouses and bath  facil­
ities a t Sandy Point State Beach on a racially segregated 
basis, and for declaratory relief. Appellees alleged tha t the 
facilities afforded Negroes w ere not equal to those afforded 
w hites and they had been denied admission to the facilities 
reserved for whites solely because of their race or color. 
Appellants answered denying tha t the facilities were not 
substantially equal.

On June 4, 1953, following a hearing on Appellees’ motion 
for a prelim inary injunction, Judge W. Calvin Chesnut 
entered an Order in which he found th a t the South Beach 
facilities (for whites) w ere superior to those at East Beach 
(for Negroes), and restrained Appellants from excluding 
any person, solely on account of race and color, from the 
facilities at South Beach.

On Ju ly  1, 1953, having improved the facilities a t East 
Beach, Appellants moved to vacate the prelim inary in­
junction. After a hearing, Judge Chesnut entered an Order 
on Ju ly  9, 1953, in which he found as a fact tha t as of the 
date of said hearing, the bathing facilities a t East Beach 
w ere a t least equal to those a t South Beach, and he vacated



9

and struck out the prelim inary injunction theretofore 
granted, w ith the right to the Appellees to renew  their 
motion at any tim e the facilities a t South Beach and East 
Beach m ight not be in substantial equality.

In June, 1954, following the opinion of the Suprem e Court 
in the School Segregation Cases, Appellees moved for judg­
m ent on the pleadings. The case was consolidated w ith the 
case of Dawson et al. v. Mayor and City Council of Balti­
more, and Isaacs e t al. v. Mayor and City Council of Balti­
more. On June 18, 1954, it was stipulated and agreed by 
and between the parties in this case tha t the bathhouse 
and beach facilities a t Sandy Point w ere physically equal 
at tha t time. On Ju ly  27, 1954, after a hearing on the mo­
tion for judgm ent on the pleadings, the motion was denied 
by Judge Roszel C. Thomsen, United States D istrict Judge 
for the D istrict of M aryland, and final judgm ents w ere en­
tered pursuant thereto on August 25, 1954. The case was 
appealed together w ith the Dawson case to the United 
States Court of Appeals for the 4th Circuit, and on March 
14, 1955, following a hearing, the United States Court of 
Appeals reversed the D istrict Court in a per curiam opinion.

The case is now brought by appeal to this Court.

STATEMENT OF FACTS (Dawson Case)
The Appellants, Mayor and City Council of Baltimore, a 

body corporate, incorporated under the Laws of the S tate 
of M aryland, have power to establish and supervise bath­
ing beaches and bathhouse facilities and other recreational 
facilities for the benefit of the citizens and residents of the 
City pursuant to authority  vested under Article XIA of 
the Constitution of M aryland, Section 6(19), Charter and 
Public Local Laws of Baltim ore (1949 Ed.). Appellants, 
Jam es C. Anderson, et al., are members of the Board



10

of Recreation and Parks of Baltimore, an instrum entality  
of the City of Baltimore, w ith authority  to m aintain, super­
vise and control the operation of bathing beaches and other 
recreational facilities m aintained by the City pursuant to 
authority  vested under Section 96 of the C harter and Public 
Local Laws of Baltimore City. Appellant, Sun and Sand, 
Inc., a body corporate, incorporated under the Laws of the 
State of M aryland, is a lessee of the Appellant, the Board of 
Recreation and Parks, and operates its concession under 
the supervision and control of the Board of Recreation and 
Parks in order to add to the comfort, convenience and 
pleasure of those persons using the facilities available at 
Fort Smallwood Park.

Pursuant to municipal authority  set forth  in Section 96 
of the Baltim ore City Charter, Appellants have established 
and are m aintaining and operating bathing and recreational 
facilities a t Fort Smallwood Park, a public facility which 
is supported out of public funds and operated by the City 
to afford recreational facilities to the citizens and residents 
of Baltimore.

As a part of their supervisory control and authority, w ith 
respect to Fort Smallwood Park, the Board of Recreation 
and Parks of Baltimore is clothed and vested w ith the ex­
clusive power to prom ulgate rules and regulations w ith 
respect to the use, availability and admission to said Fort 
Smallwood P ark  to the persons who desire to use it.

On Ju ly  3, 1950 and August 10, 1950, Appellees sought 
to use the facilities a t Fort Smallwood and w ere denied the 
use of the bathing and bathhouse facilities as a result of the 
policy of racial segregation pursued by the D epartm ent of 
Recreation and Parks.



11

Appellees filed suit in the United, States D istrict Court 
for the D istrict of M aryland and on April 6, 1951, the Court, 
for the reason tha t no facilities w ere made available to the 
Appellees as Fort Smallwood, enjoined the Appellants from 
excluding the Appellees from those recreational facilities. 
D uring the sum m er of 1951, by order of the Board of Recre­
ation and Parks, Negroes exclusively used the facilities at 
Fort Smallwood on certain days, while w hite persons used 
them  on other days.

On January  25, 1952, the Board of Recreation and Parks 
form ally voted to establish separate bathhouse and beach 
facilities for the exclusive use of Negroes a t Fort Smallwood 
P ark  and reserved the original bathhouse and beach facil­
ities for the exclusive use of white persons. Separate bath­
houses and beaches for Negroes w ere constructed a t Fort 
Smallwood P ark  in 1952 and Negroes w ere adm itted exclu­
sively to such facilities and w hite persons to the original 
facilities.

In  accordance w ith the right reserved to the Appellees 
by the Court, the Appellees renew ed the proceedings on 
Septem ber 16, 1952. On June 18, 1954, following a mo­
tion made by the Appellees for judgm ent on the pleadings, 
a stipulation was entered into whereby it was agreed by 
and between the parties tha t the separate facilities at Fort 
Smallwood P ark  were physically equal a t tha t time. The 
case was consolidated w ith the case of Lonesome et al. v. 
M axwell et al. and Isaacs v. Mayor and City Council, and 
following a hearing on the motion for judgm ent on the 
pleadings, the motion was denied on Ju ly  27, 1954 by Roszel 
C. Thomsen, Judge of the United States D istrict Court for 
the D istrict of M aryland, and final judgm ent entered. Ap-



12

pellees appealed the Lonesome and Dawson cases to the 
United States Court of Appeals for the 4th Circuit and the 
Court of Appeals reversed the D istrict Court in a per 
curiam opinion. The case is brought to this Court on appeal 
from the United States Court of Appeals.

THE QUESTIONS ARE SUBSTANTIAL
This case, and the issues posed thereby, are of vital social, 

economic and psychological im portance both in the S tate of 
M aryland and in other States of the Union in which segre­
gation of races is the accepted rule. Much of the social and 
economic life of the S tate of M aryland, as well as of other 
States sim ilarly situated, is founded upon the doctrine of 
“separate bu t equal” facilities laid down by this Court in 
Plessy v. Ferguson, 163 U.S. 537. The social acceptance of 
this decision, and the development of the social structure 
of the State upon this foundation, cause the implications of 
the recent decisions of this Court in the School Segregation 
Cases (Brown v. Board of Education of Topeka, 347 U.S. 
483; Bolling v. Sharpe, 347 U.S. 497 and consolidated opinion 
in the case reported a t 99 L. Ed. 653) to be of great im­
portance. It is necessary tha t the State and its citizens 
have a clear definition not only of w hat the School Segre­
gation Cases do hold, bu t it is equally im portant tha t they 
be advised w hat the School Segregation Cases do not hold.

The School Segregation Cases have given rise to con­
certed efforts to expand this Court’s decisions into fields of 
activity not reasonably comprehended w ithin the term s of 
the decisions. The decisions have furnished a springboard 
from which attacks have been launched upon other areas 
of S tate and municipal action not fairly w ithin this Court’s 
decisions, and have caused uncertainty and indecision on 
the part of State and Municipal officers caught between



13

emotional and psychological pressures from  the people of 
the  S tate whose lives have been lived under the “separate 
bu t equal” doctrine, and an earnest desire on the part of 
the same S tate and Municipal officers to see tha t Constitu­
tional guarantees of all persons in the State are protected. 
This case, therefore, furnishes the opportunity for this 
Court to fairly  acquaint the officers of the municipality and 
the S tate of M aryland, as well as of other States similarly 
situated, w ith some guideposts to aid them  in the solution 
of the difficult legal, psychological and social problems 
which presently confront them.

The Commission of Forests and Parks of the State of 
M aryland, which operates Sandy Point State Park, under 
the  authority  of Sections 340, ei seq., of Article 66C of the 
A nnotated Code of M aryland (1951 Edition), by rules and 
regulations adopted in the exercise of its adm inistrative 
powers, operates the facilities a t Sandy Point on a non- 
segregated basis except as respects the bathing facilities, 
including the bathhouses. This is in accordance w ith the 
long-standing policy which has existed in  the S tate of 
M aryland tha t separation of races is norm al treatm ent in 
the State. W illiams v. Zim m erm an, 172 Md. 563, 567, 192 
Atl. 353, 355; Durkee v. M urphy, 181 Md. 259, 29 Atl. 2d 
253. There is no doubt tha t in so far as this policy was ap­
plied in the past to public educational facilities, the recent 
decisions in the School Segregation Cases have set the pat­
te rn  for the  elimination of the policy in public education. 
The issue presently posed to this Court, however, is w hether 
the  School Segregation decisions are broader in scope than 
they are in language. I t  is subm itted tha t in vital and sensi­
tive areas, such as tha t involved in the present case, S tate 
officers should not be left to grope and w onder as to the 
scope and application of this Court’s decision.



14

Plessy v. Ferguson, supra, found application generally in 
m any fields including, un til the recent decisions, the field 
of public education. That Plessy v. Ferguson, supra, re­
ceived express recognition in the field of recreational facil­
ities in the State of M aryland is apparent upon exam ination 
of the cases. Law v. Mayor and City Council of Baltimore, 
(D.C.-Md. 1948), 78 Fed. Supp. 346; Boyer v. G arrett (D.C.- 
Md. 1949), 88 Fed. Supp. 353, 183 Fed. 2d 582; Durkee v. 
M urphy, supra; W illiams v. Zim m erm an, supra.

The issue as to the scope and ex ten t of this Court’s opin­
ions in  the School Segregation Cases is cleanly posed in 
this case. The tria l court in these cases expressly ruled, in 
view of the stipulated fact tha t the recreational facilities 
in question w ere in fact physically equal, th a t this Court’s 
decision in  the School Segregation Cases had no application 
to the field of recreational facilities. The Court of Appeals 
for the Fourth  Circuit, in a per curiam  opinion, held that 
cases theretofore controlling, to wit, Durkee v. M urphy, 
supra; Boyer v. Garrett, supra; and Plessy v. Ferguson, 
supra, had been overruled and the authority  of the cases 
swept away by subsequent decisions of this Court. The au­
thorities cited w ere: McLaurin v. Oklahoma Board of Re­
gents, 339 U.S. 637 (G raduate School C ase); Henderson v. 
U. S., 339 U.S. 816 (Railway Dining Car Case); Brown v. 
Board of Education, supra; and Bolling v. Sharpe, supra 
(School Segregation Cases). The Court of Appeals held 
th a t these authorities, although not by term s applicable to 
the  field of public recreation, overruled form er express 
opinions which sustained the doctrine of “separate bu t 
equal” in the public recreation field. The apparent basis 
of the decision was tha t in addition to tangible factors, in 
any case involving “separate but equal” treatm ent of races, 
psychological factors must be taken into consideration. On



15

th a t basis, and on tha t basis alone, the Court of Appeals 
for the Fourth  Circuit held segregation in recreational facil­
ities an  im proper exercise of the police power of the  State.

I t is respectfully subm itted tha t the opinions of this Court 
in  the School Segregation Cases are not fairly susceptible 
of in terpretation to exclude in every field of S tate activity 
the  doctrine of “separate but equal”. If Plessy v. Ferguson, 
supra, has been so narrow ed as to be totally disregarded 
by virtue of im porting into every case of “separate but 
equal” facilities the psychological problems which are 
necessarily inherent in such situations, tha t legal doctrine 
should be clearly expressed and not raised by inference 
out of a decision not, by its terms, applicable.

I t  would be presumptuous on the part of the Appellants 
to attem pt to define to this Court w hat was intended by 
the language of the Court in the School Segregation opin­
ions. I t seems necessary, however, tha t the Appellants 
point out tha t it is incum bent upon their S tate and Mu­
nicipal officers to in terpret the sweep and application of 
the opinions, and tha t a reading thereof indicates that the 
“separate but equal” doctrine has not been abolished, bu t 
tha t there has been exem pted from it the area of public 
education. The opinions constitute a subtraction from  the 
doctrine and not an overruling of the doctrine.

This Court has had innum erable opportunities to sweep 
aside Plessy v. Ferguson, supra. Indeed in the course of 
argum ent of the public education cases, there was pre­
sented argum ent and authority  for discarding the entire 
concept. That this Court carefully chose to leave the doc­
trine, bu t subtracted from it one area to which it form erly 
applied, is apparent from  the decision. The express ground 
for the decision in the School Segregation Cases is set down



16

in  the opinion of this Court found in 347 U.S. 493, where this 
Court said:

“We conclude tha t in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal.” (Em­
phasis supplied.)

This ruling was expressly based on the equal protection of 
the  laws guaranteed by the Fourteenth  Amendment, and 
the Court declined to discuss w hether segregation violated 
the Due Process Clause of the Fourteenth Amendment. 
347 U.S. a t 494, 495.

In  this case, the physical equality of the facilities fu r­
nished is conceded. The psychological and social im pact of 
segregation, which was the  v ital elem ent in this Court’s 
decision in the public school cases, does not appear. While 
the Appellants agree w ith  the language of this Court in 
Bolling v. Sharpe, 347 U.S. 497: “Classification based upon 
race m ust be scrutinized w ith particular care * * never­
theless, it should be noted tha t this Court made its deter­
mination in the Bolling case (based upon the Due Process 
Clause) dependent upon a finding tha t segregation in public 
education “is not reasonably related to any proper Gov­
ernm ental objective * * *.” This Court pointed out in 
Koramatsu v. U. S., 323 U.S. 214, 216, “All legal restrictions 
which curtail the civil rights of a single racial group are 
im mediately suspect. This is not to say th a t all such restric­
tions are unconstitutional. I t is to say tha t the courts m ust 
subject them  to the most rigid scrutiny”.

The Appellants subm it tha t while it may be appropriate 
to examine closely the policy of segregation in public 
recreational facilities, there is in this case a proper Govern­
m ental objective to be served. This Court had not gone so



17

far as to hold th a t the G overnm ental objectives upon which 
the A ppellants’ action was based are  not proper Govern­
m ental objectives. As the Court of Appeals of M aryland 
pointed out in Durkee v. M urphy, supra, one objective sub­
served by racial separation in public recreational facilities 
is the avoidance of any possible conflicts which m ight arise 
from  racial antipathies. This statem ent is not intended to 
defend or condone the existence of such a state of mind, bu t 
ignoring the facts w ill not aid in solution of the problem. 
H um an relations, which have been brought into the field 
of the law  w here segregation m atters are concerned, do not 
always respond exactly as the informed, intelligent ele­
m ent of society m ight th ink proper. W hile we decry the 
existence of the fact, this is different from  ignoring the 
existence of the fact. The prevention of race conflict by 
proper S tate action in fields w here the “separate bu t equal” 
doctrine applies w ill do much to aid in the acceptance of 
non-discrimination in those fields w here constitutional 
guarantees require the abandonm ent of the  “separate but 
equal” theory.

Elimination of segregation in public education, peace­
fully and properly handled, w ill doubtless do much to help 
in the solution of this m atter. The fact is, however, tha t it 
is the duty of the State and its municipalities to m aintain 
tranquil relations so tha t non-discrimination in the schools 
m ay prosper under the most favorable possible circum­
stances. Social change comes slowly, and precipitous ac­
tion in fields not w ithin the scope of this Court’s ruling 
should not be perm itted to occur on the basis of an in­
ference, w ith  possible harm ful consequences to the end to 
be attained under the form er opinions.

A nother objective sought to be obtained is tha t public 
facilities furnish the greatest good to the greatest num ber



18

of citizens of the State, both Negro and white. Under the 
social structure, and a t the present stage of social develop­
m ent in the State, w hites and Negroes can be tte r use and 
more enjoy recreational facilities w ith  members of their 
own race than  in  mixed groups. This objective, to provide 
facilities for the greatest num ber and in accordance w ith 
the wishes of the greatest num ber, is not unreasonable. 
Obviously, the State and City cannot seek to attain  the end 
by a means which works a deprivation of constitutional 
rights. We submit, however, th a t feeling and emotion in 
the S tate of M aryland, and doubtless in other Southern 
States, ru n  higher in inter-m ixing of races in bathing facil­
ities than possibly any other field of hum an relations ex­
cept miscegenation.

M aryland has been in the forefront of the States seeking 
to level racial differences. The State has moved steadily 
ahead in the accomplishment of the desired end of break­
ing down im proper barriers based on race. I t would be 
tragic, however, to undo the enlightened and progressive 
approach evidenced by the S tate of M aryland by forcing 
the issue w here the objectives are proper in light of the 
circumstances. Here, the State and City have reasonable 
cause to believe tha t consequences undesirable to both 
Negro and w hite citizens may arise out of integrated recre­
ational facilities. To avoid and prevent those consequences, 
and to perm it the development of the S tate and City pro­
grams on logical bases, the  State should certainly be ac­
corded the opportunity to take those steps reasonably de­
signed to prevent inter-racial tension and make available 
its recreational facilities to the largest num ber of its cit­
izens. Here, reasonable Governmental objectives exist, im­
plem ented by reasonable regulations, and they should not 
be upset.



19

There is here involved not only a question of w hether 
the S ta te’s statutes should be denounced as violative of con­
stitutional guarantees, but also the nature of the relief 
which should be granted. As this Court dem onstrated by 
its approach in the School Segregation Cases, moderation 
and steady progress are more desirable than abrupt change 
which may redound only to the in jury  of citizens of both 
races. The issue has also been posed in this case w hether, 
if this Court deems the School Segregation Cases applicable 
to public recreation, the rem edy should be immediate 
desegregation or some other form of relief under the equity 
jurisdiction of the local courts, who are fam iliar w ith  con­
ditions as they exist in the State. We subm it tha t no fu r­
th e r authority  to sustain the desirability of this sensible 
approach need be cited than this Court’s second opinion in 
the  School Segregation Cases. (Brown v. Board of Educa­
tion of Topeka etc., 99 L. Ed. 653). Timing is of vital im­
portance to the State, the City and their officers. Lack of 
knowledge by such officers as to the m anner of effectuating 
desegregation, if such be necessary, would be dangerous. 
Certainty, and assurance tha t they are acting under and 
pursuant to law, will do much to aid in the solution of the 
knotty  problem of how  to carry out any decree of this 
Court, if desegregation of recreational facilities should be 
required.

We, therefore, respectfully submit tha t the questions here 
presented could not be more vital, significant and substan­
tial, and tha t the cases should, accordingly, be heard and 
resolved by this Court.



20

ALTERNATE CERTIORARI APPLICATION
Appellants are also applying for certiorari w ith  respect 

to the  same judgm ent. They believe tha t the Suprem e 
Court of the United States has jurisdiction over this appeal. 
If, however, in this they are mistaken, it is requested tha t 
w rit of certiorari be granted. Bradford Electric L ight Co. 
v. Clapper, 284 U.S. 221, 52 S. Ct. 118, 76 L. Ed. 254.

Respectfully submitted,

C. F erd in a n d  S ybert ,
A ttorney G eneral of Maryland, 

N o r m a n  P. R a m s e y ,
D eputy A ttorney G eneral of M aryland, 

A m b r o se  T . H a r t m a n ,
Asst. A ttorney G eneral of M aryland, 

T h o m a s  N . B id d iso n ,
City Solicitor of Baltimore,

E d w in  H a r la n ,
D eputy City Solicitor of Baltimore, 

H ugo R ic c iu t i ,

F r a n c is  X. G allagher ,
Assistant City Solicitors,

A ttorneys for Appellants.



21

APPENDIX A

United States Court of Appeals 
For the Fourth Circuit

No. 6903

Robert M. Dawson, Jr., et al.,
Appellants,

versus

Mayor and City Council of Baltimore City, James C. 
Anderson, President, e t al.,

Appellees.

No. 6904

M ilton Lonesome, et al.,
Appellants,

versus

R. Brooke M axwell, Chairman, Bernard I. Gonder, H. Lee 
Hoffman, Sr., J. Miles Lankford, J. W ilson Lord, consti­
tu ting the Commissioners of Forests and Parks of M ary­
land, et al., Appellees.

Appeal from  the United States D istrict Court for 
the D istrict of Maryland, at Baltimore

(A rgued January  11, 1955. Decided March 14, 1955.)

Before P a rk er , Chief Judge, and S oper  and D o b ie , Circuit 
Judges.

P er  C u r ia m  :
These appeals w ere taken from orders of the D istrict 

Court dismissing actions brought by Negro citizens to ob-



22

tain declaratory judgm ents and injunctive relief against the 
enforcem ent of racial segregation in  the enjoym ent of pub­
lic beaches and bathhouses m aintained by the public au­
thorities of the  State of M aryland and the City of Baltim ore 
a t or near tha t city. N otw ithstanding prior decisions of the 
Suprem e Court of the United States striking down the prac­
tice of segregation of the races in certain fields, the D istrict 
Judge, as shown by his opinion, (123 F. Supp. 193) did not 
feel free to disregard the decision of the Court of Appeals of 
M aryland in Durkee v. M urphy, 181 Md. 259, and the de­
cision of this court in Boyer v. Garrett, 4 Cir., 183 F. 2d 
582. Both of these cases are directly in point since they re­
lated to the field of public recreation and held, on the au­
thority  of Plessy v. Ferguson, 163 U. S. 537, tha t segregation 
of the races in athletic activities in public parks or play­
grounds did not violate the 14th Amendm ent if substanti­
ally equal facilities and services w ere furnished both races.

Our view is tha t the authority  of these cases was swept 
away by the subsequent decisions of the Suprem e Court. In  
M cLaurin v. Okla. State Regents, 339 U. S. 637 the Su­
prem e Court had held tha t it was a denial of the equal 
protection guaranteed by the Fourteenth Amendm ent for 
a state to segregate on the ground of race a student who had 
been adm itted to an institution of higher learning. In Hen­
derson v. United States, 339 U. S. 816, segregation on the 
ground of race in railway dining cars had been held to be an 
unreasonable regulation violative of the provisions of the 
In tersta te  Commerce Act. Subsequently, in Brown v. Board 
of Education, 347 U. S. 483, segregation of w hite and col­
ored children in the public schools of the state was held to 
be a denial of the equal protection clause of the 14th Amend­
ment; and in Bolling v. Sharpe, 347 U. S. 497, segregation 
in the public schools of the D istrict of Columbia was held to 
be violative of the due process clause of the F ifth  Amend­
ment. In  these cases, the “separate bu t equal” doctrine 
adopted in Plessy v. Ferguson, was held to have no place in 
modern public education.



23

The combined effect of these decisions of the Supreme 
C ourt is to destroy the basis of the decision of the Court of 
Appeals of M aryland in Durkee v. M urphy, and the decision 
of this court in Boyer v. Garrett. The Court of Appeals of 
M aryland based its decision in D urkee v. M urphy on the 
theory th a t the segregation of the races in the public parks 
of Baltim ore was w ithin the power of the Board of P ark  
Commissioners of the City to make rules for the preserva­
tion of order w ithin the parks; and it was said tha t the 
separation of the races was norm al treatm ent in M aryland 
and tha t the regulation before the court was justified as an 
effort on the part of the authorities to avoid any conflict 
w hich m ight arise from racial antipathies.

I t is now obvious, however, tha t segregation cannot be 
justified as a means to preserve the public peace merely be­
cause the tangible facilities furnished to one race are equal 
to  those furnished to the other. The Suprem e Court ex­
pressed the opinion in Brown v. Board of Education, 347 
U. S. 492 to 494, tha t it m ust consider public education in 
the light of its full development and its present place in 
American life, and therefore could not tu rn  the clock back 
to 1896 when Plessy v. Ferguson was w ritten, or base its 
decision on the tangible factors only of a given situation, 
bu t m ust also take into account the psychological factors 
recognized a t this time, including the feeling of inferiority 
generated in the hearts and minds of Negro children, when 
separated solely because of the ir race from  those of similar 
age and qualification. W ith this in mind, it is obvious tha t 
racial segregation in recreational activities can no longer 
be  sustained as a proper exercise of the police power of the 
State; for if tha t power cannot be invoked to sustain racial 
segregation in the schools, w here attendance is compulsory 
and racial friction may be apprehended from the enforced 
commingling of the races, it cannot be sustained w ith re­
spect to public beach and bathhouse facilities, the use of 
which is entirely optional.

The decision in Bolling v. Sharpe also throw s strong 
light on the question before us for it admonishes us tha t in



24

approaching the solution of problems of this kind we should 
keep in mind the  ideal of equality before the law  which 
characterizes our institutions. The court said (pp. 499- 
500):

“Classifications based solely upon race m ust be scru­
tinized w ith  particular care, since they are contrary to 
our traditions and hence constitutionally suspect. As 
long ago as 1896, this Court declared the principle ‘tha t 
the Constitution of the United States, in its present 
form, forbids, so far as civil and political rights are 
concerned, descrim ination by the G eneral Government, 
or by the States, against any citizen because of his 
race.’ And in Buchanan v. W arley , 245 U. S. 60, the 
Court held tha t a statu te which lim ited the righ t of a 
property ow ner to convey his property to a person of 
another race was, as an unreasonable discrimination, 
a denial of due process of law.

“Although the Court has not assumed to define 
‘liberty ’ w ith  any great precision, tha t term  is not con­
fined to m ere freedom from  bodily restraint. L iberty  
under law extends to the full range of conduct which 
the individual is free to pursue, and it cannot be re­
stricted except for a proper governmental objective. 
Segregation in public education is not reasonably re­
lated to any proper governm ental objective, and thus it 
imposes on Negro children of the D istrict of Columbia 
a burden tha t constitutes an arb itrary  deprivation of 

| the ir liberty  in violation of the Due Process Clause.”
Reversed.



25

APPENDIX A

United States D istrict Court

District of Maryland

Filed Ju ly  27, 1954

Civil Action—No. 5965

M ilton Lonesome, e t al. 
vs.

R. Brooke M axwell, et al. 

Civil Action—No. 5847 

Robert M. Dawson, Jr., e t al.

vs.

Mayor and City Council of Baltimore, et al.

Civil Action—No. 6879

Charles H. Isaacs, et al. 
vs.

Mayor and City Council of Baltimore, et al.

T h o m s e n , D istrict Judge—
The motions for judgm ents on the pleadings in these 

th ree  cases raise a single legal question: Does segregation 
of the races by the State of M aryland and the City of Balti­
m ore a t public bathing beaches, bathhouses and swimming



26

pools deny plaintiffs any rights protected by the Fourteenth 
Amendment.

No. 5965

In this case, filed in August, 1952, plaintiffs, adult and 
minor Negroes, brought suit against the Commissioners of 
Forests and Parks of the S tate of M aryland, and the Super­
intendent of Sandy Point State P ark  and Beach, to restrain  
defendants from operating the bathhouses and bathing fa­
cilities a t Sandy Point S tate P ark  on a segregated basis. 
Plaintiffs alleged tha t the facilities afforded Negroes w ere 
not equal to those afforded w hites and tha t they had been 
denied admission to the facilities reserved for w hites solely 
because of their race or color. Defendants answered, deny­
ing tha t the facilities w ere not substantially equal.

On June 4, 1953, following a hearing on plaintiffs’ motion 
for a prelim inary injunction, Judge Chesnut entered an 
order in which he found th a t the South Beach facilities 
(for w hites) w ere superior to those a t East Beach (for 
Negroes), and restrained defendants from  excluding any 
person, solely on account of race and color, from  the facil­
ities a t South Beach. On Ju ly  1, 1953, having improved the 
facilities a t East Beach, defendants moved to vacate the 
prelim inary injunction. A fter a hearing Judge Chesnut 
entered an order on Ju ly  9, 1953 in which he found as a 
fact tha t as of the date of said hearing the bathing facilities 
at East Beach w ere a t least equal to those at South Beach, 
and vacated and struck out the prelim inary injunction 
theretofore granted, w ith the right to plaintiffs to renew  
the ir motion a t any time the facilities a t South Beach and 
East Beach may not be in substantial equality.

No. 5847

In this case, filed in May, 1952, plaintiffs, adult and minor 
Negroes, are suing the City of Baltimore, its Board of 
Recreation and Parks, the D irector of the Bureau of Recre­
ation and Parks, and Sun and Sand, Inc., a corporation 
which operates a concession under the supervision and con-



27

tro l of tha t Board a t Fort Smallwood Park, to restrain  de­
fendants from  operating the bathhouses and bathing facil­
ities a t Fort Smallwood P ark  on a segregated basis, alleging 
tha t the  facilities afforded Negroes are not equal to those 
afforded whites, and tha t they w ere denied admission to 
the facilities reserved for w hites solely because of their 
race or color. Defendants answered, denying tha t the facil­
ities are not substantially equal.

No. 6879

In this case, filed in September, 1953, plaintiffs seek to 
restrain  defendants from operating on a segregated basis 
any swimming pool established, operated and m aintained 
by the City of Baltimore. Defendants are the City, its Board 
of Recreation and Parks, the Director of the D epartm ent of 
Recreation and Parks, and the Superintendent of Parks and 
Pools. One of the plaintiffs is white; all the rest of the plain­
tiffs are Negroes. Plaintiffs allege tha t the bathing facilities 
w hich defendants provide for Negroes are not equal to 
those provided for w hite persons. Plaintiffs also allege tha t 
defendants, by operating the facilities on a segregated basis, 
deny plaintiffs the right to associate w ith their friends! 
Defendants answered tha t the facilities afforded Negroes 
are  substantially equal to those afforded w hite persons, and 
th a t any denial of use of the bathing facilities which plain­
tiffs may have experienced was a resu lt of the enforcement 
of rules and regulations establishing a policy of segregation 
in  the use of bathing facilities in the public parks°of Balti­
more City.

In all of the cases fu rther proceedings w ere delayed pend­
ing the decision of the Supreme Court in the school segre­
gation cases.

Several days after the filing of the opinion in Brown v . 
Board of Education, (May 17, 1954) 347 IT. S. 483, counsel 
for plaintiffs asked this Court to set these three cases for 
prom pt hearing. Counsel for defendants offered no objec­
tion, and the court set the hearings for June 22, 1954 There­
after, on May 29, 1954, plaintiffs filed a motion for judg-



28

m ent on the pleadings in each of the th ree cases, asserting 
in each case: (1), tha t the com plaint alleges a violation of 
plaintiffs’ constitutional rights in  tha t defendants require 
racial segregation in the facilities which are the subject 
of this action; (2) th a t the answ er adm its tha t defendants 
exclude plaintiffs from these state- (c ity ) -operated facilities 
to which they sought admission, solely because of their 
race; and (3) tha t such racial segregation violates the 
Fourteenth Amendm ent to the United States Constitution. 
The respective defendants filed answers to these motions, 
denying tha t their actions violate the Fourteenth Amend­
ment.

A t a pre-trial conference counsel for all parties in No. 
5847 ( the Fort Smallwood Bathing Beach case) stipulated 
“tha t the separate facilities in question herein are physi­
cally equal a t this time.” A sim ilar stipulation was filed in 
No. 5965 (the  Sandy Point Bathing Beach case). Counsel 
in No. 6879 (the  case involving the city swimming pools) 
stipulated “tha t the only question to be argued a t this hear­
ing is the broad question of the right of the City to segre­
gate the races in public swimming pools. Any other ques­
tion raised by the pleadings is reserved for argum ent a t 
some fu tu re  time, if necessary.”

Sandy Point S tate P ark  is operated adm inistratively by 
the Commission of Forests and Parks of the State of M ary­
land under the authority  of Sec. 340 et seq., Article 66C, 
Annotated Code of M aryland (1951 E d .). The law does not 
require the Commission to operate a bathing beach in a 
segregated or non-segregated m anner; nor indeed does it 
require the Commission to operate any bathing beach a t 
all. The facilities a t Sandy Point State Park, aside from  the 
bathing beaches and bathhouses, are entirely  unsegregated, 
bu t the Commission has provided separate bathing beaches 
and bathhouses for w hites and Negroes, by rules and regu­
lations adopted by the Commission in the exercise of its 
adm inistrative powers. It was stated a t the hearing, w ith­
out objection or contradiction, tha t the bathhouses and 
bathing beaches at Sandy Point are the only segregated



29

facilities under the control of the Commission of Forests 
and Parks of the State of M aryland.

Section 6, Sub-section 19, Baltimore City C harter grants 
the  Mayor and City Council of Baltim ore power to estab­
lish, m aintain, control and regulate parks, squares and m u­
nicipal recreational facilities; Section 96 of said Charter 
gives the Board of Recreation and Parks authority  to regu­
late and control the use of recreational facilities in the pub­
lic parks of Baltimore. N either the Constitution of M ary­
land, the  City Charter, nor any statu te or ordinance re­
quires the Board of Recreation and Parks to operate the 
bathing, swimming and other recreational facilities on a 
segregated or unsegregated basis. Over the years the Board 
of Recreation and Parks has made and modified various 
rules and regulations dealing w ith segregation in the public 
parks. A t the present time no parks, as such, are segre­
gated, bu t certain recreational facilities, including the bath­
ing beaches, the swimming pools, some tennis courts and 
fields for competitive sports, and some playgrounds and 
social activities are operated on a segregated basis. Effec­
tive Ju ly  10, 1951, the Board of Recreation and Parks set 
aside for interracial play certain athletic and recreational 
facilities in a num ber of parks. Counsel agreed a t the hear­
ing tha t a list of these facilities be made a part of the record, 
and they are referred  to la ter in this opinion.

The authority  of the respective boards to make the regu­
lations which are challenged in these cases is supported by 
D urkee v. M urphy, ( 1942), 181 Md. 259, a case involving the 
segregation of w hite and Negro players on municipal golf 
courses. In  tha t case Chief Judge Bond, after referring to 
the relevant sections of the Baltim ore City C harter of 1938 
(not substantially different from  those of the present Char­
te r  of 1946) which conferred powers upon the Park  Board 
to make rules and regulations, said:

“And these provisions must, we conclude, be con­
strued to vest in the Board the power to assign the golf 
courses to the use of the one race and the other in an 
effort to avoid any conflict which might arise from



30

racial antipathies, for th a t is a common need to be faced 
in regulation of public facilities in M aryland, and m ust 
be implied in any delegation of pow er to control and 
regulate. There can be no question that, unreasonable 
as such antipathies may be, they are prom inent sources 
of conflict, and are always to be reckoned with. Many 
statutory provisions recognize this need, and the fact 
needs no illustration. ‘Separation of the races is norm al 
trea tm ent in this state.’ W illiam s v. Zim merm an, 172 
Md. 583, 567, 192 A. 353, 355. No additional ordinance 
was required therefore to authorize the Board to ap­
ply this normal treatm ent; the authority  would be an 
implied incident of the power expressly given.” 181 
Md. at 265.

Plaintiffs question w hether the statem ent “separation of 
the  races is norm al trea tm ent in this sta te” is still true, bu t 
do not question the power of the respective boards to make 
such regulations except as they m ay be prohibited by the 
Fourteenth Amendm ent to  the Constitution of the United 
States.

The court has consistently held, following Plessy v. 
Ferguson, 163 U. S. 537, tha t segregation of races w ith re­
spect to recreational facilities afforded by the State for 
its citizens is w ithin the constitutional exercise of the police 
power of the State, provided the separate facilities afforded 
different races are substantially equal. Law v. Mayor & 
City Council of Baltimore, (D. C. Md. 1948) 78 F. Supp. 
346; Boyer v. Garrett, (D. C. Md. 1949) 88 F. Supp. 353.

Boyer v. Garrett was appealed to the United States Court 
of Appeals for the Fourth  Circuit, which affirmed this 
court, 183 F. 2d 582, saying:

“The contention of plaintiffs is that, notw ithstanding 
this equality of treatm ent, the ru le providing for segre­
gation is violative of the provisions of the federal Con­
stitution. The D istrict Court dismissed the complaint 
on the authority of Plessy v. Ferguson, 183 U. S. 537, 
16 S. Ct. 1138, 41 L. Ed. 256; and the principal argu-



31

m ent made on appeal is tha t the authority  of Plessy v. 
Ferguson has been so weakened by subsequent deci­
sions th a t we should no longer consider it as binding. 
We do not think, however, tha t we are a t liberty  thus 
to  disregard a decision of the Suprem e Court which 
th a t court has not seen fit to overrule and which it ex­
pressly refrained from reexamining, although urged 
to do so, in the very recent case of Sw eatt v. Painter, 
70 S. Ct. 848. I t  is for the Suprem e Court, not us, to 
overrule its decisions or to hold them  outmoded.”

Certiorari was denied by the Supreme Court, 340 U. S. 
912.

That decision of the Court of Appeals for the Fourth  Cir­
cuit is binding on this court in this case unless the basis for 
the  decision of the Court of Appeals has been swept away 
by subsequent decisions of the Suprem e Court.

Brown v. Board of Education certainly reexam ined the 
decision in Plessy v. Ferguson. Did it overrule th a t de­
cision, or establish any principle which makes it clear tha t 
the “separate but equal” doctrine of Plessy v. Ferguson 
may no longer be applied to authorize the provision by a 
state of separate but equal recreational facilities? If it did, 
this court m ust follow the Suprem e Court ra ther than  the 
Court of Appeals for the Fourth Circuit. On the other hand, 
if Brown v. Board of Education, aside from its obvious 
effect in the field of education, m erely shows which way the 
wind is blowing, and foretells the ultim ate and perhaps 
im m inent elimination of the “separate bu t equal” doctrine 
in recreation, transportation and other fields besides edu­
cation, this court is still bound by the decision of the Fourth 
Circuit in Boyer v. Garrett.

It is therefore necessary to analyze the opinion in Brown  
v. Board of Education and to try  to determine, w ith such 
additional light as may be throw n on the m atter by other 
decisions of the Supreme Court, w hether Brown v. Board 
of Education was intended to wipe out the “separate but 
equal” doctrine entirely.



32

The opinion in Brown v. Board of Education discussed 
the history of the Fourteenth Amendm ent w ith  respect to 
segregated schools; observed tha t in the first cases in the 
Suprem e Court construing the  Fourteenth A m endm ent the 
Court in terpreted  it as proscribing all state imposed dis­
crim ination against the Negro race; and noted the appear­
ance of the “separate but equal doctrine” in Plessy v. Fer­
guson and the subsequent history of tha t doctrine in the 
Supreme Court. The Court stated tha t its decision could 
not tu rn  on m erely tangible factors, bu t tha t the Court m ust 
look to the effect of segregation itself on public education. 
The Court noted a num ber of factors which show th a t edu­
cation is perhaps the most im portant function of state and 
local governments. Reference will be made to these factors 
la ter in this opinion. The Court stated tha t the question 
presented was: “Does segregation of children in public 
schools solely on the basis of race, even though the physical 
facilities and other ‘tangible’ factors m ay be equal, deprive 
the  children of the m inority group of equal educational op­
portunities?” (347 U.S. 493) Answering tha t question in 
the affirmative, the court said:

“To separate them  from others of sim ilar age and 
qualifications solely because of the ir race generates a 
feeling of inferiority as to the ir status in the  com­
m unity tha t may affect their hearts and minds in a way 
unlikely ever to be undone. The effect of this separa­
tion on the ir educational opportunities was well stated 
by a finding in the Kansas case by a court which never­
theless felt compelled to ru le against the Negro plain­
tiffs :

“ ‘Segregation of w hite and colored children in pub­
lic schools has a detrim ental effect upon the colored 
children. The impact is greater when it has the sanc­
tion of the law; for the policy of separating the races 
is usually interpreted as denoting the inferiority of the 
Negro group. A sense of inferiority affects the motiva­
tion of a child to learn. Segregation w ith the sanction 
of law, therefore, has tendency to re tard  the educa­
tional and m ental development of Negro children and



33

to deprive them  of some of the benefits they would re­
ceive in a racially integrated school system.’

W hatever may have been the ex ten t of psycho­
logical knowledge at the tim e of Plessy v. Ferguson, 
th is finding is amply supported by modern authority! 
Any language in Plessy v. Ferguson contrary to this 
finding is rejected.

“We conclude tha t in the field of public education 
the doctrine of ‘separate bu t equal’ has no place. 
Separate educational facilities are inherently unequal. 
Therefore, we hold tha t the plaintiffs and others simi­
larly  situated for whom the actions have been brought 
are, by reason of the segregation complained of, de­
prived of the equal protection of the laws guaranteed 
by the Fourteenth Amendment. This disposition makes 
unnecessary any discussion w hether such segregation 
also violates the Due Process Clause of the Fourteenth 
A m endm ent.” 347 U.S. at 494, 495.

W hat “language in Plessy v. Ferguson” was the Suprem e 
Court rejecting as contrary to “this finding,” i.e. the finding 
in the Kansas case quoted by the Suprem e Court in the 
foregoing ex tract from  its opinion?

The heart of Plessy v. Ferguson lies in the following para­
graph, which was quoted by Judge Chesnut as the  basis for 
his decision in Boyer v. Garrett:

“The object of the am endm ent was undoubtedly to 
enforce the absolute equality of the two races before 
the law, but in the nature of things it could not have 
been intended to abolish distinctions based upon color, 
or to enforce social, as distinguished from  political 
equality, or a commingling of the two races upon term s 
unsatisfactory to either. Laws perm itting, and even 
requiring, their separation in places w here they are 
liable to be brought into contact do not necessarily im­
ply the inferiority of either race to the other, and have 
been generally, if not universally, recognized as w ith­
in the competency of the state legislatures in the ex-



34

ercise of the ir police power. The most common in­
stance of this is connected w ith the establishm ent of 
separate schools for w hite and colored children, which 
has been held to be a valid exercise of the legislative 
pow er even by courts of S tates w here the political 
rights of the colored race have been longest and most 
earnestly enforced.” 163 U.S. a t 544.

It is clear th a t Brown v. Board of Education overruled 
the implied approval of segregation in the field of educa­
tion contained in the foregoing quotation from Plessy v. 
Ferguson. I t appears also th a t the Supreme Court now dis­
agrees w ith the general statem ent in Plessy v. Ferguson 
th a t “laws perm itting, and even requiring, the ir separation 
in places w here they are liable to be brought into contract 
do not necessarily im ply the inferiority of either race to the 
other.” The question of w hat m atters fall w ithin the field 
of “social equality” has never been clear. Brown v. Board 
of Education indicates tha t certain claimed rights which 
m ay have been heretofore regarded as social m atters should 
now be considered civil rights entitled to constitutional pro­
tection. But has the “separate bu t equal” doctrine been 
completely overruled? May it still be applied in the field of 
transportation? May it still be applied in the  field of recrea­
tion? Brown v. Board of Education did not expressly over­
rule all of Plessy v. Ferguson nor say tha t the “separate but 
equal” doctrine may not be applied in the fields of trans­
portation or recreation. This court m ust consider the force 
and extent of the implications of the decision in Brown v. 
Board of Education.

Counsel for plaintiffs in the cases a t bar have noted tha t 
the psychological and sociological authorities cited by the 
Suprem e Court in Brown v. Board of Education deal w ith 
all fields of segregation and not alone w ith segregation in 
education. I t is true  tha t the authorities cited would have 
supported a broader conclusion than  the conclusion stated 
by the Court. The narrowness of the actual decision may 
have been due to  the policy of the Suprem e Court to decide 
constitutional questions only when necessary to the dis-



35

position of the case a t hand, and to draw  such decisions as 
narrow ly as possible. Sw eatt v. Painter, 339 U. S. 629, 631; 
Rescue A rm y v. Municipal Court, 331 U. S. 549, and cases 
cited therein. On the other hand it may be tha t the decision 
was worded as it was because the Suprem e Court did not 
intend to ru le tha t the “separate but equal” doctrine can no 
longer be applied in fields other than education.

Let us see w hat light is throw n on the m atter by decisions 
of the Suprem e Court in cases decided after Brown v. Board 
of Education. On May 24, 1954, the Suprem e Court refused 
certiorari in a num ber of cases involving rights of Negroes. 
Only one of these cases dealt w ith recreation, namely, Beal 
v. Holcombe (5 Cir.) 193 F. 2d 384. In  th a t case a munici­
pal corporation had excluded Negroes from  three golf 
courses, located in parks set aside for w hite people. The 
m unicipality provided no golf courses for Negroes. The 
Court of Appeals for the F ifth  Circuit held tha t this action 
violated the equal protection clause of the Fourteenth 
Amendment, stating tha t it was in full accord w ith the rea­
sons given and the results reached in Law v. Mayor and 
C ity Council, (D. C. Md. 1948) 78 F. Supp. 346, which was 
based upon the “separate but equal” doctrine.

On the same day the Suprem e Court entered an order in 
three cases in which rights of Negroes had been denied be­
low. The Court said, per curiam : “The petitions for w rit of 
certiorari are granted. The judgm ents are vacated and the  
cases are rem anded for consideration in the light of the 
segregation cases decided May 17, 1954, Brow n v. Board of 
Education, etc., and conditions tha t now prevail.” 347 U. S. 
971. Two of these cases involved education and are clearly 
controlled by Brown v. Board of Education. The th ird  case, 
M uir v. Louisville Park Theatrical Association, involved 
th e  equality of the recreational facilities afforded Negroes 
and w hite persons by the City of Louisville, and the ex­
clusion of Negroes from an am phitheatre for theatrical 
productions located in a city park  reserved for w hite people. 
The tria l court found tha t the failure to provide for Negroes 
facilities for golf and fishing, which w ere provided for



36

whites, was a violation of the  Fourteenth  Amendment. But 
, tria l court also held tha t the city violated no rights of the 
plaintiff by leasing the am phitheatre to  a non-profit organ­
ization which excluded Negroes from  the performances 
which it sponsored unless the city denied equal opportuni­
ties to Negro organizations to lease the am phitheatre. (W. 
D. Ky. 1951) 182 F. Supp. 525. The appeal involved only 
the second point, and the Court of Appeals for the S ixth 
Circuit affirmed the decision of the D istrict Court, 202 F. 
2d 275. The phrase “conditions tha t now prevail” in the 
per curiam order of the Suprem e Court in the M uir case 
probably refers to the fact tha t the lease involved in th a t 
case had expired and therefore the case m ay have become 
moot. Counsel in the cases a t bar suggested no other sig­
nificant meaning for the phrase “conditions th a t now pre­
vail.”

W hat light does Brown v. Board of Education throw  on 
the proper decision of the M uir case? The real question in 
tha t case was w hether the  facility was public or private. If 
it was a public facility, plaintiffs w ere clearly entitled to 
win on the state of the law before Brown v. Board of Edu­
cation.

The order of May 24, 1954 in the M uir case had a p re­
cedent in Rice v. Arnold, 340 U. S. 848. In  tha t case the City 
of Miami operated a public golf course, perm itting Negroes 
to play one day a week and whites to play on other days. 
The Suprem e Court of Florida approved this action, Rice v. 
Arnold, 45 So. 2d 195. The Suprem e Court of the United 
States entered the following per curiam decision:

“Rice v. Arnold, Superintendent of Miami Springs 
Country Club. On petition for w rit of certiorari to the 
Suprem e Court of Florida. P er Curiam: The petition 
for w rit of certiorari is granted. The judgm ent is va­
cated and the cause is rem anded to the Suprem e Court 
of Florida for reconsideration in the light of subsequent 
decisions of this Court in Sw eatt v. Painter, 339 U. S. 
629, and M cLaurin v. Oklahoma State Regents 339 
U. S. 637.”



37

On remand, the  Suprem e Court of Florida said: “We 
should announce and adhere to our considered judgm ent 
as to the meaning of the Constitution and its application 
to a particular factual situation so long as i t  is supported 
by earlier decisions and is not in conflict w ith  more recent 
holdings either directly or by necessary inference.” I t 
found th a t the  Sw eatt and M cLaurin  cases w ere not con­
trolling in the field of recreation, bu t vacated its form er 
judgm ent and again affirmed the decision of the Circuit 
Court, 54 So. 2d 114, including among the  grounds for 
affirmance this tim e certain procedural m atters, which 
caused the Suprem e Court to refuse certiorari, 342 U. S. 
946.

I t is clear tha t the Supreme Court fe lt in 1950 tha t its 
decisions in Sw eatt v. Painter and McLaurin v. Oklahoma 
State Regents, and feels now th a t its decisions in Brown v. 
Board of Education and Bolling v. Sharpe, 347 U. S. 497, 
throw  some light on the proper decision of recreation cases. 
B ut the Suprem e Court has not held that the “separate but 
equal” doctrine m ay no longer be applied in th e  field of 
recreation; it has left the m atter for the lower courts to de­
term ine “in the light of” its recent decisions.

This brings us to a consideration of Bolling v. Sharpe, the 
other segregation case decided on May 17, 1954. In  tha t 
case, which involved segregation in the  public schools of 
the  D istrict of Columbia, the  Court sa id :

“Classification based solely upon race m ust be scru­
tinized w ith particu lar care, since they are contrary to 
our traditions and hence constitutionally suspect. As 
long ago as 1896, this Court declared the principle ‘tha t 
the Constitution of the United States, in its present 
form, forbids, so far as civil and political rights are con­
cerned, discrimination by the General Government, or 
by the States, against any citizen because of his 
race.’ * * *

“Liberty under law extends to the full range of con­
duct which the individual is free to pursue, and it can-



38

not be restricted except for a proper governm ental ob­
jective. Segregation in public education is not reason­
ably related to any proper governm ental objective, and 
thus it imposes on Negro children of the D istrict of 
Columbia a burden th a t constitutes an arb itrary  de­
privation of their liberty  in violation of the Due Process 
Clause.

“In view of our decision th a t the Constitution pro­
hibits the States from  m aintaining racially segregated 
public schools, it would be unthinkable tha t the same 
Constitution would impose a lesser duty on the Fed­
eral G overnm ent.” 347 U. S. a t 499, 500.

Forematsu v. United States, 323 U. S. 214, 216, cited in 
Bolling v. Sharpe, involved the exclusion of persons of 
Japanese ancestry from  a m ilitary area. The Court said:

“All legal restrictions which curtail the civil rights 
of a single racial group are im mediately suspect. This 
is not to say tha t all such restrictions are unconstitu­
tional. I t  is to  say tha t the Courts m ust subject them  
to the most rigid scrutiny. Pressing public necessity 
may sometimes justify  the existence of such restric­
tions; racial antagonism never can.” 323 U. S. a t 216.

Plaintiffs in the cases at bar contend tha t any classifica­
tion or segregation by a state on the basis of race is pro­
hibited by the  Fourteenth Amendm ent unless (1) it is 
justified by some proper governm ental objective, (2) the 
regulation in question is a reasonable one to achieve tha t 
objective, and (3) the separate facilities are substantially 
equal, inherently  as well as physically, or the field of gov­
ernm ental activity in which the classification or segrega­
tion is made is so unim portant tha t no substantial rights 
under the Fourteenth  A m endm ent are involved. Let us 
apply these tests to the  regulations involved in these cases.

(1) W hat are the objectives sought to be attained by the 
regulations, and are they proper governm ental objectives?

The first objective cited by defendants was the one ap­
proved by the  Court of Appeals of M aryland in Durkee v.



39

M urphy, quoted above, nam ely: “to avoid any conflict 
which m ight arise from  racial antipathies”, which the court 
found to' be “a common need to be faced in the regulation 
of public facilities in M aryland.” 181 Md. a t 265.

Plaintiffs in the case a t bar argue tha t this is not a suffi­
cient objective to justify segregation in any field, and tha t 
only an objective as strong as the preservation of the re­
public in tim e of w ar is sufficient. Plaintiffs cite Buchanan  
v. Marley, 245 U. S. 60, in support of this contention. In 
th a t case the  Court held tha t a statu te which lim ited the 
righ t of a property owner to transfer or convey his prop­
erty  to a person of another race was, as an unreasonable 
discrimination, a denial of due process of law. The court 
did not hold tha t the promotion of the public peace by pre­
venting race conflicts was not a proper governm ental ob­
jective, bu t did hold tha t desirable as such an objective 
m ay be, it cannot be accomplished by laws or ordinances 
which deny rights created or protected by the Federal 
Constitution.

In  each case the im portance of the objective and the ex­
ten t of the  alleged deprivation or damage m ust be con­
sidered. I t  may well be tha t only an objective as strong as 
the  preservation of the republic will support such a clear 
deprivation of liberty as was involved in  Forematsu v. 
United States or such a clear deprivation of property as 
was involved in  Buchanan v. Marley. But it does not follow 
th a t the prevention of civil disturbance is not a sufficient 
objective to support separate but equal bathing and swim­
ming facilities. Buchanan v. Marley was decided in 1917, 
and thereafter the Supreme Court continued to perm it the 
states to supply or require separate bu t equal facilities in 
m any different fields.

In  Bolling v. Sharpe the Court held tha t segregation in 
public education is not reasonably related to any proper 
governm ental objective. The Court did not say w hat gov­
ernm ental objective was sought to be attained by the  regu­
lation involved in tha t case, nor why the objective was not



40

a proper one, nor why segregation in education was not 
reasonably related to the objective if it was a proper one. 
The bare statem ent in Bolling v. Sharpe throw s no light on 
the question as it is presented in cases involving only bath­
ing and swimming facilities. Certainly neither Brown v. 
Board of Education nor Bolling v. Sharpe holds, or clearly 
implies, th a t the  objectives sought to be attained by the 
S tate and the City in  the cases a t bar are not proper gov­
ernm ental objectives. W hether the regulations complained 
of are reasonably related  to those objectives, w hether they 
deny any rights created or protected by the  Federal Con­
stitution, and w hether the separate facilities provided are 
“inherently” as well as physically equal, w ill be considered 
in (2) and (3) below.

The second objective cited by defendants in  the cases at 
bar was “the  greatest good of the greatest num ber”, of 
Negroes as well as of whites. A t the  present stage of social 
development in  the S tate of M aryland, most (bu t not all) 
Negroes are more relaxed and feel m ore a t home among 
m em bers of the ir own race than in  a m ixed group of Ne­
groes and whites; the same is tru e  of whites. I have never 
heard this statem ent denied, and it was not denied by coun­
sel for plaintiffs a t the  hearing in this case. The fact em­
bodied in the statem ent is deplored by substantially all in­
telligent Negroes in M aryland, and by some whites. I t is 
quite possible th a t the ending of segregation in public edu­
cation will change this pa tte rn  swiftly or slowly. But the 
fact tha t a t this tim e most Negroes are m ore relaxed and 
feel more a t home in th e ir own group means tha t most 
Negroes w ill get more recreation from  bathing and swim­
ming w ith other Negroes than in m ixed groups. The pro­
vision of facilities which w ill provide the greatest am ount 
of recreation for most members of each group is not an un­
reasonable objective, though it cannot be pursued in  a m an­
ner which deprives Negroes or others of the ir constitutional 
rights. W hatever constitutional rights plaintiffs may have 
are personal and m ust be enforced. That aspect of the 
problem w ill be discussed under (3) below. We are dealing



41

here only w ith  the objectives which the S tate m ay prop­
erly  seek to attain.

N either the Suprem e Court nor the Fourth  Circuit has 
held tha t the objectives sought to be attained by the regula­
tions in these cases are not proper governm ental objectives 
sufficient to justify  the segregation of the races at public 
beaches, bath  houses and swimming pools, provided the 
regulations are reasonable and the facilities inherently as 
well as physically equal. Boyer v. Garrett is still the law  of 
this circuit and of this district on the question of the pro­
priety  of the first objective discussed above.

(2) A re the regulations reasonable? The degree of racial 
feeling or prejudice in  this S tate a t this time is probably 
higher w ith respect to bathing, swimming and dancing than 
w ith  any other interpersonal relations except direct sexual 
relations. See G unnar Myrdal, A n  American Dilemma, 
pp. 606, 608 et seq., cited by the  Supreme Court in Brown  
v. Board of Education. The State Board of Forestry and 
Parks has recognized this fact, because the segregated bath 
houses and beaches a t Sandy Point involved in  case No. 
5965 are the only segregated facilities under control of tha t 
Board. The other facilities at Sandy Point S tate Park  and 
a t other places under the jurisdiction of tha t Board (none 
of which have bathing facilities) are completely unsegre­
gated.

The State of M aryland and its citizens have steadily 
broadened the permissible and customary fields of in ter­
racial activities. Counsel for plaintiffs, a t the oral argu­
m ent of these cases, denied tha t the statem ent in Durkee 
v. M urphy th a t “separation of the races is norm al trea t­
m ent in this sta te” is still true. He cited, among others, the 
following facts: The last Jim  Crow transportation law  in 
M aryland was repealed in 1951. The Johns Hopkins Uni­
versity, Loyola College and a num ber of other private edu­
cational institutions adm itted Negro students before the de­
cision in  Brown v. Board of Education. Less than three 
weeks after the opinion in tha t case was published the 
Board of School Commissioners of Baltimore City voted



42

to abolish all segregation in the Baltim ore City Schools 
effective September, 1954. The U niversity of M aryland re­
cently adm itted Negroes to courses w here they had previ­
ously been denied admission. Many new fields of private 
and public employment have been opened to Negroes as 
the resu lt of efforts of the In terracial Commission and 
other civic groups. The Jun ior B ar Association is now in ter­
racial. Even though the City had sustained its righ t to 
segregate the races on public golf courses and tennis courts, 
the D epartm ent of Recreation and Parks of the City of 
Baltim ore agreed, in July, 1951, to perm it interracial play 
a t all times on all m unicipal golf courses, and set aside one 
or more tennis courts in  four public parks for interracial 
play. A t the  same tim e the Board made available for in ter­
racial competition a num ber of baseball diamonds, soft 
ball diamonds, football fields, cricket fields and facilities 
for track and field sports. In terracial participation in the 
supervised programs a t six playgrounds was perm itted. 
The Board has approved additional areas for interracial 
activities since 1951.

Since the  hearing in these cases the Housing A uthority 
of Baltim ore City has elim inated segregation a t its th ir­
teen low ren t housing projects, and the University of M ary­
land has announced th a t it will adm it Negroes in all of its 
schools.

In  the face of such a record a federal judge should be 
slow to find the objectives of the S tate or City im proper or 
the judgm ent of the  defendant boards unreasonable, al­
though he should not hesitate to strike down any discrimi­
nation.

The regulations providing for segregation in the Balti­
more City swimming pools and a t Fort Smallwood and 
Sandy Point are supported by the decision of the Court 
of Appeals of M aryland in  Durkee v. M urphy. Sim ilar 
regulations in less sensitive fields have been approved in 
the past by this Court and by the Fourth  Circuit. Law v. 
Mayor and City Council; Boyer v. Garrett.



43

In  the schools the children are supervised by trained and 
sym pathetic teachers, committed to lead the ir students to 
a proper adjustm ent to the new conditions. The bathing 
and swimming facilities are for all ages, and are practically 
unsupervised, except by young life guards.

I t  is quite possible tha t the end of segregation in educa­
tion w ill weaken racial feeling to the point w here it will no 
longer be appropriate to continue segregation in these facili­
ties; bu t a t this time I cannot say tha t the regulations are 
unreasonable.

(3) I t  has been stipulated in the Sandy Point and Fort 
Smallwood cases tha t the facilities in  question are physi­
cally equal a t this time. No such stipulation has been made 
in  the case involving the swimming pools. In  tha t case the 
allegation of inequality was denied by defendants, and it 
has been stipulated tha t the only question to be argued at 
the recent hearing was the broad question of the right of 
the  City to segregate the races in public swimming pools, 
and tha t any other question raised by the pleadings be re­
served for argum ent a t some fu ture hearing, if necessary. 
For the purposes of the decision on the motions for judg­
m ent on the  pleadings, therefore, all of the facilities will be 
considered physically equal.

Are they also “inherently” equal, or does the very fact 
of segregation render them  “inherently” unequal? Are the 
rights involved of sufficient im portance to am ount to a 
denial of liberty  or of equal protection of the laws w ithin 
th e  meaning of the Fourteenth Amendment? These ques­
tions m ust be answered by applying to the facts of these 
cases appropriate criteria or tests, as the Suprem e Court 
did in Brown v. Board of Education.

In  Brown v. Board of Education the Suprem e Court em­
phasized the importance of education in modern American 
life, and said tha t it was perhaps the most im portant func­
tion of state and local governments.

A lthough the  field of public recreation is not so im portant 
a field as public education, modern urban life has made the



44

provision of various types of public recreation facilities for 
adults as well as for children an im portant function of state 
and local governments. The opportunities for free private 
recreation in a large city are nowhere near so great as in 
small towns and ru ra l areas. Public recreation is especially 
im portant for persons in the low er economic brackets.

The first factor cited by the  Suprem e Court in Brown v. 
Board of Education to illustrate the im portance of public 
education was the compulsory character of the school a t­
tendance laws. The opposite is true  of recreation, which 
is by its very nature voluntary. This difference does not 
m ean tha t recreation is not a sufficiently im portant field of 
governm ental activity to give rise to rights under the Four­
teenth  Amendment; bu t it should be considered in deter­
mining w hether separate recreational facilities are inher­
ently equal, and will be discussed below.

Let us now examine the factors which caused the  Su­
prem e Court to find in Brown v. Board of Education, th a t 
“separate educational facilities are inherently  unequal”, 
and see w hether they apply w ith equal force in the  cases 
a t bar, or a t least w ith sufficient force to  require this Court 
to find tha t separate bathing and swimming facilities which 
are physically equal, are nonetheless “inherently” unequal.

In  determ ining tha t separate school facilities are inher­
ently unequal the Suprem e Court in Brown v. Board of 
Education based its decision prim arily  on its finding tha t 
segregation in grade and high schools causes psychological 
damage which deprives Negro children of equal educational 
opportunities. The Supreme Court said:

“To separate them ” (the antecedent of “them ” was 
“children in grade and high schools” ) “solely because 
of their race generates a feeling of inferiority as to their 
status in the community which may affect the ir hearts 
and minds in a way unlikely ever to be undone.” * * * 

“ ‘Segregation of w hite and colored children in pub­
lic schools has a detrim ental effect upon the colored 
children. The im pact is greater when it has the sane-



45

tion of the law; for the policy of separating the races 
is usually in terpreted  as denoting the inferiority of 
the Negro group. A sense of inferiority affects the 
m otivation of a child to learn. Segregation w ith the 
sanction of law, therefore, has a tendency to re tard  the 
educational and m ental development of Negro children 
and to deprive them  of some of the benefits they would 
receive in a racially integrated school system’.” 347 
U. S. at 494.

Some of these statem ents m ight apply to segregation in 
recreation, although, as noted above, the Supreme Court 
has refrained from  deciding or even clearly indicating the 
ex ten t of their application in fields other than education. 
Certainly they apply w ith greatly diminished force, if a t all, 
in the narrow  field of public bathing and swimming facili­
ties. The fact th a t separate bathing and swimming facili­
ties are provided does not affect the motivation of either 
children "or adults to bathe or swim or play. Segregation in 
this narrow  field has little if any tendency to retard  the 
educational or m ental or any other development of Negro 
children and adults nor to deprive them  of any of the 
benefits they would receive in a racially integrated system 
of bathing and swimming facilities, except social integra­
tion w ith w hite people.

The various types of recreational facilities differ among 
themselves in many ways — w ith respect to their educa­
tional and cultural values, w ith respect to the amount and 
kind of supervision supplied, w ith respect to the age groups 
they cater to, and w ith respect to the opportunity they 
afford for horseplay and the release of normal (or ab­
normal) animal spirits. We are dealing here only w ith 
swimming and bathing, which are less like education than 
many other types of recreation.

Plaintiffs’ brief in the cases at bar quotes Butler, Intro­
duction to Com m unity Recreation, New York, 1949, p. 4, 
as follows: “* * * it is generally agreed that all recreation 
activity has certain basic characteristics. One is tha t the 
person engages in it because he desires and chooses to do



46

so, w ithout compulsion of any type other than an urge from 
within. * * * A nother characteristic is tha t the activity 
brings immediate and direct satisfaction to the individual.” 
From  this quotation plaintiffs’ brief draws the conclusion: 
“By this definition segregation in recreation introduces a 
m atter of compulsion which im pairs its very nature .” It 
seems to me tha t this argum ent cuts both ways. The natural 
thing in M aryland at this tim e — w hether at private or 
public beaches or pools — is for Negroes to desire and 
choose to swim w ith Negroes and w hites w ith whites, and 
for the proprietors of the facilities — w hether public or 
private — to provide separate bathhouses, beaches and 
pools for the two races. An injunction prohibiting segrega­
tion would itself contain an element of compulsion which 
would reduce the recreational value of the facilities for 
many Negroes as well as whites. I t is true tha t some Ne­
groes and some whites — including the plaintiffs in these 
cases — would prefer to swim together. But the Constitu­
tion does not require the state to adopt a policy which will 
afford less recreation for the  m ajority of both Negroes and 
whites to satisfy the desires of a few Negroes and a few 
whites, unless they can show tha t the state is denying them  
equal treatm ent or some other constitutional right.

W hat is involved here is not a weighing of the respective 
advantages furnished to the two groups. Cf. Corbin v. 
County School Board of Pulaski County (4th Cir.), 177 F. 
2d 924, 926; Carter v. School Board of Alexandria County, 
Va., (4th Cir.), 182 F. 2d 531, 535, and cases cited therein. 
It is stipulated tha t the facilities are physically equal, and 
unless the m ere fact of segregation renders them  inherently 
unequal the State and City are according the same or 
equivalent treatm ent to persons of different races similarly 
situated.

Nor do we have here any such denial of recreational or 
other facilities as was involved in Beal v. Holcombe, Rice 
v. Arnold, or McCabe v. Atchison, etc. Ry. Co., 235 U. S. 
151 and other transportation cases. The fact tha t the State 
and the City have provided bathing and swimming facili-



47

ties on a segregated basis does not mean tha t the State and 
the  City have not made the opportunity for such recreation 
available to all on equal terms.

Finally, plaintiffs make the broad argum ent tha t separate 
facilities a r e ' unequal simply because they are separate. 
They say tha t any and all segregation required or sanc­
tioned by a state is “contrary to our traditions”, is degrad­
ing to Negroes, restricts their liberty, and makes the sepa­
ra te  facilities inherently unequal.

I t  may be th a t a t some time in the near or distant fu ture 
the Supreme Court will seek to destroy the whole pattern  
of segregation and adopt the position tha t the States may 
no longer provide or require segregated facilities in any 
field. But it has not done so yet. The decisions in Brown v. 
Board of Education and Bolling v. Sharpe w ere limited to 
the field of education. See Holmes v. City of Atlanta, 
(D. C., N. D., Ga., Ju ly  8, 1954), ..... F. Supp.........

A lthough there are statem ents in both opinions which 
would have supported broader conclusions, the Supreme 
Court, in Brown v. Board of Education said “We conclude 
that in the field of education the doctrine of ‘separate but 
equal’ has no place. Separate educational facilities are in­
herently unequal.” The conclusion in Bolling v. Sharpe 
was stated as follows: “Segregation in public education is 
not reasonably related to any proper governmental objec­
tive, and thus it imposes on Negro children of the District 
of Columbia a burden tha t constitutes an arb itrary  depri­
vation of their liberty in violation of the Due Process 
Clause”. The Court did not find tha t any and all segrega­
tion required or sanctioned by a state arbitrarily  deprives 
Negroes of liberty or tha t all separate facilities are inher­
ently unequal.

In McLaurin v. Oklahoma State Regents the Supreme 
Court struck down “restrictions imposed by the state which 
prohibit the intellectual commingling of students”, not 
social commingling or commingling generally. And the per 
curiam opinions in the two recreation cases, Rice v. Arnold  
and M uir v. Louisville Park Theatrical Association did not



48

state tha t separate recreational facilities are unconstitu­
tional, bu t rem anded the cases “for reconsideration in the 
light of” the decisions involving education.

In the light of all the facts and decisions discussed above, 
I find tha t the facilities a t Sandy Point and F ort Smallwood 
are “inherently” as well as physically equal. W hether the 
swimming pool facilities provided by the City for Negroes 
are equal to those provided for whites can only be deter­
mined after a full consideration of all relevant facts and of 
the legal points raised in such cases as Draper v. City of St. 
Louis, (E. D., Mo., 19500 , 92 F. Supp. 546, and in Hyman, 
Segregation and the Fourteenth Am endm ent, 4 Yand. L. R. 
555, a t 564 (1951).

Plaintiffs’ motions for judgm ents on the pleadings are 
denied.



49

APPENDIX B.

C o n stitu tio n  of M aryland 

A rticle X I-A .1

LOCAL LEGISLATION.
S ection  1. On demand of the Mayor of Baltimore and 

City Council of the City of Baltimore, or on petition bear­
ing the signatures of not less than 20% of the registered 
voters of said City or any County (provided, however, 
tha t in any case 10,000 signatures shall be sufficient to 
complete a petition), the Board of Election Supervisors 
of said City or County shall provide at the next general or 
Congressional election, occurring after such demand or the 
filing of such petition, for the election of a charter board of 
eleven registered voters of said City or five registered voters 
in any such Counties. Nominations for members for said 
C harter board may be made not less than  forty  days prior 
to said election by the Mayor of Baltim ore and City Coun­
cil of the City of Baltim ore or the County Commissioners 
of such County, or not less than tw enty days prior to said 
election by petition bearing the signatures w ritten  in their 
own handw riting (and not by their m ark ) of not less than 
5% of the registered voters of the said City of Baltimore 
or said County; provided, tha t in any case two thousand 
signatures of registered voters shall be sufficient to com­
plete any such nominating petition, and if not more than 
eleven registered voters of the City of Baltimore or not 
more than  five registered voters in any such County are 
so nominated their names shall not be printed on the 
ballot, bu t said eleven registered voters in the City of Bal­
tim ore or five in such County shall constitute said charter 
board from  and after the date of said election. At said 
election the ballot shall contain the names of said nominees 
in alphabetical order w ithout any indication of the source 
of their nomination, and shall also be so arranged as to 
perm it the voter to vote for or against the creation of said

1 Added by Chapter 416, Acts of 1914, ratified November 2, 1915.



50

charter board, bu t the vote cast against said creation shall 
not be held to bar the voter from  expressing his choice 
among the nominees for said board, and if the m ajority 
of the votes cast for and against the creation of said char­
te r board shall be against said creation the  election of the 
members of said charter board shall be void; bu t if such 
m ajority shall be in favor of the creation of said charter 
board, then and in tha t event the eleven nominees of the 
City of Baltimore or five nominees in the County receiving 
the largest num ber of votes shall constitute the charter 
board, and said charter board, or a m ajority thereof, shall 
prepare w ithin six months from the date of said election 
a charter or form  of government for said city or such 
county and present the same to the Mayor of Baltimore 
or President of the Board of County Commissioners of 
such county, who shall publish the same in at least two 
newspapers of general circulation published in said the 
City of Baltimore or County w ithin th irty  days after it 
shall be reported to him. Such charter shall be subm itted 
to the voters of said City or County a t the next general or 
Congressional election after the report of said charter to 
said Mayor of Baltim ore or President of the Board of 
County Commissioners; and if a m ajority of the votes cast 
for and against the adoption of said charter shall be in favor 
of such adoption, the said charter from and after the 
th irtie th  days1 from the date of such election shall become 
the law of said City or County, subject only to the Consti­
tution and Public G eneral Laws of this State, and any 
public local laws inconsistent w ith the provisions of said 
charter and any form er charter of said the City of Balti­
more or County shall be thereby repealed.

S ec . 2. The G eneral Assembly a t its first session after 
the  adoption of this am endm ent shall by public general 
law  provide a grant of express powers for such County or 
Counties as may thereafter form a charter under the pro­
visions of this Article. Such express powers granted to the 
Counties and the powers heretofore granted to the City of

1 Thus in original.



51

Baltimore, as set fo rth  in Article 4, Section 6, Public Local 
Laws of M aryland, shall not be enlarged or extended by 
any  charter form ed under the provisions of this Article, 
bu t such powers m ay be extended, modified, amended or 
repealed by the G eneral Assembly.

S ec. 3. Every charter so form ed shall provide for an 
elective legislative body in which shall be vested the  law­
m aking pow er of said City or County. Such legislative body 
in  the City of Baltim ore shall be known as the City Council 
of the City of Baltimore, and in any County shall be known 
as the County Council of the county. The chief executive 
officer, if any such charter shall provide for the election of 
such executive officer, or the presiding officer of said legis­
lative body, if such charter shall not provide for the  elec­
tion of a chief executive officer, shall be known in the City 
of Baltim ore as Mayor of Baltimore, and in any County as 
the  President of the County Council of the County, and all 
references in the Constitution and laws of this S tate to the 
Mayor of Baltim ore and City Council of the City of Balti­
m ore or to the County Commissioners of the Counties, 
shall be construed to refer to the Mayor of Baltimore 
and City Council of the City of Baltim ore and to the 
P residen t and County Council herein provided for when­
ever such construction would be reasonable. From and 
afte r the adoption of a charter by the  City of Baltimore, 
o r any County of this State, as hereinbefore provided, the 
Mayor of Baltim ore and City Council of the City of Balti­
m ore or the County Council of said County, subject to the 
Constitution and Public G eneral Laws of this State, shall 
have full power to enact local laws of said City or County 
including the pow er to  repeal or amend local laws of said 
city or county enacted by the  G eneral Assembly, upon all 
m atters covered by the express powers granted as above 
provided; provided tha t nothing herein contained shall be 
construed to authorize or empower the County Council of 
any County in this S tate to enact laws or regulations for 
any incorporated town, village, or municipality in said 
County, on any m atter covered by the powers granted to



52

said town, village, or municipality by the Act incorporating 
it, or any subsequent Act or Acts am endatory thereto. Pro­
vided, however, th a t the charters for the various Counties 
shall provide th a t the County Council of the Counties shall 
not sit more than  one m onth in  each year for the purpose 
of enacting legislation for such Counties, and all legislation 
shall be enacted during the m onth so designated for tha t 
purpose in the charter, and all laws and ordinances so en­
acted shall be published once a week for th ree successive 
weeks in at least one new spaper published in such Counties, 
so tha t the taxpayers and citizens m ay have notice thereof. 
This provision shall not apply to  Baltim ore City. All such 
local laws enacted by the Mayor of Baltim ore and City 
Council of the  City of Baltim ore or the Council of the 
Counties as hereinbefore provided, shall be subject to  the 
same rules of in terpretation as those now applicable to the 
Public Local Laws of this State, except tha t in case of any 
conflict between said local law and any Public G eneral 
Law now or hereafter enacted the Public G eneral Law shall 
control.

S ec. 4. From  and after the adoption of a charter under 
the provisions of this Article by the  City of Baltim ore or 
any County of this State, no public local law  shall be 
enacted by the General Assembly for said City or County on 
any subject covered by the express powers granted as above 
provided. Any law  so draw n as to apply to  tw o or more 
of the geographical sub-divisions of this S tate shall not 
be deemed a Local Law, w ithin the m eaning of this Act. 
The term  “geographical sub-division” herein used shall be 
taken to mean the City of Baltimore or any of the Counties 
of this State.

S ec. 5. Amendments to any charter adopted by the City 
of Baltim ore or by any County of this State under the pro­
visions of this A rticle may be proposed by a resolution of 
the Mayor of Baltimore and the City Council of said the 
City of Baltimore, or the Council of said County, or by a 
petition signed by not less than  20% of the registered 
voters of said City or County, provided, however, tha t



53

in any case 10,000 signatures shall be sufficient to  complete 
a petition, and filed w ith the Mayor of Baltimore or the 
P resident of the County Council, and w hen so proposed 
shall be subm itted to the voters of said City or County at 
the next general or congressional election occurring after 
the  passage of said resolution, or the filing of said petition; 
and if at said election the m ajority of the votes cast for 
and against said amendments shall be in favor thereof, 
said am endm ent shall be adopted and become a part of 
the charter of said City or County from and after the th ir­
tie th  day after said election. Said am endments shall be 
published by said Mayor of Baltim ore or President of the 
County Council once a week for five successive weeks prior 
to said election in a t least one new spaper published in said 
City or County.

S ec . 6. The pow er heretofore conferred upon the Gen­
eral Assembly to prescribe the number, compensation, pow­
ers and duties of the County Commissioners in each county, 
and  the power to make changes in Sections 1 to 6 inclusive, 
Article XI of this Constitution, when expressly granted as 
hereinbefore provided, are hereby transferred  to the voters 
of each County and the voters of the City of Baltimore, 
respectively, provided tha t said powers so transferred shall 
be exercised only by the adoption or am endment of a char­
te r  as hereinbefore provided; and provided fu rther tha t 
this Article shall not be construed to authorize the exercise 
of any powers in excess of those conferred by the Legisla­
tu re  upon said Counties or City as this A rticle sets forth.

S ec. 7. The word “Petition” as used in this Article 
means one or more sheets w ritten  or printed, or partly  w rit­
ten and partly  printed; “Signature” means the signature of 
a  registered voter w ritten  by himself in his own handw rit­
ing (and not by his m ark), together w ith the w ard or dis­
tric t and precinct in which he is registered. The authen­
ticity of such signatures and the  fact th a t the persons so 
signing are registered voters shall be evidenced by the affi­
davit of one or more registered voters of the City or Coun­
ty  in which said voters so signing are registered, and one



54

affidavit may apply to or cover any num ber of signatures 
to such petition. The false signing of any name, or the 
signing of any fictitious name to said petition shall be 
forgery, and the making of any false affidavit in connection 
w ith said petition shall be perjury.

A nnotated Code of M aryland — Article 66 C, Volume 2, 
pages 3291-2.

340. Forest, parks, scenic, historic and recreation areas 
of the State of M aryland are basic assets. Their proper use, 
development and preservation are necessary to protect and 
prom ote the  health, safety, economic and general w elfare 
of the people of the State. I t  is hereby declared to  be the 
policy of the S tate to encourage the economic development 
and use of its natural resources for the im provem ent of 
local economy, preservation of the  natura l beauty and pro­
motion of the recreational in terest throughout the State.

The D epartm ent of Forests and Parks is hereby created 
to  promote, adm inister and m anage all S tate  owned or 
leased forests, parks, scenic preserves, parkways, historic 
monum ents and recreation areas, the adm inistration of all 
laws, rules and regulations relating to forests, parks, scenic 
preserves, parkways, historic monum ents and recreation 
areas, fire control, roadside trees, the restoration of de­
forested or denuded areas, and the operation of the S tate 
Forest Nursery.

“A Commission of Forests and Parks is hereby created 
to supersede the present advisory Board of Forestry and 
Regents of the U niversity of M aryland in  supervising and 
directing the affairs of this D epartm ent. The Commission 
shall consist of five members, citizens of the State, to be 
appointed by the Governor, one of whom shall be appointed 
on the recommendation of the M aryland State Grange, one 
on the recommendation of the M aryland Farm  Bureau, one 
shall have had practical experience in the business of 
lumbering, and the other two shall be appointed for their



55

general in terest in  the advancem ent of State Parks and 
recreation. The members of the Commission shall select 
the ir own Chairm an.”

sji % %  %

342. The D epartm ent of Forests and Parks shall have the 
pow er to  purchase and manage lands in the name of the 
S tate, suitable for forest culture, reserves, w atershed pro­
tection, S tate  Parks, scenic preserves, historic monuments, 
parkw ays and S tate  recreational reserves, using for such 
purposes any special appropriation or any surplus money 
not otherwise appropriated, which may be standing to the 
credit of the Forest Reserve or P ark  Reserve Fund, pro­
vided tha t on and after June  1, 1947, no individual trac t of 
land in excess of one hundred acres shall be purchased in 
G arre tt County, except w ith the approval of the County 
Commissioners of said County and to  make all rules and 
regulations governing S tate  Reserves, S tate Parks, scenic 
preserves, parkways, historic monum ents and recreation 
areas to prepare, p rin t or distribute printed m atter relating 
to the State Forests, Parks, scenic preserves, parkways, 
historic monum ents and recreation areas, and to employ 
such labor and do such work as it deems wise in develop­
ing and protecting State Reserves under its jurisdiction; 
and the Governor of the S tate is authorized upon the 
recom mendation of said D epartm ent of Forests and Parks 
to  accept lands as gifts, devise or by other means in the 
nam e of the  State the same to be held, protected and ad­
m inistered by the  D epartm ent of Forests and Parks as 
S tate  Parks or Reserves, and to be used so as to demon­
stra te  the practical utility  of same for recreational areas, 
S tate Parks, scenic preserves, parkways, and historic monu­
ments, tim ber culture, w ater conservation and as a breed­
ing place for game. Such gifts m ust be absolute except for 
the  reservation of all m ineral and mining rights over and 
under said lands, and a stipulation th a t they shall be ad­
m inistered as State Forest Reserves or State recreation 
areas, and the A ttorney General of the State is directed to 
see tha t all deeds to the S tate of lands mentioned above are 
properly executed before the gift is accepted.



56

C harter and Public Local Laws of Baltim ore City (Flack 
1949), page 122.

96. R ecreation and P arks — General Powers and 
Duties. The Board of Recreation and Parks shall have the  
following powers and duties:

(a) to establish, maintain, operate and control parks, 
zoos, squares, athletic and recreational facilities and activi­
ties for the people of Baltim ore City, and to have charge 
and control of all such property and activities belonging to, 
or conducted by, the City;

(b) to provide concerts, symphonies and other musical 
entertainm ent for the people of Baltim ore City;

(c ) to have charge and control of all monum ents belong­
ing to the City;

(d) to ren t for its use buildings and other places suit­
able for the conduct of the  activities of the Departm ent. 
The Board is hereby authorized and empowered, w ith the 
consent of any other municipal agency, to organize and 
conduct play and recreational activities on grounds and in 
buildings under the control of such other agency and on 
such conditions as may be agreed to by such other agency;

(e) to be responsible for the construction and repair of 
the sidewalks which border on any public park  or square 
to the curb lines of said sidewalks as now or hereafter 
established;

(f ) to direct the distribution of the park  fund for or to­
wards the  m aintenance of the different parks and squares; 
provided, tha t no p a rt of said fund shall be expended ex­
cept in accordance w ith the provisions of the annual Ordi­
nance of Estimates. Anything in Section 30 to the con­
tra ry  notwithstanding, no p a rt of any appropriation for 
any bureau of this D epartm ent shall be transferred  to  any 
other Bureau unless such transfer is first approved by ordi­
nance;

(g) to charge and collect fees for admission, services 
and the use of facilities, and rentals for the use of property



57

controlled by it; provided, tha t no lease of such facilities 
shall be made for a period of th irty  days or more (or for 
successive periods aggregating th irty  days or more) w ith­
out the prior approval of the Board of Estimates. All 
moneys collected by the D epartm ent shall be accounted 
for and paid to the Treasurer a t such intervals as he may 
prescribe;

(h) to adopt and enforce rules and regulations for the 
management, use, government and preservation of order 
w ith  respect to all land, property, and activities under its 
control. To carry  out such regulations, fines not exceeding 
$100.00 in any one case shall be imposed for breaches of 
said rules and regulations, which fines shall be enforced 
and collected as other fines are enforced and collected by 
law;

(i) to have jurisdiction and control over the sidewalks 
which border on any public park  or square to the curb lines 
of said sidewalks, as now or hereafter established, said 
jurisdiction to be exercised concurrently w ith tha t of the 
Police Commissioner or any other authority  lawfully ex­
ercising the same.

C harter of Baltim ore City 1949, page 5.

G eneral P owers

6. The Mayor and City Council of Baltim ore shall have 
full power and authority  to exercise all of the powers here­
tofore or hereafter granted to it by the Constitution of 
M aryland or by any Public G eneral or Public Local Laws 
of the S tate of M aryland; and in particular, w ithout limi­
tation upon the foregoing, shall have power by ordinance, 
or such other method as may be provided for in its Char­
ter, subject to the provisions of said Constitution and Public 
General Laws:

&  %  %  :fc ❖  ❖

(19) P arks and  R ecreation (p ag e  21)
To establish, maintain, control and regulate parks, 

squares, monuments and recreation facilities.