McCready v Byrd Brief and Appendix of Appellees
Public Court Documents
February 27, 1950

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Brief Collection, LDF Court Filings. McCready v Byrd Brief and Appendix of Appellees, 1950. 4dc35f7e-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/56485d5a-064f-4bad-b9cc-8f88b526ae46/mccready-v-byrd-brief-and-appendix-of-appellees. Accessed June 17, 2025.
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v I n T h e Court of Appeals of Maryland O cto ber T e r m , 1949 N o. 139 ESTHER McCREADY, minor by ELIZABETH McCREADY, her next friend and parent, vs. Appellant, HARRY C. BYRD, President, et al., Appellees. A ppeal from the Baltimore City Court ( Sm ith , C.J.) BRIEF AND APPENDIX OF APPELLEES Hall Ham m ond , Attorney General, K enneth C. Proctor, Assistant Attorney General, Attorneys for Appellees, 1901 Mathieson Building, Baltimore 2, Maryland. The Daily Record Co., Baltimore 3, Md. I .< THE DAILY RECORD, BALTIMORE, FRIDAY, FEBRUARY 10, 1950 Christoff el Trial Halted Drug Concerns Charged For D ecision On With Monopoly In House Records Washington, Feb. 9 (U.R)— Former union leader Harold R. Christoffel’s second perjury trial was halted temporarily today until Congress decided whether to turn over rec ords the Court wants as evidence. Federal Judge F. Dickinson Letts adjourned the trial until tomorrow after defense counsel demanded the presentation in Court of all House Labor Committee records for March 1, 1947. That is the date on which Christoffel is charged with denying falsely to the Committee that he had Communist connections. The Committee has offered to let the defense examine the records in the Committee office, but Letts ruled that they “must be here in this Court room.” After denying a defense motion for a directed verdict of acquittal, the judge asked House Clerk Ralph R. Roberts to ask the Committee for the records. The defense contended it has been denied access to the Committee’s records for that date. Letts accordingly instructed Rob erts to tell the House that the Court needs all the Committee records that have been requested. “Of course,” Letts said, “ this case cannot proceed to a conclusion until the House tells us we can have this important evidence. It is diffi cult to understand their reluctance.’ The House has passed a resolu tion leaving it up to its Judiciary Committee whether any records should be turned over to the Court. One of the major issues in the trial has been whether a majority of the Labor Committee was present when Christoffel testified before it in 1947. His first perjury convic tion was overturned by the United States Supreme Court because the Grovernment did not prove the pres- nce of a quorum. Hard Gelatin - The two con- Washington, Feb. 9 (U.R) — Government today charged major drug companies with spiring to monopolize the hard gel atin capsule market. Attorney-General J. Howard Mc Grath announced filing of an anti trust civil suit against Parke, Davis & Co., Detroit, Mich., and Mi Lilly & Co., Indianapolis. The suit was filed in Detroit Federal Court. The Justice Department said both companies, in addition to making- pharmaceuticals a n d biologicals, make and sell hard gelatin capsules used primarily as soluable contain ers for drugs and medicines. The complaint accuses the com panies of obtaining control over ma chinery used to make and fill the capsules and to have used this con trol to achieve and maintain the alleged monopoly. They also are charged with price fixing through an exclusive patent licensing arrangement and with leasing filling machinery only to those who agree to purchase all their capsules. The Department said that as a re sult the companies now make and sell over 90 per cent, of all hard gel atin capsules. The Government asked the Court to end the alleged illegal control of the market by ordering them to sell filling machines to any present li censee, to lease or sell such ma chines. to any other upon fair terms and to furnish to any applicant the “know-how” for making and operating machinery used in manu facturing capsules, The Government also asked the Court to prohibit further price fix ing, tie-in leases, illegal use of pat ents and other restrictive practices. Notice To Our Readers T he D aily R ecord will not be published on Monday, February 13th, a legal holiday in observance of Lincoln’s Birthday. Our office will be closed the entire day. Advertisements and other matter to be inserted in Tuesday’s issjue will be received at our office until 2 :30 P. M. tomorrow. House Passes Bill Raising Postal Rates Washington, Feb. 9 (U.R)—The House today passed by voice vote and sent to the Senate a bill rais ing postal rates! approximately $130,000,000 a year;; Passage came after the House re buffed, 217 to 150 on a roll call, an attempt to shunt the bill aside by sending it back to committee. The House met an hour earlier than usual today to get final action on the measure. Atomic Appropriation ----- fWashington, Febf 9 (U.R) — The House today pass# by voice vote and sent to the senate an appro priation bill providing extra funds to keep the atomic program going at top speed for the rest of this fiscal year. Besides a $78,885,COO contract au thority for the Atomic Energy Com mission, the bill calls for $732,- 485,500 in cash for other agencies. Of the cash. $720,000,000 is ear marked for veterans benefits. 'ennsylvania Undertaker Settles Suit Involving Moving Picture Philadelphia, Feb. 9 (U.R) — _ A Pennsylvania undertaker who claim- d he was ridiculed in the motion picture, the Miracle of the Bells, dropped his Federal Court suits for >2,500,000 damages from five motion picture companies. Attorneys for Raymond Polnias- zek, Glen Lyons, Pa., and the mo- ion picture companies filed “stipu lations” in United States District Court for the dismissal of the dam age actions. The stipulations said the five suits were ended upon payment of Court :osts, but did not indicate whether a settlement was made by the de fendants outside of Court. The undertaker’s suits in New York against R u ssell Janney, author of the book on which the picture was based, and two publishing com panies were settled out of Court ast week. Polniaszek charged he was held ip to “public scorn, ridicule and shame” by the miserly undertaker, )fick Orloff. in the movie. He said ;he plot closely paralleled the tragic stage and movie career of Olga Irotski, a native of the small coal nining town of Glen Lyon. ’ostmaster Sibley Tells Congress Of Need For Pay Raise Judge To Sign Injunction Forcing Lewis To Give Up Some Demands Washington, Feb. 9 (U.R)—Federal Judge Richmond B. Keecli late to day granted an injunction which would force John L. Lewis to give np several contract demands and send striking soft coal miners back to work until he does. It is not a Taft-Hartley 80-day injunction, but one asked by Robert Denham, general counsel of the Na tional Labor Relations Board. Keech will sign the actual injunc tion order tomorrow and it will be come effective immediately. The order will direct the United Mine Workers to return to work until Lewis drops at least three of its 1949-50 contract demands. The coal industry had complained to Denham that several of Lewis’ demands were illegal. It asked Denham to force Lewis to give Up the demands. They are: 1. The “willing and able” to work clause. 2. Demand for union shop em ployment, which forces mine owners to employ union men only. 3. A welfare and retirement fund which pays benefits to no one but union members. The injunction granted by Keech has nothing 'to do with the one which President Truman is expected to seek next Monday, The latter would be sought under the national emergency section of the Taft-Hart- ley law to put the striking miners back to work for about 80 days. Auction Sales Today Michael Fox: No. 911 McDonough street, on the premises at 3 P. M (Adv. Page 3, Col. 6.) A. J. Billig & So.: No. 2048 Fount:*! i street, on the premises at 2 P. M. (Adv. Page 3, Col. 6.) Louis Fox St Co.: Sale of Automobile, on the prem ises, 1150 East North avenue, at 9.30 A. M. Washington, Feb. 9 (U.R)—Post- nasters asked Congress today for . pay raise. They claim postal lerks are making more than they ire. Neal A. Sibley, Baltimore, Md., Postmaster, representing the Na- ional Association of Postmasters, :old the House Post Office Com mittee that clerks, carriers, rural arriers and supervisors in many ases make more money than the Postmasters. * * The Postmaster must fur nish the equipment for the Post Of fice and perform the custodial, jani tor and mail messenger service in many cases,” Sibley said. “There is no limit to the number of hours postmaster may have to work, nor is there a minimum wage ap plicable to them.” Chairman Tom Murray, Dem., Tenn., said the proposed salary boosts would mean a 200 per cent, increase since 1945 for some post- Federal Aid To Education Seen Needed But Held In Committee LEGAL NOTICES. First Insertion. The STATE TAX COMMISSION OF MARYLAND hereby gives notice that ARTICLES OF DISSOLUTION of the 17-25 EAST LEE STREET, INCORPORATED were received for record on January 24, 1950, in accordance with the provisions of Sec. 96 of Art. 23 of the Code (1939 Edition). JOS. H. A. BOGAN. WILLIAM W. TRAVERS, fl0.17,24,mh3 Commissioners. The STATE TAX COMMISSION OF MARYLAND hereby gives notice that ARTICLES OF DISSOLUTION of the KEYSTONE FOUNDRY, INC. were received for record on January 31, 1950, in accordance with the provisions of Sec. 96 of Art. 23 of the Code (1939 Edition). JOS. H, A. BOGAN. WILLIAM W. TRAVERS. £10.17,24,mh3 Commissioners. The STATE TAX COMMISSION OF MARYLAND hereby gives notice that: ARTICLES OF DISSOLUTION of the 40 HOPKINS PLACE, INCORPORATED were received for record on January 31, 1950, in accordance with the provisions of Sec. 96 of Art. 23 of the Code (1939 Edition). JOS. H. A. ROC AN, WILLIAM W. TRAVERS. fl0.17,24,mh3 Commissioners. LEGAL NOTICES. First Insertion. Emory R. Cole, Solicitor. 14 East: Pleasant Street. IN THE CIRCUIT COURT NO. 2 OF BALTIMORE CITY—(59B—104—1950) —’Eddie Allen, 1009 Madison, vs, Helen L. Allen, 609 Adams Lane, Raleigh, N. C. ORDER OF PUBLICATION. The object of this suit is to procure a divorce, a vinculo matrimonii by the plaintiff, Eddie Allen, from the defen dant, Helen L. Allen. The bill recites that the parties were married on February 3. 1943. by a Jus tice of the Peace in Dillon, South Caro lina. That plaintiff has been a resident of Baltimore, Maryland, for more than one year last passed and the defendant is a non-resident, living in Raleigh, N. C. That plaintiff was always kind, loving and faithful companion towards the defendant, but that she without just cause or provocation, deserted and abandoned him on or about the 23rd day of September, 1945. That such con tinuous abandonment has been the de fendant’s unprovoked and final act, and there is no hope for reconciliation. That there are no children. It is thereupon ordered this 9th day of February, 1950, by the Circuit Court No. 2 of Baltimore City, that the com plainant Eddie Allen, by causing a copy of this order to be inserted in ■ some daily newspaper published in Baltimore. Maryland, once a week for four succes sive weeks on or before the 13th day of March, 1950, give notice to the absent defendant, Helen L. Allen, o f the object and substance of this bill, warning- her to appear in this Court on or before the 28th day of March, 1950, to show cause if any she may have why a decree ought not to be passed as prayed. EMORY H. NILES. True Copy—:Test: JOHN S. CLARKE. flO, 17,24, mli3 Clerk. SMALL ESTATE NOTICE. LEGAL NOTICES. First Insertion. John M. Baumann, Attorney, 616 Munsey! Building. THIS US TO GIVE 1 NOTICE, That the subscriber has Obtained from the Orphans’ Court of Baltimore City letters testamentary on the I estate of JAMES CONSTANT DA SHIELDS, late of said city, deceased. All persons having claims against said deceased are hereby warned to exhibit the same, with the vouchers thereof legally au thenticated. to the subscriber on or before the 12th day of August, 1950; they may otherwise, by law, be ex cluded from all benefit of said estate. All persons indebted to said estate are requested to make immediate payment. Given under my hajnd this 9th day of February, 1950. J .TAM ES R U S S ft -L D A S H IE L D S , flO, 17.24, mh3 Executor. THIS IS TO GIVE NOTICE, to any person having any claim against the estate of ELLA McKAY LINSLEY. late of Baltimore City, deceased, is hereby warned to exhibit the same, with the vouchers thereof duly authenticated, to the subscriber on or before March 13, 1950; they may otherwise, by law, be excluded from all benefit of said estate. ELLEN L. MESSERSMITH, 2930 Frederick Ave., £10 Small Estate Petitioner. SMALL ESTATE NOTICE. THIS IS TO GIVE NOTICE, to any person having any claim against the estate of PETER ZING-O, late of Baltimore City, deceased, is hereby warned to exhibit the same, with the vouchers thereof duly authenticated, to the subscriber on or before March 13, 1950; they may otherwise, by law, be excluded from all benefit of said estate. ANNA PINIECKI. 321 Drew Street, flO Small Estate Petitioner. THIS IS TO GIVE NOTICE, to any person having any claim against the estate of SAG A TEL ESAHAKIAN, late of Baltimore City, deceased, is hereby warned to exhibit the same, with the vouchers thereof duly authenticated, to the subscriber on or before March 13, 1950: they may otherwise, by law, be excluded from all benefit of said estate. SAM ARUTARIAN, 2316 E. 9 St. Cleveland, Ohio, 1:10 Small Estate Petitioner. Harry I. Kaplan, Attorney, 931 Mu nsey(Building. THIS US TO GIVE NOTICE, That the subscribers have obtained from the Orphans’ Court of Baltimore City letters testamentary on the estate of JOHN J. BELADA, SR., late of said city, deceased. All person® having claims against eaid deceased aye hereby warned to exhibit the same, with the vouchers thereof legally au thenticated, to the 'subscribers on or before the 12th day of August, 1950; they may otherwise. b37 law, be ex cluded from all benefit of said estate. All persons indebted tO’ said estate are requested to make immediate payment. Given under our hands this 9th day of February, 1950. JOHN J. BELADA, JR., HENRY J. BELADA, £10.17,24,mh3 Executors. Washington, Feb. 9 (U.R)—It ap peared unlikely today that the Gov ernment’s plea for a Federal aid-to- education law would jar the contro versial aid bill out of the House Education and Labor Committee. Rep. Samuel K. McConnell, Jr., Rep., Pa., ranking minority mem ber of the Committee, said United States Education Commissioner Ear] J. McGrath’s arguments won’t help the Committee settle its main prob lem : what to do about parochial schools. McGrath had said it does not take an “alarmist” to predict “shocking disorder and ineffectiveness” for the nation’s school system unless something is done about the critical shortage of teachers and school buildings. “The need for Federal aid to edu cation is clear and imperative,’ McGrath said in his annual report. Frank F. Luthardt, Attorney, 2 East Lexington Street. IN THE ORPHANS!.COURT OF BAL TIMORE CITY—February 9. 1950. Ordered, that the sale of leasehold estate of FANNIE E. BELL, deceased, made by FRANK F. LUTHARDT. the administrator c. t. a. of the said de ceased in pursuance of the laws of Maryland, vesting the Orphans’ Court of said State with the power to order the sale of leasehold estate, and this day reported to this Court by the said ad ministrator c. t. a. be ratified and con firmed, unless cause be shown to the contrary, on or before the 13th day of March. 1950; provided, a copy of this order be inserted in some daily news paper, published in the City of Balti more, at least once]? a week for three successive weeks, before the 13th day of March, 1950. The report states the amount of sales to be $4,500. JOHN H. BOUSE, Register of Wills for Baltimore City. True Copy—'Test: j JOHN H. BOUSE, Register of Wills- fpr Baltimore City. flO.17,24 f SMALL ESTATE NOTICE. SMALL ESTATE NOTICE. THIS IS TO GIVE NOTICE, to any person having any claim against the estate of ALBERT EDMONDS, late of Baltimore City, deceased, is hereby warned to exhibit the same, with the vouchers thereof duly authenticated, to the subscriber on or before March 10, 1950; they may otherwise, by law, be excluded from all benefit of said estate. JAMES EDMONDS, 1411 W. Lafayette Ave., flO Small Estate Petitioner. U. Theodore Hayes, Solicitor, 14 East Pleasant Street. IN THE CIRCUIT COURT NO. 2 OF BALTIMORE CITY—(59B—194—1950) —Hilda Mae Crim vs. Richard Crim. ORDER OF PUBLICATION. The object of this suit is to procure a divorce a vinculo matrimonii by Hilda Mae Crim from Richard Crim. The bill recites marriage June 23, 1945, in Brooklyn, New York; that the plaintiff is a resident of Baltimore. Maryland, and defendant is a non resident of Maryland, last heard from at Clinton Prison, Dannemorra, New York. That defendant unjustly deserted and abandoned plaintiff on or about January 5, 1946, that separation has continued without interruption more than eighteen (18) months immediately prior hereto. That it was defendant’s final and deliberate act, and that there is no hope of reconciliation. That there are no children as issue of said mar riage. It is thereupon ordered by the Cir cuit Court No. 2 of Baltimore City, this 9th day of February, 1950, that the plaintiff by causing a copy of this order to be inserted in some daily newspaper published in Baltimore City, once a week for four consecutive weeks before the 13th day of March, 1950, giving- notice to the absent defendant of the object and substance of this bill and warning him to be and appear in this Court, in person or by solicitor, on or before the 28th day of March, 1950. to show cause, if any he may have, why a decree should not be passed as prayed. EMORY" H. NILES. True Copy—Test : f 10,17,24, mh3 JOHN S. CLARKE. Clerk. SM ALL ESTATE NOTICE. J. Britain Winter, Attorney. 2 East Lexington Street. THIS IS TO GIVE NOTICE, to any person having any claim against the estate of m WILLIAM E. PARK, late of Baltimore City, deceased, is hereby warned to exhibit the same, with the vouchers thereof duly authenticated, to the subscriber on or before March 10, 1950; they may otherwise, by law, be excluded from all benefit of said estate. HATTIE F. PARK, 3719 Woodbine Ave., flO Small Estate Petitioner. Thomas Isekoff, Attorney, 411 Munsey Building. THIS US TO GIVE NOTICE, That the subscriber has obtained from the Orphans’ Court of Baltimore City letters of administration on the estate of ANNIES ALMIRA HALL, late of eaid city, deceased. All person® having claims against eaid deceased are hereby warned to exhibit the same, with the vouchers thereof legally au thenticated, to the subscriber on or before the 12th day of August, 1950; they may otherwise, by law, be ex cluded from all benefit of said e®tate. All persons indebted to said estate are requested to make immediate payment. Given under my hand this 9th day of February, 1950. THOMAS ISEKOFF, fl0,17,24,mh3 Administrator. Due, Nickerson & Whiteford, Attorneys, Title Building. THIS US TO GIVE NOTICE, That the subscriber has obtained from the Orphans’ Court of Baltimore City letters testamentary on the estate of CHARLES B. FRANK, late of said city, deceased. All persons having claims against said deceased are hereby warned to exhibit the same, with the vouchers thereof legally au thenticated, to the subscriber on or before the 12th day of August, 1950; they may otherwise, by law, be ex cluded from all benefit of said estate. All persons indebted to said estate are requested to make immediate payment. Given under my hand this 9th day of February, 1950. LILLIAN GREEN FRANK, f 10,17,24, mh3 Executrix. I House Passes Bill To Aid Korea And Formosa Washington, Feb. 9 (U.R) — The [House today passed a bill to extend >,000,000 in economic aid to Korea land Formosa. By a vote of 240 to 134, the House I reversed its stand of three weeks I ago when a GOP-led bloc killed by la single vote a $60,000,000 aid bill |for Korea alone. The bill passed today extends ■economic aid through June 30th. ■Economic help to Korea would other- Iwise expire February 15. Already Ipassed by the Senate, the measure ■now goes back there for considera- Ition of House amendments. Economy-minded Democrats and (Republicans twice failed to slash Ithe aid bill to $20,000,000 during (hours-long debate today. A move by iep. A. L. Miller, Rep., Neb., to send |the bill back to committee failed by . roll call vote of 239 to 137. Robert N. BaeF, Attorney, Baltimore Life Building. IN THE ORPHANSVCOURT OF BAL TIMORE CITY—February 9, 1950. Ordered, that the;-sale of the real and leasehold estate of STEPHEN S. LEE, deceased, made by BROOKIE D. LEE and ROBERT N, BAER, the executors of the last will and testament of the said deceased, and this day reported to this Court, by the said executors, be ratified and confirmed, unless cause be shown to the contrary, on or before the 1.3th day of March. 1950; provided, a copy of this order be inserted in some daily newspaper published in the City of Baltimore, at least once a week, for three successive weeks, before the said 13th day of March, 1950. The report states the amount of sales to be $11,550 being a %th undivided interest. LEO J. CUMMINGS, SAMUEL LASCH, DHLANY FOSTER, True Copy—Test: Judges. JOHN N. BOUSE, Register of Wills for Baltimore 'City. £10,17,24 William Hoffenberg, Attorney, 1516 Court Square Building. THIS IS TO GIVE NOTICE, That the subscriber has obtained from the Orphans’ Court of Baltimore City letters of administration c. t. a. on the estate of JOHN W. .MULES, late of said city, deceased. All person® having claims, against eaid deceased are hereby warned to exhibit the same, with the vouchers thereof legally au thenticated, to the subscriber on or before the 12th day of August, 1950; they may otherwise, by law, be ex cluded from all benefit of said estate. All persons indebted, to said estate are requested to make immediate payment. Given under my hand this 9th day of February, 1950. WILLIAM HOFFBNBERG, £10,17,24,mh3 Administrator, c. t. a. APPROVE TRYING HIR0HITO London, Feb. 9 (U.R)—The Chinese Communist government has accept ed officially the Soviet proposal to |set up an international court to try 3mperor Hirohito and tour Japanese generals on bacteriological warfare barges, the Communist New China Inews agency said today. IN THE ORPHANS’ COURT OF BAI. TIMOR® CITY—February 9, 1950. Ordered, that the sale of the real estate of GUS-SIE ROCKSTROH, de ceased, made bv MERCANTILE TRUST CO. OF BALTO. and ERNEST VOL- KART. the executors, of the last will and testament of the said deceased, and this day reported to this Court, by the said executors, be ratified and con firmed. unless cause be shown to the contrary, on or before the 13th day of March, 1950; provided, a copy of this order be inserted in some daily news paper published in the City of Balti more, at least once a week, for three successive weeks; before the said 13th day of March, 1950. The report states the amount of sales to be $11,190. LEO J. CUMMINGS, SAMUEL LASCH. OTJLANY FOSTER, True Copy—Test: Judges. JOHN N. BOUSE. Register of Wills for Baltimore City, f 10,17,24 G. Everett Siefeert, Solicitor, 100 St, Paul Street. IN THE CIRCUIT COURT OF BALTI MORE CITY—(C—8—1950)—Prospect Permanent Building & Loan Associa tion of Baltimore City, a body corpo rate, vs. Catherine M. Zirl. Ordered, by the Circuit Court of Baltimore City this 9th day of Feb ruary, 1950, that the sale of the prop erty mentioned in these proceedings, made and reported by G. EVERETT SIEBERT, trustee, be ratified and con firmed, unless cause to the contrary thereof be shown on or before the 13th day of March, 1950; provided, a copy of this order be inserted in some daily newspaper printed in Baltimore City, once in each of three successive weeks, before the 6th day of March, 1950. The report states the amount of sale to be $2,900. HENRY ,T. RIPPERGER, True Copy—Test: Clerk. HENRY J. RIPPERGER, fl0,17,24 Clerk. Israel M. JoMin, Attorney, 220 East Lexington Street. THIS US TO GIVE NOTICE, That the subscriber has obtained from the Orphans’ Court of Baltimore City letters of administration on the estate of THERESA DORNICAK, late of said city, deceased. All persons having claims against said deceased are hereby warned to exhibit the same, with the vouchers thereof legally au thenticated, to the subscriber on or before the 12th day of August, 1950; they may otherwise, by law, be ex cluded from all benefit of said estate. All persons indebted to said estate are requested to make immediate payment. Given under my hand this 9th day of February, 1950. ISRAEL M. JOBLIN, fl0,17,24,mh3 Administrator. Baldwin, Jarman & Norris, Attorneys. Fidelity Building. THIS IS TO GIVE NOTICE, That the subscriber has obtained from the Orphans’ Court of Baltimore City letters testamentary on the estate of CHARLES CHAUNCBY WINSOR JUDD, late of said city, deceased. All person® having claims against said deceased are hereby warned to exhibit the same, with the Touchers thereof legally au thenticated, to the subscriber on or before the 12th day of August, 1950: they may otherwise, by law, be ex cluded from all benefit of said estate. All persons indebted to said estate are requested to make immediate payment. Given under my hand this 9th day of February, 1950. fl0,17,24.mh3 EVELYN WEBB JUDD, Executrix. OFFICES FOB BEN T. J. Hooper Edmondson, Solicitor, Munsey Building. IN THE CIRCUIT COURT NO. 2 OF BALTIMORE CITY—January Term, 1950— (20A—478—1911)— Ex parte: Trust estate under will of Mary P. Hall, de ceased. Ordered, that the private sale of the property mentioned in these proceed ings, made to CITY OF BALTIMORE, and reported by J. HOOPER EDMOND SON, surviving substituted trustee, be ratified and confirmed, unless cause to - the contrary thereof be shown on or before the 18th day of March. 1950; provided, a copy o f this order be in serted in some daily newspaper, printed in Baltimore City, once in each of three successive weeks before the ftth dav of March, 1950. The report states the amount o f pri vate sate to be $8,900. EMORY H. NILES. True Copy—Test: JOHN S. CLARKE, flO.17,24 Clerk. 343 N. CALVERT STREET 914 N. CHARLES STREET OFFICE SUITES IMMEDIATE POSSESSION Empire Realty Co., Inc.. 343 North Calvert Street. LB xington 3121. PRIVATE OFFICE, WAITING ROOM and secretarial service. Reasonable rent. 18 East Lexington Street. Address Box 124, The Daily Record. f6,8,10,14,15,17 CENTRALLY LOCATED, WAITING room, with secretarial service; ideal for real estate broker or attorney. Ad dress Box 123. The Daily Record. f8-5t SALE UNDER B U L K ACT. Joseph C. San try, Attorney, 2 Bast Lexington Street. THIS IS TO GIVE NOTICE, that I have “hntraeted to purchase the AUTOMO- BUSINESS, STOCK and FIXTURES of WILLIAM M. CXITL- ■COAT and ROBERT CUMBERLAND, trading as C. & N. AUTO SERVICE located at Nos. 3728-30 Bank Street. Anyone having claims will present the same at the law office of Joseph C. San try, 2 Bast Lexington Street on or before Tuesday, February 14, 1950 CHARLES SANDERS, ra''st Purchaser. United States District Court DISTRICT OF MARYLAND. Civil Action No. 4152. Filed December 30, 1949. PHILIP BOYER ET AT,., vs. ROBERT GARRETT ET AL. Opinion on D efendant.s ’ Motion to D ism iss and fob Sum m ary Judgment. I. Duke Avnet, Edgar Paul Boyko, William H. Murphy and Dallas F. Nicholas for plaintiffs. Thomas N. Biddison, City Solicitor, Allen -4. Davis, John J, Ghingher, Jr., Hugo A. Moduli, Assistant City Solicitors, for Mayor and City Council of Baltimore. John Henry Lewin, of Venable, Baetjer & Howard for indivi dual defendants. Segregation Of Races—Facilities Afforded By State For Its Ctiizens— Constitutional Exercise Of Police Power. CHESNUT, District Judge- Counsel state that this is a test case. It differs, however, from the ordinary test case in that the lat ter is generally brought to estab lish some new point of law, while the present case seeks to dis-estab- lish presently existing law. The point of law referred to is the doc trine that segregation of races with respect to facilities afforded by the State for its citizens is within the constitutional exercise of the police power of the States respectively, provided, however, that the separate facilities afforded different races are substantially equal. This legal prin ciple is, of course, not new. It has been the established doctrine of the Supreme Court of the United States for more than fifty years.1 The classic statement of the rule is found in Plessy vs. Ferguson, (1896) 163 IJ. S. 537, 544, where it was said: “The object of the amendment 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 po litical, equality, or a commingling, of the two races upon terms un satisfactory to either. Law's per mitting, and even requiring, their separation, in places where they are liable to be brought into con tact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored chil dren, which has been held to be valid exercise of the legislative power even by courts of states where political rights of the col ored race have been longest and most earnestly enforced.” (Italics supplied.) In accordance with this consti tutional doctrine the policy and prac tice of segregation of the races (Negro and white) is now the es tablished policy and practice in 17 of the 48 States, including Mary land.3 Thus in Williams vs. Zim merman, 172 Md. 563 (1937), the Maryland Court of Appeals said: “ Separation of the races is normal treatment in this State.” In Uni versity of Maryland vs. Murray, 169 Md. 478 (1935) the Court stat ed : “Equality of treatment does not require that privileges be provided members of the two races in the same place. A State may choose the method by which equality is main tained.” Other Maryland cases to the same effect are Hart vs. State, 100 Md. 595: State vs. Jenkins, 124 Md. 376. and Durkee vs. Murphy, 181 Md. 259.’ Any consideration of this legal principle should sharply distinguish between what constitutes the proper exercise of constitutional power on the one hand, and what is justifi able policy on the other. The ques tion of constitutional power is for the:courts, and is the only matter here to be considered. The proper policy, that is, whether segregation should be required or not, is for the legislative department of the State or for the executive depart ment operating under legislative au thority. The principal argument submit ted by counsel for the plaintiffs against the legal doctrine that seg regation is within the police, power of the separate States is based on the view now earnestly advanced that segregation, by reason of changes in economic and other na tional conditions, since 1896 when Plessy vs. Ferguson was decided, has become outmoded. This argu ment seems to be addressed to the wisdom of State policy rather than to the existence of State power.4 The argument is sought to be forti fied by the contention that the doctrine of Plessy vs. Ferguson has been somewhat weakened or im paired by subsequent decisions of the Supreme Court;5 hut I am not persuaded that the contention is correct as it is very clear that the doctrine of Plessy vs. Ferguson has never been in fact repudiated by the Supreme Court, nor, so.far as 1 have been able to ascertain, is the present contention supported by any judicial decision, federal or state. On the contrary there are several very recent decisions ex pressly holding that the doctrine of Plessy vs. Ferguson is still con stitutional law. Certainly that has been the understanding of the Judges of this court as expressed in very recent cases. Mills vs. Lowndes, 26 F. Supp. 792, 798; Hen derson vs. United States, 63 F. Supp. 906, (D. C. Md. 1945) ; Hen derson vs. Interstate Commerce Commission, 80 F. Supp. 32 (D. C. Md. 1948) (now pending on appeal to the Supreme Court).8 Even more important is the very recent opin ion of the Court of Appeals of the j Fourth Circuit by Judge Dobie (im-! perative authority for me) in Corbin ‘ vs. County School Board (Va.) Nov. 14, 1949, affirming District Judge Barksdale’s opinion in 84 F. Supp. 253, 254, 255; and to the same effect is Day vs. Atlantic Greyhound Corp. (4th Cir.) 171 F. 2d. 59 (1948) where the court upheld a reasonable regulation of an interstate carrier with respect to segregation of races. In the opinion it was said “This question, however, is not open to debate in this court. It is fore closed by binding decisions of the Supreme Court which hold that an interstate carrier has a right to establish rules and regulations which require white and colored passengers to occupy separate ac commodations provided there is no discrimination in the arrangement.” However, where the separate facili ties afforded by the State have been found not substantially equal, this court has not hesitated to enjoin State officials from unconstitutional discrimination. Mills vs. Lowndes, 26 F. Supp. 792 (D. C. Md. 1939) ; Law vs. Mayor & City Council of Baltimore, 78 F. Supp. 346 (D. C. Md. 1948) Mills vs. Anne Arundel I County, 30 F. Supp. 245. As this case will be appealed it may be helpful to briefly analyze the pleadings and procedure by • which the question to be tested is j presented. The procedure is per haps a little unusual because, while | arising on a motion to dismiss the ! complaint or for judgment on the i pleadings, the facts are to be found in a rather lengthy stipulation i which in effect, for the purposes of | the decision, limit and control, if they do not contradict, the rather | general and somewhat vague aver- | meats in the five separate counts of ! the complaint. | The complainants in the second amended complaint, are 21 individ uals, some adults and some minors, some white and some Negroes, who sue the seven members of the Board of Recreation and Parks of the City of Baltimore in their official ca pacity as a Board, and also the Mu nicipal Corporation, the Mayor and City Council of Baltimore. Robert Garrett and four other members of the Board, constituting a majority, are sued both individually and offi cially. R. Brooke Maxwell, Director of the Board, and Charles A. Hook, Superintendent, and other subordi nate officials are also joined as de fendants but their presence is un important in connection with the question presented. The object of the complaint is to obtain damages in the alleged amount of $500,000, and also separately an injunction against the Board to restrain it from enforcing a rule or practice which it had heretofore officially adopted providing for segregation of the races in athletic .activities, including the sports of golf, basket ball and tennis, in the public parks and places subject to the control of the Board. The jurisdiction of the court is based on certain sec tions of the Civil Rights Act, 8 U. S; C. A., particularly ss. 43 and 47.7 The complaint embraces five sepa rate counts. The first three set forth complaints by separate and different groups of the 21 plaintiffs, each seeking large monetary dam ages for alleged deprivation of equal rights in public facilities. The fourth and fifth counts are based on the conspiracy provision in sec tion 47 of title 8 U. S. C. A., and seek damages in large amount in favor of all 21 plaintiffs jointly against the several defendants joint ly based on the more specific inci dents set out in the first three counts. More particularly the first count seeks damages on behalf of two white persons and two Negroes, j for the refusal of the defendants to permit them to play basketball \ as a team consisting of both whites and Negroes. In the second count another separate and different group of the plaintiffs, 14 being named, some white and some Negroes, de mand damages for being refused permission to continue playing inter racial tennis on courts in Druid H ill! Park, and being forcibly ejected therefrom in consequence of their refusal to obey the order of the Park Police to desist by reason of the policy of the Board against in terracial tennis in the public parks.8 In the third count damages are claimed by -one of the plaintiffs, a white man. for being refused per mission to play golf on the Clifton Park Municipal Golf Course on a particular day on which, by order of the Board, the course was re served exclusively for use by Negro players; and in the same count an other plaintiff, a Negro, likewise demands damages for similar re fusal to be allowed to play golf on the same golf course but on a dif ferent, day on which, by order of the Board, the particular golf course was reserved for the use of white players only. All defendants answered the ori; inal complaint and all except Balt’ more City likewise answered th first amended complaint, while th City moved to dismiss it on th ground that the complaint did no negative the existence of equalit of treatment. In addition the de THE DAILY RECORD, BALTIMORE, FRIDAY, FEBRUARY 10, 1950 fendants Robert Garrett and four other members of the Board, con stituting the majority, filed a mo tion for summary judgment sup ported by elaborate affidavits af firmatively stating that with re spect to all the athletic facilities re ferred to in the amended complaint, the facilities afforded the separate races were substantially equal. Thereafter, with leave, the plain tiffs filed a second amended com plaint on the condition that the de fendants’ motion for summary judg ment previously filed should like wise apply to the second amended complaint. The; City again moved to dismiss the second amended com plaint. Shortly thereafter counsel agreed to have the substantial ques tion of law herein referred to pre sented by a very carefully prepared statement of facts filed in the case. Despite its length (20 typewritten pages) and detail it is unnecessary in this case to meticulously analyze or appraise the facts in the stipula tion which seems to have been pre pared with sedultus care to present only the particular question with regard to segregation, putting aside any possible inferences of disad vantage or prejugice to either party with respect to fie facts stated in sofar as they may be important at any other possible stage of this case or in any other judicial proceeding. Throughout the case it is im portant to bear in mind the very re stricted scope of inquiry which this federal court has in this particular case because its jurisdiction is based only on sections 43 and 47 of title 8 U. S. C. A., the gist of which is to give a federal right of action for the intentional deprivation of, or interference with the exercise of, federal constitutional or statutory rights. See Snowden vs. Hughes, 321 U. S. 1; Screw's vs. United States, 325 U. S. 91; Lyons vs. Welt- mer, 4th Cir. 174 F. 2d. 473. Cf. Burt vs. New York, 156 F. 2d. 791. The only federal right here involved \ is the alleged right of the plaintiffs to participate in interracial athletic activities under the control of the Park Board; that is, anti-segrega tion. This, therefore, is the only issue in the case. If segregation, with equal facilities, is within the constitutional police power of the State, acting directly or through its agencies with legislative authority, the complaint in this case- does! not state a cause of action either in j law or in equity against any -of the; defendants. It may be assumed j that the second count of the com plaint on its face states a cause of action, net completely negatived by! the agreed statement of facts, which: would be cognizable in a court hav- j ing general comiion law jurisdic-j tion of actions foif assault, false ar-j rest or malicious prosecution; but; there can be no such jurisdiction! here because there is no diversity; of citizenship and no jurisdiction except under the special federal statutes. Therefore the really im-! portant .and controlling facts may! be briefly stated, j Among the-atM/tiG-facilities pro- ; vided and controlled by the Board; are basketball courts, tennis courts j and golf courses. (There is no stat-1 ute of the State of ordinance of the; City which specifically prohibits! members of the Negro and white races from engaging together in these athletic activities or using the facilities provided and supervised by the Board oi Recreation and Parks; but it has long been the con sistent policy and practice of the present Board ancl also of its pre decessors to require segregation of the races in sues activities. More specifically, at a meeting held Janu ary 20, 3948, by a majority vote, the Board passed a resolution reading “That the policy of the Department, of Recreation and! Parks of not al lowing interracial (athletic activities be continued until; further study by this Board.”9 It appears that yjvbile this practice of the Board in general refusing to permit interracial use of certain athletic activities under its control was known or made known at the time to the complainants, the Board had not formulated or publicized any specific rule of regulation upon the subject, except with respect to use of the municipal golf course. Its failure to do so- could have raised the question as to the regularity or validity of its exercise of the rule making power, which might have been of importance in some other case involving the subject matter as, for instance, ft bill to enjoin the enforcement of the rule by a par ticular plaintiff who challenged the valid existence off such a rule; or the point may have been a good de fense to a prosecution for violation j of a rule which existed only in such ; general terms.10 But in this particular case there! Is no issue of fact as to the existence of the practice or requirement of the Board against interracial ath letic activities. The complaint does not question the existence of the rule hut on the contrary asserts it and denies its constitutional valid ity. And it is this later denial which makes the issue of law in this case. In fact it is only by reason of the rule that this court has jurisdiction in the case under sections 43 and 47 of title 8 U. S. C. A. An important feature of the agreed statement of facts is that, for pur-i poses of the question now before- the court, the complainants made! no contention that the facilities af-J forded for the separate races are not substantially equal. This being! so there can be no question but that I under Maryland law the Park Board did have the legal authority to re quire segregation of the races. In Dnrkee vs. Murphy, 181 Md. 259, 265 ; (a case involving segregation of I white and Negro players on munici-! ial golf courses) Chief Judge Bond j ifter referring to the relevant sec ] ions of the Baltimore City Chartei »f 1938 (not substantially differenf I ’rom those of the present Charte- j if 1946) which conferred power; ipon the Park Board to make rule: ! nd regulations, said: “ And these provisions must, we j conclude, be construed 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 racial antipathies, for that is a common need to be faced in regulation of public facilities in Maryland, and must be implied in any delegation of power to con trol and regulate. There can be no question that, unreasonable as such antipathies may be, they are prominent sources of conflict, and are always to be reckoned with. Many statutory provisions recog nize this need, and the fact needs no illustration, ‘Separation of the races is normal treatment in this State.’ Williams vs. Zimmerman, 172 Md. 563, 567, 192 A. 353, 355. No additional ordinance was re quired therefore to authorize the Board to apply this normal treat ment ; the authority would be an implied incident of the power ex pressly given.” I find no material issue of fact in the case presented. With respect to the complainants’ claim for mone tary damages, the facts stipulated do not warrant the inference that the motivation of the majority members of the Board in enforcing its general practice and policy was arbitrary, capricious or dictated by other than honest conception of the public interest involved. If it be |assumed that the policy was un necessary or tin wise and the result of mistaken judgment, it was never theless official action authorized by legislation, and as; a matter of law there was no legal liability therefor if the legislative authority so dele gated was within the federal consti tutional authority of the State of Maryland under its police power. That being so, it cannot be main- tamed that the action was ' taken merely under “color” of authority. Nor did such honest official action of the majority of the Board con stitute a conspiracy to injure the plaintiffs within the meaning of the federal statutes. As to the defen dants constituting subordinate offi cials of the Board, there is nothing in the statement of facts to indicate that they were acting other than in accordance with superior authority, and without personal animus or in tentional discrimination. It is suggested -by counsel for the plaintiffs that this case differs from tile typical situation in which one or more Negroes alone are seeking to enforce equality of treatment, be cause here they are joined by some whites who insist upon the right to participate in interracial sports. In my opinion the attempted distinc tion is unsound. If the Board’s re quirement as to segregation was valid, it was equally binding upon whites and Negroes. Their mutual desire to participate together in j athletic activities might be a proper consideration for the Board in form ulating its policy but cannot of itself affect the power to make the regu lation. The plaintiffs’ real complaint in this case is their dissatisfaction with the constitutional doctrine of the Supreme Court-as announced in Pleasy vs. Ferguson, and many sub sequent cases, which continues to be the existing law as expressed in the recent opinions of the Court of Ap peals for this Circuit. In view of this imperative authority It follows very clearly that this court must apply that law in holding that seg regation is within the police power of the State; which has been duly delegated in this respect to and exercised by the Board of Recrea tion and Parks of Baltimore City. The earnest contention of plaintiffs’ counsel that the doctrine is now out moded is, as I have heretofore stated, an argument addressed to policy rather than power. Treated as policy the decision may vary in the States respectively and from time to time; but if the constitu tional power is denied, then the rule becomes fixed and uniform for each and all of the 48 States at ail times unless and until constitution ally changed. Subsequent to the • filing of the agreed statement of facts counsel have taken certain depositions of witnesses regarding alleged recently arising public disorder consequent upon the temporary abandonment of the policy of segregation in swim ming pools in St. Louis, Missouri, and other places. The plaintiffs object to the admissibility of such depositions as irrelevant. I rule that they are inadmissible. They can have no relevancy with regard to the existence of the constitutional power. Possibly they might have some significance with respect to the policy as to segregation in the par ticular jurisdiction. But, as- I have said, this court cannot deal with the propriety of the policy either in this jurisdiction or elsewhere, but only with the question of constitutional power. I conclude that the motion for judgment on the pleadings must be granted in favor of the defendants. As a matter of strict procedure there might possibly be a distinc tion between the motion to dismiss and the motion for summary judg ment but I infer that counsel for the plaintiffs do not desire to make such a distinction in the particular case. I am not unmindful of the general undesirability of deciding- important constitutional questions, if at all debatable, in a summary procedural manner; and I am also aware of the fact that the Supreme Court now has pending before it cer tain cases which counsel state may involve a further consideration by the Court of the constitutional doc trine here involved. In fact I sug gested to counsel in this case the desirability of withholding the ar gument or disposition of this case pending decisions of the Supreme Court in the cases referred to; but nevertheless counsel for the plain tiffs have asked for a decision hen in due course and without awaitin' further legal developments. I thinl they are entitled to have a promp decision. For these reasons the mo tions of the defendants will be gram ed, and counsel are requested t submit the appropriate orders in du course. (1) The doctrine is illustrated by th following cases in the Supreme Court of the United States: Ilall vs. DeCuir. .1878, 1)5 U, •vS, 48$, 24 l ’ Ed, 47; PltseyVS. ‘Fersruson, .1.896 163 V, S. 537, 36 S. ;t\ 1138, 3140, 41 I,. Ed 256 C morning vs. Count3 Board of 1/ducat ton. 1899. 175 r. s, 528, 20 S. ?t. 97, 44 1. Ed 262: McCabe vs, A. T. 4.'Z B\ It Co. 1934. >35 r . s. 153. 35 S. Ct 69* 39 L. Ed. 169: it emir Emu m Rice, 192 275 C. 8, 78, 48 8 . Ct 91. 72 ’L. Eel. 172 : [Missouri vs , Canada, 1988, 305 IT. S. 137. 59 8. Ct 232. S3 L. Ed. 208; Sipuei vs. Oklahoma, 1948, 08 S, Ct. 290, 92, L. Ed. 247. ( 2) For illustration see Maryland An notated Code, 1939 Ed., Art. 27, ss. 440, 445, and 493. regarding intermar riage, etc.; Art. 27, ss. 510-526, regarding interstate transportation by railroads and steamboats: Art. 27. ss. G84, 090. 729, regarding reformatory and train ing schools, and Art. 77. .so. Hi, 192, 193, ancl Art. 85 (a) s, 1 (Code. 1947 Ed.), relating to separate schools based upon race. The same policy and prac tice with regard to separate schools prevails in Baltimore City, a municipal subdivision of the State. See ss, 8-i through 48 of Art. 41 of the Baltimore City Code of 1927. (3) See also Pressman vs-. Mayor & City Council of Baltimore, Baltimore Daily Record, Dec. 17, 1949, i-l) See Judge Paul’s discussion of the recent segregation case of Simmons vs. Atlantic Greyhound Corp. (W. D. Va.) 75 F. Supp. 188, 175, (5) Cases especially referred to in this connection are Buchanan vs. Warley, 245 0. S. 80. (3917) ; McCabe vs. A, T. & S. F. R. Co., 235 U. S. 151 (1914); Mitchell vs. United States, 313 U. S. SO (1941); Missouri ex rel Gaines vs. Can ada, 305 U. 'S. 337 (1938) ; Takahashi vs. Fish & Game Comm., 334 U. S. 410 (1948) ; Oyama vs. California, 332 T). S, 633, 840, 646 (1948) ; and Shelley vs. Kraenier, 334 TViS: 1 (1948): Hague vs. C. I. O., 307 XI. S. 496 (1939). (6) In the second Henderson case ISO F. Supp. 32, 40) Circuit Judge Soper’s dissent was prefaced with the remark that—“ It is true that segregation of the races is lawful provided ‘substan tial equality of treatment of persons travelling under like conditions is ac corded’.’ ' See also Nash vs. Air Ter minal Services (Va.) 85 F. Supp. 545 (Judge Bryan) ; and Carter vs. School Board, (E. D. Va.) Dec. 7, 1949. (7) Section 43 provides: “ Every per son, who, under color of any statute, ordinance, regulation, custom or usage of any State or Territory, subjects or causes to be subjected any citizen of the United States or other person with in the jurisdiction thereof to the depri vation of any rights, privileges or im munities secured by the Constitution and laws shall be liable to the party in jured in an action at law, -suit in equity, or other proper proceeding for redress.” And section 47 in part im poses liability for damages on twro or: more .persons who conspire to injure persons who are lawfully enforcing or! attempting to enforce the right of any; person or class of persons to the equal i protection of the law's. (8) This appears to be the same in cident which was made the basis of a prosecution in the Criminal Court of' Baltimore City against some of these plaintiffs, resulting in a conviction of conspiracy to disturb the public peace. The opinion of the Supreme Bench of Baltimore City by Judge Tucker in the case of Stanley Askin and others, is reported in The. Baltimore Daily Rec ord for March 7, 1949. On appeal the judgment of the Criminal Court of Baltimore was affirmed by' the Mary land Court of Appeals (The Baltimore Daily Record, Dec. 6, 1949). The Court of Appeals did not find it necessary to consider the validity of the policy' of the Board. (9) The agreed statement pf facts lists a number of real or apparent exceptions to the consistency of the general policy and practice or the Board and its pre decessors, but viewing the agreed state ment as a whole and interpreting it in accordance with my understanding of the purpose of counsel in presenting the substantial law question, I consider the exceptions to be really immaterial. In stances of some of the exceptions noted a r e a s - f o l l o w s : D u r in g - t h e w a r y e a r -s and pending reconstruction and im provement of !:he Carroll Park Golf- course theretofore reserved exclusively for Negro golf players (see Durkee vs, Murphy. 181 Md. 259. and Law vs. Mayor & City Council of Baltimore, 78 F. Supp. 346) they were allowed to play- on other municipal golf courses. The Baltimore Stadium is under the control of the Board and at times has been! leased to amateur or professional base ball or football clubs and occasionally a visiting baseball or football team has had a Negro member, Also during the recent war some Cricket matches were played in Druid Hill Park between teams from crews of British ships and the local team consisting mainly of Negro play'ers. -but with a few' white players. This faet is stated to have been known to -the Board of Recreation and Parks but it issued no permits therefor. 'Certain other instances of in terracial athletic activities occurring in Baltimore City, not under the particular jurisdiction of the Park Board, are also mentioned. (10) The absence of a formally adopt ed specific rule with respect to inter racial tennis in Druid Hill Park was apparently an important consideration in the opinion of the dissenting Judges of the -Supreme Bench of Baltimore City and of .Judge Markell in the Court of Appeals of Maryland in the case of State of' Maryland vs. Stanley Askin and others above mentioned. But in the course of the majority opinion of the Supreme Bench by Judge Tucker it was said: “ The authority of the Park Board to make a rule prohibiting interracial tennis in the public parks of Baltimore City is firmly supported by' decisions of the" Court of Appeals in Durkee vs. Murphy, 181 Md. 259, 285-6. and W il liams vs. Zimmerman. 172 Md. 563, 567. The Board had the pow'er to provide some tennis courts for Negroes and others for whites, and to enforce the policy of segregation in the use there of. The defendants Askin and Buchman. were fully advised of the Board’s policy- in this respect; and in our opinion if is immaterial that it was not printed in a book of rules, or that it may not have been w-holly consistent with the policy followed in the use of other sports facilities.” I N D E X Table of Contents Statement of the Case........................... Question Presented: Was Appellees’ Refusal to Admit Appellant to the School of Nursing of the University of Maryland a Denial to Her of the Equal Pro tection of the Laws Guaranteed by the Four teenth Amendment to the Constitution of the United States? ................................................... 2 Statement of Facts......................................................... 2 A rgument ............................................................................ 8 Conclusion .......................................................................... 19 page 1 Table of Citations Cases Boyer, et al. v. Garrett, et al. (Daily Record, Febru ary 10, 1950)........................................................ 9 Durkee v. Murphy, 181 Md. 259, 285......................... 9 Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 106, 82 L. Ed. 1202, 1210 14-15 Maryland v. Murray, 169 Md. 478.........................15, 16, 19 Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 344, 83 L. Ed. 208, 211..................................9,15,16,19 Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 258...... 9 Poole v. Fleeger, 11 Pet. 185, 9 L. Ed. 680, 690........ 14 ii PAGE Sipuel v. Oklahoma, 332 U. S. 631, 92 L. Ed. 247 (333 U. S. 147, 92 L. Ed. 605).........................15, 16,19 Virginia v. Tennessee, 148 U. S. 502, 517-519, 37 L. Ed. 537, 542-543........................................... 11-13,14 Statutes Laws of 1949 (Maryland), Chapter 282 (The Regional Compact) ........................................... 3, 9 United States Constitution, Article I, Section 10, Clause 3 .............................................................. 10 United States Constitution, Fourteenth Amend ment ............................................................. ...... 8 Miscellaneous Congressional Record, Vol. 95, No. 77, p. 5588........ 10 Index to A ppendix A pp. page Testimony r Dr. Maurice C. Pincoffs—- Direct .......................................... 1 Cross. ............................................................ 12 Mrs. Verne Allen Nesbitt— Direct .......................................................... 18 Cross ............................................................ 22 Redirect ....................................................... 23 Mrs. Angela M. Sh ip ley- Direct .......... 23,31 Cross ................ .................. .........;•.......26 Redirect ............ 27 A pp. PAGE Miss Florence M. Gipe— Direct .......................................................... 27 Cross ............................................................ 28 Defendants’ Exhibit A, photograph of Nurses’ Home, Meharry Medical College, Nashville, Tennessee .......................................................... 33-34 Defendants’ Exhibit B, photograph of Meharry Medical College, Nashville, Tennessee............. 35-36 Defendants’ Exhibit, Rating of University of Mary land School of Nursing by The Maryland State Board of Examiners of Nurses........................... 37 iii I n T he Court of Appeals of Maryland October Term , 1949 N o. 139 ESTHER McCREADY, minor by ELIZABETH McCREADY, her next friend and parent, vs. Appellant, HARRY C. BYRD, President, et ah, Appellees. A ppeal from the Baltimore City Court ( Sm ith , C. J.) BRIEF OF APPELLEES STATEMENT1 OF THE CASE This is an appeal from an Order of the Baltimore City Court dated October 10, 1949, dismissing a Petition for Mandamus filed by Esther McCready on behalf of her minor child, Elizabeth McCready (herein referred to as Appellant) against Harry C. Byrd, President of the University of Maryland and others, to compel them to 2 consider and act upon Appellant’s application for admis sion to the School of Nursing of the University of Mary land and to certify her for entrance to said School with out regard to her race or color, QUESTION PRESENTED Was Appellees’ Refusal to Admit Appellant to the School of Nursing of the University of Maryland a Denial to Her of the Equal Protection of the Laws Guaranteed by the Fourteenth Amendent to the Constitution of the United States? STATEMENT OF FACTS The facts in this case are either admitted or uncontra dicted. They may be summarized as follows; Appellant, a Negro, eighteen years of age, a citizen and resident of the State of Maryland and of the United States of America, duly filed her application, dated February 1, 1949, for admission as a first year student in the School of Nursing of the University of Maryland (herein referred to as “Maryland” ) for the academic year be ginning August 8, 1949. That application was received by the proper authorities of the University of Maryland on February 2, 1949. Said School is the only public insti tution offering a nursing education in the State of Mary land. Two courses of study are open to students admit ted to the School. One is a three year course leading to a certificate. The other requires the prior successful completion of two years of college and leads to a B. S. degree. Three years study is required in each course (App. App. pp. 20-21; 6, 8). The educational and moral qualifications of Appellant are equal to, if not superior to, the educational and moral 3 qualifications of at least some of the white students who were admitted to the first year class at Maryland for the academic year beginning August 8, 1949, and whose applications were received by the proper authorities of the University of Maryland after the receipt of Appel lant’s application. Appellant was ready, able and will ing to pay all fees and expenses for her first year course of study and was ready, able and willing to conform to all lawful rules and regulations governing first year students at Maryland. Appellant filed the Petition for Mandamus in this case on July 27, 1949 (App. App. pp. 20-21). On August 13, 1949, Dr. Edgar F. Long, Director of Admissions of the University of Maryland (one of the Appellees) wrote to Appellant concerning her applica tion (App. App. pp. 11-12). In this letter, Appellant was advised of the policy of the State of Maryland that mem bers of the white and Negro races should be segregated in public educational institutions. She also was advised that, in furtherance of said policy, the Governor of the State of Maryland had entered into a Compact dated February 8, 1948, known as “The Regional Compact” , with the Governors of the States of Florida, Georgia, Louisiana, Alabama, Mississippi, Tennessee, Arkansas, North Carolina, South Carolina, Texas, Oklahoma, West Virginia and the Commonwealth of Virginia; that the General Assembly of Maryland, by Chapter 282 of the Laws of 1949, approved, confirmed and ratified said Com pact, the Act of approval being effective June 1,1949; that said Compact had been approved by proper legislative ac tion by more than six of the aforesaid States and was in full force and effect; that The Regional Compact makes provision for education in the professional, technologi 4 cal, scientific, literary and other fields of all citizens of the several signatory States, regardless of race or creed, at jointly owned and operated regional educational insti tutions in the Southern States; that arrangements had been made whereby the Meharry Medical College, Nash ville, Tennessee, had become a Compact institution to which the signatory States will send students for medical, dental and nursing education. Appellant was further ad vised that arrangements would be made so that she could attend the School of Nursing at Meharry Medical College (herein referred to as “Meharry” ); that her total expenses incident to attending Meharry, including neces sary travel and room and board, would not exceed what it would cost her to attend Maryland; that she would re ceive the same kind and quality of work at Meharry as she would receive at Maryland. Appellant was advised to contact Dr. Long either at College Park or at Balti more so that he could advise her the procedure to be em ployed for her admission to Meharry; that it was neces sary that her application be certified to Meharry by the Director of Admissions of the University of Maryland. It was stipulated by Appellant’s counsel that the total overall cost to her, including living and traveling ex penses, incident to her attendance at Meharry would not exceed what it would cost her to attend Maryland. It was further stipulated that as of October 10, 1949, the date on which this case was tried below, The Regional Compact had been ratified and approved by the Legisla tures of all of the signatory States with the exception of Texas, Virginia and West Virginia and that the Compact was in full force and effect; also that each of the signa tory States has segregated schools (App. App. pp. 21-22). 5 It was stipulated that Appellant’s application for ad mission to Maryland was not accepted solely because of the fact that she is a member of the Negro race (App. App. p. 21). There was offered in evidence the Contract for Train ing in Nursing Education, dated July 19, 1849, between the Board of Control for Southern Regional Education and the University of Maryland (App. App. pp. 16-20). Under this contract, the Board covenants and agrees, among other things, to provide the State of Maryland with a quota of three places in Meharry Medical College, School of Nursing, Nashville, Tennessee, for first year students to be selected from applicants certified by the State of Maryland; that said quota should continue through each succeeding college class until it applies to all years of instruction desired by the State of Mary land (App. App. pp. 17-18). The State of Maryland, among other things, agrees to make certain payments to the Board for each student accepted under the Contract (App. App. p. 18). The term of the contract is for two calendar years from July 1, 1949, automatically renewa ble for an additional term of two years and so on unless either party gives the other party notice, in writing, of its intention to terminate the Contract at least two cal endar years prior to the date of termination (App. App. p. 19). At the trial of this case, Appellees offered evidence, which was not disputed or contradicted in any way what soever by Appellant, tending to show that the educational facilities for nursing education afforded at Meharry were at least substantially equal to, if not in fact some what superior to, the facilities offered at Maryland. Dr. Maurice C. Pincoffs, who. for a period of sixteen months 6 prior to the trial of this case had been in policy charge of the School of Nursing of the University of Maryland, testified in detail regarding the comparison of the facil ities of the two Schools (App. pp. 1-18). His conclusion, based upon a comparison of available funds, character of the student body, character of the faculty, physical facili ties (class rooms, laboratories, equipment), curriculum and living conditions, was that “if the objective of the candidate is education in nursing, Meharry Medical Col lege offers at least equivalent, and in my opinion, some what better organized instruction in nursing” (App. p. 12). Appellees also produced the testimony of Mrs. Verne Allen Nesbitt, a graduate of Vanderbilt University and the University of Nashville, Tennessee, and a registered nurse. She was a white woman, well educated, whose husband is a medical doctor presently associated with the Johns Hopkins Hospital. At the time of the trial, Mrs. Nesbitt was instructor in obstetrics in the School of Nursing at Sinai Hospital, Baltimore, Maryland. Mrs. Nesbitt taught at Meharry, for one term in the year 1947. She testified that “Meharry students are a higher caliber student than you would see in a hospital school of nursing for the reason that they are better prepared, and are young people who are seeking a higher course in nursing than the three year course” (App. p. 20); that the physical facilities offered at Meharry (the nurses’ home and the hospital facilities) compared favor ably with the facilities at Vanderbilt or Sinai (App. pp. 20, 21). (For pictures of the Meharry Medical College and of the nurses’ home, see App. pp. 33, 35). She fur ther testified that she was much impressed with the library of the School, which was shared with medical and 7 dental students; also with the opportunity for social life afforded the students (App. p. 21). The State further produced testimony showing that Meharry was accredited by the National League of Nursing Education, which, in itself, shows that it is a first class nursing institution. Although accreditation by the League is conditioned upon application by the School of Nursing seeking a rating, Maryland had not, up to the time of trial, sought such accreditation for the reason that its officials did not believe that it could meet the rigid standards of the League (App. p. 28). In taking Tennessee State Board of Nursing examina tions, graduates of Meharry compared most favorably with graduates of other schools. Out of seven or eight subjects, Meharry graduates’ average examination grades were higher than the average examination grades of graduates of approximately fourteen other schools of nursing in Tennessee (App. pp. 10-11). On the other hand, the record of graduates of Maryland on examina tions conducted by the Maryland State Board of Exami ners of Nurses’ does not compare too favorably with the record of the graduates of other schools of nursing (App. p. 37). Up to the time of trial, only one graduate of Meharry had applied for registration in the State of Maryland. She is Mrs. Miriam Austin Wilkens, at present Assistant Director of the School of Nursing at Provident Hospital, Baltimore, Maryland. She was registered by the Mary land Board on the basis of her Tennessee registration. 8 ARGUMENT WAS APPELLEES’ REFUSAL TO ADMIT APPELLANT TO THE SCHOOL OF NURSING OF THE UNIVERSITY OF MARYLAND A DENIAL TO HER OF THE EQUAL PROTECTION OF THE LAWS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES? As stated, the only question presented in Appellant’s brief is whether Appellees’ refusal to admit Appellant to Maryland was a denial to her of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. Under the particular facts presented by this case, this question can be rephrased as follows: Did the State of Maryland, by virtue of the fact that it is a party to The Regional Compact, discharge its duties and obliga tions to Appellant under the Constitution of the United States when it arranged for her nursing education at Meharry Medical College, School of Nursing, Nashville, Tennessee? However, we look at the issue involved in this appeal, it is partly a question of fact and partly a question of law; viz: (a) Are the facilities for nursing education offered by Meharry substantially equal to the facilities offered at Maryland? (b) Is provision for the education of a Maryland citizen at a Compact institution legal segregation of the races for educational purposes under the purview of the Constitution of the United States and the decisions of the Supreme Court of the United States and of the Court of Appeals of Maryland? 1. The policy of segregation of the two races for educa tional purposes is generally accepted throughout the States which are parties to The Regional Compact and 9 has been approved by the Supreme Court of the United States in the case of Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256. This approval of segregation was again recog nized in the case of Missouri, ex rel. Gaines v. Canada, 305 U. S. 337, 344, 83 L. Ed. 208, 211. It was also recently recognized by this Court in the case of Durkee v. Murphy, 181 Md. 259, 265, and by the United States Dis trict Court for the District of Maryland (Chesnut, J.) in the case of Boyer et al. v. Garrett, et al. (D. R. February 10, 1950). The only limitation upon such segregation is that substantially equal facilities must be furnished to members of the two races. 2. The Regional Compact (Laws of 1949, Ch. 282), which was approved by the State of Maryland, effective June 1, 1949, was executed by the signatory States for the pur pose of the development and maintenance of education of the citizens of such States on a regional basis. It is in tended to afford greater educational opportunities for such citizens than could be provided by the several States separately. It applies to all citizens of the States by its express provisions. The operations under the Compact, up to this point, have, in fact, benefited all citizens re gardless of race or creed. The Regional Compact is not, either expressly or by necessary implication, aimed at segregation of the races. However, it is available as a means of effecting such segregation when such means are not available within the confines of the several States. The Compact, as of the present time, has been ratified by proper legislative action of the signatory States, with the exception of Texas, Virginia and West Virginia. 10 3. The Regional Compact is not the type of agreement which, under Article I, Section 10, Clause 3 of the Con stitution of the United States, must be approved by Con gress before it can become effective. When the Federal Aid to Education Bill was being debated in the Senate, Senator Morse of Oregon, in his remarks concerning a proposed amendment to said Bill, discussed the fact that he had opposed ratification of The Regional Compact by the Senate. His remarks set forth in the Congressional Record, Vol. 95, No. 77, page 5588, Tuesday, May 3, 1949, show the following reasons for his opposition: “First, is this the type of compact which the Con stitution requires the Congress to ratify? I shall not repeat my argument of last year at any length, other than to point out that I am satisfied now, as I was then, that the interstate compact offered by the 16 southern States was not the type of interstate com pact that the Congress of the United States, under the Constitution, is required—and I underline the word ‘required’—to ratify. “So when the interstate compact was before us we had to decide this question, ‘Is this the type of compact which requires ratification by the Congress of the United States?’ Of course the answer to that question was clearly no; and the answer was ‘no’ be cause of the second question which we must consider in such a situation. The second question is: What Federal jurisdiction is in any way encroached upon by the proposed compact? It will be recalled that during the course of the debate not a single southern Senator could point out a single Federal power which was encroached upon by the proposed compact. Until they could show wherein that southern com pact in some way transgressed a delegated Federal power under the Constitution of the United States, 11 they were clearly out of court, so to speak, so far as the Congress was concerned. They failed to advance any sound argument showing that as a matter of constitutional duty under the interstate compact clause we would have to approve the compact be fore it could be put into effect by the States.” That this Compact is not the type which requires Con gressional approval is further supported by the case of Virginia v. Tennessee, 148 U. S. 502, 517-519, 37 L. Ed. 537, 542-543. The applicable rule is stated by the Su preme Court to be as follows: “The Constitution provides that ‘no state shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, un less actually invaded, or in such immediate danger as will not admit of delay’. “ Is the agreement made without the consent of Congress, between Virginia and Tennessee, to ap point commissioners to run and mark the boundary line between them, within the prohibition of this clause? The terms ‘agreement’ or ‘compact’ taken by themselves are sufficiently comprehensive to em brace all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objec tion or have any interest in interfering with, as well as to those which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful man agement of particular subjects placed under their entire control. “There are many matters upon which different states may agree that can in no respect concern the United States, If, for instance, Virginia should come 12 into possession and ownership of a small parcel of land in New York which the latter state might de sire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to ob tain the consent of Congress before it could make a valid agreement with Virginia for the purchase of the land. If Massachusetts, in forwarding its ex hibits to the World’s Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that state to obtain the consent of Congress before it could contract with New York for the transportation of the exhibit through that State in that way. If the bord ering line of two states should cross some malarious and disease producing district, there could be no possible reason, on any conceivable public grounds, to obtain the consent of Congress for the bordering states to agree to unite in draining the district, and thus remove the cause of disease. So in the case of threatened invasion of cholera, plague, or other causes of sickness and death, it would be the height of absurdity to hold that the threatened states could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the con sent of Congress, which might not be at the time in session. If, then, the terms ‘compact’ or ‘agreement’ in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply? * * * * * * “Looking at the clause in which the terms ‘com pact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any com bination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States. Story, in his Commentaries (§1403) referring to a previous 13 part of the same section of the Constitution in which the clause in question appears, observes that its language ‘may be more plausibly interpreted from the terms used, “treaty, alliance, or confederation,” and upon the ground that the sense of each is best known by its association (noscitur a sociis) to apply to treaties of a political character; such as treaties of alliance for purposes of peace and war; and treaties of confederation, in which the parties are leagued for mutual government, political co-opera tion, and the exercise of political sovereignty, and treaties of cession of sovereignty, or conferring in ternal political jurisdiction, or external political de pendence, or general commercial privileges’ ; and that ‘the latter clause, “compacts and agreements,” might then very properly apply to such as regarded what might be deemed mere private rights of sovereignty; such as questions of boundary; interests in land situ ate in the territory of each other; and other internal regulations for the mutual comfort and convenience of states bordering on each other.’ And he adds: ‘In such cases the consent of Congress may be prop erly required, in order to check any infringement of the rights of the national government; and, at the same time, a total prohibition to enter into any com pact or agreement might be attended with perman ent inconvenience or public mischief’ ” (Italics sup plied) . It is obvious that The Regional Compact in no way tends “to increase and build up the political influence of the contracting State, so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control” . Certainly, interstate problems concerned with health (e.g., infectious or contagious diseases, whether of hu 14 mans or of animals), institutional care (e.g., women’s prisons, mental hospitals, homes for aged) conservation of natural resources (e.g., oyster and fish conservation problems of Maryland and Virginia) and motor vehicles (e.g., recognition of license tags of a foreign State) can be and have been handled by Compacts between the States without the requirement that they receive the approval of the Congress of the United States. It is sub mitted that this is equally true of interstate compacts which are concerned with higher education for citizens of the several States. 4. The Regional Compact is binding upon each of the signatory States and upon all of the citizens of such States. Virginia v. Tennessee, (L. Ed. p. 545), supra; Poole v. Fleeger, 11 Pet. 185, 9 L. Ed. 680, 690; Hinder- lider v. La Plata River & Cherry Creek Ditch Company, 304 U. S. 92, 106, 82 L. Ed 1202, 1210. In the last case cited, the Supreme Court of the United States, in discuss ing the effect of interstate compacts upon the citizens of the signatory States, said as follows: “Whether the apportionment of the water of an interstate stream be made by compact between the upper and lower States with the consent of Congress or by a decree of this Court, the apportionment is binding upon the citizens of each State and all water claimants, even where the State had granted the water rights before it entered into the compact. That the private rights of grantees of a State are determ ined by the adjustment by compact of a disputed boundary was settled a century ago in Poole v. Fleeger, 11 Pet. 185, 209, 9 L. ed. 680, 690, where the Court said: 15 ‘It cannot be doubted, that it is a part of the gen eral right of sovereignty, belonging to independent nations, to establish and fix the disputed boundaries between their respective territories; and the bound aries so established and fixed by compact between nations, become conclusive upon all the subjects and citizens thereof, and bind their rights; and are to be treated, to all intents and purposes, as the true and real boundaries. This is a doctrine universally recog nized in the law and practice of nations. It is a right equally belonging to the states of this Union; unless it has been surrendered under the Constitu tion of the United States. So far from there being any pretence of such a general surrender of the right, that it is expressly recognized by the Consti tution and guarded in its exercise by a single limi tation or restriction, requiring the consent of Con gress.’ ” 5. The Regional Compact does not deprive the Petitioner of any rights guaranteed to her by the Constitution of the United States. Considering this point, it must be borne in mind that up to this time none of the decisions, either of the Su preme Court of the United States or of the Court of Ap peals, have dealt with the exact problem here under consideration. In the case of Maryland v. Murray, 169 Md. 478, the Petitioner was an applicant for admission to the Law School. This was likewise true in the case of Missouri, ex rel Gaines v. Canada, supra, and in the latest case of Sipuel v. Oklahoma, 332 U. S. 631, 92 L. Ed. 247 (333 U. S. 147, 92 L. Ed. 605). In both the Murray and Gaines cases, supra, in contending that the Writ should be issued, the Petitioners relied particularly upon the special advantages incident to attending a Law School 18 in the State of which one is a citizen and in which one intends to practice. (Murray case, page 488; Gaines case, L. Ed. page 213 ). The opinion in the Sipuel case was per curiam and makes no reference whatsoever to Petition er’s contentions therein, the decision being based upon the rule laid down in the Gaines case. Appellees admit that there are certain advantages incident to attending a local Law School over attendance at one outside of the State where one proposes to practice. In a local school, the emphasis is upon local rules of practice and procedure and substantive law peculiar to that State. There is also the oportunity of observing the local courts in action. However, no such advantages accrue to a student of nurs ing. There are no rules regarding nursing which are pe culiar to any given State nor is there any practice in the nursing profession peculiar to any given State. An additional ground for the decision in the Murray case was the fact that attendance at Howard University, in Washington, would have resulted in greater expenses to the Petitioner than attendance at the University of Maryland Law School even though the Petitioner were awarded a scholarship, as proposed in that case. This contention cannot be made in the present case. The operations under The Regional Compact are such that the cost to Appellant at Meharry will be no greater than her expenses would be if she attended Maryland. That this is true is conceded by Appellant (App. App. p. 21). Under The Regional Compact, contracts have been en tered into between various States, which wish to send students out of their own boundaries for educational purposes, with the Regional Board and by the Board with Colleges and Universities in the various States. It is 17 submitted that, so far as citizens of Maryland are con cerned, the effect of these contracts executed under The Regional Compact is identically the same as if the edu cational facilities were furnished within the State of Maryland. For example, if the Maryland State College, at Princess Anne, (a division of the University of Mary land) afforded facilities for nursing education substan tially equal to such facilities provided by the University of Maryland, in Baltimore, Appellees could provide such education for Appellant at the former institution. No question could be raised under such circumstances that Appellant’s constitutional rights had been violated. If, in lieu of having facilities for nursing education of Negroes at Princess Anne, Somerset County, the University of Maryland owned a tract of land over the State line in Accomac County, Virginia, and there established facili ties for nursing education of Negroes substantially equal to such facilities at the University of Maryland, the same rule would unquestionably apply. Under such cir cumstances, equal educational opportunities would be afforded to Negroe students by the University of Mary land at a division of the University of Maryland. It is inconceivable that the mere fact that the physical facili ties were located just outside the boundaries of the State of Maryland would affect the rule. Instead of adopting what would prove to be a most expensive and burden some procedure, viz. outright purchase of educational facilities so that they would be an integral part of the University of Maryland, the State has adopted the alter native procedure of contracting for education of Mary land citizens in institutions located outside of the State. Maryland citizens are protected by the provisions of The Regional Compact and of the various contracts executed 18 thereunder. There certainly is no substantial difference between such a contractual arrangement for, and actual ownership of, the educational facilities. By this method, the State of Maryland can maintain its policy of segre gation, and, at the same time, provide educational oppor tunities for Negroes which are equal to those afforded to members of the white race at no additional cost whatso ever to the members of the Negro race. That the facilities for nursing education offered at Meharry are substantially equal to those offered at Mary land is obvious, and in fact uncontradicted, in the present case so that in that respect this case meets the require ments of all the decisions on this subject. It is clear from a consideration of the careful analysis by Dr. Pincoffs of the two Schools, the testimony of Mrs. Nesbitt and the other evidence offered by Appellees that a student at Meharry receives an education in nursing certainly equal to that afforded at Maryland. In fact, the conclusion that Meharry, considering all factors, offers better edu cational facilities can reasonably be drawn from the evi dence. 6. The Regional Compact has introduced a new decisive factor into the law. The new factor is that the States which have ratified the Compact have, for educational purposes, eliminated State lines. It is an attempt through voluntary agreement and co-operation to provide citizens of all the signatory States with unlimited educational opportunities. The opportunities proposed by The Reg ional Compact have been assured by the execution of contracts thereunder. The operations under The Regional Compact are distinctly different from those under the 19 out-of-State scholarship plans in vogue in a number of States prior to the decision in the Gaines case, suprq. The scholarship plans provided only for tuition. The fact that the student would incur additional expense, such as travel, was not taken into consideration, which, of course, resulted in inequality. This is no longer true under The Regional Compact plan. 7. The Court’s attention is directed to the fact that a few of the Western-Rocky Mountain States are presently operating under informal agreements which involve in carceration of female prisoners and treatment of mental patients and the aged and indigent. In addition to this, those States are presently drafting a Regional Compact covering medical and dental education similar to that in volved in this case. From the foregoing, it will appear that there is a trend toward interstate cooperation in problems of this kind. This, of course, is dictated by a desire to provide adequate and proper care, treatment and education for the citizens of the several States in a single location. Such a solution is socially and economi cally sound. Most assuredly, it does not in any way de prive the citizens of the several States of the equal pro tection of the laws. CONCLUSION It is respectfully submitted that the Gaines, Sipuel and Murray cases, supra, are not in point and are not controlling in this case; that The Regional Compact is valid and binding upon the signatory States and the citizens of such States; that the administration under the Compact, so far as Appellant is concerned, does not in any way abridge any of her constitutional rights; that 20 the Appellant is afforded facilities for nursing education which are certainly equal to and possibly better than she could obtain at the University of Maryland; that, therefore, the judgment of the trial court should be affirmed. Respectfully submitted, Hall Ham m ond , Attorney General, K enneth C. Proctor, Assistant Attorney General, Attorneys for Appellees, 1901 Mathieson Building, Baltimore 2, Maryland. 1 APPENDIX TO APPELLEES’ BRIEF NO. 139 (St. Tr. 6-15): DR. MAURICE C. PINCOFFS, * * * * * * DIRECT EXAMINATION Question by Mr. Proctor: Q. Dr. Pincoffs, you, I believe, are a medical doctor? A. Yes, sir. Q. I would like you to state, if you would, please, your educational back-ground? Where did you cover your under-graduate work? A. University of Chicago, with the degree of Bachelor of Science in 1910. Q. Where did you take your medical degree? A. At the Johns Hopkins Medical School in 1912. Q. And after completion of your medical course where did you go for your interneship? A. Presbyterian Hos pital in Chicago. Q. Did you take your residency there? A. No, in the City Hospitals of Baltimore for two years. Q. After completion of your residency have you en gaged in the teaching of medicine and medical subjects? A. Yes, prior to graduation I taught anatomy in the Uni versity of Chicago; I taught later in research capacity in the Department of pharmacology at Hopkins, and later as assistant instructor in medicine at Hopkins. Since 1922 I have been Professor of Medicine in the University of Maryland Medical School. Q. Have you had any connection with the School of Nursing of the University of Maryland? A. Yes, through out the years that I have been chief physician at the Uni versity Hospital I have been in very close touch with the 2 nursing and medical service. In the last year and four months in which I acted as assistant to the President of the University for medical affairs I have been in policy charge of the School of Nursing, and in that capacity became very well acquainted with the instruction and the facilities of that school. Furthermore, I have been at various times in World War I and World War II in com mand of hospitals, which included, of course, command of the nursing facilities in large hospitals. I have been instructor of nursing schools intermittently at the Uni versity of Maryland and at the Mercy Hospital for the last 27 years. Q. Now, you referred generally to your service in World War I and II. What, in general, did you do in World War I? A. In connection with the nursing end in World War I, I commanded a Red Cross hospital for French civilians, which included a wide-spread nursing service throughout twenty-seven dispensaries, I suppose we would call them, over the province in Northern France. Q. What was particularly your experience in World War II? A. Well, in regard to nursing I commanded the 42nd General Hospital in Australia — in this country and Australia. Q. How large a hospital was that? A. That was a thousand bed hospital. Q. Did your duties include the supervision of nursing facilities in the hospital? A. They did. Further in World War II for a period of time I held the position known in the Army as Chief of the Professional Services in the Southwest Pacific, which gave me supervision of the nursing corps throughout that theatre. Q. Now, with what hospitals have you been connected or associated as of this year? A. Well, I have been, dur ing this last thirty years, chief physician of the Uni versity Hospital, of the Mercy Hospital for a long period. 3 and on the attending staffs of a great many other hos pitals, Bon Secours, Church Home, West Baltimore, and so on. Q. Now, are you at the present time on a committee under the Secretary of Defense, and if so, what is that committee? A. I have been a member of what is called the Armed Forces Medical Advisory Committee, which is an advisory Committee to the Secretary of Defense on all medical problems. Among those problems, of course, are those affecting nursing in all three of the armed forces, the Army, the Navy, and the Air Force. Q. Are you familiar with the Meharry Medical School at Nashville, Tenn.? A. Yes, I have rather extensively studied Meharry Medical College in Nashville, Tenn., both through its published material and by visiting the college. Q. Before we get into that, I would like you to sum marize as briefly as you can what you consider the funda mentals necessary to proper functioning of a school of nursing? A. Well, I think that in my opinion — I think there would be general agreement on it — what a school of nursing can do for its students depends chiefly on the following factors, one — these are not perhaps in order of importance but they are all important factors — the school’s available funds, the character of the student body, character of the faculty, the facilities possessed by the school for instruction, that is class-rooms, labora tories, clinical facilities, equipment, curriculum, and the living conditions provided for the students. I propose on the basis of my knowledge of the School of Nursing at the University of Maryland and that which forms a part of the Meharry Medical College to briefly compare those schools in these respects. (Mr. Houston) If your Honor please, for the record I should like to object on the ground that it is irrelevant to the issues which are presented in this case. 4 (The Court) Objection overruled. (Exception granted.) Q. (Mr. Proctor) Will you compare first the funds that are available to the Meharry Medical College and the University of Maryland School of Nursing? A. Yes. The Meharry Medical College was founded originally by a bequest from the Meharry brothers, and is sup ported at the present time by the proceeds of a Rocke feller endowment and yearly grants from Rockefeller, by grants from the Kellogg Foundation, by other gifts and grants not specified, and the tuition income. The University of Maryland School of Nursing receives with the budget of the University of Maryland an allocation of funds derived, of course, from the Legislature of the State of Maryland, and receives services equivalent to funds from the University of Maryland; those services are the maintenance of the nursing home, the laundry, the food of the nurses, matters of that kind. I was in formed by the Director of Medical Education at Meharry Medical College that they have available and budgeted for this year $108,000 -— I give you a round figure which he gave me for the budget of their school of nursing. I had prepared by the Director of the University Hos pital, Mr. George Buck, an estimate of budget of the School of Nursing based on the actual State appropriation plus what will be necessary in kind from the University of Maryland. Q. By “in kind” you mean— A. Services. Q. For contribution? A. Maintenance contribution. This estimate is $218,473. This estimate is based on the preceding year— it is not a prospective budget for the coming year. Q. (Mr. Houston) Might I ask the question what the $108,000 is based on so I can know whether we have the same basis of comparison; is that for the past year or the prospective budget? A. I believe—I am not certain—- 5 that the budget of $108,000 is their current operating bud get. Now, I am not informed as to what their fiscal year is, so there may be in that respect a discrepancy. How ever, I think I can show that these are comparable from the only point of view that it seems to me is important to our point. Q. (Mr. Proctor) May I ask one or two questions first before you go into this. You referred to $218,473. A. I beg your pardon. May I correct that—no, I am correct, two hundred and eighteen. I thought it was thirteen. Q. That you referred to as an estimated figure? A. Yes, sir. Q. That is only estimated in part; part of it is based on an actual budget appropriation? A. Yes, I am sorry. Salaries of instructors, for example, is an actual budge tary item of $40,960. Q. The estimated portion is what you referred to such as maintenance contribution from the hospital? A. That is right, maintenance of students, medical health program, maintenance of students including supplies, nursing home maintenance, heat and light, food, and so on. Q. Now, one further question, you do have the students benefiting from each of these two sums, isn't that cor rect? A. Right. Q. You can get a per student figure? A. The reason I went into this with the Director at Meharry and our Director at the University Hospital was because I thought that the cost per student, the money available in each institution and spent on each student bore some relation to their equivalent. * * * * * * (St. Tr. 16-24): There was expenditure in round figures for Meharry for students as given me by the Director according to the number of students, say between fifteen .and eighteen 6 hundred dollars. On their present enrollment of 61 stu dents and their budgetary item of one hundred and eight thousand that figures out at $1,770 per student. On this estimated budget of the University of Maryland, which was based on 164 students, that is those in residence dur ing this past year prior to our present class which has just come in, gave Mr, Buck a figure of $1,332.15 per stu dent, which indicated to me that at least Meharry was not lacking in funds to spend on the training of its stu dents. The next point which I wish to take up in this comparison was the character of the student body. A very important factor, of course, in education is what material you have to deal with, standards of admission, and so on. Both schools admit two types of students, those who are studying for degrees in nursing and who have had prior to entering the school at least two years of college work, and those who are studying for diplomas in nursing, but not a degree, who are required to have had at least high-school education. Out of the 61 present students at Meharry, thirty, or almost exactly fifty per cent have had two years or more of college before en trance into that institution. That is an unusually high percentage of well educated young men and women be fore entering. The remaining thirty-one Meharry stu dents have had as a pre-requisite to entrance that they stood in the higher third of their high-school class. Those are rather rigid requirements. At the University of Maryland, I am informed by Miss Gipe, Director of the School of Nursing that out of the 202—is it 202 or 204 —202 present students since admission of the new class, only twenty-six, or approximately twelve and one-half percent have had two years of college education prior to entrance. We require from the others a high-school de gree and recommendation from the principal—we do not require that they stand in the upper third of their high- school class. So that I conclude that in both schools ade quate admission standards are maintained, but they are higher at Meharry than at the University of Maryland. In both schools personal factors, character, morals, apti- T tude, are determined by reference, by personal interview, and by aptitude tests, and in both a final requirement, and important one for admission, is made in passing a rather rigid physical examination. The character of the faculty: in each of the two schools of nursing the faculty falls into three groups, a full time faculty, made up of nursing teachers who are nurses, graduate nurses; a part-time faculty who are also nurses but give only part time to teaching; and what is called either lecturers or participating faculty—participating faculty is a better term, I think; that is members of other schools in the university or college, who in addition to teaching, say medical or dental students, also give courses for nurses but do not belong to the faculty of the nursing school ex cept in that category. Now, in Meharry for 61 students there are thirteen full time teachers; that is a little bet ter than one for five students. Of those 13, ten hold collegiate degrees of Bachelor or higher degrees. At the University there are also thirteen full time teachers this year for 202 students, and I regret I have not worked out that percentage, but it is obvious that thirteen teach ers for 202 students as opposed to thirteen for 61 students means less individual instruction. It may well be that at Meharry they are over-staffed for the number of stu dents. Q. How many of those thirteen full time teachers at the University of Maryland have degrees? A. Eleven of the thirteen have degrees of Bachelor or higher. The part time teachers whom I have defined are those usually working in the hospital in charge of floors or wards who are also doing teaching to student nurses during that part of the training when the student nurse is doing prac tical nursing on the wards or floors of the hospital. The participating faculty I have already defined. I think it would be too laborious—I find it impractical to com pare them except to say this, I feel they are fully ade quate in both cases. The members of the faculty of the University of Maryland Medical School who give time— courses and lectures to nurses —- I think have a high 8 standard of ability. I met personally a large number of the faculty at Meharry who do similar courses and was impressed with them as able men. I think it is better organized, I regret to say, at Meharry in this sense, that is the salary of the part time teacher, the one who is taking charge of a ward and in addition does teaching, is entirely paid by the hospital. She receives no salary from the training school—the School of Nursing for her teaching. There part of her salary is specifically paid by the School of Nursing for her teaching, and that is ob viously a sounder arrangement, and there are similar dif ferences between payment of participating faculty there and here. There the participating faculty receive pay for what they do—that is only certain ones do, a large part of it is a purely voluntary basis, so I conclude from this that while the character of the faculty is satisfactory in both schools, as shown by their records actually, in its organization and in the qualifications of its members, if anything Meharry has the edge. I think it is fair to insert here, your Honor, that Meharry has been a privileged school, that is a school which has had back of it the Rockefeller foundation, and there are other foundations, who have tried to make it a model for the future devel opment of other schools of nursing. I shall not say much about the curriculum. The curriculum in the two schools is modelled on that advocated by the National League of Nursing Education, and is closely parallel in all respects. They have developed, I think, a more advanced public health teaching program, really an outstanding one, I should say. Ours is in process of improvement but is not up to their standard as yet. There is one significant difference: to a greater extent than we have been able to they have been able, with their larger full time teach ing faculty and their method of payment of participating faculty, to develop, especially in the basic subjects like anatomy and physiology and bio-chemistry and bac teriology, advanced courses for those who are taking their collegiate type of course leading to a degree, some what less advanced courses for those who are taking the 9 diploma course. We have not been able to make that differentiation to the extent that they have, and I feel that we might work toward that. As far as living condi tions provided for the students, we have the disadvant age, of course, of having grown up and serving our func tion in the slums of Baltimore. We have no campus or grounds; we are where we can do our work best, but the fact remains that as far as living conditions, because our nurses have to contend with that fact, which is a very tangible thing when it means coming home late at night through that very hazardous area. It means also no place for out-door recreation without going a consid erable distance. Meharry moved, I think in 1926, out to the edge of Nashville; they have a land-scaped campus of approximately 25 acres, and they are across the street from Fiske University, which has also very fine open grounds, and that in turn is next to the State College for agriculture and industry, I think it is called, which is a third Negro institution. These three constitute a real educational center for Negroes and they are beautifully situated. In addition to this advantage in site, to this very beautiful site that they have, they have a very handsome nurses’ home in which each student has her own room. They share showers, but each student has her own very adequate room, I think, which is modelled, I believe after the school at Rochester, by the same architect, and they have very cleverly arranged social rooms, a gym nasium which can serve also as a dance-hall. In addi tion to this the girls have out-door tennis courts on the campus of Fiske University and the use of a swimming pool a block or two away. Furthermore they have a very much more normal and very much more satisfactory social life in that big educational center, and the major ity of them belong to the sororities that are on the campus. Their health program is a general health pro gram for all three institutions; it is centered in the hos pital and it covers not only the nurses but the regular students at Fiske and I believe in the State College. It certainly conforms to usual standards. I for one will 10 say ours which is specially designed for nurses is a bet ter, more complete program. Now, I would point out, too, that one has to judge a school not only by its pro gram facilities, but what has it accomplished? I was privileged to see the otherwise secret report from the training school—the School of Nursing at Meharry by the State Board of Nurse Examiners. * * * * * * (St. Tr. 24-25): Q. (Mr. Proctor) Let me ask you this question: Is the nursing school at the Meharry Medical College ac cepted by the State Nursing Board in Tennessee? A. It is. The nurses in Tennessee, in addition to being ac cepted must be registered, pass an examination. It was upon the results of that examination that I wish to com ment. Q. I would like to ask you one further question, and do not answer because Mr. Houston will wish to object to it: Did you examine an official report showing the record made by the graduates of the Meharry Medical College School of Nursing so far as the State Board of Nursing Examination was concerned? A. I personally examined it. Q. Was that an official report? A. It was an official report. Q. Now, don’t answer this yet: Will you please state what that report showed comparing the graduates of Meharry with the graduates of other schools? * * * * * * (St. Tr. 26-27): A. The examination results were stated by subject and the different schools were shown by the average grades in each subject that their graduates had obtained in these different subjects in the State examination. There were either seven or eight subjects—I am unable to remember exactly which. In those in all but two the 11 Meharry graduates average examination grades were higher than the average examination grades of any of the approximately fourteen other schools of nursing in Tennessee who took the examination. * * * * * * (St. Tr. 27-37): Q. (Mr. Proctor) Now, Doctor, wThat is the Na tional League of Nursing Education? A. The National League of Nursing Education is the body on which are operated the schools of nursing of the country and it has as its mission to improve nursing education in the coun try, and has wide influence in that it advises concerning curriculum, it publishes books dealing with nursing edu cation, and it accredits schools of nursing after those schools of nursing have been visited by representatives of the League and surveyed. Q. What is the general reputation in the nursing field of accreditation of a nursing school by the League? A. It is that this is a very distinct evidence that they are of superior quality. That is evidenced by the fact that out of approximately 1,150 schools of nursing in the country only approximately 120 are so accredited. Q. Is Meharry Medical College School of Nursing so accredited? A. Meharry Medical College School of Nursing as reported to me, as shown in printed form and the bulletin of the National League of Nursing Education is so accredited. Q. Is the Nursing School of the University of Mary land so accredited? A. I am informed by Miss Gipe at the present time our School of Nursing is not so ac credited. Q. Now, one point you have not given us comparative information on is the question of physical facilities in the two nursing schools, that is laboratories and classrooms and so forth? A. They are adequate in both schools. 12 Again I have to give the edge to Meharry, whose build ings are all new; with ours only some parts are; certain laboratories which are used by the School of Nursing are in the old Grann (?) laboratory building that dates back some seventy-five years ago when it was built, and are passable but they have the edge over us in facilities of that kind, and perhaps a slight advantage in equipment. I mean by equipment microscopes and other material used in teaching, but both are adequate. Q. Now, Doctor, considering the various factors that you have referred to in your testimony, and your knowl edge of the two schools of nursing, have you arrived at a conclusion regarding the two schools? A. I have ar rived at this conclusion, that if the objective of the candi date is education in nursing, Meharry Medical College offers at least equivalent, and in my opinion, somewhat better organized instruction in nursing. Q. (The Court) How about training for an ultimate degree in medicine? A. Their course is better organized for that purpose. Both will achieve a degree, but the actual process of achieving it is better organized at Meharry, as I pointed out in their ability to give spe cially advanced work for the degree student. Q. Then you would say for a nursing diploma the course at Meharry is substantially equal to the training at the University of Maryland Nursing School, and train ing for a degree in nursing it is somewhat superior? A. Yes. CROSS EXAMINATION Question by Mr. Houston: Q. Doctor, how many trips did you make to Meharry? A. One. Q. How long did you stay there? A. Four hours. Q. When was that? A. Last Thursday. 13 Q. Who did you talk to? A. I talked to the Dean of the School of Nursing, who was a Mrs. Anderson, and who was with me throughout the four hours. I talked to various of her instructors. I would have to refer to notes as to their names. Q. Do you have your notes? A. No, I don’t have them with me. I talked to the Professor of Anatomy; I met and talked briefly to the Professor of Bio-chemistry. I conferred fully two hours on this solidly, and with the Director of Education, Dr. Brown. Q. The School of Nursing? A. He covers the School of Nursing and School of Medicine — I am not sure whether he does with the School of Dentistry or not. I visited all parts of the institution, every floor in the hos pital, with the Dean, who showed me her nurses at work. I went through the nursing home; I went through all of the laboratories of the Medical School, covering those used for nursing instruction, as well as many of their new projects, because they have grants in new cancer work and new heart work. Q. Now, do you know anything about the financial situation of Meharry a year ago? A. No, except that it was Rockefeller supported. Q. Do you know that Meharry was in such desperate financial straits that it was afraid it was about to close? A. So I was informed, except that Rockefeller came again to their help. Q. Did anybody tell you whether or not there was any continuing payment on the part of the Rockefeller Foun dation to support Meharry? A. I was told that there was. I was told that, I think about three years ago Rocke feller gave them an endowment of—sum of $4,000,000 with the idea that annual grants thereafter would be dis continued, but that since then they have each year given them annual grants on the demonstrated need for such grant, and the attitude of Dr. Brown, who has been work ing with the financial aspects of the school, was that he 14 had every expectation of that continuing. He also pointed out that they were receiving other considerable grants from other directions, notably from the Federal Government, and that if this Congress passes the Bill for aid to medical education and nursing education, which has already been passed by the Senate, and is backed by the Administration, their financial situation would be on a much steadier basis. Q. Did he give any figures outside of the four million dollars about his grants? A. I don’t believe so. If I may refer to some notes I have on that point—a rather brief note—no. I have no actual figures on the support they are getting from the Kellogg Foundation, nor from other sources. Q. Can you tell us just how this $108,000 is broken down? A. No. I can tell you what it covers but I can not tell you how it is broken down. Q. Now, Doctor, any nursing school requires a mini mum of equipment outlay regardless of the number of students enrolled? A. Right. Q. A given set of physical facilities will accommodate a varied number of students, students within a given range of numbers, so that adding students to a physical plant, let us say under-manned, or it is not used to capacity, would not increase the per capita expenditure to students the way it would shoot up if there was a small number of students in that same physical plant? A. That is, of course, quite right. Even if one had only ten students, for sixty students it will still be adequate; perhaps it will be adequate for 100 students. The school was built there and manned with the idea of 74 students. They have 61. I assume that because of the fact that the quarters for nurses have quarters for 74 students, and that their faculty was evidently based on the assumption there would be 74. Only having 61 does increase their student cost, but that is not to say that when you have 202 students with approximately the same faculty that 15 you cannot infer that it is not better to have more faculty per student. As to the individual student there is an advantage in that extra time that the faculty member has to give to the individual. Q. So that as to student-faculty relationship the Meharry Medical College School of Nursing is in a much superior position to the University of Maryland? A. I would say that in my opinion they could handle a hun dred or more students perfectly adequately, but they could not handle much more than that adequately. In other words, I think we are on the lean side as to faculty members; they have more than they need. Q. That is a superior situation? A. If you have your choice by all odds have more than too few. Q. So it is a superior situation? A. I consider it so. Q. Now, did you go over and investigate, actually make a physical examination of Fiske and the State A. & I. College that you referred to? A. No, I drove by them merely. I had pointed out to me by Dr. Brown the nature of their buildings, which are very handsome buildings, by the way. I saw, of course, the campus, but I had no need of entering the buildings because I did not think that they bore on this topic. Q. So far as physical conditions are concerned, and living conditions, you would say again Meharry is superior? Meharry is superior so far as the living condi tions of the student nurses is concerned as compared to the University of Maryland School of Nursing? A. Yes, sir, for the reason I gave as to site, as to single rooms, as to social rooms, and so on, I think it is superior. Q. And the same thing as far as physical facilities are concerned including laboratories and class-rooms? A. Well, I think both schools have adequate physical facili ties, but Meharry has the edge on us. Q- Still has the edge? A. Has the edge on us. 16 Q. Now, Doctor, are communicable diseases provided for in Hubbard Memorial Hospital? A. That is a dif ficult term to define. They have no section for permanent care of such communicable diseases as diphtheria and scarlet fever. They have isolation beds for cases that develop but they carry all other types of communicable diseases; for example, we saw there a ward full of polio victims of the recent epidemic. They have very much the same lack as to diphtheria and scarlet fever just particularly as we have at the University of Maryland. We have no ward adequate for the care of those cases and therefore can only handle those that get in by chance. Q. On the other hand you have arrangements where by you get communicable disease nursing at Sydenham Hospital here? A. Should we say we have at times, and we have no such prospective arrangements because Sydenham Hospital is, as we all know, closing. * * * * * * (St. Tr. 38-39): Q. (Mr. Houston) Now, what provision is there at Me- harry for clinical experience of psychiatric nursing? A. No more than at the University of Maryland. We have affiliation with Sheppard-Enoch Pratt and they have af filiation with Cook County Hospital. Q. What affiliation does Meharry Medical College School of Nursing have? A. With Cook County Hos pital in Chicago; they send their psychiatric nursing up to Cook County. I think you will find that in the cata logue, by the way, for the School of Nursing at Meharry. Q. Now, you say in the public health program train ing Meharry has superior organization to the University of Maryland? A. Yes, I consider it so. Q. Now, these hospitals that you administered, Doc tor, one had a thousand beds; how many beds did the other one have, World War I? A. I couldn’t tell you exactly. It was a hospital of approximately 150 beds and something like twenty-three or four out patient depart- 17 raents spread over a large Province. The whole was operated as a unit and I was in charge of it. Q. How many beds at the University of Maryland Hos pital? * * * * * * (St. Tr. 40-49): A. It has 435 beds, 70 bassinets. Q. How many beds are there in affiliated hospitals available to the School of Nursing, University of Mary land students? A. I am not aware that outside of our sending nurses to the Sheppard-Enoch Pratt for phychi- atric training that we send our nurses away, if I might ask Miss Gipe to corroborate that? (Mr. Houston) I have no objection. (The Witness) Miss Gipe, do we send nurses away for affiliated training execpt to Sheppard-Enoch Pratt? (Miss Gipe) And Sydenham. (The Witness) And to Sydenham, yes, you are right. Sheppard-Enoch Pratt, I cannot give you the census of it; it is a large institution; I would estimate it around a thousand, at least. Sydenham, as you know, has had a patient census of approximately 26 average during the last year. For that reason it is closing. Q. (Mr. Houston) Well, now, do I understand that when the students at the University of Maryland, School of Nursing want to get psychiatric nursing they simply go over to these other hospitals in town—Enoch Pratt and Sheppard? A. That is all one hospital. It is called Sheppard-Enoch Pratt Hospital. It is situated out near Towson. Q. And the City Hospital? A. They don’t go to the City Hospital. Q. What was the second hospital? A. Sydenham is a contagious disease hospital, owned and operated by the City, and they went there for contagious disease train 18 ing, but that is closing up and will not be available in the future. Whether any arrangements can be made for such training at the City Hospital, which intends to take on that function, remains to be seen. I can say that we have no arrangement consummated at present. Q. When the girls from the University of Maryland, School of Nursing, go to Sydenham, if Sydenham is open, and to Sheppard-Enoch Pratt, do they still continue their courses at the University of Maryland while they are do ing their clinical work at these hospitals? A. Not to my knowledge. The distances are too great. Q. But they are in school? They still remain in resi dency? A. They live away. They live at Sheppard- Enoch Pratt during their time. Q. Is that an assumption or is that your statement of fact? A. That is a statement of fact. I see Miss Gipe corroborates that. Q. Now, did you see any white students at Meharry College? A. No. Q. They are all Negro students at Meharry? (Mr. Proctor) We will agree Meharry Medical Col lege is a Negro college. MRS. VERNE ALLEN NESBITT, * * * * * * DIRECT EXAMINATION By Mr. Proctor: Q. Mrs. Nesbitt, I believe you are a registered nurse, is that correct? A. That is correct. Q. Of what institution are you a graduate? A. Van derbilt University and University of Nashville Tennesse. Q. I believe your husband is a medical doctor, is that correct? A. Yes, sir. 19 Q. He is at present at Hopkins Hospital? A. That is correct. Q. Are you familiar with Meharry Medical College, School of Nursing? A. I am. Q. I believe that you taught there for a short time? A. Yes, I did. Q. When did you teach there? A. In 1947. Q. And for how long in 1947? A. For one term. I took the place of a teacher who was sent away from her school to get some more training. Q. Is it the practice at Meharry for outside teachers such as you are to come in there and teach part-time sub jects? A. It is a practice to replace any instructor re moved away from your faculty for any period of time. Q. Were there any other white instructors in the Col lege during that time? A. At the time I was there Mrs. Alma Gault was the director of the Nursing School, and was white. The other instructors that I remember were colored. Q. Now, can you compare, from what you observed while you were at Meharry, the time you were teaching at Meharry, can you compare the curriculum that was offered at Meharry with what you had at Vanderbilt University? A. Vanderbilt is a collegiate school in toto. We have no students there who have not completed at least two years at college, and for the most part have al ready four years of college. Q. So you had nothing but degree students? A. That is correct, we have nothing but degree students at Vander bilt. The curriculum at Meharry, the fact it is accredited by the National League of Nursing Education attests to the fact it is completely—-a complete curriculum in com municable diseases, psychiatry affiliation, and all of those things. 20 Q. So that accreditation of itself shows that it is a first-class nursing institution? A. Yes, it does. Q. Now, while you were at Meharry what was your observation of the students with whom you came in con tact? Would you class them as average students, below average, or above average? A. The only students that I have to compare them with would be students of my own school of which I was a part, which would not be quite fair. At the present time I am instructor in obste trics at Sinai Hospital and have student nurses there, who are at the sub-college level, diploma students almost completely. I would say Meharry students are a higher caliber student than you would see in a hospital school of nursing for the reason that they are better prepared, and are young people who are seeking a higher course in nursing than the three year course. Q. Did you have an opportunity, while you were there, to observe the physical facilities at Meharry—labora tories and things of that kind? A. What I taught was obstetrics so that I saw a good bit of the obstetric floors, the wards where the students got their clinical experi ence, the delivery rooms where they assisted with the deliveries, and I was in the nurses’ home, which is a very fine building, which was erected in 1931, and I was in side of the students’ rooms, and their social rooms, where they entertain their guests and friends. Q. How would you describe the nurses’ home, Mrs. Nesbitt? A. They are better than Vanderbilt. We have a much older building—1925. I was a little bit jealous of them because they have one large living, and several smaller rooms that amount to parlors—small parlors. Q. How would you classify the bed-rooms and toilet facilities? A. They are the same as you would see at a school and the same at about Vanderbilt; with each room is minimal of furniture, a bed, dresser, desk, a closet, chair, which is always what you find in a nurse’s bed room. We always have bath-rooms on the floor, and 21 showers which are shared. I have never been in a dorm itory where they had anything other than that. Q. You have heard Dr. Pincoff’s testimony that only one girl was assigned to a bed-room at the nurse’s home? A. Yes, sir. Q. Was that your obersvation? A. That was my ob servation, yes. Q. I believe you said that you also had an opportunity to observe the hospital facilities there. How would you compare those with that which you have at Sinai or Van derbilt? A. They were comparable. They had a nice observation stand in the delivery room so that the stu dent nurses were able to sit in a raised position and watch the procedures that were demonstrated to them on deliv eries. They had semi-private, and private, and ward beds on the floor where I did my clinical observation. As instructor you meet the student in the class-room and teach her and then go in the wards with her and see if they apply the theory you have given them by actual practice on the scene of the sick bed. Q. Could you add anything to what you have told us about the school? A. I was impressed with their library, which in 1947 boasted 10,000 periodicals, which is good, and their library is shared by the medical students and the dental students. I think the oppor tunity for social life and meeting the finest young people is at the optimum there. The young men you meet are the ones you go out with in social life, and are of very high caliber, young men who are going through the college of ministry, or medicine, or dentistry. The instructors were young doctors, men who have gone far in their field. I don’t recall any one personally except one physi cian who is quite high in the medical fields. I don’t re call his name but he was pointed out to me on one oc casion. 22 (The Witness) I have a picture here of the campus if any one is interested in seeing it, and the medical school. * * * * * * (St. Tr. 49-50): A. This is the hospital right here (indicating); this is the nurses’ dormitory (indicating). Their religious em phasis there is good; they have an active Y. W. C. A. on the campus for the nursing students; they are invited to join sororities, and participate in the activities of Fiske University. They have Sunday services that are very nice at Fiske Memorial Chapel, and they have the oppor tunity of hearing the Fiske Jubilee singers who are quite famous in our part of the country, which is a Negro choir, a fine group. Q. What year is that? A. 1947. That building was erected in 1931 (indicating on photograph.) Q. The building in the fore-front? A. Is the nurses’ home, which is about fifty feet from Hubbard Hospital. * * * * * * (St. Tr. 51-58): CROSS EXAMINATION Question By Mr. Houston: Q. At what hospitals did you have your clinical ex perience at Vanderbilt School of Nursing? A. We took our psychiatric experience at Murfreesboro, Tennesse at a Shriners (?) hospital. Q. Go ahead. A. And our public health at Ruther ford County Health Department in Tennessee. Q. Go ahead. A. The rest of our course is in the hos pital; our communicable is part of Vanderbilt Hospital. Q. How many beds in Vanderbilt Hospital? A. Around 350. Q. And outside of Vanderbilt Hospital any other hos pitals in Tennessee? 23 (The Witness) That I was familiar with? (Mr. Houston) Except Meharry Medical College? A. No, sir. I was head nurse at the section of geriatrics at Baltimore City hospital for one year. Q. Now you are at Sinai Hospital? A. That is right, supervisor of the nursery and instructor in obstetrics. Q. Sinai has how many beds? A. I am sorry I don’t know. Q. Baltimore City Hospital has how many beds? A. I don’t know that—quite a lot; their infirmary and tu berculosis hospital are part of it, but I do not have the figures. Q. Generally speaking in connection with nurses’ training a large hospital offers more clinical material for the student nurse to observe and work on than a small hospital? A. If it is used. REDIRECT EXAMINATION By Mr. Proctor: Q, Would you say the opportunity for clinical obser vation at Hubbard Hospital was ample for proper nurs ing training? A. Yes, it is. MRS. ANGELA M. SHIPLEY, * * * * * * DIRECT EXAMINATION Question By Mr. Proctor: Q. Mrs. Shipley, I believe that you are also a registered nurse, is that correct? A. Yes, I am. Q. Do you have any official position with the State of Maryland? A. I am Executive Secretary of the Mary land State Board of Nurses Examiners. 24 Q. What do you require for registration as a nurse in Maryland? A. According to the law under which we operate she must meet at least the minimal requirements that are stated for all of the Maryland Schools of nurses. Q. Do you register on a nurse’s certificate alone or do you require examination? (The Witness) Do you mean for an original registra tion? (Mr. Proctor) Yes. (The Witness) In Maryland? (Mr. Proctor) Yes. A. She must write an examination for an original registration. Q. If she has been registered in some other State you do or do not require it? A. We accept the other State’s examination. Q. Has your Board ever had occasion to consider the registration of a graduate of Meharry Medical College, School of Nursing? A. Yes, we did. Q. You had one such application or more? A. We have had one last December. Q. What was the name of the applicant? A. Mrs. Wilkens. I brought her papers, Mrs. Miriam Austin Wil- kens. Q. Was she registered by the State of Tennessee be fore she came here? A. Yes, sir. Q. Has your Board registered her? A. Yes, sir. Q. Do you know what she is doing at the present time? A. She Is Assistant Director of the School of Nursing at Provident Hospital, Baltimore, Maryland. Q. Now, are you familiar with the National League of Nursing Education? A. I am part of it. 25 Q. You are part of it? A. Yes, sir. Q. Would you tell as briefly as you can just what that League does? A. The National League is an organiza tion of graduate nurses who are teachers in school nurs ing program, in nursing education; we go in as individ ual members, as members of our State organization or national organization. Q. Now, does that League accredit nursing schools throughout the country? A. It has a committee for ac crediting schools. I think I should say that is on a vol untary basis, the accreditation and study is made at the request of the school. Q. In other words, the League does not go out and rate all schools but only such schools as ask for a rating? A. Yes, sir. Q. For accreditation? A. That is right. Q. Is Meharry Medical School—Meharry Medical Col lege, School of Nursing accredited by the National League of Nursing Education? A. It is according to the last statement that we have in our office from the National League. They issue these small blue pamphlets. Q. And the date of that is what? A. I have a supple ment to it; including supplement it is May, 1948. Q. May, 1948? A. Yes, sir. Q. Now, is the University of Maryland, School of Nursing, accredited by the National League of Nursing Education? A. No, it is not. Q. Now, this is a circular put out by the National League of Nursing Education that you have handed me, is that correct? A. That is correct. Q. And we have a supplement that is up to May, 1948? A. That is right. * * * * * * 28 (St. Tr. 58-61): Q. (Mr. Proctor) Let me ask you this: What fac tors are considered, if you know, by the National League of Nursing Education in accrediting an institution? A. Basically the school is accredited on its purposes; I mean a hospital school receives the same consideration that enters into consideration of a school or collegiate pro gram. The school states its purposes. The survey com mittee goes into the situation and if they feel that the school is meeting the stated purpose, that is one con sideration. I think Dr. Pincoffs has given us an excellent idea of the way they proceed. Q. You think the way he based his comparison of Meharry and the University of Maryland School of Nursing is about the same that the National League of Nursing Education goes into the matter? A. I would think so, yes, sir, except it is voluntary—voluntary ac creditation. Q. Accreditation by the League is a mark of distinc tion so far as a nursing school is concerned? A. We cer tainly think so, definitely. Q. Are you familiar with whether or not the Univer sity of Maryland School of Nursing has applied for accreditation to the National League of Nursing Edu cation? A. As far as I know they never did. CROSS EXAMINATION Question by Mr. Houston: Q. Mrs. Shipley, you have this little bulletin of the National League of Nursing Education, have you not? A. I haven’t it in my hands. (The Court) Here is one. Q. (By Mr. Houston) In the District of Columbia the only accredited schools of nursing is the Providence Hos pital and Catholic University, isn’t that right? A. That is the only one listed here. 27 Q. That does not mean that the Providence Hospital and the Catholic University School of Nursing is the only high class school of nursing in the District of Columbia, does it? A. No. That is the point I would like to make, it is voluntary accreditation and many good schools have not asked for it throughout the country. Q. So without data showing that the University of Maryland School of Nursing had asked for accreditation and on examination had been refused, there would be no imputation from the omission of the University of Maryland School of Nursing from this list, would there? A. I would think not, no. I think you are correct. Q. Are you yourself a graduate of the University of Maryland School of Nursing? A. No, sir. Q. Your nursing school is what? A. Johns Hopkins. REDIRECT EXAMINATION ❖ * * * * * (St. Tr. 62-64): Q. (By Mr. Houston) Might I ask this question, as to whether your records will show any substantial number of graduates of Meharry Medical College School of Nurs ing who took the examination in the State of Maryland? A. We never had one. Q. You never had one. A. We had this one nurse last year. Q. She was admitted on reciprocity? A. That is right. MISS FLORENCE M. GIPE * * * * * * DIRECT EXAMINATION Question by Mr. Proctor: Q. Miss Gipe, you are a registered nurse, I believe? A. I am. 28 Q. You are Superintendent at the present time of the School of Nursing at the University? A. That is my title as Director of Nursing Education and Nursing Service. Q. Now, you have heard Mrs. Shipley testify that the University of Maryland has not asked for accreditation by the National League of Nursing Education. Can you state why, in the past, application has not been made for such accreditation? A. Well, you know the University did a splendid piece of work on the nurses’ improvements after the war, and after the war and when training was made my business I did not think the school was built up as it should be in order to pass it. Q. Is that the reason application was not made? A. Recently—within the last year I wrote in to the League of Nursing Education and asked to be considered for accreditation or survey and they told me that there was interim classification of all the schools of nursing to be classified, and from the data submitted we would know probably—I would know whether we would want survey within the next year or so, and that would give me an idea to see where we stood to see if we would pass. CROSS EXAMINATION Question by Mr. Houston: Q. Have you ever sent a first year white student out side of the State of Maryland for the purpose of first year nursing education? A. No, I haven’t. Do you mean in the nursing school? * * * * * * (St. Tr. 64-69): Q. (By Mr. Houston) Do you know of any white student of nursing who has been sent outside of the State of Maryland to take a first year nursing course which was open at the University of Maryland? A. No. Q. School of Nursing? A. No. 29 Q. Have you ever admitted a Negro student to the School of Nursing at the University of Maryland? A. No. Q. (By the Court) Have you had occasion to decide whether to admit one or not? A. No. Q. (By Mr. Houston) You had occasion to decide whether to admit the Plaintiff? A. I didn’t get a com plete application on that. (Mr. Proctor) The University did, that is not disputed; Miss Gipe did not. It was detained at College Park. (Mr. Houston) The point is that the level at which it was determined not to admit the Plaintiff to the school was at a higher level than the level of the School of Nursing. That satisfies me. Q. (By Mr. Proctor) I understand this application of Miss Esther McCready is the only application that has ever been made to the University of Maryland School of Nursing by a colored person—Negro person? A. I did not get the application. I got the request for information and sent that to her. Q. Now, do you have any application from anyone else of the Negro race? A. No, I recall none. I had some inquiries. Q. (By Mr. Houston) Just a minute, let’s get this clear: An inquiry that comes in would not necessarily indicate the race of the person making the inquiry, would it? It would simply be a letter for information, a letter of inquiry asking the School of Nursing for information about the courses, and would not necessarily indicate the race of the person making the inquiry? A. No, it does not necessarily need to. Q. So that you cannot say that no Negro girl has ever made inquiries about nursing at the University of Mary land School of Nursing except this Plaintiff? A. No, that is right, I cannot. * * * * * * 30 Q. Are there any Negro nurses in the hospital that the University of Maryland uses as a training hospital in connection with its School of Nursing? (Witness) Do you mean are there any nurses? (Mr. Houston) Registered nurses — any registered Negro nurses? A. No, sir. Q. What hospital was it that the School of Nurses uses for clinical training for its student nurses? A. Other than University, do you mean? Sheppard-Pratt. Q. All right, Sheppard-Pratt, Sydenham, when it was used, and the University of Maryland Hospital itself, is that correct? A. Yes. Q. Now, do any of those hospitals so far as you know have Negro registered nurses on their staff? A. I don’t think so. I don’t know. Q. Definitely you would say the University of Mary land has no registered Negro nurse on the staff? A. No. Q. Does the University of Maryland have Negro nurses’ aides on the staff? A. We employ Negro nurses’ aides. Q. How long has that been the practice? A. I should say roughly about two or three years. Q. It is at the present time the practice? A. That is correct. * * * * * * (St. Tr. 88): (The Court) I think as abundant precaution you ought to move to strike out all of the testimony that refers to Meharry College. (Mr. Houston) I do so move at the present time. I was going to do that when I started to argue but I suppose now is the time. I so move. 31 (St. Tr. 89-90):: MRS. ANGELA M. SHIPLEY * * * * * * DIRECT EXAMINATION Question by Mr. Proctor: Q. You were asked to produce a comparative record showing the comparison or record of graduates of the University of Maryland School of Nursing with the graduates of other nursing schools with the Maryland State Board of Examination. Do you have that record? A. I have it right here. Q. Graduates of 45 schools? A. No. Q. What is that 45? A. That means the University of Maryland had forty-five applicants. There were 23 schools. Q. 23 schools? A. Yes, sir. (St. Tr. 89-90): Q. (By Mr. Proctor) Now, I notice in this record, for example, anatomy and physiology, you have the number four? A. That means in the examinations written in 1948 during the calendar year in that one subject anatomy and physiology, the average score of University of Mary land students rated them fourth in the 23 schools in the State of Maryland. There were three schools above them. Q. There were three schools above them? A. Yes, sir. Q. That would be the number of each one of those courses that you have shown there? A. That is right. (Mr. Proctor) Now, there is only one other thing the State would like to have in evidence and that is that there have been two Negro students who have been sent from Maryland to Meharry Medical College under the Regional Compact plan. They are not nursing students, 32 but two medical or one medical and one dentistry— two students have gone down there. Do you want me to put Dr. Long on to prove that? (Mr. Houston) No. I think it is also stipulated that there were medical and engineering students and these students went to Meharry to take the same courses that were offered white students at the University of Mary land. NURSES' HOME— TEHARRY MEDICAL COLLEGE (H u ld a M a r g a r e t L y t t l e H a l l ) DEFENDANTS1 EX H IBIT A ' I I DEFENDANTS1 MEHARRY MEDICAL COLLEGE. NASHVILLE. TENNESSEE ^y-Tj T>Irp p 37 DEFENDANT’S EXHIBIT F Office Of THE MARYLAND STATE BOARD OF EXAMINERS OF NURSES 1217 Cathedral Street Phone, LExing'ton 1758 Baltimore 1, October 10, 1949 Rating of the University of Maryland School of Nursing based on mean scores for schools of nursing on the State Board Test Pool Examinations Series 747 for candidates tested January 1, 1948 through December 31, 1948. Anatomy and Cases Physiology Microbiology 45 4 4 Nutrition and Diet Therapy Pharmacology and Therapeutics Nursing Arts 7 6 9 Communicable Disease Nursing Medical Nursing Nursing of Children 7 6.5 12 Obstetric Nursing Psychiatric Nursing Surgical Nursing 7 2 10 Social Foundations of Nursing 5