Florida v. Board of Control Court Opinion

    45

[fol. 45] I n t h e  S u p r e m e  C o urt  of F lorida

[T itle omitted]

M otion  for  P er em pto r y  W r it  and  F in a l  J u d g m en t— Filed
May 28, 1952

Comes now the Relator, V irgil D. Hawkins, by his under­
signed attorney  and moves this H onorable Court to issue 
a Perem ptory  W rit of M andamus directed to Respondents, 
B oard of Control of F lo rid a ; N. B. Jo rd an  and Hollis 
R hinehart as members of the B oard of Control; and R. S. 
Johnson, R eg istrar of the U niversity  of Florida, requiring 
said Respondents to adm it R elator to the U niversity of 
F lorida and for F inal Judgm ent in said cause, the answer 
of said Respondents notw ithstanding, and as grounds for 
said Motion sa y s :

I
T hat since the rendition of the Courts in itia l opinion in 

the case of S tate ex rel. Hawkins vs. B oard of Control of 
F lorida et ah, 47 So. 2d 608 et seq., the R elator has re­
applied and made due and regular re-application for enroll­
ment and admission to the School of Law a t the U niversity 
of F lorida and has complied w ith all requirem ents neces­
sary  fo r enrollment and admission a t said institu tion to no 
avail and is beset w ith obstacles wholly beyond the intend­
ment of his constitutional rights and the essentials of 
human well-being and beyond any recognizeed constitu­
tional social expediency; the R elator having exhausted his 
remedies save and except the relief to be afforded by this 
Honorable Court.

I I
T hat the judgm ent heretofore rendered by this H onor­

able Court in this said cause is a nisi order and. interlocu­
to ry  in its natu re and not an appealable judgm ent. That 
the R elator desires to take an appeal therefrom  but is p re­
cluded from  so doing unless this Court enters a F inal Judg- 
[fol. 46] ment and to th a t end the R elator stands on his 
pleadings as filed herein.

I I I
That all pleadings have been submitted, issues joined and 

proof taken and being conscious of the m orality and justice



46

of Ms cause as now here contended for thus submit himself 
to this Honorable Court to the end th a t a Perem ptory  W rit 
of Mandamus be granted  as prayed for and tha t a F inal 
Judgm ent be entered in this cause.

W herefore, R elator moves this Honorable Court for the 
issuance of a Perem ptory  W rit of M andamus and tha t 
F inal Judgm ent be entered in the above entitled cause.

(S.) H. E. Hill, 5251/2 Second Avenue, Daytona 
Beach, F lorida.

[ fo ls . 47-48] S tate of F lorida ,
County of — :

Affidavit-

Before me personally appeared V irgil D. Hawkins, the 
undersigned authority, who deposes and says tha t in the 
year 1949 he petitioned the F lorida State Supreme Court 
for admission to the School of Law at the U niversity  of 
F lo rida ; tha t since the C ourt’s initial opinion rendered 
A ugust 1, 1950, he has reapplied for admission 2 times to 
no avail and in said reapplication he did request tha t the 
same be considered a continuing one until he succeeds in 
gaining admission to the said School a t said University. 
The last application was made subsequent to A pril of 1952.

(S.) V irgil D. Hawkins, Affiant.

Sworn to and subscribed before me this 2nd day of 
June, A. D. 1952. (S.) Edw ard D. Davis, N otary 
Public, S tate of F lorida a t Large. My commis­
sion expires Oct. 24, 1953. Bonded by American 
Surety  Co. of N. Y. (N. S.)

Certificate of Service omitted in printing.



47

[fol. 49] I n t h e  S u p r e m e  C ourt op F lorida , J u n e  T e r m ,
A. D .1952

E n  Banc

T h e  S tate op F lorida , ex Rel. V ir g il  D. H a w k in s , Relator,

vs.
B oard op C ontrol , a Body Corporate, et al., Respondents

M andam us

S u p r e m e  C ourt #21,138

A case of original jurisdiction—Mandamus.

H. E. Hill, fo r Relator.
R ichard W. Ervin, A ttorney General and F ran k  J . 

Heintz, A ssistant A ttorney General, for Respondents.

O p in io n —Filed A ugust 1, 1952 

S eb r in g , C. J . :
This is the th ird  appearance of this cause in this Court. 

I t  is now before the Court on a motion by the relator for 
the entry of a perem ptory w rit notw ithstanding the re tu rn  
heretofore filed by the respondents.

The cause was in itia ted  by the relator on May 30, 1949, 
when he filed a petition for a w rit of mandamus to require 
the members of the State Board of Control to adm it him 
to the College of Law of the U niversity  of F lorida for 
attendance at a summer session of the first-year law class 
to begin in the summer of 1949. In  due course the members 
of the Board of Control filed their re tu rn  to the alternative 
w rit issued in the cause, and, on A pril 13, 1950, the relator 
filed his motion for a perem ptory w rit notw ithstanding the 
return.
[fol. 50] Upon due consideration of the issues raised by 
the pleadings, the Court denied the motion, because the 
rela to r had not shown himself entitled, under the pleadings, 
to the relief sought, in tha t (1) he did not have pending, 
a t the time he filed his motion, an application for admission 
to a current or fu tu re first-year law class a t any state m ain­



48

tained institu tion of higher learning; the application 
form erly subm itted by him being only for admission to the 
first-year class of the College of Law of the U niversity  of 
F lo rida  for attendance a t the 1949 summer session; and 
(2), assuming the regulations of the B oard of Control re­
quiring all applicants for admission to keep their applica­
tions current to be an unreasonable regulation, it was plain 
from  the facts alleged in the re tu rn  filed by the Board of 
Control, and adm itted by the re la to r’s motion to be true, 
tha t the State of F lorida, acting through the Board of 
Control, had established a school of law at the F lorida 
A gricultural and Mechanical College, which is a state in sti­
tution m aintained exclusively fo r negroes, to which the 
Board was ready to adm it the relator, provided he made 
his application for admission within the time allowed for 
students to apply for admission to a course in law a t a tax- 
supported law school in Florida.; tha t the Board of Control 
was p repared  to offer to the rela to r “ facilities for legal edu­
cation a t a negro college which [were] substantially equal to 
those offered within the state a t any tax-supported in stitu ­
tion of higher learning whose enrollment [under the F lorida 
Constitution] is restric ted  to white s tu d en ts;”  and tha t the 
Board stood ready “ to furn ish  law instruction, tem porarily, 
at the state university  m aintained exclusively for white 
students, in the event adequate facilities for teaching the 
course [were] not actually and physically available a t the 
state law school established for negroes at the time of re ­
la to r ’s application and enrollm ent.”  See State ex rel. 
Hawkins v. Board of Control, F lo rida Reports, 47 So. 2d 60.

In  the opinion handed down by the Court, the issues 
between the parties were decided as a matter of pleading 
[fob 51] and not upon the basis of facts determ ined afte r 
the submission of proofs. But because of the public im ­
portance of the questions presented, the Court, in the in­
te rest of justice, did not enter a final judgm ent quashing 
the alternative w rit and dismissing the cause (as it could 
have done under well-established rules of pleading and 
procedure), but left the m atter open in order to accord to 
the rela to r the privilege, should he see fit to avail himself 
of it, of renewing his application for admission to a  tax- 
supported law school and then of proving by competent 
evidence, if he could produce such proof, tha t the allegations



49

of the return, which as a matter of pleading he had adm itted 
to be true, were no t true  a£ a matter of fact; in tha t the 
facilities offered a t the F lo rida  A gricultural and Mechan­
ical College did not, in tru th , afford him the equal protection 
of the law guaranteed by the Fourteenth  Amendment to the 
Federal Constitution.

T hat such was this C ourt’s purpose in entering the in ter­
locutory order should be plain to anyone from  even a casual 
reading of the opinion, for the opinion concludes: “ Due 
to the nature of the issues arising  out of the pleadings, it is 
our conclusion tha t the entry of a final order herein should 
be withheld and the jurisdiction of the cause retained until 
it be shown to the satisfaction of this Court either th a t the 
Board of Control has furnished, or has failed to furnish, to 
the relator, in accordance w ith the principles stated  in this 
opinion, and a fte r his due application for enrollment, such 
opportunities and facilities for pursuing his desired course 
of study as are substantially equal to those afforded all 
other students duly enrolled in the same or a like course of 
study a t any of the tax-supported institutions of higher 
learning w ithin the State wherein such course is offered.

“ E ither p arty  to this cause may apply in this proceeding 
fo r the entry  of an appropria te  order finally disposing of 
the case, a fte r due and regular application for enrollment 
has been made by the relator and such opportunities and 
facilities have or have not been made available to him in 
such a tax-supported institution of higher learn ing .”
[fol. 52] Despite this plain wording of the opinion and 
order, the relator, on May 16, 1951, w ithout submitting, 
or offering to submit, proofs on the issue of substantially 
equal opportunity, filed a second motion for the entry  of a 
perem ptory w rit the re tu rn  of the Board of Control not­
withstanding. On June 15, 1951, the Court denied the mo­
tion “ without prejudice to the righ t of the relator to move 
for the entry  of a perem ptory w rit when he is able to show 
to the satisfaction of the Court tha t he has brought himself 
w ithin the principles enunciated in S tate ex rel. Hawkins v. 
Board of Control,”  F lorida Reports, 47 So. 2d 608. F or 
the report of this la tte r decision see S tate ex rel. Hawkins 
v. Board of Control, F lo rida Reports, 53 So. 2d 116.

Again, on June 7, 1952, and without submitting, or offer­
ing to submit, evidence designed to show tha t the facilities



50

offered a t the F lorida A gricultural and Mechanical College 
did not accord with the guarantees to which he was entitled 
under the F ederal Constitution, the re la to r filed a th ird  
motion for perem ptory w rit the re tu rn  of the Board of 
Control notw ithstanding. In  the motion the rela to r alleged, 
in part, tha t “ since the rendition of the C ourt’s initial 
opinion in the case of S tate ex rel. Hawkins v. Board of 
Control of Florida, et al., 47 So. 2d 608 et seq., the R elator 
has reapplied and made due and regular reapplication for 
enrollment and admission to the School of Law at the Uni­
versity of Florida and has complied with all requirem ents 
necessary fo r enrollment and admission a t said institution 
to no avail . . . th a t the judgm ent heretofore rendered 
in this said cause is a nisi order and interlocutory in its 
nature and not an appealable judgm ent. T hat the R elator 
desires to take an appeal therefrom  but is precluded from 
so doing unless this Court enters a F inal Judgm ent and to 
tha t end the R elator stands on his pleadings as filed herein 
. . . and . . . moves . . . for the issuance of a P e r­
em ptory W rit of M andamus and tha t final judgm ent be 
entered in the above entitled cause.”  (Italics supplied) 

The cause is now before the Court for a ruling on the 
motion.
[fol. 53] We take judicial notice, from  the general appro­
priation statu te of 1951 for the years 1951-53, from  the fiscal 
records of the State Comptroller, and from  the official 
m inutes of the State Board of Control (if, indeed, such facts 
are not plainly apparent from  the pleadings), tha t there 
is in operation a t the F lorida A gricultural and Mechanical 
College a duly established and tax-supported law school 
m aintained exclusively for negroes, a t which are offered law 
courses sim ilar in content and quality to those offered at 
the College of Law of the U niversity of F lorida, an institu ­
tion m aintained exclusively for white students; and tha t 
said law school is not merely an “ organization on p a p e r” , 
as has heretofore been contended by the relator, but is in 
full operation and has classrooms, a law library, a law 
faculty, and appropriations of public moneys which appear 
to be sufficient adequately to m aintain the law school and 
to offer legal instruction to such negro students as are 
presently  enrolled there or who may be reasonably expected 
to enroll there in the future.



51

I t  is apparent from  the motion filed in the cause tha t the 
re la to r does not desire to controvert these facts of which 
we take judicial notice, or to raise any issue as to w hether 
said facilities for instruction will afford him an opportunity 
to secure a legal education substantially equal to tha t 
presently  available to white citizens of F lo rida  who have 
the necessary educational qualifications for admission to 
a tax-supported law school. T hat such is his position is 
made plain by the fact that, as shown by his several motions, 
the rela to r has persistently  refused to apply fo r admission 
to the Law School of the F lorida A gricultural and Mechan­
ical College, as perm itted by the interlocutory order here­
tofore entered in this cause, but has applied only to the 
U niversity of F lorida—an institu tion of higher learning 
which, under the F lorida Constitution, is open only to white 
students so long as substantially equal opportunities and 
facilities are afforded elsewhere in the S tate to negro citi­
zens; and tha t having been refused admission to the U ni­
versity  of F lorida Law School, he has made his th ird  
,demand for a perem ptory w rit requiring him admission to 
the U niversity of Florida, w ithout offering to submit proofs 
[fob 54] on the v ital issues, and has coupled the demand 
with the averm ent tha t he “ stands on his pleadings as filed”  
and tha t a perem ptory w rit of mandamus should he entered 
thereon.

P resenting the demand for a perem ptory w rit on this 
showing can mean but one th ing: th a t the rela tor intends 
to stand on the contention tha t in order to receive the full 
political rights guaranteed him by the Federal Constitution 
he m ust be adm itted to the U niversity of F lorida Law 
School, maintained, under the Constitution of Florida, ex­
clusively fo r citizens of the white race, even though there 
is in existence in the State a tax-supported law school which 
is m aintained exclusively for negroes and which, on the face 
of this record, we m ust assume will afford to him oppor­
tunities and facilities which are substantially equal to those 
to be found a t the U niversity of F lorida. This is but 
another way of contending tha t in order for there to be 
equality of treatm ent accorded a citizen, in respect to tax 
supported facilities, there m ust likewise be complete iden­
tity  of treatm ent, or else the requirem ents of the Federal 
Constitution will not be satisfied.



52

This contention is not sound. W hile the Fourteenth  
Amendment to the F ederal Constitution requires tha t sub­
stantially  equal opportunities and privileges shall be a f­
forded every citizen regardless of race or color, the Su­
preme Court of the U nited S tates has held by an unbroken 
line of decisions beginning with Plessy v. Ferguson, 163 
U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, and continuing to 
the present day, tha t equality of treatm ent need not mean 
identity  of treatm ent, w ith respect to a tax-supported 
facility. See Cumming v. County Board of Education, 175 
U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; McCabe v. A. T. & 
S. F. R. Co., 235 U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169; Gong 
Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 172; Mis­
souri ex rel. Gaines v. Canada, 305 U. S. 337, 59 S. Ct. 232, 
83 L. Ed. 208; Sipuel v. Oklahoma B oard of Regents, 332 
IT. S. 631, 68 S. Ct. 299, 92 L. Ed. 247. Compare Sw eatt v. 
Pain ter, 339 U. S. 629, 70 S. Ct. 848, 94 L. Ed. 1114; Mc- 
L aurin  v. Oklahoma S tate Regents for H igher Ed., 339 
U. S. 637, 70 S. Ct. 851, 94 L. Ed. 1149.
[fols. 55-56] U nder the issues as fram ed and presented, 
it is our conclusion tha t the rela to r has not shown himself 
to be entitled to a perem ptory w rit and hence tha t his mo­
tion m ust be denied; tha t the alternative w rit heretofore 
issued must be quashed; and tha t the cause m ust be dis­
missed a t the cost of the relator.

I t  is so ordered.
Terrell, Thomas, Hobson, Roberts and Mathews, J . J., 

and Hocker, Associate Justice, Concur.

[fol. 57] I n t h e  S u p r e m e  C ourt oe F lorida 

[T itle omitted]

M otio n—Filed May 12, 1952

Come now the Relators, by their undersigned attorney, 
and direct the Clerk to certify the entire record respectively 
in the above styled cause, to w it :

1. Petition  fo r A lternative W rit of Mandamus.
2. Order G ranting Petition  for A lternative W rit of 

Mandamus.



53

3. A lternative W rit of Mandamus.
4. Respondents Motion to Quash.
5. The O rder Denying Respondents Motion to Quash.
6. Answer of Respondents.

[fol. 58] 7. R elators Motion for Perem ptory  W rit.
8. Opinion of the Court, Aug. 1, 1950.
9. R elators Motion for Perem ptory W rit.
10. Opinion of the Court, June 15, 1951.
11. R elators Motion D irecting Certification of Record.
12. R elators Motion for Perem ptory  W rit and P inal 

Judgm ent.

(S.) H. E. Hill, 525V2 Second Avenue, Daytona 
Beach, Florida, A ttorney for Relators.

Certificate of Service omitted in printing.

[fol. 59] C lerk’s Certificate to foregoing transcrip t 
omitted in printing.

(3673)