Gebhart v. Belton Brief of Respondents on Reargument

    §>upr£uu> ( to r t  rtf %  Hnitrft Stairs
O ctober Term , 1956

IN  T H E

No.

THE STATE OF FLORIDA, ea; rel.,
VIRGIL I). HAWKINS,

Petitioner,

THE BOARD OF CONTROL, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF FLORIDA

R obert L. Carter , 
T hurgood  M a rshall ,

Counsel for Petitioner.

W illia m  L. T aylor, 
of Counsel.



I N D E X

PAGE

Petition for Writ of Certiorari ..............................
Opinion Below...................................................
Jurisdiction.........................................................
Questions Presented...........................................
Statement ...........................................................
Reasons for Allowance of the Writ ..................

Conclusion..................................................................
A p p e n d ix — Opinion of the Supreme Court of Florida

1
1
2

3
6

8

9

Table of Cases Cited

Betts v. Brady, 316 U. S. 455 ..................................  2
Brown v. Board of Education, 349 U. S. 294 ..............  6
Buchanan v. Warley, 245 U. S. 6 0 ............................. 6
Cole v. Arkansas, 338 U. S. 345 ..............................  2
Department of Banking v. Pink, 317 U. S. 264 .......  2
Ex parte Endo, 323 IT. S. 283 .................................... 7
Jones National Bank v. Yates, 240 TJ. S. 541............  2
Magwire v. Tyler, 17 Wall. 253 ..................................  2, 7
Martin v. Hunter’s Lessee, 1 Wheat. 304 .................. 2, 7
McCulloch v. Maryland, 4 Wheat. 316.......................  2
McLaurin v. Oklahoma State Regents, 339 IT. S.

637 ...........................................................................  5, 6
Morgan v. Commonwealth of Virginia, 328 TJ. S.

373 ...........................................................................  7
Osborn v. The Bank of the United States, 9 Wheat.

738 ......................................................... ; ............... 6



11

PA G E

Parker v. Illinois, 333 U. S. 570 ................................  2
Poindexter v. Greenhow, 114 U. S. 270 .................... 2
Republic Natural Gas Co. v. Oklahoma, 334 U. S.

62 .............................................................................  2
Richfield Oil Corp. v. State Board of Equalization,

329 U. S. 6 9 ........................................... .................  2
Sipuel v. University of Oklahoma, 332 U. S. 631 . . . . .  5, 6
Stanley v. Schwalby, 162 U. S. 255 .........................  2
Sweatt v. Painter, 339 U. S. 629 ............................. 5, 6
Urie v. Thompson, 337 U. S. 163............................... 2
Williams v. Bruffy, 102 U. S. 248 ............................. 2, 7
Williams v. Georgia, 349 U. S. 375 .........................  6
Yick Wo v. Hopkins, 118 U. S. 356 .........................  7

Statutes Cited

Title 28, United States Code:
Section 1257(3) ..................................................  2
Section 1651(a) ....... .......................................... 1, 2, 8
Section 2106 ........................................................ 1, 2, 8

Constitution of the United States:
Fourteenth Amendment ....................................  2

O ther A uthorities C ited

Hart and Wechsler, The Federal Courts and the 
Federal System 240 (1st ed. 1953) ......................  2

1 Warren, The Supreme Court in United States 
History 433 (1922) ......................    7



IN ' T H E

© m t r t  u f  t i p  I n t t e f c
O ctober Term , 1956 

No.

-----------— -------------- - o ---------------------------------

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

Petitioner, 
v.

T h e  B oard of C o ntrol , et al. 
------------------------- o----- ------ --------

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Florida entered in 
the above-entitled cause on March 8, 1957.

Further, petitioner prays that pursuant to Title 28, 
United States Code, Sections 1651(a) and 2106, this Court 
enter the judgment that the Supreme Court of Florida 
should have entered after this Court vacated and remanded 
a prior judgment of the Supreme Court of Florida on 
March 12, 1956.

Opinion Relow

The opinion of the court below last entered in this cause 
and now before this Court on this petition for writ of 
certiorari was entered on March 8, 1957, and is reported 
at 93 So. 2d 354. It is printed in the Appendix hereto 
at pp. 9-33.



9

Jurisd iction

Jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1257 (3). Petitioner asserted 
rights and privileges guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States and through­
out the long history of this litigation, those rights have 
been repeatedly asserted and preserved. This Court will 
issue a writ of certiorari to resolve doubts about whether 
its mandate in an earlier decision has been obeyed by the 
state court. Cole v. Arkansas, 338 U. S. 345, 347.

The judgment below was final, Betts v. Brady, 316 U. S. 
455; cf. Republic Natural Gas Co. v. Oklahoma, 334 U. S. 
62, 68; Parker v. Illinois, 333 U. S. 570, 576-577; and is 
reviewable by this Court notwithstanding any designation 
given it by the state court, Department of Banking v. Pink, 
317 U. S. 264, 268; Richfield. Oil Corp. v. State Board of 
Equalization, 329 U. 8. 69, 72.

This Court has jurisdiction under Title 28, United States 
Code, Sections 1651(a) and 2106 to enter its own judgments, 
and in the past has issued such judgments, especially in 
situations where a state court has failed to act in con­
formity with a prior mandate of this Court. Martin v. 
Hunter's Lessee, 1 Wheat. 304; McCulloch v. Maryland, 
4 Wheat. 316, 437; Mag-wire v. Tyler, 17 Wall. 253, 289- 
290; Williams v. Bruffy, 102 U. 8. 248; cf. Stanley v. 
Schwalby, 162 U. S. 255, 280-282. See Hart and Wechsler, 
The Federal Courts and the Federal System 240 (1st ed. 
1953).1

1 Similarly, in a number of cases which did not involve any viola­
tion of a prior mandate, this Court has acted in aid of jurisdiction 
by remanding the case to the state court with orders to enter a spe­
cific judgment for one of the parties. Stanley v. Schwalby, 162 U. S. 
255; Poindexter v. Greenhow, 114 U. S. 270, 306; Jones National 
Bank v. Yates, 240 U. S. 541, 563; Urie v. Thompson, 337 U. S. 
163, 196.



3

Questions Presented

May the court below refuse to issue a writ of mandamus 
ordering petitioner’s admission to the University of Florida 
Law School on the ground that to do so at this time ‘1 would 
tend to work a serious public mischief?”

Did the court below, in refusing to issue the writ for 
the reasons stated, act in violation of the mandate issued 
by this Court on March 12, 1956?

Should this Court enter its own judgment ordering the 
immediate admission of petitioner to the University of 
Florida in order to secure compliance with its mandate of 
March 12, 1956?

Statem ent

The cause originated in April, 1949. Petitioner was 
one of four applicants who sought admission to the pro­
fessional and graduate schools of the University of Florida. 
Petitioner seeks entrance to the school of law. On May 13, 
1949, petitioner was advised that his admission to the 
University of Florida was prohibited because he was a 
Negro, and the Board of Control offered to pay his tuition 
to an institution of his choice outside the state. Petitions 
for alternative writs of mandamus were filed in the Supreme 
Court of the State of Florida and were granted (R. 8).

On August 1, 1950, the court below entered its first 
judgment and ruled that the Board of Control, in ordering 
the establishment of a school of law and other graduate 
courses at Florida A. and M. College for Negroes, and in 
offering to provide out-of-state scholarship aid to peti­
tioner pending establishment of these segregated educa­
tional facilities, had fully satisfied the state’s constitutional 
obligation to furnish equal educational opportunities to 
petitioner and other Negroes similarly situated. The court



4

refused to enter a final order but retained jurisdiction in 
order to permit tlie parties to seek further relief at some 
later date (R. 69-70). The opinion is reported at 47 So. 
2d 608. On May 16, 1951, petitioner filed a motion for 
peremptory writ of mandamus (R. 72). On June 15, 1951, 
the court below denied the peremptory writ (R. 75). This 
opinion is reported at 53 So. 2d 116. Petitioner filed a 
petition for writ of certiorari in this Court. This Court 
refused to grant certiorari on the ground that no final 
judgment had been entered, 342 U. S. 877.

On June 7,1952, petitioner filed a motion for peremptory 
writ and for final judgment in the court below (R. 83). 
On August 1, 1952, the Supreme Court of Florida entered 
final judgment in this case denying petitioner’s motion for 
peremptory writ, quashing the alternative writs of man­
damus previously issued and dismissing the cause (R. 96). 
This opinion is reported at 67 So. 2d 162. When the cause 
was brought here a second time, this Court granted the 
petition for writ of certiorari, vacated the judgment below, 
and remanded the cause for ‘ ‘ consideration in the light of 
the Segregation Cases decided May 17, 1954 . . . and con­
ditions that now prevail.” 347 U. S'. 971.

On July 31, 1954, the Supreme Court of Florida ordered 
the petitioner to amend his petition so as to place before 
the court the issues raised by the original petition in the 
light of the School Segregation Cases, decided May 17, 
1954, and conditions that now prevail (R. 105). On Sep­
tember 30, 1954, an amended petition for alternative writ 
of mandamus was filed in the court below (R. 108), and 
thereafter, an amended answer was filed by respondents 
(R. 97)—all pursuant to the court’s instruction. On Octo­
ber 19, 1955, a new judgment was entered, declaring the 
exclusion of petitioner from the University of Florida 
solely because of his race unconstitutional, but appointing 
a commissioner to take evidence pursuant to which the



5

court below would determine when and under what cir­
cumstances petitioner might be admitted to the University 
of Florida in the indeterminate future (R. 142). This, the 
fourth opinion, is reported at 83 So. 2d 20.

Although the judgment below was not final, petitioner 
sought in this Court the issuance of a writ of certiorari or 
one of the common law writs. This petition was denied, 
but at the same time this Court recalled and vacated its 
prior order of May 24, 1954, and entered a new order, re­
manding the cause. Citing McLaurm v. Oklahoma State 
Regents, 339 U. S. 637; Sweatt v. Painter, 339 U. S. 629; 
and Sipuel v. University of Oklahoma, 332 U. S. 631, this 
Court stated that there was no reason for delay and that 
petitioner was entitled to prompt admission to the law 
school under the rules and regulations applicable to other 
qualified candidates, 350 U. S. 413, reh. denied 351 U. S. 
915.

On May 25, 1956 the Commissioner, appointed by the 
court below on October 19, 1955 to report when conditions 
would warrant petitioner’s admission, submitted his report 
(R. 169).

On June 20, 1956, petitioner again sought in the court 
below the issuance of a peremptory writ of mandamus 
ordering his admission to law school (R. 134). Hearing 
was held in the court below on petitioner’s motion on Sep­
tember 4, 1956. On March 5, 1957, the court below denied 
a motion made by respondent to refer the cause to a com­
missioner (R. 674). On March 8, 1957, nearly a year after 
this Court entered its last order, the court below entered 
the present judgment, denying petitioner’s motion for a 
peremptory writ (R. 676).

To support its decision, the court reiterated the ground 
stated in its opinion of October 19, 1955, that mandamus 
was a discretionary writ which the court could refuse to 
issue where to do so “ would tend to work a serious public 
mischief.” In concluding that this was the case here, the



6

court relied upon evidence adduced by respondent in hear­
ings held by the commissioner appointed by the court in 
its decision of October 19, 1955. The court held that it 
was not precluded by this Court’s order of March 12, 1956, 
from, denying petitioner’s motion on the grounds stated. 
Finally, the court below ruled that petitioner might renew 
his motion “ when he is prepared to present testimony 
showing that his admission can be accomplished without 
doing great public mischief.” This opinion is reported at 
93 So. 2d 354.

Reasons for A llow ance of the W rit

1. Petitioner is entitled to an order which will effectu­
ally secure his immediate admission to the University of 
Florida law school. More than 7 years have elapsed since 
petitioner first sought relief in the court below to obtain 
admission to law school and that relief has yet to be 
granted. The nature and extent of petitioner’s consti­
tutional right to an unsegregated legal education has been 
clear since this Court decided SweaM v. Painter, 339 U. S. 
629, and McLaurin v. Oklahoma State Regents, 339 U. 8. 
637 in 1950. Petitioner’s right is “ personal and present,” 
and he is entitled to prompt admission under the rules and 
regulations applicable to other qualified candidates. Sweatt 
v. Parnter, supra; Sipuel v. Board of Regents of the Uni­
versity of Oklahoma, 332 U. S. 631, 633; cf. McLaurin v. 
Oklahoma State Regents, supra. A court may not refuse 
to give effect to rights protected by the Constitution on the 
ground that it is simply exercising its discretion to decline 
to afford relief. See e.g., Williams v. Georgia, 349 U. S. 
375, 383; Osborn v. The Bank of the United States, 9 Wheat. 
738, 866. Neither community opposition, nor threats of 
violence and hostility can excuse a denial of constitutional 
rights or a delay in vindicating them. Buchanan v. Warley, 
245 U. S. 60, 80; Brown v. Board of Education, 349 IT. S.



294, 300; cf. Morgan v. Commonwealth of Virginia, 328 
U. S. 373, 380; Ex parte Endo, 323 U. 8. 283, 302; Tick Wo 
v. Hopkins, 118 U. S. 356, 374. Yet the court below persists 
in its refusal to afford relief to petitioner for the very 
reasons declared judicially non-cognizable by this Court 
in an unbroken line of decisions.

2. The judgment of the court below is in direct conflict 
with the order issued by this Court on March 12, 1956, in 
this case. Even if it be assumed, arguendo, that a state 
court is free to seek new independent grounds for decision 
after the issuance of a mandate by this Court, that is not 
the case here. By the court’s own admission (R. 680) all 
of the grounds now advanced by it for denying the writ 
sought by petitioner were contained in its opinion of Octo­
ber 19, 1955, and thus were necessarily before this Court 
when the order of March 12, 1956, was issued. In that 
order, this Court said, “ As this case involves the admis­
sion of a Negro to a graduate professional school, there is 
no reason for delay. He is entitled to prompt admission 
under the rules and regulations applicable to other quali­
fied candidates,” 350 U. S. 413. In the face of this, the 
court below continues to insist that the reasons for delay 
that it urged prior to March 12, 1956, are still valid.

3. Not since the early days of the Republic has the 
authority of this Court to interpret the Constitution been 
challenged in so flagrant a manner by a court of inferior 
jurisdiction. In those early tests, this Court met challenges 
to its authority patiently yet firmly by entering judgments 
to effectuate its opinions. See Martin v. Hunter’s Lessee, 
supra; Magwire v. Tyler, supra; Williams v. Bruffy, supra. 
Authorities attribute the durability of the Union in large 
part to the firm manner in which this Court met these 
threats. See e.g., 1 Warren, The Supreme Court in United 
States History, 433, 450-451 (1922). Petitioner seeks only to 
exercise rights guaranteed by the Constitution and declared



8

in unmistakable terms by this Court. All efforts by peti­
tioner to secure protection of these rights in the court 
below have failed, and there is no indication that such pro­
tection is forthcoming in the foreseeable future. Thus, peti­
tioner’s only recourse is an appeal to this Court to grant 
this petition and to exercise its authority under Title 28, 
United States Code, Sections 1651(a) and 2106 and enter 
its own order directly to the Board of Control ordering 
petitioner’s admission to the University of Florida.

CONCLUSION

Wherefore, for the  reasons hereinabove stated , it is 
respectfully  subm itted th a t this petition  for w rit of cer­
tio rari should be g ranted  and  th a t this Court should 
en ter its own judgm ent ordering  petitioner’s adm ission 
w ithout fu rther delay to the U niversity of F lorida Law 
School.

Respectfully submitted,

W il l ia m  L. T aylor, 
of Counsel.

R obeet L. Ca etee , 
T hurgood  M a rsh a ll , 

Counsel for Petitioner.



9

A PPEND IX

(O pinion of th e  Suprem e Court of Florida 
Filed M arch 8, 1957)

R oberts, J .:

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

Our 1955 decision was entered in response to the 
mandate of the United States Supreme Court in State 
ex rel. Hawkins v. Board of Control (May 1954) 347 
U. S. 971, directing this court to reconsider its decision 
in State ex rel. Hawkins v. Board of Control (Fla. 
1952) 60 So. 2d 162 (the “ 1952 decision” hereafter), 
“ in the light of the Segregation Cases decided May 
17, 1954, Brown v. Board, of Education, etc. [347 U. S. 483] 
and conditions that now prevail.” Since this court has 
held in a long line of decisions that it is bound by the 
decisions of the United States Supreme Court “ construing 
the meaning and effect of acts of Congress and those pro­
visions of the national Constitution which restrict the 
powers of the states,” Miami Home Milk Producers Ass’n 
v. Milk Control Board (1936) 169 So. 541, 124 Fla. 797, we 
held in our 1955 decision, under the authority of Brown v. 
Board of Education, etc., supra, 347 U. S. 483, that the 
Relator could not be denied admission to the University of 
Florida Law School solely because of his race. In the 
exercise of our discretion, however, we decided to withhold 
the issuance of a peremptory writ of mandamus in the 
cause, pending a subsequent determination of law and fact 
as to the time when the Relator should be admitted to that 
institution; and the Honorable John A. H. Murphree, Resi­



10

dent Circuit Judge of the circuit in which the University is 
located, was appointed as the commissioner of this court to 
take testimony on behalf of the Relator and the Respond­
ents, members of the Board of Control, relating to the 
factual issue. Our decision in this respect was based on 
two considerations, one a federal and the other a state 
ground: (1) the application to the controversy of the for­
mula set out in the so-called “ implementation decision,” 
Brown v. Board of Education of Topeka, 349 U. S. 295; 
and (2) the exercise of our traditional power as a state 
court to decline to issue the extraordinary writ of man­
damus if to do so would tend to work a serious public 
mischief. City of Safety Harbor v. State (1939) 136 Fla. 
636, 187 So. 173; State ex rel. Carson v. Bateman, 131 Fla. 
625, 180 So. 22; State ex rel. Gibson v. City of Lakeland, 
126 Fla. 342, 171 So. 227; State ex rel. Bottome v. City of 
St. Petersburg, 126 Fla. 233, 170 So. 730.

The Relator then filed a petition for certiorari in the 
United States Supreme Court to review our 1955 decision 
on the ground that the decision in the Brown case, 347 U. S. 
483, did not apply to ‘ ‘ State junior colleges, colleges, gradu­
ate and professional schools.” The court disposed of this 
petition by a short but not entirely unambiguous opinion, 
dated March 12, 1956, reading as follows:

“ P er  C u r ia m .

“ The Petition for certiorari is denied.
“ On May 24, 1954, we issued a mandate in this 

case to the Supreme Court of Florida. 347 U. S. 971. 
We directed that the case be reconsidered in light of 
our decision in the Segregation Cases decided May 
17, 1954, Brown v. Board of Education, 347 U. S. 
483. In doing so, we did not imply that decrees 
involving graduate study present the problems of 
public elementary and secondary schools. We had 
theretofore, in three cases, ordered the admission of 
Negro applicants to graduate schools without dis­



11

crimination because of color. Sweatt v. Painter, 339 
II. 8. 629; Sipuel v. Board of Regents of the TJni- 
versity of Oklahoma, 332 IJ. S. 631; cf. McLaurin v. 
Oklahoma State Regents for Higher Education, 339 
U. S. 637. Thus, our second decision in the Brown 
case, 349 IJ. 8. 294, which implemented the earlier 
one, had no application to a case involving a Negro 
applying for admission to a state law school. Ac­
cordingly, the mandate of May 24, 1954, is recalled 
and is vacated. In lieu thereof, the following order 
is entered:

“ P e e  C u e ia m : The petition for writ of certiorari 
is granted. The judgment is vacated and the case 
is remanded on the authority of the Segregation 
Cases decided May 17, 1954, Brown v. Board of 
Education, 347 U. S. 483. As this case involves the 
admission of a Negro to a graduate professional 
school, there is no reason for delay. He is entitled 
to prompt admission under the rules and regulations 
applicable to other qualified candidates. Sweatt v. 
Painter, 339 U. 8. 629; Sipuel v. Board of Regents 
of the University of Oklahoma, 332 U. S. 631; cf. 
McLaurin v. Oklahoma State Regents for Higher 
Education, 339 IT. S. 637.”

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

There can be no doubt that, by revising its May 1954 
mandate directed to our 1952 decision in the manner above 
noted, the Supreme Court of the United States neatly, albeit 
laconically, cut off the federal prop that supported, in part, 
our 1955 decision. But it will have been noted that the



12

opinion stated that “ [t]he petition for certiorari is de­
nied” , presumably referring to our 1955 decision; and, 
this being so, our 1955 decision still stands, nonetheless 
firmly, on the state ground mentioned therein and referred 
to above.

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

In what appears to be a progressive disappearance of 
State sovereignty, it is interesting to read certain decisions 
(among others) which the United States Supreme Court 
has handed down in recent months. See: Railway Em­
ployees Dept., etc. et al. v. Hanson, et al. (May 1956) — 
U. S. — , 100 L. Ed. (advance) p. 638, holding that a 
union shop agreement negotiated between certain railroads 
and certain organizations of employees of such railroads 
which had been authorized by an act of the Congress super­
seded the right-to-work provisions of the Constitution of 
the State of Nebraska and the state statutes enacted pur­
suant thereto; Dantan George Rea v. United States of 
America (January 1956) 350 U. S. 214, 100 L. Ed. (ad­
vance) p. 213, holding that it was within the power of the 
federal courts to enjoin an officer of the executive depart­
ment of the federal government from testifying in a state 
court in a case involving a violation of a criminal statute 
of that state; Commonwealth of Pennsylvania v. Steve 
Nelson (April 1956) 350 U. S. 497, 100 L. Ed. (advance) 
p. 415, outlawing antisedition laws in 42 states, Alaska 
and Hawaii; Griffin et al v. People of the State of Illinois 
(April 1956) — U. S. — , 100 L. Ed. (advance) p. 483, 
requiring the states to finance appeals by penniless per­
sons convicted of crimes; Slochower v. Board of Higher



13

Education of the City of New York (April 1956) 350 U. S. 
551, 100 L. Ed. (advance) p. 449, limiting the power of 
states and cities to discharge public employees when they 
plead the Fifth Amendment against self-incrimination in 
duly authorized inquiries affecting the general welfare; 
Broivder et al. v. Gayle et als., 142 F. Supp. 707 (M. D. 
Ala. 1956), affirmed by the Supreme Court, 77 S. Ct. 145, 
holding invalid statutes and ordinances requiring the segre­
gation of the white and colored races in motor buses oper­
ating in the City of Montgomery, Alabama.

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

“ If the policy of the government upon vital ques­
tions affecting the whole people is to be irrevocably 
fixed by decisions of the Supreme Court . . .  the 
people will have ceased to be their own rulers, hav­
ing to that extent practically resigned their govern­
ment into the hands of that eminent tribunal.”

And we do not feel it is amiss to refer to the following 
remarks made by George Washington in his “ Farewell 
Address” :

“ If, in the opinion of the people, the distribution 
or modification of the constitutional powers be in



14

any particular wrong, let it be corrected by an 
amendment in the way which the Constitution desig­
nates. But let there be no change by usurpation; 
for though this, in one instance, may be the instru­
ment of good, it is the customary weapon by which 
free governments are destroyed.”

But we repeat that, despite these recent decisions, we 
cannot attribute to the Supreme Court an intention to abro­
gate the rule which denies to federal courts the right to 
regulate or control long-established rules of practice and 
procedure adopted by state courts for the administration 
of justice therein. Cf. Naim v. Naim (Va. 1956) 90 S. E. 
2d 849, in which the Supreme Court of Appeals of Virginia 
declined to remand a cause to a lower court, as directed by 
mandate of the United States Supreme Court, because to 
do so “ would be contrary to [the] fixed rules of practice 
and procedure” of the Virginia courts, as well as the 
statute law of that state. A motion to recall the mandate 
and to set the case down for oral argument upon the merits, 
or in the alternative, to recall and amend the mandate was 
denied by the United States Supreme Court for the reason 
that the decision above referred to, 90 S. E. 2d 849, “ leaves 
the case devoid of a properly presented federal question.” 
Naim v. Naim (March 12, 1956) — U. S. — , 100 L. Ed. 
(advance) p. 352. A fortiori, we cannot assume that the 
Supreme Court intended to deprive the highest court of 
an independent sovereign state of one of its traditional 
powers, that is, the right to exercise a sound judicial discre­
tion as to the date of the issuance of its process in order 
to prevent a serious public mischief. As recently as June 
4, 1956, in United Automobile, Aircraft and Agricultural 
Implement Workers of America, et al. v. Wisconsin Em­
ployment Relations Board et al., — U. S. — , the Supreme 
Court recognized the “ dominant interest” of a state in 
preventing violence. It there said: “ The States are the 
natural guardians of the public against violence. It is the



15

local communities that suffer most from the fear and loss 
occasioned by coercion and destruction. We would not in­
terpret an act of Congress to leave them powerless to avert 
such emergencies without compelling directions to that 
effect.” We are cognizant of our duty to compel Relator’s 
admission to the University of Florida Law School “ with­
out delay” , if it is feasible to do so at this time; but we 
have an equally compelling duty to perform in respect to 
the public peace and a long-established state judicial pro­
cedure by which to perform it. We point out, additionally, 
that the Relator, having a choice between a federal and a 
state court, selected this court as the forum in which to try 
his cause; he thereby selected the rules of practice and 
procedure long established in this jurisdiction. We have no 
doubt that the Supreme Court intended that we should ad­
here to such procedure in the instant controversy. The 
Relator’s contention in this respect cannot, therefore, be 
sustained.

We come now to the question of whether the facts, as 
developed under the guidance of this court’s commissioner, 
require the immediate admission of the Relator to the 
University of Florida Law School, provided he meets the 
entrance requirements, i t  might be noted that the Relator 
had due notice and an opportunity to be heard at the hear­
ings scheduled by the commissioner. He did not appear 
nor did he present any testimony in support of his right to 
immediate admission. Moreover, the history of this con­
troversy leads us to believe that the Relator does not, in 
fact, have a genuine interest in obtaining a legal education. 
He was given an opportunity to secure a legal education 
outside this state under the Regional Education Plan, but 
declined; he was given an opportunity to attend the Uni­
versity of Florida Law School, temporarily, if law facilities 
were not available at the Florida Agricultural & Mechani­
cal University, but declined; he was then given an oppor­
tunity to attend the law school at the Florida Agricultural 
& Mechanical University, but declined. And, as noted, ho



1 6

was given an opportunity to appear before the court’s com­
missioner and offer evidence in support of his right to im­
mediate admission to the University of Florida Law School, 
but declined.

It should be noted that the Law School at the University 
of Florida is an integral part of that institution. A law 
student is not in a class separate and apart from all other 
University students—he is a University student just as 
much as those entering the engineering school or the edu­
cational school or the architectural school, and entitled to 
participate in all campus activities.

Against this background, we have considered the evi­
dence adduced by the Respondents which, in the state of the 
record here, must constitute the basis for the exercise of 
our discretion in the matter. The factual material on file 
in this court reflects a prodigious amount of work by the 
commissioner and the Respondents or those acting in their 
behalf. It is not contended—nor could it be—that there 
was even a modicum of bias on the part of any person 
involved in the work of assembling the data here presented 
nor in the formulation of the questionnaires which were 
the basic media by which much of the information was 
obtained. The survey is completely objective and as accu­
rate and comprehensive as the time available for the study 
would permit. The testimony of the witnesses shows no 
bias and reflects only a sincere desire to do whatever is 
best for all concerned.

The survey conducted under the guidance of the court’s 
commissioner shows, among others, that a substantial num­
ber of students and a substantial number of the parents of 
students state that they expect to take action—which appar­
ently is positive action—to persuade Negro students to 
leave the University or make it so unpleasant for them that 
they will move out of a dormitory room or out of a class 
or out of a cafeteria or otherwise stop using the facilities 
of the University of Florida, should integration occur. It 
was also shown that 41 percent of the parents of students



17

now in our white universities would cause them to drop out 
of those schools or transfer to another school; and that 
62 percent of the parents of white 1956 high school gradu­
ates would send their children elsewhere than to our white 
state institutions, if we have enforced integration. There 
would be loss of revenue to our white institutions from 
grants, from activities on the part of the alumni of those 
institutions in support of their financial affairs, and from 
students moving out of dormitories (many of which are 
being paid for out of revenue certificates), if we have in­
tegration. Those institutions would lose the support of 
52 percent of their alumni, if integration occurs, which 
would seriously impair the financial support to be expected 
from our state legislature. Integration would unques­
tionably result in the abandonment of substantially all of 
the graduate work now being offered at the Florida Agri­
cultural & Mechanical University because it would be an 
unnecessary duplication of the same courses offered at the 
University of Florida or at Florida State University.

Our study of the results of the survey material to the 
question here, and other material evidence, leads inevi­
tably to the conclusion that violence in university com­
munities and a critical disruption of the university system 
would occur if Negro students are permitted to enter the 
state white universities at this time, including the Law 
School of the University of Florida, of which it is an inte­
gral part. This court has an opportunity to prevent the 
incidents of violence which are, even now, occurring in 
various parts of this country as a result of the states’ 
efforts to enforce the Supreme Court’s decision in the 
Brown case. We quote with approval that part of the 
language of Mr. Justice Hobson in his special concurring 
opinion in which he said “ the testimony which was taken 
at the direction of this court by the Honorable John A. H. 
Murphree, and which is now before us for consideration, 
was not in the record when the Supreme Court of the United 
States said ‘there is no reason for delay’. This testimony,



18

as well as the revealing incidents (of which we may take 
judicial notice) which have occurred since the repudiation 
of the ‘separate but equal’ doctrine, convinces me that the 
immediate admission of relator to the University of Flor­
ida College of Law would result in great public mischief.” 
The homely expression, “ An ounce of prevention is worth 
a pound of cure,” is especially applicable to the situation 
here—involving, as it does, the public welfare of all our 
people.

In the exercise of what we sincerely believe to be sound 
judicial discretion, we have decided that the relator’s mo­
tion for a peremptory writ should be denied, but without 
prejudice to the right of relator to renew his motion when 
he is prepared to present testimony showing that his ad­
mission can be accomplished without doing great public 
mischief. For the reasons stated, the entry of a final judg­
ment is deferred until further order of the court.

It is so ordered.

T h o bn a l  and O’C o n n e l l , Concur.
T eb b ell , G.J., a n d  H obson , Concurs sp e c ia lly .
T hom as and D r e w , J J Dissent.

T er r ell , C.J., Concurring:
I concur in the opinion of Mr. Justice Eoberts, particu­

larly with that part relating to the power of this and other 
states to control their process when public mischief is im­
minent. This doctrine is all the more compelling when long 
settled rules relating to the administration of justice and 
the prevention of violence are brought in question. His­
torically, individuals, as well as states, have interposed 
action to thwart the inroads of Federal authority not so 
much for delay as to preserve what was deemed to be the 
most precious of American ideals. In a free democracy 
the decisions of courts, even the Supreme Court of the



19

United States, have never been considered sacrosanct or 
free from challenge.

In 1798 Jefferson and Madison on behalf of Virginia 
and Kentucky challenged the constitutional validity of the 
Federal sedition law. They contended that the law was not 
only unconstitutional, that it was in violation of the com­
pact with the states and would continue so until effectuated 
by constitutional amendment. No attempt was made to 
force obedience on the part of Kentucky and Virginia but 
in 1801 Jefferson, author of the Kentucky resolution, was 
elected president of the United States.

In 1832, South Carolina nullified the Federal tariff act 
passed that year and nothing was done to force obedience 
but a new tariff act was passed forthwith. In 1838, the 
State of Georgia was ordered by the Supreme Court of the 
United States not to remove the Cherokee Indians beyond 
the state. This was the famous case in which President 
Andrew Jackson injected himself into the picture and issued 
his famous pronouncement, “ John Marshall has made his 
decision, now let him enforce it.” The order was not 
obeyed. The State of Wisconsin refused to follow the 
order of the Supreme Court in the Dred Scott decision 
promulgated prior to the Civil War. Georgia and Virginia 
have recently but respectfully declined to follow orders of 
the Supreme Court relying on control of their own process 
and the fact that there was still a modicum of sovereignty 
in the states that they had a right to invoke. In none of 
the foregoing incidents was any attempt made to coerce 
the states.

Some anthropologists and historians much better in­
formed than I am point out that segregation is as old as 
the hills. The Egyptians practiced it on the Israelites; the 
Greeks did likewise for the barbarians; the Romans segre­
gated the Syrians; the Chinese segregated all foreigners; 
segregation is said to have produced the caste system in 
India and Hitler practiced it in his Germany, but no one 
ever discovered that it was in violation of due process until



20

recently and to do so some of the same historians point out 
that the Supreme Court abandoned the Constitution, prece­
dent and common sense and fortified its decision solely with 
the writings of Gunner Myrdal, a Scandinavian sociologist. 
What he knew about constitutional law we are not told nor 
have we been able to learn.

Such is in part the predicate on which the states are 
resisting integration. They contend that since the Supreme 
Court has tortured the Constitution, particularly the wel­
fare clause, the interstate commerce clause, the Ninth and 
Tenth Amendments, the provisions relating to separation 
of state and federal powers, and the powers not specifically 
granted to the Federal government being reserved to states, 
they have a right to torture the court’s decision. Whatever 
substance there may be to this contention, it is certain that 
forced integration is not the answer to the question. It is 
a challenge to freedom of action that is contrary to every 
democratic precept. It is certain that attempts at integra­
tion by court order have engendered more strife, tension, 
hatred and disorder than can be compensated for in gen­
erations of attempt on the part of those who are forward 
looking and want to do so. They have done more to break 
down progress and destroy good feeling and understand­
ing between the races than anything that has taken place 
since emancipation. Social progress in any time is not 
measured by legislative acts and decree; it is measured by 
qualitative citizenship.

The seventeen states committed to segregation have the 
material stake in this question. They have spent billions on 
separate schools, hospitals and other institutions in the 
attempt to provide “ separate but equal” facilities and 
opportunities for both races in reliance on what they under­
stood to be the law. Violence has arisen everywhere and 
continues to arise account of attempts to comply with the 
Federal Courts’ orders and the end is not yet. These 
“ states are the natural guardians of the public against 
violence” ; they know the reasons for it; they are fully



21

aware that such tensions are grounded in the attempt of 
the Federal Courts at a form of enforced integration that 
is contrary to every precept that activates the need for law 
in this country.

Human nature may not be what it should be but such 
as it is, we are compelled to take it into account. The prob­
lem presented is more social than legal. In fact law is not 
the conclusive answer. Social advancement has never been 
measured by legal formulas and human nature has not 
reached the point where human ingenuity will not find a 
road to bypass laws and regulations which attempt to abro­
gate long settled social standards. To be enforced in a 
democracy law must always follow and never precede a 
felt necessity for it. This was never better illustrated than 
by what is now being done to bypass Federal integration 
orders and what happened to national prohibition in the 
thirties. Surveys made in Washington City schools where 
integration has been attempted for at least two years also 
fortify this premise. If, as pointed out in the opinion of 
Mr. Justice Roberts, the Supreme Court of the United 
States recognizes that the “ dominant interest” of the state 
is to prevent violence and the record here points the road 
to violence, that in itself is enough for this court to with­
hold the issuance of its mandate. The record is best forti­
fied by what is or has been taking place in more than a 
half dozen states.

Then it has been revealed that these riots and outbreaks 
were not activated by local people but by interlopers from 
other places, in other words, social boll weevils, fruit flies, 
potato bugs, bean beetles, cane borers and other pests that 
we institute quarantines or other rigid measures against to 
get rid of. It takes time to do this and then it must be 
done by legal processes, otherwise we invoke that which is 
at least in the nature of the communist manifesto to enforce 
democratic processes. The problem is a different one in 
every state and in this state the governor and the educa­
tional authorities are pursuing legal methods to solve the



22

problem. After all is said the big question is not one of 
defying constituted authority, it is one of finding a way of 
solving a serious problem recently thrust upon the states 
with segregated schools and at the same time preserve 
their traditions, their moral, social, cultural and educa­
tional standards.

For the purpose of fortifying the premises discussed 
in the preceding paragraphs, it is pertinent to point out 
that the legislature on recommendation of the Fabisinski 
Committee, appointed by the governor, to recommend a 
method to best handle the segregation question in a legal 
way, has enacted Chapter 31380, Chapter 31389, Chapter 
31390, and Chapter 31391, Acts of 1956. The first of this 
series of acts became effective July 26, 1956, and the other 
three became effective August 1, 1956. These acts, includ­
ing those they amended, defined a complete scheme to 
administer the public school system. They were enacted 
under the police powers to promote the safety, health, order, 
welfare and education of the people within the State of 
Florida.

They also confer additional powers on the governor in 
that they authorize him to promulgate and enforce rules 
and regulations to protect the public against violence and 
property damages. They recognize that the state has the 
dominant interest in and is the natural guardian of the 
public against violence. It is perfectly evident that these 
acts had in view recent Federal decisions affecting segrega­
tion in that they authorized county boards of public in­
struction to choose personnel from all available sources, to 
consolidate school programs at any school center and to 
dismiss any teacher or teachers not essential to carry on 
the consolidated school program.

Another purpose of these acts was to preserve the wel­
fare of all classes and by a system of uniform tests classify 
all school entrants according to intellectual ability and 
scholastic proficiency to the end that there will be estab­
lished in each school within the county an environment of



23

equality among those of like qualification and academic 
attainments. What effect, if any, the system so created will 
have on the case before us, I do not discuss. The point is 
that it expresses the public policy of the state as to the 
question. Those administering our educational program 
are moving as fast as consistent with wise judgment to set 
it up and other systems not materially different to protect 
the public from violence have been approved though thej'- 
had little, if any, educational aspect, United A. A. & A. I. W. 
vs. Wisconsin Employment Relations Board, — U. S. — , 
100 L. Ed. (Advance p. 666); Gong Lum v. Rice, 275 U. 8. 
78, 72 L. Ed. 172.

These acts were passed since we last considered this 
case, they offer a sound and sensible basis to handle the 
school problem in Florida which was thrown into confusion 
overnight by Brown vs. Board of Education of Topeka, 347 
U. 8. 483, 68 L. Ed. 873, which in turn overthrew and kicked 
out the window the recognized school policy approved by 
all courts in the country for generations. The change has 
precipitated school problems peculiar to every state in the 
country. If Florida is not authorized to meet and solve 
the problem by which it is confronted in a sane and sensible 
manner, then all the law I have been taught governing state 
and Federal power has been pitched down the drain.

For these reasons I concur in the opinion of Mr. Justice 
Roberts.

H obson , J Concurring specially:
I concur in the conclusion reached by the majority be­

cause the testimony which was taken at the direction of this 
court by the Honorable John A. H. Murphree, and which is 
now before us for consideration, was not in the record when 
the Supreme Court of the United States said “ there is no 
reason for delay” . This testimony, as well as the revealing 
incidents (of which we may take judicial notice) which have



24

occurred since the repudiation of the ‘ ‘ separate but equal ’ ’ 
doctrine, convinces me that the immediate admission of 
relator to the University of Florida College of Law would 
result in great public mischief.

In the interest of both races, that is to say, the common 
weal, the writ, of mandamus should, in the exercise of 
sound judicial discretion, be withheld until the Supreme 
Court of the United States in this case, after consideration 
of those matters which it has not heretofore had an oppor­
tunity to weigh and evaluate, unequivocally directs that 
relator be admitted to the College of Law at the University 
of Florida. In such event the onus will rest, as it should, 
with the tribunal responsible for the initial departure from 
a constitutional interpretation which had served us for so 
many years. And since I am bound by the paramount 
federal law, if such ruling should be made by a fully in­
formed Supreme Court, I could not fail to comply without 
stultifying my oath of office.

T hom as , J. Dissenting:
After a careful examination of the opinion prepared 

for a majority of the court, I come to the conclusion that 
I must dissent.

It seems fitting, before recording* my reasons for dis­
agreement, to set out a chronology of the important steps 
in this protracted litigation.

On 30' May 1949 the relator filed in this court a petition 
for a writ of mandamus to command the respondents, 
members of the Board of Control and the president and. 
the registrar of the University of Florida, to admit the 
petitioner, a Negro, to the college of law of the University. 
Adams, C. J., and Terrell, Sebring, Barns and Hobson, J.J., 
voted to issue an alternative writ of mandamus while 
Chapman, J., and the writer dissented on the ground that 
the petitioner had not first applied to the State Board of



Education. The alternative writ, issued1 10 June 1949, 
was in the usual form and! commanded the respondents to 
admit the relator to the college of law or show cause 11 
July 1949 why a peremptory writ should not follow.

From the answers, filed in response to the alternative 
writ of mandamus, it appeared that at the time of relator ’s 
application the college of law at the University of Florida 
was the only law school maintained in the state by taxes, 
and that relator had been informed that because there was 
no law school then functioning within the State where Negro 
students could be enrolled, the Board of Control was pre­
pared to provide him, at a college or university acceptable 
to him in another state, courses of study as valuable as 
any offered in an institution of higher learning in Florida. 
At this time and for many years before the Florida Agri­
cultural and Mechanical College staffed exclusively by 
Negroes and maintained exclusively for members of the 
Negro race, supported by State taxation, had been function­
ing in Tallahassee.

Attention was drawn to the laws of the state restricting 
courses at the University of Florida to members of the 
white race and the respondents asserted that in denying 
the relator’s application they had not acted arbitrarily but 
had only obeyed the statute and the Constitution. It was 
provided in Section 228.09, Florida Statutes, that “ schools 
for white children and the schools for negro children shall 
be conducted' separately.” Section 12 of Art. XII, of the 
Consitution follows: “ White and colored children, shall
not be taught in the same school, but impartial provision 
shall be made for both.”

To repeat, it was in obedience to the statutory and con­
stitutional inhibitions that the respondents declined to ad­
mit the relator to the college' of law at the University of 
Florida, and in order to afford him the training he desired 
they offered to secure him an education of equal quality 
at an institution outside the state where Negroes were not 
barred.



It was further represented that all state institutions 
of higher learning, including the University of Florida, 
and Florida Agricultural and. Mechanical College— the 
name was changed to Florida Agricultural and Mechanical 
University by Chapter 27995, Laws of Florida, Acts of 
1953—were managed and controlled, by the Board of Con­
trol under the supervision of the State Board of Education 
and that from time to time, as the need arose, courses were 
added to the curricula of the institutions. Carrying out 
this policy, according to the answer, the Board of Control 
had, prior to the demand of relator, included in its budget 
requests for funds to be used in the establishment of a 
law school at Florida Agricultural and Mechanical College. 
As a conclusion the respondents stated that if the relator 
still refused ‘ ‘ to accept out-of-state scholarship or other pro­
vision which may be made for his instruction in the courses 
he has requested, elsewhere than at a State institution 
established for white students exclusively, and it should be 
held that said arrangement is insufficient to satisfy the 
relator’s lawful demands, the respondent, Board of Con­
trol, has made provision for relator’s immediate admission 
and enrollment” at the law school established at Florida 
Agricultural and Mechanical College. In the event the- 
“ necessary fanilities, equipment and personnel for said 
course of study should not be immediately available” at 
Florida Agricultural and Mechanical College, continued 
respondents, the respondents had “ made provision for 
[relator’s] instruction # # * at the only other institution 
of higher learning in the State of Florida offering such 
course, until such time as adequate and comparable facili­
ties and personnel * * * [could] be obtained and physi­
cally set up at Florida Agricultural and Mechanical College 
for Negroes, in Tallahassee, Florida.”

The relator moved for a peremptory writ notwithstand­
ing the answer.

The members of this court were in unanimous agree­
ment that the entry of a final order should be withheld,



27

and jurisdiction meanwhile retained, until the court should 
be satisfied either that the Board of Control had furnished, 
or failed to furnish, to the relator the opportunity, to 
pursue his desired course of study, substantially equal to 
the opportunity given students at other institutions sup­
ported by taxation. State ex rel. Hawkins v. Board of 
Control of Florida et al., Fla., 47 So. 2d 608.

The relator moved again for a peremptory writ, 16 May 
1951. State ex rel. Hawkins v. Board of Control et al., 
Fla., 53 So. 2d 116. This writ was denied, 15 June 1951, 
on the ground that the relator had not shown that he had 
exhausted all reasonable means of gaining admittance to 
the University of Florida. The order was entered without 
prejudice to the right to renew the motion for a peremptory 
writ when the relator could show that he had “ brought 
himself within the principles enunciated in State ex rel. 
Hawkins v. Board of Control # * Fla., 47 So. 2d 608.

The relator petitioned the Supreme Court of the United 
States to review the last order by certiorari but on 13 
November 1951, that court declined because the judgment 
was not final. Florida ex rel. Hawkins v. Board of Control 
of Florida, 342 U. S. 877, 72 S. Ct. 166, 96 L. Ed. 659.

On 7 June 1952 the relator presented his third motion 
for a peremptory writ. In an opinion of this court filed 
1 August 1952, it was written that by making this motion 
the relator was taking the position that he would only 
enjoy the full political rights guaranteed by the Federal 
Constitution by being admitted to the University of Florida 
Law School, a school maintained exclusively for white per­
sons, even though a law school, exclusively for Negroes, 
supported by taxation was available to him. The court 
held, unanimously, that the motion should be denied and the 
alternative writ quashed. State ex rel. Hawkins v. Board 
of Control et al., Fla., 60 So. 2d 162.

The Supreme Court of the United States granted cer­
tiorari to review this judgment, ordered the judgment 
vacated and remanded the cause to this court “ for consid­



28

eration in the light of the Segregation Cases decided May 
17, 1954, Brown v. Board of Education, etc., and conditions 
that now prevail.” The mandate was dated 24 May 1954. 
Florida ex rel. Hawkins v. Board of Control of Florida, 
347 U. S. 971, 74 S. Ct. 783, 98 L. Ed. 1112.

It should be remarked here that the case of Brown v. 
Board of Education, cited in the mandate, was one dealing 
with elementary schools while the present litigation involved 
a graduate school, and the direction that this court recon­
sider its judgment not only in the light of the cited case 
but also of “conditions that now prevail” was quite con­
fusing as will be emphasized when we advert to the de­
cision in Brown v. Board of Education and allied decisions 
of the Supreme Court of the United States, and to a later 
mandate affecting the present litigation. (Italics supplied.)

In response to the mandate, this court entered its order 
31, July 1954, directing the relator to amend his petition 
within 60 days so as to present the issues raised by the 
original petition “ ‘in the light of the Segregation Cases 
* * * and conditions that now prevail’ ” and directing re­
spondents within 30 days afterward to amend their return 
so that this court would be enabled to abide by the man­
date.

In obedience to the order both petition and return were 
amended resulting in presentation of the single question 
“ whether or not the relator [was] entitled to be admitted 
to the University of Florida Law School upon showing that 
he [had] met the routine entrance requirements.” State 
of Florida, ex rel. Virgil D. Hawkins, Relator v. Board of 
Control, Fla., 83 So. 2d 20. This opinion was filed 19 Oc­
tober 1955. So the issue was then narrowed to the one 
whether or not the relator’s petition should be rejected 
because he was a member of the Negro race.

Meanwhile, between the time the pleadings were 
amended and the last cited decision was rendered, the Su­
preme Court of the United States entered its opinion, 
Brown v. Board of Education of Topeka, 349 U. S. 294, 75 
S. Ct. 753, implementing the decision in the case of Brown



29

v. Board of Education of Topeka, 347 U. S. 483, 74 S. Ct. 
686, 98 L. Ed. 873, 38 A. L. R. 2d 1180. In the ‘implemen­
tation decision’ that court recognized that varied problems 
would exist locally the solution of which might require 
time and that school authorities should bear the burden of 
showing what delay was necessary “ in the public interest 
and # * consistent with good faith compliance at the
earliest practicable date.” Brown v. Board of Education 
of Topeka, 349 U. 8. 294, 75 S. Ct. 753.

So when the opinion of 19 October 1955 was filed by 
this court it was the majority view that, inasmuch as the 
mandate had referred to a case dealing with elementary 
schools, and the decision in that case had been implemented 
to permit some delay in meeting and solving problems, and 
this court had been directed to re-examine the decision in the 
present case in the light not only of that case but also in the 
light of “ conditions that now prevail,” a commissioner 
should be appointed to take testimony about local problems, 
and adjustments that would be necessary under conditions 
that prevailed, in order to admit the relator, and that upon 
such testimony the court would decide when a peremptory 
writ should issue. Four months from the date of the deci­
sion, 19 October 1955, was the period fixed for taking the 
testimony, and before that time expired the period was 
extended to 31 May 1956.

A petition for certiorari to review the decision of 19 
October 1955 was presented to the Supreme Court of the 
United States and that court, 12 March 1956, while the 
testimony being taken under the decision of 19 October 1955 
was incomplete, entered a decision per curiam. Some con­
fusion resulted because the order began with the statement 
“ The petition for certiorari is denied” and the concluding 
paragraph began with the statement “ The petition for 
writ of certiorari is granted. ’ ’ The issuance of the mandate 
of 24 May 1954 was recited, then the court observed that it 
directed “ the case be reconsidered in light of our decision



30

in the Segregation Cases,” but any reference to considera­
tion of the matter ‘ ‘ in the light of * # * conditions that now 
prevail” was omitted. Then the court explained that in 
directing this court to reconsider there was no implication 
that decrees affecting graduate students present the “ prob­
lems of public elementary and secondary schools.” To 
stress the point it was announced that in three cases: Sweatt 
v. Painter, 339 U. S. 629, Sipuel v. Board of Regents of the 
University of Oklahoma, 332 U. S. 631, Cf. McLaurin v. 
Oklahoma State Regents for Higher Education, 339 U. S. 
637, the court had “ ordered the admission of Negro appli­
cants to graduate schools without discrimination because 
of color” and it was expressly stated that the ‘implementa­
tion decision’ “had no application to a case involving a, 
Negro applying for admission to a state law school.” (Ital­
ics supplied.)

So the mandate of 24 May 1954 was recalled and the 
case remanded, ‘ ‘ on the authority of the Segregation Cases 
decided May 17, 1954, Brown v. Board of Education, 347 
U. S. 483.” This is the now familiar decision dealing with 
elementary schools. The judgment concluded with this 
significant language: ‘ ‘ As this case involves the admission 
of a Negro to a graduate professional school, there is no 
reason for delay. He is entitled to prompt admission under 
the rules and regulations applicable to other qualified can­
didates.” State of Florida ex rel. Virgil D. Hawkins v. 
The Board of Control, opinion filed March 12, 1956.

Despite the ambiguities which I have pointed out, I 
think, and I thought as early as 19 October 1955, when the 
decision of this court directing the taking of testimony was 
rendered, that the Supreme Court of the United States 
had, in effect, declared invalid the provision of the Consti­
tution of the State of Florida in conflict with the interpreta­
tion that court had given the Constitution of the United 
States.

From the time of the decision in Plessy v. Ferguson, 
163 IT. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, rendered in 
1896, decisions by this court that white and colored students



31

should be segregated but that the opportunities should be 
equal enabled members of this court to observe their per­
sonal oaths to support, protect and defend the Constitution 
of this state and do so in perfect harmony with rulings of 
the Supreme Court of the United States on the subject. 
The inhibition in the State Constitution is stated in clear, 
unambiguous language. Construing it verbatim brought no 
inconsistency with construction of the Constitution of the 
United States which contains no express language prohibit­
ing segregation. In the recent decision overturning a prece­
dent of 60 years, nobody seems ever to have bothered to 
consider the effect upon the oath of members of this court 
to support an absolute state constitutional inhibition of 
integration in schools in this state.

At the time of the rendition of the decision of 19 October 
1955 I thought, despite the apparent ambiguity in the order 
on the first petition of certiorari, that no further testimony 
with reference to prevailing conditions had been contem­
plated. Because of this view and the thought that no testi­
mony was needed to dispose of the case, the issue having 
been reduced to the one whether a Negro could be barred 
simply by reason of his race, I thought the decision was 
wrong, so I dissented. And my conviction was buttressed 
by the understanding that the respondents had not re­
quested the procedure, anyway.

My conclusion was confirmed by the entry of the second 
judgment. Even though there was a repeated reference 
to the Brown case, the language already quoted and then 
repeated dissipated any impression that there was occasion 
for further delay.

I cannot agree that when a decision denying a petition 
for mandamus is, in effect, reversed, the subordinate court 
retains the power to issue the writ at some later date. It is 
my view that in such case the discretion, held to have been 
abused, has been exhausted and the time has arrived to 
obey the mandate of the higher court.

It seems to me that if this court expects obedience to 
its mandates, it must he prepared immediately to obey



32

mandates from a higher court. In this case when the Fed­
eral question was presented and determined by the Su­
preme Court of the United States, the ruling became bind­
ing upon this court at once regardless of our lack of 
sympathy with the holding.

Inasmuch as, to repeat, the Supreme Court of the 
United States has ruled that “ there is no reason for delay” 
and that the ‘ ‘ relator is entitled to prompt admission under 
the rules and regulations applicable to other qualified can­
didates” I  think this litigation has ended and that the 
matter is now one purely of administration.

.Dr ew , J., Dissenting:
It is a fundamental truth that justice delayed is justice 

denied. This case has now reached the point where further 
delay will be tantamount to a denial of a constitutional 
right of relator.

Mr. Justice Sebring pointed out the course in his dis­
senting opinion in State ex rel. Hawkins v. Board of Control, 
83 So. 2d 20 (Fla. 1955) with which I must now agree. 
The Constitution of the United States of America, Article 
VI, provides that, “ This Constitution * * # shall be the 
supreme Law of the Land; and the Judges in every State 
shall be bound thereby, any Thing in the Constitution or 
Laws of Any State to the Contrary notwithstanding.” The 
oath of office I have taken requires that I  “ support, protect 
and defend” it. The Supreme Court of the United States 
has been established by long tradition as the final interpreter 
of the Constitution of the United States. Such an interpreta­
tion has been made in this case.

I cannot conclude that- any discretion remains in this 
Court to lawfully postpone the issuance of a peremptory 
writ. This mandamus is a discretionary writ is academic, 
but that this broad principle is applicable in those cases 
where an authoritatively declared constitutional right is 
being denied—I cannot agree. See State ex rel. Beacham



33

v. Wynn, 158 Fla. 182, 28 So. 2d 253, 254 (1946), in which 
this Court said “ Where the right is indisputable there is 
no room for the exercise of discretion other than in keep­
ing with the law.” Also see Osborn v. The Bank of the 
United States, 22 U. S. 738, 866, 6 Law Ed. 204, 234 (1824).

Courts are the mere instruments of the law and can 
will nothing. Judicial discretion is a legal discretion. It 
is a discretion to be exercised in discerning the course 
prescribed by law. When, as here, that course has been 
discerned and a determination has been reached that relator 
is being denied his constitutional right, it is the clear duty 
of this Court to enforce the right. The power vested in 
the judiciary should never be exercised for the sole pur­
pose of giving effect to the will of the judge. The power we 
possess is for the purpose of giving effect to the will of 
the law. I conceive it to be my plain duly to give effect 
to the law which has been established by the United States 
Supreme Court.

I, therefore, respectfully dissent.



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