Rice v Arnold Petition for Writ Certiorari

    SUPREME EDURT OF THE UNITED STATES

OCTOBER TERM, 1951

No. 451

JOSEPH RICE,

vs.
Petitioner,

H. H. ARNOLD, as S uperintendent op M iam i S prings 
C ountry Club

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF FLORIDA

R obert L. Carter,
G. E . Graves, J r.,
J ohn  D. J ohnson , 
T hurgood M arshall, 

Counsel for Petitioner.



INDEX 

S u bject  I ndex
Page

Petition for writ of certiorari..........................................  1
Opinions B elow .......................................................... 1
Jnrisdiction ...............................................................  2
Question Presented ..................................................  2
Statement ...................................................................  2
Specification of Errors To Be Urged........................ 6
Reasons For Granting The W rit.............................  7
Conclusion ............................................................  10

T able oe C ases C ited

McLaurin v. Board of Regents, 339 U.S. 637............. 2
Oyama v. California, 332 U.S. 633.............................. 10
Rescue Army v. Municipal Court, 331 U.S. 549.........  9
Shelley v. Kraemer, 334 U.S. 1 ...................................  10
Sweatt v. Painter, 339 U.S. 629........................................  2
Takahashi v. Fish <& Game Commission, 334 U.S. 410. 10

—8621



S U P R E M E  EDURT OF TH E U N IT E D  S T A T E S

OCTOBER TERM, 1951

No. 451

JOSEPH RICE,

vs. Petitioner,

H. H. ARNOLD, as S u perin ten d en t  of M ia m i S prings

C ou ntry  C lub

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF FLORIDA

To the Honorable, the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of the State of Florida, 
entered in the above-entitled case on August 31, 1951.

Opinions Below

The opinion of the court below, now being brought before 
this Court, is reported in 54 So. 2d 114 and appears at page 
23 of the record herein.



2

Jurisdiction

Judgment was entered on August 31, 1951, by the Su­
preme Court of Florida (R. 32). The jurisdiction of this 
Court is invoked under Title 28, United States Code, Sec­
tion 1254.

Petitioner is here filing a petition for writ of certiorari 
for a second time. On March 24, 1950, the State of Florida 
entered judgment against petitioner, 45 So. 2d 195 (R. 
14-19), and a petition for writ of certiorari was filed in this 
Court. On August 16, 1950, the petition for writ of certi­
orari was granted, 340 U. S. 848 (R. 21), the judgment 
was vacated and set aside, and the cause remanded for 
reconsideration in the light of subsequent decisions of this 
Court in Sweatt v. Painter, 339 U. S. 629; and McLaurin v. 
Board of Regents, 339 U. S. 637.

Question Presented

May a state, in operating a public golf facility, condition, 
restrict or limit the use and enjoyment of such facility on 
the basis of the applicant’s race or color without violating 
the equal protection clause of the Fourteenth Amendment 
to the Constitution of the United States.

Statement

The City of Miami, Florida, owns and operates a golf 
course known as the Miami Springs Country Club. It is 
the only publicly-owned and operated golfing facility in the 
city. Respondent is the duly appointed and acting Super­
intendent of said public golf course and has the power and 
duty to make and enforce rules and regulations governing 
the use and enjoyment of these facilities by the general 
public (R. 1).

Prior to April 27, 1949, respondent had promulgated and 
was enforcing a rule and regulation under which Negro



3

citizens were permitted to use the Miami Springs Country 
Club golf course only on Monday of each week, the remain­
ing six days being reserved for the exclusive use of white 
persons (R. 5).

On April 27, 1949, that day being a Wednesday and a day 
which under respondent’s rule and regulation persons of 
the Negro origin were not entitled to use of the golf course, 
petitioner, a Negro, sought respondent’s permission to play 
on the golf course. Such permission was denied pursuant 
to the rule and regulation heretofore referred to (R. 3).

On June 3, 1949, petitioner filed in the Circuit Court of 
the Eleventh Judicial Circuit of Florida in and for Dade 
County, a petition for an alternative writ of mandamus to 
require respondent to permit him to use the said golf course 
at all times during which said golf course was open to the 
general public and subject only to such rules and regulations 
as were applicable to all persons (R. 1).

The alternative writ, as prayed for, was issued by the 
Circuit Court of Dade County on June 10, 1949 (R. 3). In 
accordance with the terms of the alternative writ, re­
spondent thereupon filed his return and answer (R. 4). In 
his answer, respondent sought to defend the rule and regu­
lation under which petitioner was denied use of the golfing 
facilities on the following grounds: (1) That the public 
policy of the state and of the City of Miami required the 
segregation of the races in the use of public facilities; (2) 
that for a period of six days in April, Negroes were per­
mitted to use the golf course without restriction; (3) that 
the golf course is self-sustaining, depending upon the fees 
paid by the golfers; that an average of 200 players per day 
is necessary to sustain it on a paying basis; (4) that follow­
ing the admission of Negro players, white players an­
nounced their intention of withdrawing their patronage if 
forced to share such facilities with Negroes; (5) and in 
view of the small number of Negro golfers who took ad­



4

vantage of these facilities it would become necessary for 
the City of Miami to abandon the golf course unless an 
alternative regulation for its use was adopted; (6) that the 
present policy was adopted limiting Negro players to the 
use of said facilities on one day of each week, reserving the 
remaining six days for the exclusive use of white persons; 
(7) and that since the promulgation of this latter rule, the 
number of Negro golfers has not increased sufficiently to 
warrant increasing the time allotted for them in the use of 
these facilities (R. 4-6).

Petitioner, thereupon, moved for a peremptory writ of 
mandamus on July 18, 1949, upon the grounds that respond­
ent’s allegations set forth in the return and answer, if 
proved, would not constitute a legal defense (R. 6-7). The 
motion for peremptory writ of mandamus was denied by 
the Circuit Court, the alternative writ dismissed and final 
judgment granted the respondent on June 22, 1949 (R. 7-9).

An appeal was thereupon taken to the Supreme Court of 
the State of Florida. On appeal, petitioner contended that 
the rule and regulation promulgated by respondent whereby 
petitioner, because he is a Negro, was permitted to use the 
golf course only on Mondays, deprived petitioner of the 
equal protection of the laws as guaranteed under the Four­
teenth Amendment to the Constitution of the United States. 
The Supreme Court of Florida, on March 24, 1950, affirmed 
the judgment of the lower court (R. 14-19). In so holding, 
the Court said:

“ . . . It does not appear by the record that the 
one day allotment of the facilities of the course to the 
negroes discriminated against the negro race. The 
days of playing each week were apportioned to the 
number of white and colored golfers according to the 
record of the course kept by the respondent. If an 
increased demand on the part of the negro golfers is 
made to appear, then more than one day each week will 
be allotted . . . ”  (R. 18-19).



5

Petitioner then brought the case to this Court. Between 
the time of the decision of the Florida Supreme Court and 
filing- of the petition for writ of certiorari in this Court, 
Sweatt v. Painter, supra, and McLaurin v. Board of 
Regents, supra, were decided. On October 16, 1950, this 
Court, in a per curiam opinion, granted the petition for 
writ of certiorari, vacated and set aside the judgment of 
the Florida Supreme Court and remanded the cause for 
reconsideration in the light of the Sweatt and McLaurin 
cases (R. 21). On the return of this Court’s mandate to 
the Supreme Court of Florida, ordering the reconsideration 
of the cause, the Supreme Court of Florida refused to per­
mit the filing of briefs by counsel for either party and 
refused to permit oral argument as to the effect of the 
McLaurin and Sweatt decisions on the instant controversy. 
Without ordering any new hearing or permitting the filing 
of any new briefs, the court, on August 31, 1951, handed 
down its Opinion and judgment, with two justices dissent­
ing (R. 23), in which it held that the McLaurin and Stveatt 
cases were not applicable to the instant controversy. The 
court said:

“ It is significant that in the Sweatt case the court 
was urged to hold that discrimination inevitably results 
wherever the ‘ separate but equal’ doctrine is applied 
with reference to public facilities furnished persons of 
different races; but the court said, ‘ broader issues have 
been urged for our consideration, but we adhere to 
the principle of deciding constitutional questions only 
in the contest of the particular case before the court’, 
thereby declining to destroy the well established rule 
that has been applied ever since the adoption of the 
Fourteenth Amendment to the Constitution to the 
effect that where separate but equal facilities are pro­
vided persons of different races, no person of either 
race is thereby denied the full protection of his con­
stitutional rights. Among the numerous decisions 
enunciating this principle, we cite only Plessy v. Fergu-



6

son . . . because of its clarity and because tbe
Supreme Court in tbe Sweatt case expressly declined 
to ‘ re-examine’ that holding, thus impliedly directing 
all courts subordinate to it in the field of constitutional 
construction, to continue to recognize that decision as 
binding authority. We are directed to reconsider our 
conclusions in the case before us in the light of the 
decision in the Sweatt case. A  part of that decision 
was the refusal of the Supreme Court to modify Plessy 
v. Ferguson.

“ In the case before us, there is no question of the 
equality of the physical facilities offered petitioner 
with which he may enjoy his constitutional right to 
engage in the game of golf upon public property. The 
facilities offered petitioner are identical with the fa­
cilities offered persons of other races by the City of 
Miami.”  (R. 28-29)

The Court then affirmed the judgment of the Circuit 
Court of and for Dade County in denying petitioner’s 
motion for peremptory writ of mandamus.

Whereupon, petitioner, for a second time, brings the 
cause here for review by this Court.

Specification of Errors to Be Urged

The Supreme Court of Florida erred:

1. In refusing to hold that respondent’s rule and regu­
lation, under which petitioner and all other Negroes, solely 
because of color, were prohibited from using the Miami 
public golf course except on Monday of each week and white 
persons were permitted to use said facilities on all other 
days, was an unconstitutional infringement of petitioner’s 
rights as secured under the Fourteenth Amendment to the 
Constitution of the United States.

2. In refusing to hold that petitioner was entitled to un­
restricted use of the Miami Springs Golf Club subject only



7

to the same rules and regulations which were applicable to 
all other persons.

3. In refusing to hold that respondent’s rule and regula­
tion, under which one day per week was set aside for the 
exclusive use of the Miami public golf course by Negroes 
and Negroes were not permitted to use the golfing facilities 
on any other day, was a denial of the equal protection of 
the laws as defined by this Court in Sweatt v. Painter, supra, 
and McLaurin v. Board of Regents, supra.

Reasons for Granting the Writ

1. The mandate of this Court, vacating and setting aside 
the initial judgment of the court below and remanding the 
cause for reconsideration in the light of Sweatt v. Painter, 
supra, and McLaurin v. Board of Regents, supra, in effect 
has been ignored. The court below held that the McLaurin 
and Sweatt cases were not applicable and decided the in­
stant controversy as if those two cases did not exist.

In its original opinion and judgment, before the Court 
for review last term, the Supreme Court of Florida sus­
tained respondent’s rule and regulation, under which peti­
tioner solely because of his color, was denied use of the 
Miami golf course except on Mondays, as being consistent 
with the requirements of the Fourteenth Amendment in 
that the allocation of one day per week to Negroes to use 
the golf course was deemed to afford petitioner substan­
tially equal accommodations. On remand, the court below 
found that the McLaurin and Sweatt cases had left un­
changed and undisturbed its original impression of the 
applicable law and that the special rule and regulation 
restricting petitioner’s use of the Miami public golf course, 
solely because he is a Negro, did not constitute a denial of 
substantially equal accommodations required by the Four­
teenth Amendment.



8

Thus, petitioner stands in exactly the same position as 
when he filed his original petition for writ of certiorari last 
term. It is submitted that had this been the intention or 
expectation of this Court, the original petition for writ of 
certiorari would have been denied or, if granted, the judg­
ment of August 24, 1950, would have been affirmed.

2. This case is a phase of the same problem raised in the 
Mcbcmrin and Sweatt cases, and the principles governing 
disposition of those cases control determination of the in­
stant controversy. Those cases dealt with public educa­
tional facilities and this case deals with public recreational 
facilities. The constitutional question raised, however, is 
identical. Petitioner is here complaining of being set apart 
by the state because of his color, of being subjected to spe­
cial rules and regulations different from those applicable 
to all other persons with respect to his use of a public golf 
facility. He asserts that the state is without power to treat 
him differently than it treats other persons solely because 
of the accident of his color and that by allowing him to use 
the public golf course subject to special conditions, the state 
is depriving him of equal public accommodations in viola­
tion of rights secured under the Fourteenth Amendment. 
McLaurin and Siveatt made the same complaint and the 
same assertion except that they were concerned with public 
graduate and professional instruction.

In the McLatmn and Sweatt cases, the question decided 
by this Court was the extent to which the equal protection 
clause of the Fourteenth Amendment limited “ the power 
of a state to distinguish between students of different races 
in. professional and graduate education in a state univer­
sity.”  While the specific constitutional determination 
made in those cases concerned state power to make racial 
distinctions among students in state graduate and profes­
sional schools, the basic and underlying problem before the 
Court was the extent to which the Fourteenth Amendment



9

limits state power to make distinctions among persons 
based upon race or color in the use and enjoyment of public 
facilities. To have spoken in terms of this basic issue in 
either McLaurm or Sweatt would have involved a deter­
mination of a constitutional question broader than neces­
sary to dispose of the specific problem which those cases 
brought before the Court, contrary to normal Supreme 
Court practice. Sweatt v. Painter, supra at 631; Rescue 
Army v. Municipal Court, 331 U. S. 549. Yet the constitu­
tional principles enunciated to determine the narrow prob­
lem at hand are subsequent guides to decisions when other 
facets of the same broad question come before the Court, 
such as is now presented in the instant case. Recognition 
of this fact, it is submitted, caused this Court to set aside 
and remand the original judgment in this case because the 
decision of the court below was reached prior to, without 
benefit of the reasoning in, and by application of principles 
at war with those enunciated in the Mcba/urin and Sweatt 
decisions.

3. The reasons wdiieh the court below advances as a basis 
for distinguishing this case from the Siveatt and McLcmrin 
cases are, we submit, the very reasons which conclusively 
demonstrate the unconstitutionality of respondent’s rule 
and regulation. Said the court:

“ Turning to the facts of the case before this court, 
we take judicial notice that the game of golf is of such 
a nature that it requires the maintenance of links which 
cover a considerable area and that it can be played only 
by persons alone or in very small groups not exceed­
ing, execept in unusual cases, four persons, although 
several of such groups may play simultaneously on 
different parts of the course. There are of necessity 
some, but limited, contacts between the various groups 
so playing, particularly around the club house and 
starting tees. The purpose and function of the game 
is to obtain the pleasure and exercise incident to the



10

playing and the rivalry and association between per­
sons who arrange in advance to play together. The 
exercise, the rivalry and the association are not en­
hanced by the other persons who may, on the same day 
or during the same hours, elect to enjoy the facilities.”

Since contacts are limited and the purpose of playing- 
golf is to obtain pleasure in exercise and in the rivalry 
and association between persons who arrange to play in 
advance, there is no valid or important state interest which 
requires petitioner’s discriminatory treatment. The court’s 
opinion demonstrates that petitioner’s unrestricted use of 
the golf course is no threat to public peace, and that white 
persons using the course who do not care to associate with 
Negroes would not be forced into such contact against their 
will. Thus, the reasons normally advanced in justification 
of racial segregation are entirely absent in this case.

4. The rule and regulation here under attack are based 
on race alone, and race has long been held to be an improper 
basis for state action. Shelley v. Kraemer 334 U. S. 1; 
Takahaski v. Fish and Game Commission, 334 TJ. S. 410; 
Oyama v. California, 332 U. S. 633.

Conclusion

For the foregoing reasons, this petition for writ of certi­
orari should be granted.

Respectfully submitted,
R obert L . C arter ,
G. E. G raves, J r .,
J ohn  D . J o h n son , 
T httrgood M arsh a ll , 

Counsel for Petitioner.
Dated: November 29, 1951.

(8621)