Florida v. Board of Control Transcript of Record
Public Court Documents
May 25, 1949 - May 12, 1952

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Brief Collection, LDF Court Filings. Florida v. Board of Control Transcript of Record, 1949. 4e1f26f7-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/dd3d8bf9-e004-4925-9e02-6f49dced647b/florida-v-board-of-control-transcript-of-record. Accessed June 13, 2025.
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TRANSCRIPT OF RECORD Supreme Court of the United States OCTOBER TERM, 1951 No. THE STATE OF FLORIDA, EX EEL. VIRGIL D. HAWKINS, PETITIONER, vs. THE BOARD OF CONTROL OF FLORIDA, A BODY CORPORATE UNDER THE LAWS OF THE STATE OF FLORIDA, ET AL. P E T IT IO N PO E A W R IT OP CERTIO RA RI TO T H E S U P R E M E COU RT OP T H E STATE OP FLORID A FILED SUPREME COURT OF THE UNITED STATES THE STATE OF FLORIDA, EX EEL. VIRGIL D. HAWKINS, PETITIONER, vs. THE BOARD OF CONTROL OF FLORIDA, A BODY CORPORATE UNDER THE LAWS OF THE STATE P E T IT IO N EO S A W R IT OE CERTIO RA RI TO T H E S U P R E M E COURT OCTOBER TERM, 1951 No. HAWKINS, PETITIONER, vs. OF FLORIDA, ET AL. OE T H E STATE OE FLORIDA INDEX Original P rint Record from the Supreme Court of the State of Florida. . 1 1 Petition for alternative writ of mandamus.................... 1 1 Order granting petition for alternative writ of manda mus ............................................................................ ^ 4 Alternative writ of mandamus..................................... 11 5 Motion to quash writ of mandamus............................. 17 8 Order denying motion to quash alternative writ of mandamus ................................................................. 19 !! Answer of J. Thomas Gurney, et al............................... 22 9 Answer of Board of Control, et al................................. 32 15 Exhibit—Resolution of Board of Control............. 42 22 Motion for peremptory writ of mandamus................... 46 24 Opinion, Sebring, J .......................................................... 48 25 Motion for peremptory writ of mandamus.................. 65 39 Opinion on motion for peremptory writ of mandamus, Sebring, C. J. .............................................................. 68 40 Motion directing certification of record....................... 76 44 Clerk’s certificate.................... (omitted in printing) . . 76 J u d d & D e t w e il e ® ( I n o . ) , P r in t e r s , W a s h in g t o n , D . C., A u g . 31, 1951. —6883 1 [fol. 1] IN THE SUPREME COURT OP THE STATE OF FLORIDA T h e S tate of F lorida, ex rel., V ir g il D. H a w k in s , Plaintiff, vs. T h e B oard of C ontrol of F lorida, a body corporate under the laws of the State of Florida, J. Thomas Gurney, N. B. Jordan, Thomas W. Bryant, J. Hinson Markham, and Hollis Rinehart, as members of the Board of Control of State of Florida; J. Hillis Miller, as President of the University of Florida, and R. S. Johnson, as Registrar of the University of Florida, Respondents. P e t it io n for A ltern a tiv e W rit of M andam us—Filed May 25, 1949 . To the Honorable Judges of the above Styled Court: Your petitioner, Virgil D. Hawkins, respectfully presents unto the Court: That your petitioner is a citizen and a resident of Alachua County, Florida; that the respondent, the Board of Control of Florida, is a body corporate created by the laws of the State of Florida and its principal office and place of business is in Tallahassee, Leon County, Florida; that the respon dent, J. Thomas Gurney, is a citizen and resident of Orange County, Florida, and is the duly appointed, qualified and acting member and chairman of said Board of Control; that the respondent, N. B. Jordan, is a citizen and resident of Gadsden County, Florida, and is the duly appointed, qualified and acting member of said Board of Control; that the respondent, Thomas W. Bryant, is a citizen and resident [fol. 2] of Polk County, Florida, and is a duly appointed, qualified and acting member of said Board of Control; that the respondent, J. Hinson Markham, is a citizen and resident of Duval County, Florida, and is a duly appointed, qualified and acting member of said Board of Control; that the respondent, Hollis Rinehart, is a citizen and resident of Dade County, Florida, and is a duly appointed, qualified and acting member of said Board of Control; that the re spondent, J. Hillis Miller, is a citizen and resident of Alachua 1—6883 2 County, Florida, and is the duly appointed and qualified president of said University of Florida; that the respon dent, ft. S. Johnson, is a citizen and resident of Alachua County, Florida, and is the duly appointed and qualified registrar of said University of Florida. 2 That the petitioner desires to study law in the College of Law of the University of Florida which is supported and maintained by the taxpayers of the State of Florida for the purpose of preparing himself to practice law in the State of Florida and for public service therein and has been arbitrarily refused admission. 3 That the petitioner has an AB degree from Lincoln University, Pennsylvania. 4 That on or about the 4th day of April, A. D., 1949 your petitioner, duly applied for admission to the first year class of the College of Law of the University of Florida, for attendance at the coming summer session of said school. He then possessed, and still possesses, all the scholastic, moral and other lawful qualifications prescribed by the Constitution and Statutes of the State of Florida, by the Board of Control of the State of Florida and by all the duly authorized officers and agents of said Board of Control and the University of Florida and the College of Law for admission in the first year class of the College of Law of said University. He was then, and is still, ready and willing [fol. 3] to pay all uniform fees and charges and to conform to all lawful uniform rules and regulations established by lawful authority for admission to said class. 5 That contrary to the usual and customary procedure, the respondent, R. S. Johnson, forwarded petitioner’s appli cation to the respondent, the Board of Control and there after, to-wit: the 13th day of May, A. D., 1949, your peti tioner, by and through his attorney, did appear before said Board of Control at a regular meeting of said Board of Control in Tallahassee, Leon County, Florida, for a hearing 3 upon Ms application for admission. That at said hearing the respondents, J. Thomas Gurney, N. B. Joi'dan, Thomas W, Bryant, J. Hinson Markham and Hollis Rinehart, did deny the application of your petitioner and did refuse to grant him admission into the first year class of the College of Law at the University of Florida, and did then and there announce that said application was denied solely because of certain provisions of the Constitution and Statutes of the State of Florida which deny the right of your petitioner admission to the said University solely because of your petitioner’s race and color, thus denying unto your peti tioner the equal protection of laws solely on the ground of his race and color, contrary to the Constitution of the United States. 6 That the College of Law of the University of Florida is the only law school in the State of Florida supported and maintained by the taxpayers of the State of Florida. That the College of Law specializes in law and procedure which regulates the Courts of Justice and the government of the State of Florida and there is no other law school maintained by the public funds of the State of Florida where your petitioner can study Florida law and procedure to the same extent and on an equal level of scholarship and intensity as in the College of law of the University of Florida. That [fol. 4] the arbitrary and illegal refusal of the respondents, the members of the Board of Control to admit your peti tioner to the first year of law school solely on the grounds of race and color has caused irreparably injury and will place him at a distinct disadvantage at the Bar of Florida and in the public service of the aforesaid State with persons who have had the benefit of the unique preparation in Florida law and procedure given to white students in the law school of the University of Florida. 7 That the respondents, J. Hillis Miller, as president of the University of Florida and R. S. Johnson, as registrar, have refused to admit your petitioner to the University of Florida, solely because of race and color, thus denying your petitioner equal protection of the law, while at the same time admitting white applicants with less qualifica tions than your petitioner. 4 The petitioner further shows that he has no speedy, adequate remedy at law and that unless a Writ of Man damus is issued he will be denied the right and privilege of pursuing the course of instruction in the school of law as hereinabove set out. Your petitioner further shows unto this Court that the question involved in this proceeding is a special and peculiar question of law, an early decision of which, will avoid litigation in other cases which will be controlled by force of the decision of this case, that the respondents herein are a State Board, State offices, and other agencies, authorized to represent the public generally and that this is a case in which this Honorable Court should exercise its original jurisdiction. [fol. 5] Wherefore, your petitioner prays the issuance of an alternative writ commanding the respondents herein; within the time set by this Court, to admit your petitioner into the College of Law of said University of Florida or to show to this Court — for their refusal so to do. (S) V. D. Hawkins, Petitioner. (S) Alex Akerman, Jr., Attorney for Petitioner, 401 First National Bank Building, Orlando, Florida. [fol. 6] Duly sworn to by Virgil D. Hawkins. Jurat omitted in printing. [fols. 7-8] Duly sworn to by Alex Akerman, Jr. Jurat omitted in printing. 8 [fols. 9-10] In t h e S u pr e m e C ourt op F lorida, J anuary T er m , A. D. 1949, F riday, J u n e 10, 1949 [Title omitted] O rder Gr a n tin g P e t it io n for A ltern a tiv e W r it of M a n damus— J u n e 10, 1949 Upon consideration of the petition of relator for an Al ternative Writ of Mandamus in this cause, it is ordered that such writ issue returnable in thirty days from the date of said writ, 5 [fol. 11] In t h e S u p r e m e C ourt op F lorida [Title omitted] A ltern a tiv e W r it op M andam us—June 10, 1949 Whereas, upon the sworn petition filed herein by the relator Virgil D. Hawkins it has been made to appear: 1 That your petitioner is a citizen and a resident of Alachua County, Florida; that the respondent, the Board of Control of Florida, is a body corporate created by the laws of the State of Florida and its principal office and place of busi ness is in Tallahassee, Leon County, Florida; that the respondent, J. Thomas Gurney, is a citizen and resident of Orange County, Florida, and is the duly appointed, qualified and acting member and chairman of said Board of Control; that the respondent, N. B. Jordan, is a citizen and resident [fol. 12] of Gadsden County, Florida, and is the duly ap pointed, qualified and acting member of said Board of Control; that the respondent, Thomas W. Bryant, is a citi zen and resident of Polk County, Florida, and is a duly appointed, qualified and acting member of said Board of Control; that the respondent, J. ITinson Markham, is a citizen and resident of Duval County, Florida, and is a duly appointed, qualified and acting member of said Board of Control; that the respondent, Hollis Rinehart, is a citi zen and resident of Dade County, Florida, and is a duly appointed, qualified and acting member of said Board of Control; that the respondent, J. Hillis Miller, is a citizen and resident of Alachua County, Florida, and is the duly appointed and qualified president of said University of Florida; that the respondent, R. S. Johnson, is a citizen and resident of Alachua County, Florida, and is the duly ap pointed and qualified registrar of said University of Florida. 2 That the petitioner desires to study law in the College of Law of the University of Florida which is supported and maint-ed by the taxpayers of the State of Florida for the purpose of preparing himself to practice law in the State of Florida and for public service therein and has been arbitrarily refused admission. 6 3 That the petitioner has an AB degree from Lincoln Uni versity, Pennsylvania. 4 That on or about the 4th day of April, A. D., 1949 your petitioner, duly applied for admission to the first year class of the College of Law of the University of Florida, for attendance at the coming summer session of said school. He then possessed, and still possesses, all the scholastic, moral and other lawful qualifications prescribed by the Constitution and Statutes of the State of Florida, by the Board of Control of the State of Florida and by all the duly authorized officers and agents of said Board of Control and the University of Florida and the College of Law for admission in the first year class of the College of Law of said University. He was then, and is still, ready and willing [fol. 13] to pay all uniform fees and charges and to conform to all lawful uniform rules and regulations established by lawful authority for admission to said class. 5 That contrary to the usual and customary procedure, the respondent, R. S. Johnson, forwarded petitioner’s appli cation to the respondent, the Board of Control and there after, to-wit: the 13th day of May, A. D., 1949, your peti tioner, by and through his attorney, did appear before said Board of Control at a regular meeting of said Board of Control in Tallahassee, Leon County, Florida, for a hearing upon his application for admission. That at said hearing the respondents, J. Thomas Gurney, N. B. Jordan, Thomas W. Bryant, J. Hinson Markham and Hollis Rinehart, did deny the application of your petitioner and did refuse to grant him admission into the first year class of the College of Law at the University of Florida, and did then and there announce that said application was denied solely because of certain provisions of the Constitution and Statutes of the State of Florida which deny the right of your petitioner admission to the said University solely because of your petitioner’s race and color, thus denying unto your peti tioner the equal protection of laws solely on the ground of his race and color, contrary to the Constitution of the United States. 7 That the College of Law of the University of Florida is the only law school in the State of Florida supported and maintained by the taxpayers of the State of Florida. That the College of Law specializes in law and procedure which regulates the Courts of Justice and the government of the State of Florida and there is no other law school maintained by the public funds of the State of Florida where your peti tioner can study Florida law and procedure to the same extent and on an equal level of scholarship and intensity as in the College of law of the University of Florida. That the arbitrary and illegal refusal of the respondents, the members of the Board of Control to admit your petitioner to the first year of law school solely on the grounds of race [fol. 14] and color has caused irreparable injury and will place him at a distinct disadvantage at the Bar of Florida and in the public service of the aforesaid State with persons who have had the benefit of the unique preparation in Florida law and procedure given to white students in the law school of the University of Florida. 7 That the respondents, J. Hillis Miller, as president of the University of Florida and R. S. Johnson, as registrar, have refused to admit your petitioner to the University of Florida, solely because of race and color, thus denying your petitioner equal protection of the lawq while at the same time admitting white applicants with less qualifications than your petitioner. 8 The petitioner further shows that he has no speedy, ade quate remedy at law and that unless a Writ of Mandamus is issued he will be denied the right and privilege of pur suing the course of instruction in the school of law as here inabove set out. Your petitioner further shows unto this Court that the question involved in this proceeding is a special and pecu liar question of law, an early decision of which, will avoid litigation in other cases which will be controlled by force of the decision of this case, that the respondents herein are a State Board, State offices, and other agencies, authorized to represent the public generally and that this is a case in 6* 2—6883 8 which this Honorable Court should exercise its original jurisdiction. Now, therefore, these are to command you the said Board of Control of Florida, a body corporate under the laws of the State of Florida, J. Thomas Gurney, N. B. Jordan, Thomas W. Bryant, J. Hinson Markham, and Hollis Bine- hart, as members of the Board of Control of the State of Florida; J. Hillis Miller, as President of the University of Florida, and B. S. Johnson, as Begistrar of the University of Florida to admit Virgil D. Hawkins to the College of Law of the said University of Florida as a student therein, or in the alternative, that you in your respective capacities in which you are herein joined, do show cause, if any you have, before this court on the 11th day of July, 1949 why [fols. 15-16] peremptory writ of mandamus should not issue herein, and have you then and there this writ. Witness the Honorable Alto Adams, Chief Justice of the Supreme Court of Florida and the seal of said court at Tallahassee, the Capital, this 10th day of June, 1949. ------------, Clerk Supreme Court of Florida. [fo ls . 17-18] I n t h e S u p r e m e C ourt oe t h e S tate of F lorida [Title omitted] M otion to Qu a sh — Filed July 11, 1949 Come now the respondents in the above styled cause, by their attorneys, and move the court to quash the al ternative writ of mandamus herein, and for grounds of said motion show: (1) The relator has other adequate remedy at law. (2) The relator has not complied with conditions precedent to a demand for the writ of mandamus. (3) The relator has not made use of the means and manner provided by law to obtain his lawful demands. Bespectfully submitted, Bichard W. Ervin, Attorney General; Frank J. Heintz, Assistant Attorney General, Attorneys for Bespondents. 9 [fol. 19] In t h e S u p r e m e C ourt op F lorida [Title omitted] O rder D e n y in g M otion to Q u a sh A lter n a tiv e W r it of M andam us— Filed December 8, 1949 [fols. 20-21] Upon consideration of the motion of counsel for Respondents to quasb the alternative writ of manda mus heretofore issued herein, it is ordered that said mo tion be and the same is hereby denied and respondents are allowed thirty days from this date to file answer in this cause. A True Copy. Test: (S.) G-uyte P. McCord, Clerk Supreme Court. (Seal.) [fol. 22] In t h e S u pr e m e C ourt of t h e S tate of F lorida [Title omitted] A n sw e r of R e spo n d en ts , J. T hom as G u r n e y , T hom as W. B ry a n t , and J. H en so n M a r k h a m , to A ltern a tiv e W rit of M andam us— Filed January 7, 1950. [fol. 23] In t h e S u p r e m e C ourt of t h e S tate of F lorida T h e S tate, of F lorida, ex rel, V irg il D. H a w k in s , Relator, vs. B oard of C ontrol , a Body Corporate, etc., et al., Re spondents A nsw er of R e spo n d en ts , J. T hom as G u r n e y , T hom as W . B ryant , and J. H en so n M a r k h a m , to A ltern a tiv e W rit of M a ndam us . The respondents, J. Thomas Gurney, Thomas W. Bryant, and J. Henson Markham, for answer to the alternative writ of mandamus issued in this cause, say: 1 They admit the matters and facts alleged in paragraph numbered 1 of said alternative writ, except that they are 10 no longer members of the Board of Control, nor is J. Thomas Gurney Chairman of said Board, as hereinafter more particularly set out. 2 . They admit that the relator, at the time of the filing of his petition, desired to study law at the University of Florida, and that the University of Florida is supported and maintained by the State of Florida, and the taxpayers thereof, and that the relator was refused admission to said University. Respondents deny that the refusal of admis sion was arbitrary, and say that, on the contrary, ad- [fol. 24] mission of relator would have been, and would now be, unlawful, for reasons hereinafter set out. 3 They admit the matters and facts alleged in paragraph numbered 3 of said alternative wTrit. 4 They admit the matters and facts alleged in paragraph numbered 4 of said writ, except they deny that the relator, at the time of his application for admission, possessed, or now possesses, all lawful qualifications prescribed by the constitution and statutes of the State of Florida, the Board of Control and duly authorized officers and agents of the Board and of the University of Florida, in that the relator is a member of the negro race, and under the laws of the State of Florida, the rules and regulations of the Board of Control, which laws, rules and regulations govern the officers and agents of said Board and University of Florida, admission to the University of Florida is per missible only to white students. 5 They admit that respondent, R. S. Johnson, Registrar of the University of Florida, forwarded petitioner’s applica tion to the Board of Control, and show that it was his duty so to do under the laws of the State of Florida and the rules and regulations of the Board of Control; and they admit that at a regular meeting of the Board of Control, on May 13, 1949, at Tallahassee, Florida, the relator ap peared by his attorney for a hearing upon his application 11 for admission to the University, and that at said meeting, attended by a majority of the members of the Board of Control, the Board denied the application of relator and [fol. 25] refused to grant him admission to the first year class of the college of law at the University of Florida, because, under the constitution and statutes of the State of Florida, the relator, being a member of the negro race, could not be lawfully admitted to the University of Florida; but these respondents deny that such action on the part of the Board of Control was or is denial to the petitioner of equal protection of the laws on the ground of race color or contrary to the constitution of the United States. At that time, the Board of Control informed relator, through his attorney, that because there was then no actually func tioning Florida State institution of higher learning open to members of the negro race, where the courses of study he desired were offered, the Board was prepared to pro vide for him such courses of study at a college or university agreeable to him in another state, fully equal and as valua ble as any such course offered at any tax supported institu tion of higher learning in the State of Florida. 6 They admit that at the time of relator’s application the college of law at the University of Florida was the only tax supported and maintained law school in the State of Florida at which a law school was actually functioning and in operation, although said course was then, and had been for some time prior thereto, authorized and ordered set up, and has since been further provided for, at Florida Agricultural and Mechanical College for Negroes, at Talla hassee, Florida, which is a State supported and maintained institution of higher learning of the State of Florida within the State. 7 They admit that J. Hillis Miller, as President, and R. S. [fol. 26] Johnson, as Registrar of the University of Flor ida, respondents, refused to admit the relator to the Uni versity of Florida, but in so doing they acted under su perior authority of the Board of Control and the statutes and constitution of the State of Florida, and deny that such action on their part was denial to the relator of equal pro tection of the law; and deny that they were at the same time 12 admitting white applicants with less qualifications than the relator. 8 They deny that the relator has no adequate remedy at law other than the writ of mandamus for which he prays, and say that the relator does not have the right or privilege of pursuing the course of instruction requested at the Uni versity of Florida, for the reason that the relator is a mem ber of the negro race and admission to the University of Florida is, by the laws of said State, restricted to students of the white race; and that other and substantially equal provisions for giving to relator his requested courses of study have been made, as herein set out; and they deny that the respondents have authority to represent the public gen erally and show that the authority of all of the respondents is limited and fixed by the statutes of the State of Florida, and subject to the supervising power and control of the State Board of Education of Florida; and the authority of the respondents, J. Hillis Miller and B. S. Johnson, is fur ther limited and fixed by the rules and regulations of the Board of Control. 9 Further answering the alternative writ, these respond ents show that at the time of relator’s demand for admis sion to the University of Florida and its college of law, four other students of the negro race, scholastically qualified, [fob 27] demanded admission to other departments or col leges of the University of Florida, namely, the graduate schools of agriculture, chemical engineering, and pharmacy, which courses were offered at an institution of higher learn ing of the State established for white students, but not at the Florida Agricultural and Mechanical College for Negroes; that, upon being refused admission for the same reason as relator was refused admission, they filed their several petitions for mandamus, demanding their admis sion to the University of Florida at the same time that re lator’s petition was filed. Alternative writs wTere issued thereon by this court, presenting issues similar to those of the relator herein, and are now pending and companion cases, 13 These respondents say further, that in the constitution and statutes of the State of Florida it is provided that white and negro students shall not be taught in the same school, but that impartial provision shall be made for both. In pursuance of said constitutional and statutory require ments, the State of Florida has established and maintains certain institutions of higher learning for white students, among which are the University of Florida, at Gainesville, Florida, and the Florida State University, at Tallahassee, Florida, and has established and maintains an institution of higher learning for negro students, the Florida Agri cultural and Mechanical College for Negroes, at Tallahas see, Florida. All of said institutions have been in operation for many years. All State institutions of higher learning are under the management and control of the respondent, Board of Control, subject to the supervising power and au thority of the State Board of Education of Florida. From time to time, when the need therefor arose, courses were added at said institution of higher learning and the cur ricula expanded to meet reasonable demands or requests of qualified students; and it has been the long established [fol. 28] and fixed policy of the State of Florida, the Board of Control, and the State Board of Education of Florida to add additional schools and courses of instruction at all of said institutions when sufficient demand therefor ap pears. 11 Whatever rights the relator may have for instruction in his requested courses at a State operated institution of higher learning within the State, if it be determined that he has such rights, would be at the Florida Agricultural and Mechanical College for Negroes, and could not be law fully given him at the University of Florida; and the Board of Control and its member respondents have the option to provide the rights of the relator in that respect, what ever they may be, at a State operated institution of higher learning within the State other than at the University of Florida; that is, at the Florida Agricultural and Mechani cal College for Negroes. After relator’s original application for admission to the summer, 1949, term of the University of Florida, he made no further application for admission to any sub 10 34 sequent term or semester during tlae time these respond ents remained members of the Board of Control. 12 In pursuance of the policy set out in paragraph num bered 10 above, the Board of Control, in October, 1948, and prior to the demand of relator or other applicant, in cluded in its budget for the ensuing biennium for the Florida Agricultural and Mechanical College for Negroes, funds for the establishment of schools or colleges of law, chemical engineering, pharmacy, journalism, social work, [fol. 29] library science, and other graduate courses, for which it appeared requests might be made at said last named institution; and, shortly before its adjournment, in June, 1949, the Legislature, as was customary, made an appropriation for the Florida Agricultural and Mechani cal College for Negroes, in which there were certain funds which might lawfully be used to establish and install said demanded courses of study, or some of them. It then ap peared that insufficient funds would be available to satisfy the appropriations made for the several State agencies, and the State Budget Commission, in the exercise of its lawful authority, withheld a very substantial portion of all legislative appropriations, including that for the Florida Agricultural and Mechanical College for Negroes, until additional revenue should be provided by the Legislature at a special session to be called for that purpose. At the special session, in September, 1949, additional reve nue was provided for all State appropriations, including that for the Florida Agricultural and Mechanical College for Negroes, and a part, but not all, of the funds with held have been released. 13 Further answering, these respondents show that the terms of office of the respondents, J. Thomas Gurney, Hollis Binehart, and J. Henson Markham, who were a ma jority of the Board members, expired on June 27, 1949, but on request of the Governor of the State they held over until after said special session of the Legislature, when, on October 18, 1949, their successors were appointed and qualified as members of the Board of Control; and, there upon, said three respondents ceased to be members of the Board or to have any further authority and could take 15 no further action in the premises. These respondents are without knowledge on information, except hearsay, as to what may have transpired in regard to the matters alleged in said alternative writ since the date when their successors qualified. [fols. 30-31] Wherefore, these respondents, having no longer any authority as to anything alleged in said writ, or claim therein, and no power to respond to any order that may be entered thereon, pray that as to them, and each of them, this proceeding be dismissed. Richard W. Ervin, Attorney General; Prank J. Heintz, Assistant Attorney General, Attorneys for Respondents I do certify that copy hereof has been furnished to Alex Akerman, Jr., attorney for relator, by mail, this 7th day of January, 1950. Frank J. Heintz, Assistant Attorney General, At torney for Respondents. [fol. 32] In t h e S u pr e m e C ourt of t h e S tate of F lorida [Title omitted] A n sw er of R e spo n d en ts , B oard of C ontrol , a C orporation , N. B. J ordan, H ollis R in e h a r t , J. H il l is M il l e r , and R. S. J o h n so n , to A ltern a tiv e W r it of M andam us—Filed Jan uary 7, 1950. The respondents, Board of Control, a public corporation of the State of Florida, N. B. Jordan, Hollis Rinehart, J. Hillis Miller, and R. S. Johnson, for answer to the alterna tive writ of mandamus issued in this cause, say: 1 They admit the matters and facts alleged in paragraph numbered 1 of said alternative writ, except that respon dents, J. Thomas Gurney, Thomas W. Bryant, and J. Hen son Markham, are no longer members of the Board of Control, nor is J. Thomas Gurney now Chairman of said Board, as hereinafter more particularly set out. 3—6883 16 They admit that the relator, at the time of the filing of his petition, desired to study law at the University of Florida, and that the University of Florida is supported and maintained by the State of Florida, and the taxpayers thereof, and that the relator was refused admission to said University. Respondents deny that the refusal of admission [fol. 33] was arbitrary, and say that, on the contrary, admission of relator would have been, and would now be, unlawful, for reasons hereinafter set out. 3 They admit the matters and facts alleged in paragraph numbered 3 of said alternative writ. 4 They admit the matters and facts alleged in paragraph numbered 4 of said writ, except they deny that the relator, at the time of his application for admission, possessed, or now possesses, all lawful qualifications prescribed by the constitution and statutes of the State of Florida, the Board of Control and duly authorized officers and agents of the Board and of the University of Florida, in that the relator is a member of the negro race, and under the laws of the State of Florida, the rules and regulations of the Board of Control, which laws, rules and regulations govern the officers and agents of said Board and University of Florida, admission to the University of Florida is permissible only to white students. 5 They admit that respondent, R. S. Johnson, Registrar of the University of Florida, forwarded petitioner’s ap plication to the Board of Control, and show that it was his duty so to do under the laws of the State of Florida and the rules and regulations of the Board of Control; and they admit that at a regular meeting of the Board of Control, on May 13, 1949, in Tallahassee, Florida, the relator appeared by his attorney for a hearing upon his application for admission to the University, and that at said meeting, attended by a majority of the members of the Board of Control, the Board denied the application of relator and [fol. 34] refused to grant him admission to the first year 2 17 class of the college of law at the University of Florida, because, under the constitution and statutes of the State of Florida, the relator, being a member of the negro race, could not be lawfully admitted to the University of Florida; but these respondents deny that such action on the part of the Board of Control was or is denial to the petitioner of equal protection of the laws on the ground of race or color or contrary to the constitution of the United States. At that time, the Board of Control informed relator, through his attorney, that because there was then no actually func tioning Florida State institution of higher learning open to members of the negro race, where the courses of study he desired were offered, the Board was prepared to provide for him such courses of study at a college or university agreeable to him in another state, fully equal and as valu able as any such course offered at any tax supported institu tion of higher learning in the State of Florida. 6 They admit that at the time of relator’s application the college of law at the University of Florida was the only tax supported and maintained law school in the State of Florida at which a law school was actually functioning and in operation, although said course was then, and had been for some time prior thereto, authorized and ordered set up, and has since been further provided for, at Florida Agricultural and Mechanical College for Negroes, at Talla hassee, Florida, which is a State supported and maintained institution of higher learning of the State of Florida within the State. 7 They admit that J. Ilillis Miller, as President, and R. S. [fol. 35] Johnson, as Registrar of the University of Florida, respondents, refused to admit the relator to the University of Florida, but in so doing they acted under superior authority of the Board of Control and the statutes and constitution of the State of Florida, and deny that such action on their part was denial to the relator of equal protection of the law; and deny that they were at the same time admitting white applicants with less qualifications than the relator. 18 They deny that the relator has no adequate remedy at law other than the writ of mandamus for which he prays, and say that the relator does not have the right or privilege of pursuing the course of instruction requested at the Univer sity of Florida, for the reason that the relator is a member of the negro race and admission to the University of Florida is, by the laws of said State, restricted to students of the white race; and that other and substantially equal provi sions for giving to relator his requested courses of study have been made, as herein set out; and they deny that the respondents have authority to represent the public generally and show that the authority of all of the respondents is limited and fixed by the statutes of the State of Florida, and subject to the supervising power and control of the State Board of Education of Florida; and the authority of the respondents, J. Hillis Miller and R. S. Johnson, is further limited and fixed by the rules and regulations of the Board of Control. 9 Further answering the alternative writ, these respon dents show that at the time of relator’s demand for admis sion to the University of Florida and its college of law, four other students of the negro race, scholastically quali- [fol. 36] fied, demanded admission to other departments or colleges of the University of Florida, namely, the gradu ate schools of agriculture, chemical engineering, and phar macy, which courses were offered at an institution of higher learning of the State established for white students, but not at the Florida Agricultural and Mechanical College for Negroes; that, upon being refused admission for the same reason as relator was refused admission, they filed their several petitions for mandamus, demanding their admission to the University of Florida at the same time that relator’s petition was filed. Alternative writs were issued thereon by this court, presenting issues similar to those of the relator herqin, and are now pending and companion cases. 10 These respondents say further, that in the constitution and statutes of the State of Florida it is provided that white and negro students shall not be taught in the same 8 19 school, but that impartial provision shall be made for both. In pursuance of said constitutional and statutory require ments, the State of Florida has established and maintains certain institutions of higher learning for white students, among which are the University of Florida, at Gainesville, Florida, and the Florida State University, at Tallahassee, Florida, and has established and maintains an institution of higher learning for negro students, the Florida Agricul tural and Mechanical College for Negroes, at Tallahassee, Florida. All of said institutions have been in operation for many years. All State institutions of higher learning are under the management and control of the respondent, Board of Control, subject to the supervising power and authority of the State Board of Education of Florida. From time to time, when the need therefor arose, courses were added at said institutions of higher learning and the curricula expanded to meet reasonable demands or requests of quali fied students; and it has been the long established and fixed [fol. 37] policy of the State of Florida, the Board of Con trol, and the State Board of Educaton of Florida to add additional schools and courses of instruction at all of said institutions when sufficient demand therefor appears. 11 Whatever rights the relator may have for instruction in his requested courses at a State operated institution of higher learning within the State, if it be determined that he has such rights, would be at the Florida Agricultural and Mechanical College for Negroes, and could not be law fully given him at the University of Florida; and the Board of Control and its member respondents have the option to provide the rights of the relator in that respect, whatever they may be, at a State operated institution of higher learning within the State other than at the Univer sity of Florida ; that is, at the Florida Agricultural and Mechanical College for Negroes. After relator’s original application for admission to the summer, 1949, term of the University of Florida, he has made no further application for admission to any subse quent term or semester, and the respondents now have [fol. 38] pending before them no application by the relator for instruction in any course in any institution, nor are they advised as to whether relator now desires instruction in 20 his requested courses at any future term or semester at any State institution of higher learning. 12 In pursuance of the policy set out in paragraph numbered 10 above, the Board of Control, in October, 1948, and prior to the demand of relator or other applicant, included in its budget for the ensuing biennium for the Florida Agricul tural and Mechanical College for Negroes, funds for the establishment of schools or colleges of law, chemical engi neering, pharmacy, journalism, social work, library science, and other graduate courses, for which it appeared requests might be made at said last named institution; and, shortly before its adjournment, in June, 1949, the Legislature, as was _ customary, made an appropriation for the Florida Agricultural and Mechanical College for Negroes, in which there were certain funds which might lawfully be used to establish and install said demanded courses of study, or some of them. It then appeared that insufficient funds would be available to satisfy the appropriations made for the several State agencies, and the State Budget Commis sion, in the exercise of its lawful authority, withheld a very substantial portion of all legislative appropriations, in cluding that for the Florida Agricultural and Mechanical College for Negroes, until additional revenue should be provided by the Legislature at a special session to be called for that purpose. At the special session, in September, 1949, additional revenue was provided for all State appro priations, including that for the Florida Agricultural and Mechanical College for Negroes, and a part, but not all, of the funds withheld have been released. [fol. 39] 13 Further answering, these respondents show that the terms of office of the respondents, J. Thomas Gurney, Hollis Rinehart, and J. Henson Markham, who were a majority of the Board members, expired on June 27, 1949, but on request of the Governor of the State they held over until after said special session of the Legislature, when, on Octo ber 18, 1949, their successors were appointed and qualified as members of the Board of Control; and, thereupon, said three respondents ceased to be members of the Board or to have any further authority and could take no further action 21 in the premises, and are now without power or authority to respond to any order which may be entered herein. 14 And respondents further say that, in the meantime, the period for admission of any students, white or colored, to any of the State institutions of higher learning, at the summer term and fall term of 1949, had expired; and, on the 21st day of December, 1949, the Board of Control, as newly constituted, set up and established a school of law, and the other courses demanded by other negro applicants, as hereinabove set out, at the Florida Agricultural and Mechanical College for Negroes, by resolution, copy of which is hereto attached, as Exhibit A, and made a part of this answer; and the Board of Control has directed the authorities at the State institutions of higher learning to put said resolution and the things therein authorized and directed into immediate practice and effect. As authorized in said resolution, if the relator still de clines to accept out-of-state scholarship or other provision which may be made for his instruction in the courses he has requested elsewhere than at a State institution established [fol. 40] 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 Control, has made provision for relator’s immediate admission and enrollment at the Florida Agricultural and Mechanical Col lege for Negroes, in its law school, established at that in stitution, and is ready to there admit him, provided the relator shall make his application for instruction in said course within the time allowed for members of any other group to apply for admission to said course at any State institution of higher learning. And, in the event the neces sary facilities, equipment and personnel for said course of study should not be immediately available, at the Florida Agricultural and Mechanical College for Negroes, in Tal lahassee, upon his said renewed timely application for instruction in said course of study, the Board of Control has made provision for his instruction in said course of study, as in said resolution provided, at the only other in stitution of higher learning in the State of Florida offering- such course, until such time as adequate and comparable facilities and personnel for such course of study, substan tially equal to those provided at any tax supported institu 22 tion of higher learning in the State, can he obtained and physically set up at the Florida Agricultural and Mechan ical College for Negroes, in Tallahassee, Florida. Wherefore these respondents say that relator is not en titled to peremptory writ, but the same should be denied, the alternative writ quashed, and respondents hence dis missed. Richard W. Ervin, Attorney General; Frank J. Heintz, Assistant Attorney General, Attorneys for Respondents. [fol. 41] I do certify that copy hereof has been furnished to Ales Akerman, Jr., attorney for relator, by mail, this 7th day of January, 1950. Frank J. Heintz, Assistant Attorney General, Attor ney for Respondents. [fo l. 42] E x h ib it Resolution Whereas, for many years it has been the policy of the Board of Control to establish at the Florida Agricultural and Mechanical College for Negroes such schools and courses as may be offered at any other of the State insti tutions of higher learning, whenever there were a sufficient number of applicants to justify the establishment of such schools and courses, and in the meantime providing for the occasional negro applicant for education in those courses by out-of-state scholarships; and it is believed that such policy has been carried out over many years to the reasonable satisfaction of all parties concerned; and this Board reaf firms that policy; and, Whereas, Certain negro students have demanded admis sion to the University of Florida, where such courses are now given, and continuation of their demands is not un likely ; and, Whereas, The Constitution of the State of Florida re quires that students of the white and negro races “ shall not be taught in the same school, but impartial provision shall be made for both” ; Now, Therefore, in order to comply with the constitution 23 and laws of the State of Florida, as near as may be under existing circumstances, Be It Resolved that there is hereby established, at the Florida Agricultural and Mechanical Colleges for Negroes, schools of law, mechanical engineer ing, agriculture at graduate level and pharmacy at graduate level; and qualifications for admission to said courses shall be the same as those required for admission to said courses at other State institutions of higher learning in the State of Florida; and Be It Further Resolved, That efforts to acquire the neces sary personnel, facilities, and equipment for such courses be reactivated and diligently prosecuted, with the view of [fol. 43] installing said personnel, facilities, and equipment for such courses at the Florida Agricultural and Mechanical College for Negroes, at Tallahassee, Florida, at the earliest date possible, thereby to more fully comply with the Consti tution and laws of the State of Florida; and that, in the meantime, and while diligent preparation is being made to physically set up said schools and courses at the Florida Agricultural and Mechanical College for Negroes, at Tal lahassee, Florida, further effort to be made to arrange with said applicants for out-of-state scholarships or other ar rangements agreeable to them, equal to their reasonable individual needs and affording them full and complete op portunity to obtain the education for which they have applied, where obtainable, at institutions other than Flor ida state operated institutions of learning for white students, and under circumstances and surroundings fully as good as may be offered at any State operated institution of higher learning in the State of Florida; and Be It Further Resolved, in the event the court should hold that the foregoing provisions are insufficient to satisfy the lawful demands of said applicants, that temporarily, and only until completion of such acquisition of personnel, facilities and equipment for installation at the Florida Agricultural and Mechanical College for Negroes, at Tallahassee, comparable to those in institutions of higher learning of the State established for white students, the Florida Agricultural and Mechanical College for Negroes shall arrange for supplying said courses to its enrolled and qualified students at a Florida state operated institution of higher learning, where said courses may be given, and where the instructional personnel and facilities of such 24 institution in the requested courses shall be provided and used for the education of said applicants at such times and places, and in such manner, as the latter institution may prescribe; and the authorities of such last described state [fols. 44-45] operated institution of higher learning shall cooperate in making such arrangements, to the end that there shall be available to said students of the Florida Agri cultural and Mechanical College for Negroes, substantially equal opportunity for education in said courses as may be provided for white students under like circumstances. In providing such education, the authorities of both institutions shall at all times observe all requirements of the laws of the State of Florida in the matter of segregation of the races, etc. Be It Further Resolved, That such instruction and facili ties to be provided by the State institution of higher learn ing, temporarily, as herein directed, shall be provided in such manner as will insure to graduates in such courses the same privileges and benefits as may be accorded by law to graduates of the same courses in institutions of higher learning in the State established for white students. Be It Further Resolved, That actual cost of supplying said instruction shall be accurately determined and the insti tution reimbursed therefor from such funds appropriated for the Florida Agricultural and Mechanical College for Negroes as may lawfully be used for that purpose. [fols. 46-47] In t h e S u pr e m e C ourt of F lorida [Title omitted] M otion for P erem ptory W r it—Filed January 19, 1950 Comes now the Relator, Virgil D. Hawkins, and moves the Court to issue a Peremptory Writ of Mandamus di rected to the Respondents, Board of Control of Florida; N. B. Jordan and Hollis Rinehart as members of the Board of Control of Florida; J. Hillis Miller as President of the University of Florida; and R. S. Johnson as Registrar of the University of Florida, requiring said Respondents to admit Relators to the University of Florida, the Answer 25 of said Respondents notwithstanding, and as grounds for said Motion says: 1. That the allegations contained in the Answer filed by said Respondents whol-ly fail to set forth any legal reason why a Peremptory Writ should not issue. Alex Akerman, Jr., Attorney for Relator. I do certify that copy hereof has been furnished Richard W. Ervin, Attorney General and Frank J. Heintz, Assistant Attorney General, attorneys for respondents, by mail, this 17th day of January, A. D., 1950. Alex Akerman, Jr., Attorney for Relator. [fo l. 48] In t h e S u pr e m e C ourt op F lorida, J u n e T e r m , A. D. 1950, En B a n c . T h e S tate op F lorida, ex rel. V ir g il D . H a w k in s , Relator, vs. T h e B oard op C ontrol of F lorida, et al., Respondents M andam us Op in io n —Filed August 1, 1950 A case of original jurisdiction—Mandamus. Alex Akerman, Jr., for Relator. Richard W. Ervin, Attorney General and Frank J. Heintz, Assistant Attorney General, for Respondents. S ebrin g , J . : The relator, Virgil D. Hawkins, is a negro citizen and resident of the State of Florida. He possesses all the scholastic, moral and other qualifications, except as to race and color, prescribed by the laws of Florida and the rules and regulations of the State Board of Control for admis sion to the first year class of the College of Law of the Uni versity of Florida. In April 1949 Hawkins applied for admission to the University of Florida, for attendance at a summer session of the first-year law class to begin in the summer of 1949. His application was denied by the Board of Control, the 26 governing body of the State University system, solely be cause of certain provisions of the Constitution and statutes [fol. 49] of Florida prohibiting the admittance of any but white students to the University, including the Law Col lege. Hawkins thereupon instituted this mandamus action against the members of the Board of Control, alleging the matters above set forth, averring that the College of Law of the University of Florida is the only tax-supported law school in the State of Florida, and charging that the refusal of the governing authorities to admit him to the College of Law solely because he was a negro constituted an arbi trary and illegal denial of the equal protection of the law guaranteed him by the Fourteenth Amendment to the Fed eral Constitution. In due course the members of the Board of Control filed their return to the alternative writ issued in the cause, setting up as an answer to the charges made by the relator that under the Constitution and laws of the State of Florida only members of the white race may be lawfully admitted as students to the University of Florida and hence that the Board had no choice other than to deny the applica tion of the relator; that after relator’s original applica tion for admission to the 1949 Summer Term of the first year law class, which term had expired prior to the filing of the answer, no further application had been made by him for ad mission to any subsequent term or semester of the Univer sity and hence that the Board did not have before it when it filed its answer any application by the relator for instruc tion in any course in any institution, nor was the Board advised as to whether relator desired instruction in his requested courses at any future term or semester at any State institution of higher learning; that at the time of his application for admission to the University, the relator was informed that because there was no actually function ing state supported institution of higher learning in Flor ida open to members of the negro race which offered the courses desired by the relator, the Board was prepared to provide for him such courses of study at a college or uni versity agreeable to him in another state, fully equal and as valuable as any such course offered at any tax-supported [fol. 50] school in the State of Florida. For further answer to the writ the respondents alleged, that the Constitution and statutes of the State of Florida 27 provide that white and negro students shall not he taught in the same schools but that impartial provision shall be made for both and that in pursuance of these requirements the State of Florida has established certain institutions of higher learning in the State, among which are the Univer sity of Florida, at Gainesville, Florida, and the Florida State University, at Tallahassee, Florida, both maintained for white students, and the Florida Agricultural and Me chanical College for Negroes, at Tallahassee, Florida, main tained exclusively for negroes; that these three state insti tutions have been in operation for many years and are under the management and control of the Board of Control, sub ject to the supervising power of the State Board of Educa tion, who, through a long established and fixed policy of providing substantially equal educational opportunities to white and negro races alike have from time to time added additional schools and courses of instruction at each of these institutions as the need for such additional schools and courses have been made to appear; that whatever rights the relator may have for instruction in his requested courses at a state operated institution of higher learning within the State, should it be determined by the court that he has such rights, would be at the Florida Agricultural and Mechanical College for Negroes and could not be lawfully given him at the University of Florida; that in pursuance of the long- established policy of the State to make impartial provisions for instruction to members of the white and negro races alike, where the need for such instruction is made to appear, the Board of Control had set up and established, on De cember 21, 1949—a date subsequent to the date of the insti tution of this suit but prior to the time that the Board of Control was required to make its answer—a school of law at the Florida Agricultural and Mechanical College for [fob 51] Negroes and had directed the governing head of said college to acquire the necessary personnel, facilities and equipment for such course of instruction at the school on the earliest possible date; that if, as authorized in the resolution establishing the school of law’ at the Florida Agricultural and Mechanical College for Negroes, “ the relator still declines to accept out-of-state scholarship or other provision 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 28 it should he held that said arrangement is insufficient to satisfy the relator’s lawful demands, the respondent, Board of Control, has made provision for relator’s immediate ad mission and enrollment at the Florida Agricultural and Mechanical College for Negroes, in its law school, estab lished at that institution, and is ready to there admit him, provided the relator shall make his application for instruc tion in said course within the time allowed for members of any other group to apply for admission to said course at any State institution of higher learning. And, in the event the necessary facilities, equipment and personnel for said course of study should not be immediately available at the Florida Agricultural and Mechanical College for Negroes in Talla hassee, upon his renewed timely application for instruction in said course of study, the Board of Control has made provision for his instruction in said course of study, as in said resolution provided, at the only other institution of higher learning in the State of Florida offering such course, until such time as adequate and comparable facilities and personnel for such course of study, substantially equal to those provided at any tax-supported institution of higher learning in the State, can be obtained and physically set up at the Florida Agricultural and Mechanical College for Negroes, in Tallahassee, Florida.” Upon the coming in of the answer the relator moved for the issuance of a peremptory writ of mandamus, the return of the respondents notwithstanding, and the cause is nowT [fol. 52] before this court for final disposition. As to the effect to be given the motion for the issuance of the peremptory writ the return of the respondents notwith standing, it is well to state at the outset that under our decided cases such a motion stands as the equivalent of a demurrer to a pleading in a krw action. It operates as an admission by the relator of the truth of the facts well pleaded by the respondent but claims that in law the return presents no sufficient reason why the relief sought in the alternative writ should not be granted. Lamb v. Harrison, 91 Fla. 927,108 So. 671; State v. Seaboard Air Line Ry. Co., 92 Fla. 1139, 111 So. 281; State ex rel Atlantic Peninsular Holding Co. v. Butler, 121 Fla. 417, 164 So. 128; State v. Howell, 152 Fla. 866, 13 So. 2d 214; State ex rel Enby v. Wood, 140 Fla. 185, 191 So. 769; State v. City of Miami, 156 Fla. 784, 24 So. 2d 705; Permenter v. Younan, 159 Fla. 226, 29 31 So. 2d 387. Such being its effect, the hearing on such a motion contemplates the entry of a final order without the submission of evidence, either quashing or dismissing the alternative writ or granting the peremptory writ to the extent that the prayer of the alternative writ is well- founded; State v. Seaboard Air Line Ry. Co., 92 Fla. 61, 109 So. 656; Leonard Bros. Transfer & Storage Co. v. Carter, 127 Fla. 198, 172 So. 924; State ex rel. Raulerson v. Smith, 157 Fla. 838, 26 So. 2d 898. Applying the rule just stated to the issues made by the writ and answer, it will be observed that the allegations of the answer raise two questions for determination: (1) Does the plan whereby the Board of Control offers to provide a legal education for the relator at a law school over which it has no jurisdiction and which is located outside the State of Florida, the relator being unwilling to accept the pro visions of the plan, accord to the relator the equal protection of the law guaranteed him under the Fourteenth Amend ment to the Federal Constitution? (2) If this proposed plan does not afford to the relator the equal protection of the laws, does the alternative plan for enrolling the relator [fol. 53] in the school of law recently established at the Florida Agricultural and Mechanical College for Negroes and making temporary provision for his instruction in the College of Law of the University of Florida until such time as adequate and comparable facilities and personnel for such course of study can be obtained and physically set up at the Florida Agricultural and Mechanical College for Negroes, satisfy the Constitutional requirements of equal protection? If under the controlling law either of these questions is answered in the affirmative, it follows that the proper order to be entered should be one in favor of the respondents; if both questions should be answered in the negative the order to be entered should grant the relief sought by the relator. The first question presented by the answer is not a new one. It has long been settled by the decisions of the Su preme Court of the United States—to which the state courts must adhere to the extent that such decisions are decisive of questions involving the application of the Federal Con stitution to any given situation—that the requirements of the equal protection clause of the Fourteenth Amendment to the Federal Constitution are not satisfied by a plan offered 30 by a state to its negro citizens to obtain legal education out side the state, where the state furnishes legal education within the state to its white citizens who desire to pursue such a course of study. The first of these cases in which the issue was decided was Missouri ex rel. Gaines v. Canada, Registrar of the Uni versity of Missouri, decided in 1938 and reported in 305 U. 8. 337, 59 S. Ct. 232, 83 L. Ed. 172. The essential facts of the case were that pursuant to the State’s policy of separating the races in its educational institutions, the curators of the University of Missouri, a tax-supported and maintained institution of higher learning in the State of Missouri, refused to admit a negro citizen of the State as a student in the law school of the University solely because of his race, and, there being no tax-supported university or college in the state where negro students were eligible [fol. 54] for courses in law, offered to the applicant in lieu of admittance to the University law school the opportunity to obtain his legal education at a law school in an adjacent state wherein negroes were acceptable for admission. The Supreme Court of the State of Missouri upheld the plan offered by the State of Missouri for the education of its Negro citizens outside the state, finding that the provision for legal education in other states of negroes resident in Missouri satisfied the constitutional requirement of equal protection. State v. Canada, 342 Mo. 121, 113 S.W. 2d 783. Upon appeal the Supreme Court of the United States re versed the holding of the state court, saying: “ The basic consideration is not as to what sort of opportunities other States provide, or whether they are as good as those in Missouri, but as to what oppor tunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoy ment of privileges afforded by the state rests wholly upon the equality of the privileges which the laws give to the separated groups within the State. The question here is not of a duty of the State to supply legal train ing, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right. By the operation of the laws of Missouri a privilege has been created for white law 31 students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination . . . Nor can we regard the fact that there is but a limited demand in Missouri for the legal education of negroes as excusing the discrimination in favor of whites . . . Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, substantial equality of treat ment of persons . . . under like conditions cannot be refused . . . “ Here, petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to fur nish him within its borders facilities for legal educa tion substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity. “ It is urged, however, that the provision for tuition outside the State is a temporary one,—that it is in tended to operate merely pending the establishment of [fol. 55] a law department for negroes at Lincoln University. While in that sense the discrimination may be termed temporary, it may nevertheless con tinue for an indefinite period by reason of the discre tion given to the curators of Lincoln University and the alternative of arranging for tuition in other States, as permitted by the state law as construed by the state court, so long as the curators find it unnecessary and impracticable to provide facilities for the legal instruc tion of negroes within the State. In that view, we cannot regard the discrimination as excused by what is called its temporary character.” (Italics supplied). See also Sipuel v. Board of Regents, 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247, rev’g. 199 Old. 36, 180 P. 2d 135; and McLaurin v. Oklahoma State Regents for Higher Ed., 87 P. Supp. 526. 32 The decision of the Supreme Court of the United States from which we have quoted is binding upon this court in respect to the Federal constitutional question therein de cided. Accordingly, it must be held, on authority of the case, that the plan offered by the Board of Control for giving the relator out-of-state schooling as an only means of affording him a legal education, while law school training is provided within the state for white students, does not comply with the mandatory provisions of the Fourteenth Amendment to the Federal Constitution, which require that equal protection of the law shall be accorded to every citizen. The alternative plan provided by the Board of Control for the legal education of the relator at a law school within the state presents quite a different situation. As appears from the answer filed by the respondents, the allegations whereof are admitted to be true under the state of the plead ings, the Board of Control, since the institution of the suit, has established a school of law at the Florida Agricultural and Mechanical College for Negroes, located at Tallahassee. The Board is ready to admit the relator to this law school, provided he makes his application within the time allowed for members of any other group to apply for admission to a course in law at any other tax-supported law school in Florida. At the newly created law school for negroes, courses of study will be provided for the relator on a basis and under conditions equal to those at any tax-supported [fol. 56] institution of higher learning for white students in the State, as soon as these courses can be actually and physically set up and placed in operation. If at the time of his enrollment the Board has been unable to have a course in law physically functioning and in actual operation at the Florida Agricultural and Mechanical College for Negroes, the relator will be given instruction temporarily at the state institution of higher learning for white students which offers a law course. Upon graduating and receiving his degree in law from the Florida Agricultural and Me chanical College for Negroes, the relator will be entitled to all benefits and privileges accorded to graduates of any other tax-supported law school in the State of Florida. In our view this alternative plan presented by the respon dents in their answer satisfies all the requirements of the equal protection of the laws clause of the Federal Constitu tion. Moreover, it conforms as nearly as it can, with due 33 regard to the requirements of the paramount Federal law, with the long established policy of the State of Florida that there shall he a system of segregation of the races in the state school system but that impartial provision shall be made in the schools for white and negro students alike. See Section 12, Article XII, Constitution of Florida; Secs. 228.09, 239.01, as amended, Florida Statutes, 1941, F.S.A. For under the plan the State will furnish the relator with the legal education requested as soon as such course of study will be furnished to new applicants of any other race group. It will provide the necessary instruction at a tax- supported college or university within the borders of the state. It will offer to the relator facilities for legal educa tion at a negro college which, according to allegations of the answer and admitted by the motion for peremptory writ to be true, will be substantially equal to those offered within the state at any tax-supported institution of higher learn ing whose enrollment is restricted to white students. It will [fol. 57] stand ready to furnish law instruction, tempor arily, at the State university maintained exclusively for white students, in the event adequate facilities for teaching the course are not actually and physically available at the state law school established for negroes at the time of relator’s application and enrollment. No court in the land has ever required of a sovereign state any more than is encompassed within the plan proposed by the Board of Control in its answer. Every individual polit ical right and privilege guaranteed the citizen by the pro visions of the Federal Constitution is maintained under the program, while at the same time the right of the State to adopt such method as it finds best designed to afford substantially equal educational opportunities to Florida citizens of different race groups has been preserved. See Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 172, rev’g. 342 Mo. 21, 113 S.W. 2d 783, complying with mandate 344 Mo. 1238, 131 S.W. 2d 217; McLaurin v. Oklahoma State Regents for Higher Ed.,— IJ.S.—, (June 5, 1950) rev’g. 87 F. Supp. 528; Fisher v. Hurst, 333 U.S. 147, 68 S. Ct. 389, 92 L. Ed. 604, denying motion for conforming to mandate of Sipuel v. Board of Regents, 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247, in 199 Old. 586, 190 P. 2d 437; Sweatt v. Painter,— U.S.—, (June 5,1950), rev’g. — Ct. Civ. App.— (Texas), 210 S.W. 2d 442. 34 The mere fact that under the plan the Board of Control proposes to enroll the relator in the Florida Agricultural and Mechanical College for Negroes instead of at the Uni versity of Florida maintained for whites is entirely without legal significance; as is also the fact that under the plan the relator may possibly receive part of his instruction at a law school maintained for whites and the remainder at a law school established exclusively for negroes and finally receive his degree from the latter institution if ever he successfully completes his course of study. It is for each of [fol. 58] the states to decide upon the method to be pursued by it for providing public education to its citizens; and so long as the method adopted does not infringe, impair or abridge the personal political rights of the citizen the decision cannot be made the subject of judicial interference. See Gong Lum v. Rice, 275 U.S. 78, 48 S. Ct. 91, 72 L. Ed. 172; Cumming v. County Board of Education, 175 U.S. 528, 20 S. Ct. 197, 44 L. Ed. 262; State v. Witham, 179 Tenn. 250, 165 S.W. 2d 378; Compare Sweatt v. Painter,— U.S.—, (June 5, 1950), rev’g. — Ct. Civ. App.— (Texas), 210 S.W. 2d 442; McLaurin v. Oklahoma State Regents for Higher Ed.,— U.S.— (June 5, 1950), rev’g. 87 F. Supp. 528. As stated in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, with respect to the effect of the Four teenth Amendment in regard to state laws and regulations requiring segregation of races in state supported institu tions : “ The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative 35 power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced. . . . The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres, and railway carriages has been fre quently drawn by this court.” This holding has been expressly approved and followed in an unbroken line of decisions of the Federal Courts recog nizing or upholding the validity of state laws which require segregation of races in state supported institutions or facilities, when such laws have been attacked on the ground that they result in unlawful discrimination. See Gumming* [fol. 59] 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; Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208; Sipuel v. Oklahoma Board of Regents, 332 TJ.S. 631, 68 S. Ct. 299, 92 L. Ed. 247. So it is that in making provision for public education for its citizens, the State, in its discretion, may establish separate schools for whites and negroes — indeed should and must do so where the state constitution and statutes so require — without being thought guilty of any infraction of the Federal law solely by reason of that fact; the only proper inquiry in a given case being whether, having under taken the burden of educating its citizens at public expense, the separate facilities provided each of the races affords substantially equal accommodations and opportunities to both races alike. And while the Fourteenth Amendment to the Federal Constitution requires that substantially equal opportunities and privileges shall, be afforded every citizen regardless of race or color, it is so well settled as hardly to need citation of authority that equality of treatment need not mean identity of treatment, with respect to a tax-supported facility. Hall v. DeCuir, 95 U.S. 485, 503, 24 L. Ed. 547; People ex rel. Cisco v. School Board, 161 N.Y. 598, 48 L.R.A. 113; Annotation 103 A.L.R. 713. The relator attempts to make some point of the fact that the answer shows on its face that the resolution by which the Board of Control created and established the school of law at the Florida Agricultural and Mechanical College 36 for Negroes was adopted subsequent to suit and after the alternative writ had been served upon the respondents; the implication being that by reason of that fact the respon dents should be precluded from setting up the establishment of the law school, as a defense in their answer. [fol. 60] We do not deem the point of any consequence. The fact that the resolution of the Board of Control was adopted after the issuance of the alternative writ does not preclude the respondents from setting up the creation and establishment of the new school of law as a complete and sufficient answer to the relief sought by the writ. ‘ ‘ The alternative writ of mandamus being itself in the nature of a rule to show cause, any cause which exists at the time fixed for making return or showing cause is available as an answer to the mandate of the writ. And this principle holds good, even though the issuing and serving of the alternative writ be regarded as the beginning of an action; and any fact which occurs after service of the alternative mandamus, if of such a nature as to constitute a sufficient answer to the mandate of the court, may be set forth in the return by way of defense.” High’s Extraordinary Legal Remedies, 3rd Ed., Sec. 475, p. 456; see also, State ex rel. Sharp v. Weeks, 93 Mo. 499, 6 S.W. 266; State v. Board of Metropolitan Police Commissioners, 170 Ind. 133, 83 N.E. 83; State ex rel Haley v. Dilworth, 80 Mont. I l l , 258 P. 250; State v. Henderson, 350 Mo. 968 169 S.W. 2d 389. A final point suggested by the relator—but one we deem to be without merit on the state of the pleadings—is that inasmuch as the law school at Florida Agricultural and Mechanical College for Negroes has been but recently established, it must follow that proper adequate facilities and sufficient teaching personnel will not be actually avail able at the negro college when the time comes for him to begin his course of study. It is clear from the record that at the present time the relator does not have an application pending for admission to a current or future term of a first-year law class at any State maintained institution of higher learning; the application formerly submitted by him being only for ad mission to the first year class of the College of Law of the University of Florida for attendance at the 1949 sum- [fol. 61] mer session, now long since past. What the relator suggests, therefore, with respect to facilities at the negro college, may or may not prove true, in whole or in part; the matter being dependent upon the seasona bleness with which he renews his application. Certainly, the requirement that he keep his application current for each succeeding term is not unreasonable, for as much as this is required of every student, whether white or negro, desirous of attending classes at any state maintained in stitution of higher learning. Without such requirement it is plain that budgets comprehensive enough to meet le gitimate educational needs could never be intelligently framed nor could state funds be made available in every instance to meet them. The bona fides of the alternative plan offered by the Board of Control and the Board’s authority to establish the law school at the negro college are not open to question by the relator under the pleadings in this proceeding, for by its answer the Board has shown that it will offer sub stantially equal opportunities to the relator and under the controlling statutes the Board “ has jurisdiction over and complete management and control” of the several uni versities and college of the State’s University system, and “ is invested with full power and authority to make all rules and regulations necessary for their governance, not inconsistent with the general rules and regulations made or which may be made at any joint meeting of the said board with the state board of education . . . to have full management, possession and control of each and every of the said institutions and every department thereof . . . to provide for the course of instruction and the different branches and grades to be kept and maintained thereat, and to alter and change the same . . . to make and pre pare all necessary budgets of expenditures for the en largement, proper furnishing, maintenance, support and conduct of the same . . . ” Section 240.04, Florida Stat utes, 1941, F.S.A. [fol. 62] The Board’s resolution appended to the answer mandatorily requires, without a single element of discre tion left to any school head whether or not to obey the mandate, the physical establishment of the law school thereby created at the Florida Agricultural and Mechanical College for Negroes, with public funds (of which there are some for these purposes) as soon as the necessary physi 38 cal equipment and teaching personnel can be assembled. It also mandatorily requires that if the law school is not in position actually to function at the time of the enroll ment of the relator after timely renewal of his applica tion, then and in that event, the relator will be given in struction in his desired course at any other State institu tion within the State offering the course. Under these ar rangements it is apparent that whatever the state of the facilities present at the negro college at the time of the enrollment of the relator at the college, he will receive immediate instruction in his desired course of a calibre substantially equal to, perhaps identical with, that received by any white student enrolled at the only tax-supported in stitution now offering the course of study within the State of Florida. Due to the nature of the issues arising out of the plead ings, it is our conclusion that 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 that the Board of Control has furnished, or has failed to furnish, to the relator, in accordance with the principles stated in this opinion, and after his due appli cation 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 at any of the tax-sup ported institutions of higher learning within the State wherein such course is offered. Either party to this cause may apply in this proceeding for the entry of an appropriate order finally disposing [fols. 63-64] of the case, after 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 learning. It is so ordered. Adams, C. J . ; Terrell, Chapman, Thomas, Hobson and Roberts, J.J., Concur. 39 [fol. 65] In t h e S u pr e m e C ourt of F lorida [Title omitted] M otion for P erem ptory W r it of M andam us— May 16, 1951 Comes now the Relator, Virgil D. Hawkins, by his under signed Attorney and moves the Court to issue a Peremp tory Writ of Mandamus directed to the Respondents, Board of Control of Florida; N. B. Jordan and Hollis Rinehart as members of the Board of Control of Florida; J. Hollis Miller as President of the University of Florida ; and R. S. Johnson Registrar of the University of Florida, requiring said Respondents to admit Relators to the University of Florida, the Answer of said Respondents notwithstanding, and as grounds for said Motion says: 1. That the Respondents have failed to provide Relator the equal educational opportunities in accordance with the interlocutory order of this Court rendered on August 1, 1950; that Relator hereby applies for further relief in this cause in accordance with the Court’s mandate and re quests this Court to issue a peremptory writ of mandamus at this time as prayed for in Relator’s complaint requiring the Respondents to admit him instanter to the University of Florida in order that he may thereby receive educational opportunities and advantages equal to those available to white persons at the University of Florida. [fols. 66-67] 2. That the Relator has exhausted all rea sonable means available to him for attaining admittance to the University of Florida the only institution in the State of Florida supported and maintained by the tax payers of the State of Florida offering courses necessary in obtaining the degree in his chosen profession; that the creation of the purported school of law on paper for Ne groes at the Florida A & M College and/or the alterna tive plan adopted by the Board of Control of Florida and made a part of Respondent’s answer does not accord to Relator the equal protection of the laws as required by the Fourteenth Amendment to the Constitution of the United States. 3. That on August 1, 1950, when the Court handed down a decision in this case, the Respondents had made availa ble, on paper, legal education at the Florida A & M Col lege for Negroes; that in fact there is no law school at the 40 Florida A & M College; and that the only state-supported institution where Relator can secure educational opportu nities and advantages for a legal education equal to those available to white students is at the University of Florida; that no steps have been made to provide Relator with legal educational opportunities and advantages within the state since the decision of this Court, on August 1, 1950; and that Relator has now lost one whole year in which he could have been pursuing a legal education. W h e r e fo r e , in accordance with the decision of this Court, on August 1, 1950, Relator hereby applies for further re lief and requests the Court to issue a peremptory writ of mandamus ordering his admission as a regular student in the Law School of the University of Florida. (S.) H. E. Hill, Attorney for Relator, [fol. 68] I n t h e S u pr e m e C ourt of F lorida June Term, A. D. 1951 En Banc. Supreme Court # 21,138 T h e S tate of F lorida, ex rel, Virgil D. Hawkins, Relator, vs. B oard of C ontrol , a body corporate etc., et al., Respondents Op in io n — Filed June 15, 1951 A Case of Original Jurisdiction—Mandamus. H. E. Hill, for Relator, Richard W. Ervin, Attorney General and Frank J. Heintz, Assistant Attorney General, Respondents. Sebring, Chief Justice. This cause is before the Court on motion for the entry of a peremptory writ of mandamus notwithstanding the return filed by the respondents in the proceedings. Virgil D. Hawkins, a negro citizen and resident of Florida, instituted a mandamus proceeding in June, 1949, against the Board of Control of Florida to require the Board to allow him to enroll as a law student at the Univer 41 sity of Florida for attendance at a summer session to be held in 1949. He charged in his petition that the' Univer sity of Florida was the only tax-supported law school in Florida that maintained and operated a law school and that he had been denied admission solely on the ground that he was a member of the negro race. In due course [fol. 69] the Board of Control filed their return to the alternative writ issued in the cause, alleging among other things, in substance, that the Constitution and Statutes of the State of Florida provide that white and negro students shall not be taught in the same schools but that impartial provision shall be made for both and that in pursuance of these requirements the State of Florida has established certain institutions of higher learning in the State, among which are the University of Florida and the Florida State University, both maintained for white students, and the Florida Agricultural and Mechanical College for negroes, maintained exclusively for negroes; that these three state institutions have been in operation for many years and are under the management and control of the Board of Control, subject to the supervising power of the State Board of Education, who, through a long established and fixed policy of providing substantially equal educational opportunities to white and negro races alike have from time to time added schools and courses of instruction at each of these institu tions as’ the need for such additional courses has been made to appear; that whatever rights the relator may have for instruction in his requested courses at a state operated institution of higher learning within the State would be at the Florida Agricultural and Mechanical College for Negroes and could not be lawfully given him at the Univer sity of Florida ; that the Board of Control had set up and established a school of law at the Florida Agricultural and Mechanical College for Negroes and had directed the gov erning head of said college to acquire the necessary personnel, facilities and equipment for such course of instruction at the school on the earliest possible date; that the Board of Control has made provision for relator’s immediate admission and enrollment at the Florida Agri cultural and Mechanical College for Negroes, in its law school, and is ready to there admit him, provided the relator shall make his application for instruction in said [fol. 70] courses within the time allowed for members of any other group to apply for admission to said course 42 at any State institution of higher learning. And, in the event the necessary facilities, equipment and personnel for said course of study should not be immediately available at the Florida Agricultural and Mechanical College for Negroes, upon his renewed timely application for instruc tion in said course of study, the Board of Control has made provision for his instruction in said course of study at the only other institution of learning in the State of Florida offering such course, namely, the University of Florida, until such time as adequate and comparable facilities and personnel for such course of study, substantially equal to those provided at any tax-supported institution of higher learning in the State, can be obtained and physically set up at the Florida Agricultural and Mechanical College. See State ex rel Hawkins v. Board of Control, Florida Reports, 47 So. 2d 603. After the answer was filed the relator moved for the issuance of a peremptory writ the return of the respondents notwithstanding. The effect of the motion, as a matter of pleading, was to admit the truth of the facts well pleaded in the return but to assert that as a matter of law the return failed to present a sufficient reason why the relief sought in the alternative writ should not be granted. See Hawkins v. Board of Control, supra. Upon consideration of the motion the Court held the return sufficient, as a matter of pleading, and entered an interlocutory order, which provided: “ Due to the nature of the issues arising out of the pleadings, it is our conclusion that 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 that the Board of Control has furnished, or has failed to furnish, to the relator, in accordance with the principles stated in this opinion, and after his due application for enrollment, such opportunities and facilities for pursuing his desired course of study as are substantially equal to those afforded all [fol. 71] other students duly enrolled in the same or a like course of study at any of the tax-supported institutions of higher learning within the State wherein such course is offered. Either party to this cause may apply in this pro ceeding for the entry of an order finally disposing of the case, after due and regular application for enrollment has been made by the relator and such opportunities amd facilities have or have not been made available to him in 43 such a tax-supported institution of higher learning.” (Italics supplied). Approximately ten months after the entry of this inter locutory order the relator filed the motion now before the Court, renewing his request for the issuance of a peremp tory writ the return notwithstanding. As grounds for the motion the relator avers “ that the Respondents have failed to provide Relator the equal educational opportunities in accordance with the interlocutory order of this Court ren dered on August 1, 1950 .. . That the Relator has exhausted all reasonable means available to him for attaining ad mittance to the University of Florida, the only institution in the State of Florida supported and maintained by the tax payers of the State of Florida offering courses neces sary in obtaining the degree in his chosen profession; that the creation of the purported school of law on paper for Negroes at the Florida Agricultural and Mechanical College and/or the alternative plan adopted by the Board of Control of Florida and made a part of Respondents’ answer does not accord to Relator the equal protection of the laws as required by the Fourteenth Amendment to the Constitution of the United States.” A mere casual inspection of the motion discloses that the relator has made no showing entitling him to the issuance of the peremptory writ. The strongest averment in favor of the relator is the pure legal conclusion that the relator “ has exhausted all reasonable means available to him for attain ing admittance to the University of Florida,” without any averment appearing in the motion as to what steps, if any, [fols. 72-73] have been taken by the relator to enroll for the law course he desires to pursue or otherwise to bring him self within the principles enunciated in State ex rel Hawkins v. Board of Control, supra. Moreover, the motion is not accompanied by any proof of the matters alleged in the motion—assuming, for the sake of argument only that the averments are sufficient—and it is elementary that a motion is not in and of itself proof of the averments therein con tained. Accordingly, the motion for peremptory writ the return notwithstanding should be, and same is hereby, denied, with out prejudice to the right of the relator to move for the entry of a peremptory writ when he is able to show to the satisfaction of the Court that he has brought himself within 44 the principles enunciated in State ex rel Hawkins v. Board of Control, supra. It is so ordered. T errell, Chapman, A dams, H obson and R oberts, JJ., Concur. T homas, J., not partic ipa ting . [fols. 74-76] In t h e S u pr e m e C ourt of t h e S tate of F lorida [Title omitted] M otion D ir ec tin g Ce r tific a tio n of R ecord—Filed August 15, 1951 Comes now the Relators by their attorney undersigned and thereby directing the Clerk to certify the entire record in the above styled cause, inclusing pleadings, testimony and exhibits, if any. (S.) H. E. Hill, 525 Second Avenue, Daytona Beach, Florida, Attorney for Relators. Certificate of Service I do hereby certify that copy hereof have been furnished by (mail) (delivery) this 1 4 th day of August 1951 to: Richard T. Ervin, Attorney General. (S.) H. E. Hill, Attorney. (6883) [fo l. 45] S u p r e m e C ourt op t h e U n it e d S tates , O ctober T er m , 1951 No. — S tate ex rel H a w k in s , et al., Petitioners, vs. B oard op C ontrol Order E xten d in g T im e to F il e P e t it io n for W rit op Certiorari It is ordered that the time for filing petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended to and including September 15th, 1951. Stanley Reed, Associate Justice of the Supreme Court of the United States. Hated this 13th day of September, 1951. ( 7138) 45 [fol. 45] In t h e S u pr e m e C ourt of F lorida [Title omitted] M otion for P erem ptory W rit and F in a l J u d g m en t— Filed May 28, 1952 Comes now the Relator, Virgil D. Hawkins, by his under signed attorney and moves this Honorable Court to issue a Peremptory Writ of Mandamus directed to Respondents, Board of Control of Florida; N. B. Jordan and Hollis Rhinehart as members of the Board of Control; and R. S. Johnson, Registrar of the University of Florida, requiring said Respondents to admit Relator to the University of Florida and for Final Judgment in said cause, the answer of said Respondents notwithstanding, and as grounds for said Motion says: I That since the rendition of the Courts initial opinion in the case of State ex rel. Hawkins vs. Board of Control of Florida et ah, 47 So. 2d 608 et seq., the Relator has re applied and made due and regular re-application for enroll ment and admission to the School of Law at the University of Florida and has complied with all requirements neces sary for enrollment and admission at said institution to no avail and is beset with 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 Relator having exhausted his remedies save and except the relief to be afforded by this Honorable Court. II That the judgment heretofore rendered by this Honor able Court in this said cause is a nisi order and interlocu tory in its nature and not an appealable judgment. That the Relator desires to take an appeal therefrom but is pre cluded from so doing unless this Court enters a Final Judg- [fol. 46] ment and to that end the Relator stands on his pleadings as filed herein. III That all pleadings have been submitted, issues joined and proof taken and being conscious of the morality and justice 46 of his cause as now here contended for thus submit himself to this Honorable Court to the end that a Peremptory Writ of Mandamus be granted as prayed for and that a Final Judgment be entered in this cause. Wherefore, Relator moves this Honorable Court for the issuance of a Peremptory Writ of Mandamus and that Final Judgment be entered in the above entitled cause. (S.) H. E. Hill, 525y2 Second Avenue, Daytona Beach, Florida. [fo ls . 47-48] S tate of F loeida , County of —: Affidavit Before me personally appeared Virgil D. Hawkins, the undersigned authority, who deposes and says that in the year 1949 he petitioned the Florida State Supreme Court for admission to the School of Law at the University of Florida; that since the Court’s initial opinion rendered August 1, 1950, he has reapplied for admission 2 times to no avail and in said reapplication he did request that the same be considered a continuing one until he succeeds in gaining admission to the said School at said University. The last application was made subsequent to April of 1952. (S.) Virgil D. Hawkins, Affiant. Sworn to and subscribed before me this 2nd day of June, A. D. 1952. (S.) Edward D. Davis, Notary Public, State of Florida at 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] In 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 En Banc T i-ie 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, for Relator. Richard W. Ervin, Attorney General and Frank J. Heintz, Assistant Attorney General, for Respondents. Op in io n —Filed August 1, 1952 S ebrin g , C. J . : This is the third appearance of this cause in this Court. It is now before the Court on a motion by the relator for the entry of a peremptory writ notwithstanding the return heretofore filed by the respondents. The cause was initiated by the relator on May 30, 1949, when he filed a petition for a writ of mandamus to require the members of the State Board of Control to admit him to the College of Law of the University of Florida 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 return to the alternative writ issued in the cause, and, on April 13, 1950, the relator filed his motion for a peremptory writ notwithstanding the return. [fol. 50] Upon due consideration of the issues raised by the pleadings, the Court denied the motion, because the relator had not shown himself entitled, under the pleadings, to the relief sought, in that (1) he did not have pending, at the time he filed his motion, an application for admission to a current or future first-year law class at any state main 48 tained institution of higher learning; the application formerly submitted by him being only for admission to the first-year class of the College of Law of the University of Florida for attendance at the 1949 summer session; and (2), assuming the regulations of the Board 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 return filed by the Board of Control, and admitted by the relator’s motion to be true, that the State of Florida, acting through the Board of Control, had established a school of law at the Florida Agricultural and Mechanical College, which is a state insti tution maintained exclusively for negroes, to which the Board was ready to admit the relator, provided he made his application for admission within the time allowed for students to apply for admission to a course in law at a tax- supported law school in Florida; that the Board of Control was prepared to offer to the relator “ facilities for legal edu cation at a negro college which [were] substantially equal to those offered within the state at any tax-supported institu tion of higher learning whose enrollment [under the Florida Constitution] is restricted to white students;” and that the Board stood ready “ to furnish law instruction, temporarily, at the state university maintained exclusively for white students, in the event adequate facilities for teaching the course [were] not actually and physically available at the state law school established for negroes at the time of re lator’s application and enrollment.” See State ex rel. Hawkins v. Board of Control, Florida 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 determined after the submission of proofs. But because of the public im portance of the questions presented, the Court, in the in terest of justice, did not enter a final judgment quashing the alternative writ and dismissing the cause (as it could have done under well-established rules of pleading and procedure), but left the matter open in order to accord to the relator 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, that the allegations 49 of the return, which as a matter, of pleading he had admitted to be true, were not true as a matter of fact; in that the facilities offered at the Florida Agricultural and Mechan ical College did not, in truth, afford him the equal protection of the law guaranteed by the Fourteenth Amendment to the Federal Constitution. That such was this Court’s purpose in entering the inter 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 that 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 that the Board of Control has furnished, or has failed to furnish, to the relator, in accordance with the principles stated in this opinion, and after 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 at any of the tax-supported institutions of higher learning within the State wherein such course is offered. “ Either party to this cause may apply in this proceeding for the entry of an appropriate order finally disposing of the case, after 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 learning.” [fol. 52] Despite this plain wording of the opinion and order, the relator, on May 16, 1951, without submitting, or offering to submit, proofs on the issue of substantially equal opportunity, filed a second motion for the entry of a peremptory writ the return of the Board of Control not withstanding. On June 15, 1951, the Court denied the mo tion “ without prejudice to the right of the relator to move for the entry of a peremptory writ when he is able to show to the satisfaction of the Court that he has brought himself within the principles enunciated in State ex rel. Hawkins v. Board of Control,” Florida Reports, 47 So. 2d 608. For the report of this latter decision see State ex rel. Hawkins v. Board of Control, Florida Reports, 53 So. 2d 116. Again, on June 7, 1952, and without submitting, or offer ing to submit, evidence designed to show that the facilities 50 offered at the Florida Agricultural and Mechanical College did not accord with the guarantees to which he was entitled under the Federal Constitution, the relator filed a third motion for peremptory writ the return of the Board of Control notwithstanding. In the motion the relator alleged, in part, that “ since the rendition of the Court’s initial opinion in the case of State ex rel. Hawkins v. Board of Control of Florida, et ah, 47 So. 2d 608 et seq., the Relator 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 requirements necessary for enrollment and admission at said institution to no avail . . . that the judgment heretofore rendered in this said cause is a nisi order and interlocutory in its nature and not an appealable judgment. That the Relator desires to take an appeal therefrom but is precluded from so doing unless this Court enters a Final Judgment and to that end the Relator stands on Ms pleadings as filed herein . . . and . . . moves . . . for the issuance of a Per emptory Writ of Mandamus and that final judgment 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 statute of 1951 for the years 1951-53, from the fiscal records of the State Comptroller, and from the official minutes of the State Board of Control (if, indeed, such facts are not plainly apparent from the pleadings), that there is in operation at the Florida Agricultural and Mechanical College a duly established and tax-supported law school maintained exclusively for negroes, at which are offered law courses similar in content and quality to those offered at the College of Law of the University of Florida, an institu tion maintained exclusively for white students; and that said law school is not merely an “ organization on paper” , 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 maintain 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 It is apparent from the motion filed in the cause that the relator does not desire to controvert these facts of which we take judicial notice, or to raise any issue as to whether said facilities for instruction will afford him an opportunity to secure a legal education substantially equal to that presently available to white citizens of Florida who have the necessary educational qualifications for admission to a tax-supported law school. That such is his position is made plain by the fact that, as shown by his several motions, the relator has persistently refused to apply for admission to the Law School of the Florida Agricultural and Mechan ical College, as permitted by the interlocutory order here tofore entered in this cause, but has applied only to the University of Florida—an institution of higher learning which, under the Florida Constitution, is open only to white students so long as substantially equal opportunities and facilities are afforded elsewhere in the State to negro citi zens; and that having been refused admission to the Uni versity of Florida Law School, he has made his third demand for a peremptory writ requiring him admission to the University of Florida, without offering to submit proofs [fol. 54] on the vital issues, and has coupled the demand with the averment that he ‘ ‘ stands on his pleadings as filed ’ ’ and that a peremptory writ of mandamus should be entered thereon. Presenting the demand for a peremptory writ on this showing can mean but one thing: that the relator intends to stand on the contention that in order to receive the full political rights guaranteed him by the Federal Constitution he must be admitted to the University of Florida Law School, maintained, under the Constitution of Florida, ex clusively for citizens of the white race, even though there is in existence in the State a tax-supported law school which is maintained exclusively for negroes and which, on the face of this record, we must assume will afford to him oppor tunities and facilities which are substantially equal to those to be found at the University of Florida. This is but another way of contending that in order for there to be equality of treatment accorded a citizen, in respect to tax supported facilities, there must likewise be complete iden tity of treatment, or else the requirements of the Federal Constitution will not be satisfied. 52 This contention is not sound. While the Fourteenth Amendment to the Federal Constitution requires that sub stantially equal opportunities and privileges shall be af forded every citizen regardless of race or color, the Su preme Court of the United States 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, that equality of treatment need not mean identity of treatment, with respect to a tax-supported facility. See Cumming v. Countv Board of Education, 175 U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; McCabe v. A. T. & S. F. B. Co., 235 U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169; Gong Lum v. Bice, 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 Board of Begents, 332 U. S. 631, 68 S. Ct. 299, 92 L. Ed. 247. Compare Sweatt v. Painter, 339 U. S. 629, 70 S. Ct. 848, 94 L. Ed. 1114; Mc- Laurin v. Oklahoma State Begents for Higher Ed., 339 U. S. 637, 70 S. Ct. 851, 94 L. Ed. 1149. [fols. 55-56] Under the issues as framed and presented, it is our conclusion that the relator has not shown himself to be entitled to a peremptory writ and hence that his mo tion must be denied; that the alternative writ heretofore issued must be quashed; and that the cause must be dis missed at the cost of the relator. It is so ordered. Terrell, Thomas, Hobson, Boberts and Mathews, J. J., and Hooker, Associate Justice, Concur. [fol. 57] In t h e S u pr e m e , C ourt op F lorida [Title omitted] M otion— Filed May 12, 1952 Come now the Belators, by their undersigned attorney, and direct the Clerk to certify the entire record respectively in the above styled cause, to wit: 1. Petition for Alternative Writ of Mandamus. 2. Order Granting Petition for Alternative Whit of Mandamus. 53 3. Alternative Writ of Mandamus. 4. Respondents Motion to Quash. 5. The Order Denying Respondents Motion to Quash. 6. Answer of Respondents. [fol. 58] 7. Relators Motion for Peremptory Writ. 8. Opinion of the Court, Aug. 1, 1950. 9. Relators Motion for Peremptory Writ. 10. Opinion of the Court, June 15, 1951. 11. Relators Motion Directing Certification of Record. 12. Relators Motion for Peremptory Writ and Final Judgment. (S.) H. E. Hill, 525V2 Second A venue, Daytona Beach, Florida, Attorney for Relators. Certificate of Service omitted in printing. [fol. 59] Clerk’s Certificate to fore going transcript omitted in printing. (3673)