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)