Opinion
August 31, 1951.
Appeal from the Circuit Court, Dade County, Charles A. Carroll, J.
John D. Johnson and G.E. Graves, Jr., Miami, for appellant.
J.W. Watson, Jr., and John D. Marsh, Miami, for appellee.
This is an action in mandamus originating in the Circuit Court of Dade County. We will refer to the parties as relator and respondent, the capacities which they occupied in the Circuit Court.
It appears that the City of Miami owns a golf course, the management of which is delegated to the respondent, H.H. Arnold; that respondent, acting for the City, made certain rules regulating the use of these public facilities; that among these rules was one which provided for the allocation of certain days for the use of the golf course exclusively by colored persons and the allocation of certain days for the use of the course exclusively by white persons.
Relator, Joseph Rice, a colored person, was denied the privilege of enjoying these facilities on one of the days on which the use of the course had been allocated to white persons.
Upon his application, the Circuit Court issued its alternative writ of mandamus requiring the respondent "To forthwith grant the petitioner the privilege of golfing on the Miami Springs Country Club golf course during all of the hours in which the said course is open to the public, subject, however, to any lawful rules and regulations governing the use thereof", or show cause why the peremptory writ should not issue. The respondent filed his return to the alternative writ setting up the rule above referred to and setting up various facts which he contended justified the allocation of time for the use of the course by the persons of different races. Relator moved for a peremptory writ notwithstanding the return. This motion was denied for reasons stated in the judgment of the Circuit Court. We affirm with opinion. See 45 So.2d 195.
The relator appealed to the Supreme Court of the United States, 340 U.S. 848, 71 S.Ct. 77, and that court issued its judgment and mandate, the pertinent parts of which are as follows:
"It is ordered and adjudged by this court that the judgment of the said Supreme Court (of Florida) in this cause be, and the same is hereby, vacated without cost to either party.
"It is further ordered that this cause, be, and the same is hereby, remanded to the said Supreme Court for reconsideration in the light of subsequent decisions of this Court in Sweatt v. Painter, 339 U.S. 629 [70 S.Ct. 848, 94 L.Ed. 1114], and McLaurin v. Oklahoma State Regents, 339 U.S. 637 [70 S.Ct. 851, 94 L.Ed. 1149]."
The first question to be considered by us is whether this judgment of the Supreme Court of the United States is such as to impel this court to reverse its former judgment or whether this court is left free to use its independent judgment in determining the correctness of its original conclusion when viewed in the light of the development of the judicial construction of the Federal Constitution in the cited cases which were decided subsequent to our first consideration of this case.
The language employed in the mandate would seem to clearly indicate that no final adjudication was intended. The use of the word "vacated" instead of the usual term "reversed" and the direction that we reconsider the case suggest that our original judgment should be regarded as re-opened for further study of the question presented and that our views of the law should be reconsidered in the light of the cited opinions.
To hold otherwise would attribute to that court a vagueness of decision or delicacy in expressing its disagreement with a state court which is not in harmony with its action in other cases. In reviewing the decisions to which our attention has been directed, we must yield to the Supreme Court of the United States its paramount authority as the final arbiter of all questions involving the construction of the Federal Constitution. In examining its opinions, we should not search for distinctions without differences between a case before us and established precedent. On the other hand, we should announce and adhere to our considered judgment as to the meaning of the Constitution and its application to a particular factual situation, so long as it is supported by earlier decisions and is not in conflict with more recent holdings either directly or by necessary inference.
We would be guilty of closing our eyes to a fact not only apparent from the pages of recent decisions but generally known throughout the nation if we do not approach the problem in full recognition of the fact that the applicable parts of the Constitution are in process of re-definition; that they are being given a broader meaning than they were previously thought to have. It is our duty to follow the Supreme Court in this process and to conform our legal thinking to whatever that body declares the Constitution to mean; but until earlier precedents have been clearly modified by the court which established them, we should adhere to these decisions. The cases to which our attention is directed both dealt with the right of colored persons to enjoy facilities of higher education offered by state institutions.
In the McLaurin case the question presented, as stated by the court, was: "whether a state may, after admitting a student to graduate instructions in its state university, afford him different treatment from other students solely because of his race". [ 339 U.S. 637, 70 S.Ct. 852.] The answer was in the negative but the basis of that answer, as appears from the opinion of the court, was that the action of the university officials in adopting rules of racial segregation was such that: "The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession". And the court said: "We hold that under these circumstances the Fourteenth Amendment precludes differences in treatment by the state based upon race". (Emphasis supplied.) It should be observed that the purpose of the public institution there involved was the education of those enrolled as students. The court held that the treatment accorded McLaurin, segregation, handicapped him and tended to "impair and inhibit" his ability to acquire the education that it was the purpose and function of the institution to provide.
In the Sweatt case the appellant had been denied admission to the University of Texas Law School and offered a course of study in another law school provided by the state for members of petitioner's race. After a discussion of various phases of the process of legal education and the benefits that flow from study in and graduation from the particular school in question, the court concluded that:
"Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State.
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"With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School". (Emphasis supplied.) [ 339 U.S. 629, 70 S.Ct. 850.]
Here again the conclusion reached seems to be bottomed squarely upon the finding that the educational facilities offered were not equal and, therefore, the individual's rights under the Fourteenth Amendment to the Constitution were impaired. If the rationale of these opinions applies to the factual situation before this court, it is our duty to apply them and decide this case accordingly. On the other hand, if the reasoning by which the court reached the conclusions announced in those cases, does not apply to the case before us, the decisions are not in point and we should not expand them so as to construe them as covering situations not within the contemplation of the court when those decisions were written particularly when to do so would conflict with preciously accepted views as to the meaning of the Federal Constitution and the views of the law as expressed in this case by the relator, himself. In his brief filed before us, the relator says: "The appellant does not contend that there is not a general policy of segregation of the races in Florida and more particularly in the City of Miami nor does he contend that racial segregation in the provision of public facilities per se is unlawful. This elementary rule of law has long since been settled in this state under the numerous decisions of our Supreme Court which hold that the state may within the exercise of its police powers segregate the white and colored races. Patterson v. Taylor, 51 Fla. 275, 40 So. 493; Crooms v. Schad, 51 Fla. 168, 40 So. 497; Sanders v. City of Daytona Beach, 95 Fla. 279, 116 So. 23". And again he states: "For emphasis the appellant reiterates. The appellant does not contend that there is not a general policy of segregation of the races; he does not challenge the now often, confirmed power of a state or its subordinate parts to create and enforce a policy of segregation of races. His sole contention regarding the validity of racial segregation is that the rule made and provided by the respondent as the authorized agent of the City of Miami by providing only one day in each week for the exclusive use of the only municipally owned golf course and the reservation of the remainder of each week for white players is contrary to the Constitution of the United States and the Constitution of the State of Florida".
Turning to the facts of the case before this court, we take judicial notice that the game of golf is of such a nature that it requires the maintenance of links which cover a considerable area and that it can be played only by persons alone or in very small groups not exceeding, except in unusual cases, four persons, although several of such groups may play simultaneously on different parts of the course. There are of necessity some, but limited, contacts between the various groups so playing, particularly around the club house and starting tees. The purpose and function of the game is to obtain the pleasure and exercise incident to the playing and the rivalry and association between persons who arrange in advance to play together. The exercise, the rivalry and the association are not enhanced by the other persons who may, on the same day or during the same hours, elect to enjoy the facilities.
This is quite different from an educational institution where the purpose is to develop the capacities of an individual to practice a profession. The intangible benefits referred to by the Supreme Court of the United States as incident to the educational advantages offered by the University of Oklahoma and the University of Texas Law School are entirely absent. The decisions above referred to are not, therefore, controlling.
It is significant that in the Sweatt case the court was urged to hold that discrimination inevitably results wherever the "separate but equal" doctrine is applied with reference to public facilities furnished persons of different races; but the court said, "Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court", thereby declining to destroy the well established rule that has been applied ever since the adoption of the Fourteenth Amendment to the Constitution to the effect that where separate but equal facilities are provided persons of different races, no person of either race is thereby denied the full protection of his constitutional rights. Among the numerous decisions enunciating this principle, we cite only Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, because of its clarity and because the Supreme Court in the Sweatt case expressly declined to "re-examine" that holding, thus impliedly directing all courts subordinate to it in the field of constitutional construction, to continue to recognize that decision as binding authority. We are directed to reconsider our conclusions in the case before us in the light of the decision in the Sweatt case. A part of that decision was the refusal of the Supreme Court to modify Plessy v. Ferguson.
In the case before us there is no question of the equality of the physical facilities offered petitioner with which he may enjoy his constitutional right to engage in the game of golf upon public property. The facilities offered petitioner are identical with the facilities offered persons of other races by the City of Miami.
Petitioner contends that in the application to him of a rule allocating to him and others of his race certain times within which he may use the facilities and limiting his use to such times, there has been an unreasonable and unjust discrimination which deprives him of his constitutional right.
In the former opinion of this court which has been vacated by the Supreme Court of the United States, we affirmed the decision of the Circuit Court of Dade County. In the opinion we expressed the view that it had not been made to appear that the rule allocating time for use of the golf course between persons of different races, of which complaint is here made, was unreasonable in the light of the circumstances presented by the record. In so stating, we went beyond the decision of the Circuit Court being reviewed and that opinion should be vacated and withdrawn and the case should be re-examined in its entirety.
If this case can properly be disposed of without going beyond the holding of the circuit court, we should restrict our present adjudication to review of the action of that court and in order to do this, we must analyze the pleadings before that court and the holding of that court on those pleadings.
The circuit court granted relator an alternative writ of mandamus commanding the respondent "to forthwith grant the petitioner the privilege of golfing on the Miami Springs Country Club Golf Course during all the hours in which said course is open to the public; subject, however, to any lawful rules and regulations governing the use thereof". To this writ a return was filed setting up various matters which the respondent felt justified the rule which the respondent had adopted allocating the use of the golf course to white persons exclusively on certain days and to colored persons exclusively on certain days.
Thereupon, the relator moved for a peremptory writ on the ground that, "The return and answer of the respondent failed to show any cause which is cognizable at law for the failure and refusal to permit the relator to golf on the Miami Springs Country Club Golf Course".
On these pleadings the court entered an order in which it held:
"In a determination of this case it must be noted at the outset that the command of the alternative writ would require that the city's public golf course superintendent permit the relator to use the course at all hours when it is open to public play. In order for relator to be entitled to a peremptory writ of mandamus, it must appear that there is a clear, legal duty for the respondent to comply and perform.
"Relator in mandamus faces the obstacle that if granted, the command of the peremptory writ may not be for less than that which is commanded by the alternative writ (citing authority).
"The question then becomes this: Is the relator entitled to an order permitting him to use the city's sole public golf course at all hours and times when it is open for play?
"That question must be answered in the negative.
"A requirement that some use of the course should be provided for relator, is by no means the same thing as the right or privilege for its use at any and all times every day.
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"It appears that the city, through its golf course superintendent, has made an administrative determination of allotment of separate times for play on its public golf course for white players and for colored players.
"From the nature of this mandamus case this court is not concerned with, nor called upon to pass upon any question as to the reasonableness or sufficiency of the one day each week allotted to the members of relator's race to use the course. Any complaint on that score might be the basis and subject of some other suit or proceeding, but relief of that character was not sought here nor was it included in the command of the alternative writ".
If it be conceded that the rule adopted by the respondent is unreasonable, a question which should not be now decided, the relator would not be entitled to a peremptory writ as broad as the alternative writ because such a writ would preclude the adoption of a rule making a reasonable allocation of time for the use of the golf course between persons of different races.
It might be urged, although it does not appear from the pleadings that such a contention was presented to the circuit court, that the rule allotting time between the races is unreasonable and, therefore, invalid and as a consequence there exists no lawful rule allotting time between the races and that for this reason the peremptory writ should issue. This process of reasoning, however, contains two fundamental fallacies. It is admitted, in fact, asserted, in the brief of the relator that there exists in the State of Florida and in the City of Miami an established public policy for the segregation of the races that would apply to a golf course. This public policy would require that there be a fair, just and reasonable allocation of time to the relator and members of his race and a fair, just and reasonable allocation of time to members of other races, but the granting of the peremptory writ in conformity with the alternative writ would forever preclude the respondent from promulgating such a rule. Secondly, it was, at the time this judgment was entered, the established practice in this State that the command of a peremptory writ must follow the command of the alternative writ, and unless the relator had made it appear from his petition, coupled with the allegations of the answer, that he has a clear, legal right to use the golf course at all times when it is open for play, he was not entitled to a peremptory writ upon his alternative writ in its present form.
Modified by Rule 57, Florida Common Law Rules effective January 1, 1950, 30 F.S.A.
Under the laws of this State the relator has adequate means by which to test the reasonableness of the rule promulgated by the respondent. He may do so by a bill for declaratory judgment in which the court could hear the contentions of all parties and determine what would be a reasonable allocation of time for the use of the course between persons of different races. He may take the position that the present rule is void for unreasonableness and by mandamus seek to require the respondent to adopt a reasonable rule. Equity would also have jurisdiction to protect his rights.
The circuit court clearly indicated to relator that he should pursue another remedy. Relator has not seen fit to do so. Rights under the Federal Constitution as well as other rights must be enforced by orderly processes of the courts and in accordance with established rules of procedure.
The rights of Sweatt and McLaurin were properly enforced by mandamus because the court held that, as regards the factual situation there presented, any segregation was unlawful and the determination of the reasonableness of the rules was not necessary. In the case before us the relator admits that the policy of segregation exists in Miami and admits that it is not per se unlawful, yet he seeks a writ which would, if issued, make it impossible for the city to adopt any rule effectuating this admittedly lawful public policy. He is not entitled to that writ even if he is entitled to secure, in a proper proceeding, an allotment of a greater amount of time for the use of the golf course by persons of his race.
It is now the judgment of this court that the opinion and judgment of this court filed herein March 24, 1950 be, and the same is, hereby withdrawn, vacated and set aside; that in accordance with the mandate of the Supreme Court of the United States, we have reconsidered this cause in the light of recent decisions of that court and, upon such reconsideration, for the reasons hereinbefore stated, the judgment of the Circuit Court of Dade County is hereby affirmed.
CHAPMAN, THOMAS and ADAMS, JJ., concur.
TERRELL, Acting C.J., and HOBSON, J., dissent.
ROBERTS, J., not participating.