Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
ATTORNEY GENERAL
Honorable T. S. Painter
Acting President
Cnlversitg of Texas
Austin, Texas
Dear Sir: Opinion NO. o-7126
Re: Whether a person of negro
ancestry, otherwisequall-
fied for admission into the
University of Texas, may be
legally admitted to that
institution.
In your letter of February 26, 1946, you have requested ~.
an opinion from this offLoe relative to the above subject.
The facts which have -occasFonedyour request may be
briefly summarized. A negro, Reman Marion Sweatt, of Rouston, :
Texas, has applied for admission es a student in,the lawschool of.
the University of Tens, olaiming that the University is the only
state instituti.on of higher learning in this State furnishing faoi,
litles and lnstruotionfor the proper training in the profession of
law. The applicant, who Is a oitieenof Texas, is scholastically
qualified for admission. When making the application,Sweatt was
aooomp8nied by a committee representingthe interests of the negrc
citizens of this State in procuring Immediatepublic higher educa-
tional faollltlesand instruotionfor negroes in various profess;ionr.
It appears from your letter that this is to be a test case, and
that the case of State ex rel. Gaines v. Canada (305 U.S. 337, 59
S. Ct 232, 83 L. Ed 208) is relied upon as authority for the
position of the applicant and the committee. It is also noted that
it has not been the poliog of the University to admit negroea as
students and that this Is probably the firs'tinstance in which a
negro has presented himself for registrat,ion as a student.
In this opinion, it has been assumed that the applioation
was made in good faith,and the question presented has been determined
on a considerationof (1) the law of Texas regarding the separation
of races in institutionsof higher learningand (2) a consideration
Honorable T:S. Painter, Page 2
of such law in the light of the 14th Amendment to the Constitution
of the United States, guaranteeingequality of privilegesand
immunitiesto citizens.
The wise and long-continuedpolicy of segregation of
races in educationalinstitutionsof this State has prevailed since
the abolition of slavery, and suoh policy is found incorporatednot
<;nlyIn the Constitution of the State of Texas (see Article 7, Seo-
ti.ons7 and 14 but also in numerous releted statutes ’
:<88, 2538, 2644, 2719, 2749, 2900, 3221, 3259-a and
(see Articles
S.B. ,228,Chap.
308, page 506, Aots 49th Legislature,1945). The oonstitut1onalitg
of such a olicy and of laws in accord therewithhas been repeatedly
sustained9see State ex rel. Gaines v. Canada, supra; Plessy v. Fer-
163 U.S 537; McCabe v. Atchison, T. & S. F. Ry. Co., 235
?%oni51; and suthorities there cited).
The controllingoase as to whetherthe'polioy of segrega-
ting races in Texas operates to "abridge+equalprivileges and immuni-
Oies of oitisens of the United States" is State ex'rel. Gaines v.
Canada',supra. In that case; a fact situations1mil.arto the one
hsre presentedwas before the oourt. Therein the Supreme Court of
the United States held that it was unquestionablythe duty of a
S%%e to provide equal eduoationaladvantageswithin the State and
t:hat.ifsuoh was not done it would oonstitutea dlsorimlnstlonin
violetion of the Constitution of the United States. The oourt's
decisionwas based principally upon the fact that the Missouri
statutes (Section 9618 and 9522) left the establishmentof equal
aduoationaladvantages to the discretion of a Board of Curators,
"'whennecessaryand practicable in thefr opininn,"and it was olear
that if a mandatory duty had been Imposed on the.Bcardto provide
such advantages,it would have constitutedntiviolation of the
Federal Constitution. :~I
This ~offioe,like the oourts of .this~State,is bound by
the deoisions of the Supreme Court of the United States and in oon-
sequenoe there is no doubt that if equal educationaladvantages are
not provided for the,applioentwithin the State, he must be admitted
to the law school of the University of Texas.
It is not required, however, that the State maintain in a
oofiditionof Idleness and non-use facilities to efford the applioant
these advantages (see Bluford v. Canada, 32 Fed. Supp. 707 - appeal
dismissed 119 F (2) 779; State ex rel. Miahael, et al. v. Witham,
Honorable T. S Painter, Page 3
:,
supra). The State has a constitutionalright to furnish equal
facilities in separate sohools If it so desires and If the State
has made provision for such faoilities for negroes and has plaoed
a mandatory duty upon any of its officers,the applicant is not
deprived of any oonstitutionalright until applioationhas first
been made to the proper authoritiesand the applioant~s rights
have been unlawfullyrefused (see Gsines v. Canada, supra; Bluford
v. Canada, supra); The State is entitled to s reasonable notice
that the faoilitiesproviding equal educationaladvantages are de-
sired before its establishedpolicy of segregationis abrogated;
and a refusal by the.designatedauthorities to provide facilities
may not be antioipated (See Bluford v. Canada, su$ra; and State ex
rel. Michael v. Witham, supra).
The rights of the applicant in the instant case are
therefore,oontrolled by the import of Senate Bill 228, Acts 49th
Legislature,1945, Chapter 308, page 506, which-was effeotive June
1, 1945, and in Section 2 of which It is,provided:
"Whenever'thereis any demand for same the Board
,ofDirectors of the Agriculturaland MechanicalCollege.
In addition to the.co-&es of study now authorfeed fo; .
said institution,is authorized to provide for the
establishment'of oourses in law, me tine, e neering,
pharmacy, journalism,or ai; ;;~;re~ra;lyn& ypd
college course taught at t
said ~PrairieTfiewUniversity,which oourses shali be
substantiallyequivalent to those offered atthe Univer-
Sity of Texas." (Mmphasisadded)
This Act provides for instructionfor the colored people
of this state substentiellyequivalent to that offered at the Univer-
sity of Texas and, if mandetory, e,qualeducationaladvantages for
negroes are thereby provided.~ In determiningwhether an Aot is man-
datory or only permissive the intent of the Legislature~shouldoontrol '
and no formallstiorule of grammar or word form should stsnd in the
way of effectuatingthe legislativeIntent (Horack8s Sutherland
StatutoryConstruction,Sections 2802, 2803, volume 2,.pages 215, 215,
If a statute oonfers authority on a public officer which concerns the
public interest or the rights of third persons, it is mandatory al-.
tinoughoouohed in permissive language (39 Tex. Jur., Sec. 17) and
this principle has been announced by the Supreme Court of Texas (see
McLaughlinv Smith, 148, S-W. 288) when It was said th.at"a direction
contained in a statute, though couched in merely permissive languege,
will not be construed as leaving compliance optional when the good
sense of the entire enactment requires Its provisions to be deemed
Honorable T. S Painter, Page 4
oompulsory,"and that permissivewords should be construedas
mandatorywhen used to clothe a public officerwith power to do an
act which oughtto be done for the seke of justioe or whioh con-
cerns the public interest or the rights of third persons. Further,
it must be presumed that the Legislaturehad knowledge of the deci-
sions of the courts concerning the same subject matter and did not
intend to pass an Act which, if only premissive,would not meet the
requirementsof such decisions.
The Act of 1945, then, is mandatoryand Imposes a xlear
duty upon the Board of Directors of the Agrloulturaland Mechanical
College to provide at the Proirle View Universityinstructionin
the courses named therein "whenever there is any demand." A demand
by only one individualis suffioient. Speoifioally,in the instant
case, the,Bosrdmust provide legal``tralning substantiallyequivalent
to that offered to white students at the University of Texas on the
npplioant~sdemand therefor.
A detailed discussion of the matter of appropriationsto
enable the Board of Directors to disoharge their duty in the premises
Is not within the scope of this opinion However, after an lnvesti-
Eation thereof it is not believed that this presentsany obstaole to
providinglegal instructionfor the applioantafter demand and reason-
able notice.
?
It should also be noted that if equal educational advan-
tages are provided for the colored people of this Stste, it makes no
differenoewhether such is done in a oonstitutionalor statutory
sohool and it is not therefore necessary to discuss the nature of
Prairie View University or the establishmentof a "College or Branch
UniversLty"pursuant to Artlole 7, Seotion 14, of the Constitutlon~
:
A 11 of the foregoing oonsldered,it is concluded-thatthe
segregatlonof races in educationalinstitutionsin Texas may not be
abrogated unless and until the applicant in good faith makes a demo:!?:
for legal trainingat Prairie View University,gives the authorities
reasonablenotice, and is imlawPuZly refused.
Aooordingly,you are advised that the applicant should et
this time be refused admission to the University of Texas.
Yours very truly
,QPROVEU MAR 16 1946 Grover Sellers
ATTGRNEYGEEEEALOF TEXAS