Note: Within the text, [#} refers to the pagination in the original, three-volume printed transcript. [fol. #] refers to the pagination in the original typescript.

Sweatt v. Painter, State-Court Pleadings and Opinions.

 

Application For Writ of Mandamus—Filed May 16, 1946

[fol. 652] In the 126TH District Court of Travis County, Texas No. 74,945

Heman Marion Sweatt vs.Theophilus Shickel Painter, Charles Tilford McCormick, Edward Jackson Matthews, Board of Regents; Dudley K. Woodward, Jr. Orville Bullington, E.E. Kirkpatrick, W. H. Scherer, W. Scott Schreiner, D. M. Strickland, C.O. Terrell, Edward B. Tucker and David M. Warren

 

To the Honorable Judge of Said Court:

Now Comes, Heman Marion Sweatt, hereinafter called Relator, who resides at 3402 Delano Street, Houston, Harris County, Texas, complaining of Theophilus Shickel Painter, Charles Tilford McCormick, and Edward Jackson Matthews, who resides in Austin, Travis County, Texas; Dudley K. Woodward, who resides in Dallas, Dallas County, Texas; Orville Bullington, who resides in Wichita Falls, Wichita County, Texas; E. E. Kirkpatrick, who resides in Brownwood, Brown County, Texas; W. H. Scherer, who resides in Houston, Harris County, Texas; W. Scott Schreiner, who resides in Kerrville, Kerr County, Texas; D.). M. Strickland, who resides in Mission, Hidalgo County, Texas; C.O. Terrell, who resides in Ft. Worth, Tarrant County, Texas, Edward B. Tucker, who resides in Nacogdoches, Nacogdoches County, Texas; and David M.[404]Warren, who resides in Panhandle, Carson County, Texas, the Respondents, and each of them, alleges and states:[fol. 653]

1

That relator, Heman Marion Sweatt, is a resident and citizen of the United States, and of the State of Texas, County of Harris, and City of Houston; that relator is desirous of studying law in the School of Law of the University of Texas, which is supported and maintained by the tax payers of the State of Texas, for the purpose of preparing himself to practice law in the State of Texas, and to render public service therein; that he has been arbitrarily refused admission to the School of Law of the University of Texas; that on the 26th day of February, 1946, relator duly made application for admission to the first year class of the School of Law of the University of Texas; that at the time said application for admission to the School of Law of the University of Texas was made by relator, he then possessed and still possesses all the scholastic, moral and other lawful qualifications prescribed by the Constitution and Statutes of the State of Texas, by the Board of Regents of the University of Texas, and by all duly authorized officers and agents of the said University and the School of Law, for admission into the first year class of the School of Law of the said University.

2

That the relator, Heman Marion Sweatt, was at the time of the making of the aforementioned application for admission to the School of Law, of the University of Texas, and still is ready, willing and able to pay all lawful Registration fees and other regular fees and charges required of first year students in the School of Law of the University of Texas, and conform to all lawful uniformed rules and regulations, established by lawful authority for admission to the first year class of the School of Law of the University of Texas; [fol. 654] that relator's application was arbitrarily and illegally rejected pursuant to a policy custom or usage denying qualified Negro applicants to the equal protection of the laws, solely on the ground of his race and color.[405]

3

That the School of Law of the University of Texas is the only law school in the State, maintained by the State and under its control, and is the only law school in Texas that relator is qualified to attend. Relator desires that he be admitted in the first year class of the School of Law of the University of Texas at the next regular registration period after this cause has been heard and determined, and upon his paying the requisite uniform fees and conforming to the lawful, uniform rules and regulations for admission to such class. 

4

That the respondents, Dudley K. Woodward, Orville Bullington, W. E. Kirkpatrick, W. H. Scherer, W. Scott Schreiner, D. M. Strickland, C.O. Terrell, Edward B. Tucker and David M. Warren, Board of Regents of the University of Texas, is an administrative agency of the State and exercises of students in the University, a corporation organized as a part of the educational system of the State and maintained by appropriations from the public funds of the State of Texas; the respondent, Theophilus Shickel Painter, is the duly appointed and qualified acting President of the said University and as such is subject to the authority of the Board of Regents as an immediate agent governing and controlling the several colleges and [fol. 655] schools of the said University; the respondent, Charles Tilford McCormick, is the Dean of the School of Law of the said University, whose duties comprise the government of the said law school including the admission and acceptance of applicants eligible to enroll as students therein, including your relator; the respondent, Edward Jackson Matthews, is the Registrar and Dean of Admission, whose duty is to pass on the eligibility of applicants who seek to enroll as students therein, including your relator; that admission to the School of Law is under the control of said Registrar and Dean of Admission; all respondents herein are being sued in their official capacity.

5

That the School of Law specializes in law and procedure which regulates the courts of justice and government in Texas and there is no other law school maintained by the public funds of the State where relator can study law and procedures to the same extent and on an equal level of scholarship and intensity as in the School of Law of the University of Texas; the arbitrary and illegal refusal of respondents, Board of Regents, Theophilus Shickel Painter, Charles Tilford McCormick and Edward Jackson Matthews, to admit relator to the first year class of the said law school solely on the ground of race and color, inflicts upon your relator an irreparable injury and will place him at a distinct disadvantage at the bar of Texas and in the public service of the foresaid State with persons who have had the benefit of the unique preparation in Texas law and procedure offered to white qualified applicants in the School of Law of the University of Texas.[407][fol. 656]

6

That certain requirements for admission to the first year class of the School of Law of the University of Texas have been prescribed by the Board of Regents or other administrative officials of the University of Texas; that said requirements prescribed by the aforesaid Board of Regents or other administrative officials of the University of Texas, provides as follows: Applicants for admission must be at least nineteen (19) years of age; must furnish satisfactory evidence of good moral character; said requirements further provide that an applicant holding a bachelors degree from the University of Texas or from any other acceptable institution is entitled to full admission to the School of Law of the University of Texas. Relator is over nineteen (19) years of age, has furnished Registrar' and Dean of Admission proof of his good moral character, and has completed the full four (4) year college course at Wiley College, an accredited college by the Southern Association of Colleges and Secondary Schools of the Southern States and possesses a bachelors degree from aforementioned Wiley College; that said relator has completed twelve (12) semester hours of Graduate work at. the University of Michigan, Ann Arbor, Michigan, and maintained an average of B-plus or more, while attending the University of Michigan; that relator has in all particulars met the qualifications necessary for admittance to the School of Law of the University of Texas, which fact respondents [408] have admitted; relator is ready, willing and able to pay all lawful charges and tuition, requisite to admission to the first year class of the School of Law, and is ready, willing, and able to fulfill all other requisites for admission to the School of Law of the University of Texas.(fol. 657]

7

On the — day of —, 1946, relator applied for admission to the School of Law of the University of Texas and complied with all the rules and regulations entitling him to admission by filing with the proper officials of the University an official transcript of his scholastic record; said transcript was duly examined and inspected by the President, Dean of the School of Law and Registrar and Dean of Admission of the University; respondents aforementioned, and found to be an official transcript as aforesaid entitling him to admission to the School of Law of the University; relator was denied admission to the School of Law solely on the ground of race and color in violation of the Constitution and laws of the United States and of the State of Texas.

8

Respondents have established and are maintaining a policy, custom and usage of denying to qualified Negro applicants the equal protection of the laws by refusing to admit them into the law school of the University of Texas solely because of race and color and have continued the Policy of refusing to admit qualified Negro applicants into the said school while at the same time admitting white applicants with less qualifications than Negro applicants solely on account of race and color.

9

That on the 16th day of March, 1946, the respondent, Theophilus Shickel Painter, refused admission to the Law School of the University of Texas to relator, although that relator was duly qualified for admission to the [fol. 658] School of Law at the University of Texas, save and except for the fact that he is a Negro; that relator was denied admission to the school of law at the University of Texas on the ground that there is a long continued policy of segregating race in educational institutions in the State of Texas; that relator was denied admission to the School of Law of the University of Texas solely because of his race and color.

10

Relator further shows that he has no speedy, adequate remedy at law and that unless a Writ of Mandamus 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.

Wherefore, Relator being otherwise remediless, prays this Honorable Court to issue a Writ of Mandamus requiring and compelling said Respondents to comply with their statutory duty in the premises and admit the relator in the School of Law of the said University of Texas and have such other and further relief as may be just and proper. (S.) W. J. Durham, Attorneys for Relator.

Duly sworn to by Heman Marion Sweatt. 

 

Relator's Second Supplemental Petition—Filed May 8, 1947

[fol. 660] In the 126th District Court of Travis County, Texas

To the Honorable Judge of Said Court:

Comes now, Heman Marion Sweatt, Relator in the above entitled and numbered cause and files this his Second Supplemental Petition and for such second supplemental petition, he alleges as follows:

I

1. Relator specially excepts to the following portion of. allegations in Respondent's First Amended Answer, begin-[409]ning at Line 16 with the word "And" and reading as follows: 

        "And arranged for instructor's classes, library and other facilities"

for the reason that the same does not set out what arrangements were made with said instructors, what classes were arranged for, if any, what library was established, if any, [fol. 661] and what other facilities were acquired and established, if any. The same is vague and indefinite and is the conclusion of the pleader and does not inform the relator what evidence will be required to meet such defense and relator can not prepare a defense to said vague and indefinite allegation and respondent should be required to specifically plead what arrangements had been made for instructors, if any, and what courses had been established, if any, and what other facilities had been provided for, if any.
Wherefore, Relator prays that the respondent be required to specifically set out said alleged arrangement for instructors, the classes alleged to have been provided, the library alleged to have been established and what such other alleged facilities were if any.

2. Relator further specially excepts to the following portion of the respondent's First Amended Answer, beginning with the word "Relator" in line 2 of the second section of Allegation 2, which reads as follows: 

        "Relator had notice of such law school and arrangement."

for reason that respondents do not allege whether such notice was verbal or in writing, by whom such notice was sent, how such notice was sent nor the contents of such notice, and relator can not determine from said pleading what proof will be required to meet said purported allegation of fact, that is pleaded as a defense and relator is unable to prepare to meet said purported allegation of fact because said allegations is indefinite and does not give relator sufficient information to prepare by testimony to meet such alleged defense, and of this special exception [fol. 662] relator prays judgment of the Court.

3. Relator further specially excepts to the following por-[410]tion of respondents' first amended answer, beginning at line 7 with the word "And", section four (4) of Allegation 2 and reads as follows:

 

        "And adequate text and reference library was installed."

 

for the reason that the same is a conclusion of the pleader that the library established, if any, was an adequate library and the respondents do not allege the list of books, if anv, that was installed in said alleged library. That the respondents should be required to plead specifically a list of books and periodicals, if any, installed in said library in order that relator may adequately prepare his defense to said purported allegation of fact pleaded herein as a defense and of this special exception relator prays that the Court sustain the same, and that the respondent be required to set out specifically the list of books alleged to have been installed in said reference library.

4. Relator further specially excepts to the following portion of respondents' first amended answer beginning at Line II with the word "For" in section 4 of allegation Two (2) which reads as follows:

 

"For permanent use, approximately ten thousand carefully selected books were ordered which together with those already in the school are sufficient to satisfy the' standards of the American Bar Association and the American Association of Law Schools."

 

[fol. 663] for the reason that said allegation that said books were sufficient to satisfy the standards of the American" Bar Association and the Association of American Law Schools is a mere conclusion of the pleader and the re- do not set out the list of books claimed to have been carefully selected, it does not say from whom said books were ordered and respondents do not allege standards of the American Bar Association or the standards of the Association of American Law Schools (American relator can not determine what standards respondents claim to have satisfied case and all of said matters are alleged as a defense in this case and relator can not determine what type and character of evidence he will be required to procure to meet said alleged [411]defense, and of this special exception prays that the court sustain, and that the prespondents[sic] be required to specifically plead the list of books claimed to have been selected, the dates said books were ordered and from whom said books were ordered together with the price thereof, and he further prays that the respondent be required to list supplies and specifically the books claimed to have already been in the school, and he specifically prays that respondents be required to set out the standards of the American Bar Association which respondents alleged they have satisfied, and the rules and standards of the Association of American Law Schools (American Association of Law School) which respondents alleged that they have satisfied in order that relator might property[sic] prepare his defense.

II

Comes now, the relator, Heman Marion Sweatt, herein without waiving any of his foregoing special exceptions but [fol. 664] still insisting upon the same, denies each and every allegation contained in respondents' second amended answer and demands strict proof of the same.

III

And specially pleading herein, Relator respectfully shows: On December 17, 1946, judgment was entered denying the writ of Mandamus sought by Relator. Relator excepted to said judgment and perfected an appeal of this cause to the Court of Civil Appeals for the Third Supreme Judicial District of Texas. Thereupon the respondents (as appellees)) filed a motion to remand the cause without decision. The brief filed by respondents (as appellees) prayed that the Court of Civil Appeals "affirm the constitutionality of providing equal opportunities in separate schools, finding that a reasonable time therefor is allowed, and this cause be remanded to the District Court without final decision and without prejudice to either party." On March 26, 1947, the Court of Civil Appeals entered an order as follows: "the motion for substitution of appellees was granted; appellees motion to remand was dismissed; and the trial court's judgment was set aside and the cause remanded generally to the trial court, without prejudice to the rights of either party, by agreement of the parties in open court this date. The costs of appeal are assessed against appellees. On[412] April: 1947 respondents filed their first amended original answer.

1.  The respondents' have not established any law school other than the University of Texas School of Law that satisfies and meets the requirements and standards of the Association of American Law Schools. and relator further specially pleading herein states that the University of Texas [fol. 665] School of Law is the only law school now existing in the State of Texas and operated by public funds which satisfies the requirements, standards and rules of the Association of American Law Schools, and that the University of Texas School of Law has held and now holds membership in the Association of American Law Schools and has held said membership since on or about the year 1907, and that said law schools the only law school in the State of Texas operated by public funds which holds a membership in the Association of American Law Schools. 

2. Administrative officers of the public schools system of Texas including the respondents while purporting to act under the policy, custom and usage of the State of Texas of requiring separation of white and Negro students have denied Relator and other qualified Negro students educational facilities equal to those afforded white students with similar qualifications solely because of race and color. At the time relator made his application for admission to the Law School of the University of Texas and at the time of the filing of this suite there was not a state supported law school except the one to which he applied. The continued refusal of Respondents to admit the Relator of the Law School of the University of Texas is in violation of the Fourteenth Amendment of the Constitution of the United States. In so far as Respondents claim to be acting under authority of the constitution and laws of the Sate of Texas their continued refusal to admit the Relator to the Law School of the University of Texas is none the less in direct violation of the Fourteenth Amendment to the Constitution of the United States. 

3. The State of Texas acting through its administrative [fol.666] agents including Respondents has refused to admit qualified Negro students to the University of Texas or any of the other Colleges and Universities maintained by the State of Texas except Prairie View State Normal and [413]Industrial College, the name of which was changed to Prairie View University in 1945 by S. B. No. 228 which stated: "There is no adequate educational facilities for the education of the Colored population of this State." Prairie View has never offered to Negroes education equal or equivalent to that offered in any of the many universities and colleges maintained by the State of Texas for the exclusive use of all qualified students other than those of the Negro race. The quantity and quality of education offered at Prairie View is not and never has been equal to that offered at any of the other state universities and colleges in Texas in physical plant, facilities, curriculum, faculty, library, accreditation, available funds or any of the other recognized standards of comparison of colleges and secondary schools. The schools authorized by Senate Bill No. 140 Ch. 29, p. 36; Sect. 1947 have not been established.

4. Action of the Respondents in continuing to refuse to admit Relator to the Law School of the University of Texas solely because of his race and color pursuant to the Constitution and laws of Texas requiring segregation of white and Negro students is in direct violation of the Fourteenth Amendment to the United States Constitution. Insofar as the Constitution and laws of Texas relied on by Respondent prohibit Relator from attending Law School of University of Texas because of his race and color such constitutional and statutory provisions of the State of Texas as [fol. 667] applied to Relator are in direct violation of the Fourteenth Amendment to the Constitution of the United States.

Wherefore, Relator prays herein for the same relief as prayed for in his original petition and he prays for such other and further relief in law and in equity to which he may be entitled to:

Thurgood Marshall, J. M. Nabrit and W. J. Durham, Attorneys for Relator, Heman Marion Sweatt, by (S.) W. J. Durham.

This is to certify that I have this day mailed a true and correct copy of this petition to the Honorable Price Daniels,[414]Attorney General of Texas and the Attorney for Respondents, whose address is Austin, Texas. Dated this the 7th day of May, 1947. Thurgood Marshall, J. M. Nabrit and W. J. Durham by (S.) W. J. Durham.

 

RESPONDENTS' First Amended Original Answer—Filed May 1, 1947

[fol. 668] In the126th District Court of Travis county, Texas

. . . 

To the Honorable Judge of Said Court:

Come Now, Theophilus Shickel Painter, Charles Tilford McCormick, Edward Jackson Mathews, Dudley K. Woodward, Jr., E. E. Kirkpatrick, W. Scott Schreiner, C. O. Terrell, Edward B. Tucker, David M. Warren, William E. Dar-den, Mrs. Margaret Batts Tobin, and James W. Rockwell,, Respondents in the above entitled and numbered cause and file this their first amended original answer to Relator's complaint. Heretofore, an answer was filed by the Respondents, an interlocutory order was entered after the first hearing hereof on June 17, 1946, and in a second hearing on December 17, 1946, judgment was entered denying the writ of mandamus sought by Relator. The answer, order and judgment were related to and based upon the provisions of and actions under Senate Bill No. 228, Acts 49th Legislature, 1945, c. 308, p. 506. To said judgment [fol. 669] Relator duly excepted and perfected an appeal of this cause to the Court of Civil Appeals for the Third Supreme Judicial District of Texas. Subsequent to said judgment and during the pendency of said appeal the 50th Legislature, Regular Session, enacted Senate Bill No. 140, Acts 1947, repealing the above cited Senate Bill No. 228, thereby changing the law and facts pertinent to the issues herein. Thereupon the Respondents (as Appellees) moved" the Court of Civil Appeals to remand this cause without decision and without prejudice in order that it might be considered under the newly enacted legislation and the new facts[415]and material resulting therefrom. To this the Relator (as Appellant) agreed and said judgment of December 17, 1946, was set aside and the cause was remanded to this Court without prejudice to either party by mandate dated March 27, 1946. Respondents now, therefore,, with leave of the Court, file this their First Amended Original Answer in lieu of their Original Answer, and would respectfully show to the Court: 

I

Respondents deny each and all of the allegations contained in Relator's Original Petition, and demand strict proof of the same, and of this they put themselves upon the country.

II

For further answer herein, the Respondents would respectfully show to the Court:

1. The Constitution and laws of the State of Texas require equal protection of the law and equal educational opportuni-[fol. 670] ties for all qualified persons but provide for separate educational institutions for White and Negro students. The Respondents therefore deny that their refusal to admit Relator was arbitrarily or illegal or in violation of the Constitutions of the United States and the State of Texas, since equal opportunities were provided for Relator in another State supported law school as hereinafter shown.

2. At the time the Relator made application for admission to the Law School of the University of Texas, and at the time of the institution of this suit, there was in effect a law providing for the establishment of a course in law for the colored youths of Texas by the Board of Directors of the Agricultural and Mechanical College at the Prairie View University at Prairie View, Texas, said law being Senate Bill 228, Acts of the 49th Legislature, 1945. Said Prairie View University was originally established in the year 1876 as an industrial and mechanical college for the colored youths of Texas, and since that date had been enlarged in scope to include other subjects as need therefor arose. Pursuant to the provisions of the cited Senate Bill No. 228, the Board of Directors of the Agricultural and Mechanical College established at Houston, Texas, a law school as a branch of Prairie View University, and arranged for instructors, courses, library, and other facilities so as to offer[416]to negro citizens law courses substantially equivalent to those offered at the University of Texas. Such school was open for registration and instruction on February 1, 1947. Relator had notice of such law school and arrangements but failed and refused to avail himself of the courses in law [fol. 671] then offered, and failed to present himself or communicate in any way with any of the officials for the purpose of being registered and securing the legal training allegedly desired by him.

3. On or about March 3, 1947, the 50th Legislature of Texas enacted Senate Bill No. 140, ch. 29, p. 36, Acts 1947, providing for the establishment of a university of the first class for the negroes of Texas, to be organized in two divisions; the first to be styled "The Texas State University for Negroes," to be located at Houston, Texas, and the second to be styled "The Prairie View Agricultural and Mechanical College of Texas," located at Prairie View, Texas. Section II of said bill authorized and required the Respondents herein to establish immediately a separate school of law for negroes at Austin, Texas, to be known as The School of Law of the Texas State University for Negroes, and therein to provide instruction in law equivalent to the instruction being offered in law at the University of Texas. The Board of Regents of the University of Texas (Respondents herein) were constituted the governing board of such law school until its transfer to the control of the Texas State University for Negroes, and there was appropriated an adequate sum in the amount of $100,000.00 to be expended by the Respondents in the establishment and operation of said law school.

4. Pursuant to said Senate Bill No. 140, Acts 50th Legislature, 1947, and particularly Section II thereof, the Respondents immediately established a separate law school for negroes in Austin, Texas, in a suitable building at 104 East 13th Street, adjoining the grounds of the State Capitol building and between the Capitol and the campus [fol. 672] of the University of Texas. An adequate text and reference library was installed, and the Texas State Library, including the library of the Supreme Court of Texas, located in the State Capitol directly opposite the newly created school was made available for students of said institution. For permanent use, approximately 10,000 carefully selected law books were ordered, which, together with[417]those already in the school, are sufficient to satisfy the standards of the American Bar Association and the American Association of Law Schools. Courses of instruction were set up identical with those offered in the University of Texas School of Law, and the identical professors of the University of Texas were assigned to instruct said courses. The Dean of the University of Texas School of Law and the Registrar were assigned to serve in the same capacities for the new school, so that with the same courses and the same faculty, the School of Law of the Texas State University for Negroes offers education in law equal to that offered by the University of Texas. The requirements for admission, fees, class work, length of semesters, standards of work, and other related features are the same as those of the School of Law of the University of Texas, the same provisions and catalog being adopted for the new school. Notice of all the foregoing was circulated by the Respondents in a bulletin and in the public press. The law school for negroes was opened for registration and instruction on March 10, 1947, when the school and all persons connected therewith were and still are ready, willing and able to give equal instruction and opportunities to students in law and procedures.

5. On or about March 3, 1947, the Relator was personally notified by letter of the establishment of said school, of [fol. 673] its immediate availability to him, of the nature of the school, that he was eligible for admission, and that his application for legal training was accepted by said school, but the Relator, as of the date hereof, has not presented himself nor communicated in any way with any of the persons in charge of said school. Relator did not make reply to the official notice from the Registrar as requested in such notice.

6. By reason of the foregoing there is now available, and there was available to the Relator on March 10, 1947, legal training and courses in law equivalent to those in the School of Law of the University of Texas, and the Relator could have commenced the study of law to the same extent and on an equal level of scholarship and intensity as in the School of Law of the University of Texas, all of which Relator declined to do. The Respondents, therefore, specifically deny the allegation that the School of Law of the University of Texas is the only State law school that the Relator[418]is qualified to attend, and further deny the allegation that there is no other law school maintained by public funds where the Relator can study law and procedures to the same extent and on an equal level as in the School of Law of the University of Texas.

Wherefore, premises considered, Respondents pray that the writ of mandamus sought herein be denied, and that the Respondents go hence with their costs without day. ((S.).) Price Daniel, Attorney General of Texas. (S.) Jackson Littleton, Assistant Attorney General. [fol.674] (S.) Joe Greenhill, Assistant Attorney General.

Copies of the foregoing First Amended Original Answer of the Respondents have been mailed to W. J. Durham, Attorney for the Relator, whose address is P. 0. Box 641, 2419) San Jacinto Street, Dallas, Texas.

 

Respondent's First Supplemental Answer--Filed May 12, 1947

[fol.675] In the 126^th District Court of Travis Country, Texas

 

To The Honorable Judge of Said Court:

Come Now, Theophilus Shickel Painter, Charles Tilford McCormick, Edward Jackson Mathews, Dudley K. Woodward, Jr., E.E. Kirkpatrick, W. Scott Schreiner, C.O. Terrell, Edward B. Tucker, David M. Warren, William E. Darden, Mrs. Margaret Batts Tobin, and James W. Rockwell, Respondents in the above entitled and numbered cause, and file this their first supplemental petition filed herein, and would respectfully show:

I

1. Respondents specifically except to the allegation of Relator contained in Section III, 2 of the Relator's second[419]supplemental petition wherein it is alleged that the Respondents have denied to Relator "and other qualified negro [fol. 676] students" educational facilities equal to those afforded white students with similar qualifications, because this suit was brought by Relator as an individual, and Relator did not assume to act as a representative of other negroes, and said allegation is therefore improperly included, and is prejudicial in a suit involving solely the individual rights of the Relator, and Respondents say that said allegation, if true, (which is not admitted but denied) should have no bearing on the Relator's individual rights.

Wherefore, Respondents pray that the Court sustain this exception, and that the Relator be required to omit or strike the allegation as to other negroes, and the policy of the Respondents toward them.

2. Respondents specifically except to allegation III, 3, of the Relator's Second Supplemental Petition wherein it is alleged as follows: "The quantity and quality of education offered at Prairie View is not and never has been equal to that offered at any of the other state universities and colleges in Texas in physical plant, facilities, curriculum, faculty, library accreditation, available funds or any of the other recognized standards of comparison of colleges and secondary schools." and Respondents say that said allegation is not germane to the issues of this cause, is general, vague and indefinite, and is prejudicial to the Respondents in a determination of the issues drawn by the pleadings, and Respondents say that said allegation, if true, (which is not admitted but denied) should have no bearing in the determination of this suit involving solely the individual rights of the Relator.

Wherefore, Respondents pray that the Court sustain this [fol. 677] exception, and that the Relator be required to omit or strike said allegation from said second supplemental Petition. 

II

Further answering the Second Supplemental Petition of the Relator, the Respondents herein would respectfully show:

1. Respondents specifically deny the allegation contained in Paragraph III, 2, of the Relator's Second Supplemental Petition wherein it is alleged that it has been the policy,[420]custom and usage of the Respondents to require separation of the white and negro students, and have denied to Relator and other qualified negro students educational facilities equal to those offered to white students, and Respondents say that the Respondents denial of admission to the Law School of the University of Texas to Relator does not constitute a policy or custom, and further say that the Relator's application for admission to the University of Texas Law School is the first such application ever to have been made, and that the Respondents have not denied to "other qualified negro students" admission to the Law School of the University of Texas, since no such negro students have applied for admission thereto.

2. Respondents specifically deny those allegations contained in Paragraph III, 2 and 4, of Relator's Second Supplemental Petition, wherein it is alleged that the Respondents denial to the Relator admission to the Law School of the University of Texas, violated the 14th Amendment of the Constitution of the United States, and Respondents show that such amendment does not require that educational facilities be provided for white and negro students in the same school; that when a demand by a negro student [fol. 678] for a particular course or facility is made for the first time, the State has the constitutional right to provide within a reasonable time separate courses or facilities, and Respondents further show, as previously alleged, that separate courses and facilities have been provided for Relator, and that such provision does not constitute any violation of the 14th Amendment of the Constitution of the United States.

Wherefore, Respondents pray that the writ of mandamus sought herein be denied, and that Respondents go hence with their costs without day.

(S.) Price Daniel, Attorney General of Texas; Jackson Littleton, Assistant Attorney General; Joe R.Greenhill, Assistant Attorney General, Attorneys for Respondents.

. . .

[421][fol. 679]Relator's third supplemental petition—Filed May 12, 1947

In the 126TH District Court of Travis County, Texas

To the Honorable Judge of Said Court:

Come, now, Heman Marion Sweatt, Relator herein and with leave of the court first obtained files this his third supplemental petition and for such supplemental petition herein alleges;

I

Relator specially excepts to the following portions of allegation 2 section 2 of respondent's first supplemental answer which reads as follows: "that separate courses and facilities have been provided for relator," for the reason that said allegation or said statement in said allegation read and considered in connection with all other alleged matters of fact set out therein does not inform relator as to the courses alleged to have been provided and it does not inform the relator what facilities were provided if any and it does not inform this relator when and where said courses and facilities are alleged to have been provided and this relator cannot determine from said allegation and from any other portion of said supplemental answer [fol. 680] what said alleged courses were, and what said alleged facilities were, where said alleged facilities and courses were provided and when said alleged courses and facilities were provided and this relator is unable to deter-mine from said allegation what evidence will be required to meet said vague and indefinite allegation and of this special exception relator prays that respondents be required to plead specifically the alleged courses provided and the alleged facilities provided and the time and place where said alleged facilities and courses were provided if any. 

II

Comes now, the relator, Heman Marion Sweatt, herein, without waiving any of his foregoing special exceptions but still insisting upon the same and denies each and every [422] allegation contained in respondents first supplemental amended original answer and demands proof of same.

 

And specially pleading herein, Relator respectfully shows: that the respondents have pleaded the statutes and laws of Texas; and have alleged that these statutes and laws require separation of white and negro students; and respondents have further alleged that these statutes and laws require educational facilities for negroes equal to those provided for whites. In so far as respondents rely on these statutes and laws as a basis for a denial of relator's application for admission to the University of Texas School of Law, these statutes and laws and this action of respondents are the policy, custom and usage of respondents.

 

And further specially pleading herein relator respectfully shows that, he was compelled to go out of the State of Texas, to-wit, in 1937, to the University of Michigan [fol. 681] for the purpose of doing graduate study in Medical Bacteriology and Immunology, and Preventative Medicine which are offered to white students at the University of Texas but which were not offered at Prairie View University, the only school of higher learning for negroes in Texas, supported by public funds.

 

And relator further alleges that Prairie View University did not in 1937 offer equal educational facilities to him which were available to whites at that time at the University of Texas and other state supported schools in Texas, nor, does it now offer equal educational facilities to him which are now available to whites at the University of Texas and other state supported schools for whites in Texas.

 

Wherefore, relator prays for the same relief contained in his prayer in his original petition and he prays for such other relief special and general in law and in equity to which he may be entitled.

W. J. Durham, Attorney for Relator, Heman Marion Sweatt. 

 

Suggestion—Want of Parties—Filed June 17, 1946

[fol. 682] In the 126TH District Court, Travis County, Texas

Come now the respondents in the above styled and numbered cause, and make known to the court that this court [423] can not proceed to trial and final judgment in this case for the want of an indispensable party—that is to say, the State of Texas as a respondent in this case, in that the suit while nominally against the respondents herein is in substance and legal effect a suit against the State of Texas for this: That the Board of Regents of the University of Texas constitutes and is a governmental agency of the State of Texas, the property of every character and description, and every incidental right therein, while legally vested in the Board or Regents, nevertheless is in law the property of the State of Texas, and any relief whatever that might possibly be granted to relator herein against the respondents now before the court would in reality in essence and in law be against the State of Texas, with respect to a governmental function by it, and as such can not be lawfully rendered by this court in the absence of the State of Texas, not now a party, and no permission to relator to institute and maintain this suit against the State has been given in any manner whatsoever. [fol. 683] In this connection the respondents would show that the matter here suggested is not a defense that could in any event be waived by these respondents, or by the Attorney General representing them, and no intention of these respondents, nor of the Attorney General representing them, has been evidenced, nor could be evidenced by failure to plead the matter of want of parties here set forth in the formal pleadings, it being sufficient that such matter be called to the court's attention.

 

Respondents respectfully submit that this cause should, therefore, be dismissed and stricken from the docket of this court, in support of which they call the court's attention to the following authorities: 

League v. DeYoung, 2 Tex. 497; 

San Antonio Independent School District v. StateBoard of Education, 108 S.W. (2) 445; 

McKamey v. Aiken, 118 S.W. (2) 482; 

Railroad Commission v. Dyer, 144 S.W. (2) 375; 

Texas Prison Board v. Cabeen, 159 S.W. (2) 523; 

Bryan v. Texas State Board of Education, 163 S.W.(2) 837;

Walsh v. University of Texas, 169 S.W. (2) 993; 

Sherman v. Cage, 279 S.W. 508;

[424]State Banking Board v. Winters State Bank, 13 S.W. (2) 391;

Parr v. Dunlap, 26 S.W. (2) 1082; 

State Highway Com.. v. Tengg, 57 S.W. (2) 929; 

Mosheim v. Rollins, 79 S.W. (2) 672; 

Watson v. Dodge (Ark.) 63 S.W. (2) 393; 

California Securities Co. v. State (Cal.) 295 Pac. 583; [fol. 684] 

Ramsey v. Hamilton (Ga.) 182 S.E. 392; 

Wetzv. Potter (Okla.) 28 P. (2) 562; State v. John's (Wash.) 15 P. (2) 693; 

Sullivan v. Board of Regents (Wis.) 244 N. W. 242. Am. Jur., Vol. 45 ss. 92-94.

Respectfully submitted. Grover Sellers, Attorney General of Texas, by (S.) Carlos Ashley, First Assistant Attorney General, by (S.) W. V. Geppert by (S.) Jackson Littleton, Assistant Attorneys General, Attorneys for Respondents.

. . .

Judgment of the Court--Filed June 26, 1946

[fol. 685] In the 126th District Court of Travis County, Texas

On this the 17th day of June, 1946, came on for hearing the petition of the relator, Heman Marion Sweatt, for Writ of Mandamus against the Respondents, Theophilus Shickel Painter, et al, and all parties appeared in person and by and through their attorney of record and announced ready for said hearing, and all matters of fact as well as of law were submitted to the Court sitting without a jury, and the Court, having heard the pleadings, evidence and argument of counsel, finds as a fact that the relator is a citizen of Texas and of the United States and is sabove nineteen (19) years of age, and is scholastically qualified to enter the first year law class in the Law School of the University of Texas; that the respondents are administrative agents of theState of Texas; that the respondents are the duly appointed and legal administrative officers of the State of Texas and have [fol. 686] authority to admit qualified applicants to the [425] Law School of the University of Texas; that relator made his application for admission to the Law School of the University of Texas on the 26th day of February, 1946, and that at the time, he made his application he was scholastically qualified for admission to the first year law class of the University of Texas; that on the 15th day of March, 1946, relator's application was denied solely on account of his race and color.

    (1) That under the Constitution and laws of the United States of America and of the State of Texas, the relator, being colored, is entitled to educational advantages and privileges equal to those offered to the white people of the State of Texas.

    (2) That the Constitution and laws of the State of Texas provide for the segregation of the white and colored races in educational institutions maintained by the State of Texas; and that such laws are valid and subsisting and must be sustained by this Court unless they clearly and unmistakably deny to the relator his rights under the Constitutions of the United States and of the State of Texas.

    (3) The Court further finds that the State of Texas, through its administrative agents and the Legislature of Texas, have provided for courses in law and facilities for teaching the same at the University of Texas for persons of the white or Caucasian race, and that no provision has been made for the courses of law and the facilities for teaching the same substantially equivalent to those offered at the University of Texas for persons of African descent and of Negro blood; that an act of the 49th Legislature, being [fol. 687] Senate Bill 228, Chapter 308, page 506, places a mandatory duty upon the officers or agency named therein to provide university courses in law for the relator substantially equivalent to those provided at the University of Texas; and that the constitutional rights of the relator will be amply preserved if such a course in law is established within the State of Texas and made available to relator within a reasonable time from the date hereof.

 

The Court further finds that the denial of relator's application by respondents was a denial to the relator's equal protection of laws for the reason that no provision has been made for courses in law and facilities for teaching the same[426]for persons of African descent and of Negro blood at any school within the State of Texas supported by public funds while the courses of law and the facilities for teaching the same have been afforded to persons of the white or Caucasian race.

 

It is therefore ordered that no writ of mandamus issue at this time and that if within six months from the date hereof a course for legal instruction substantially equivalent to that offered at the University of Texas is established and made available to the relator within the State of Texas in an educational institution supported by said State, the writ of mandamus sought herein will be denied, but if such a course of legal instruction is not so established and made available, the writ of mandamus will issue; and it is further ordered that this court retains jurisdiction of this cause; and that this cause be continued upon the docket of this court from term to term; and that at the expiration of said six months period, to wit, on the 17th day of December, 1946, at 10 o'clock a.m. a hearing will be held to determine the then existing facts and whether said Law School has [fol. 688] or has not been established; whereupon the Court will enter its final order herein.

This order made and entered on this the 26th day of June, 1946.

(S.) Roy C. Archer, Judge, 126th Judicial District Court of Travis County, Texas..

 

[fol. 689]Motion Showing Availability of Law School and Requesting Denial of Writ of Mandamus—Filed December 17, 1946 

In the 126TH District Court of Travis County, Texas

To the Honorable Judge of Said Court:

Come now Theophilus Shickel Painter, Charles Tilford McCormick, Edward Jackson Mathews, Dudley K. Woodward, Jr., Orville Bullington, E. E. Kirkpatrick, W. H. Scherer, W. Scott Schreiner, D. M. Strickland, C. O Terrell, Edward B. Tucker, and David M. Warren, Respondents in the above entitled and numbered cause, acting herein by[427]and through Grover Sellers, the duly elected and qualified Attorney General of the State of Texas, and without waiving any pleas or exceptions heretofore filed but still insisting on same, respectfully show to the Court as follows:

I

That heretofore on the 17th day of June, 1946, this cause came on to be heard by this Honorable Court, and the Court [fol. 690] after hearing the evidence and the argument of counsel was of the opinion that if within a period of six months from the date of said hearing the law courses or legal training alleged to be desired by the Relator were made available to the Relator in an institution supported by the State of Texas, the writ of mandamus sought herein should be denied; that it was so ordered and decreed by the Court, and this cause was continued upon the docket of the Court from term to term, and a hearing on this 17th day of December, A. D., 1946, was set.

II

That it was found by the Court that Senate Bill 228, ch. 308, p. 506, Acts of the 49th Legislature, 1945, placed a mandatory duty upon an agency of the State of Texas to provide a law course substantially equivalent to that offered at the University of Texas; and that said act places such duty upon the Board of Directors of the Agricultural and Mechanical College of Texas directing that these courses will be provided by said Board at the Prairie View University. 

III

That in compliance with the Court's order and decree, aforesaid, and in compliance with said Senate Bill 228, above cited, the Board of Directors of the Agricultural and Mechanical College of Texas have made available to the Relator, and other applicants for first year courses in law, the legal training alleged to be desired and have provided therefor by a resolution adopted at a meeting properly called and held on the 27th day of November, 1946, a copy [fol. 691] of which resolution is attached hereto as Exhibit "A" and by reference made a part hereof for all purposes.

IV

That the Board of Directors of the Agricultural and Mechanical College, acting within its legal authority so to [428] do, has included in the foregoing resolution the requirement that the Relator or other applicants for legal training offer themselves to the Registrar at the Prairie View University and present a suitable transcript and a certificate from the Dean of the Law School of the University of Texas that they are scholastically prepared for a course of law equivalent to that given at the University of Texas; and Respondents show that Relator by acting in good faith in the premises and presenting said transcript and certificate may now obtain at a State supported institution the legal training alleged to be desired by him beginning with the next regular term of the Prairie View University in February, 1947. 

V

That there is a presumption in law that the said Board of Directors having adopted the resolution above mentioned will properly provide for the legal training of the Relator; and further that in the original hearing of this cause, it was stipulated that ample funds were available to provide for said legal training and law courses.

VI

That Relator's action herein was primarily based upon there being no other law course or legal training available to [fol. 692] the Relator at the time this suit was instituted and that by reason of the foregoing action by the Board of Directors of the Agricultural and Mechanical College, the basis of Relator's action has ceased to exist and that Relator can now by acting in good faith as aforesaid obtain the legal training alleged to be desired at the next term of the said State supported institution, Prairie View University; and Respondents further show that this Court by issuing a writ of mandamus could not cause the legal training to be offered to Relator at an earlier date than February, 1947, without arbitrarily disregarding the school terms maintained at State supported institutions.

VII

That by reason of 'the resolution aforesaid and Senate Bill 228 above cited, the legal duty to provide law courses or legal training alleged by Relator to be desired and resting with the Board of Directors of the Agricultural and[429]Mechanical College has been met; and that said legal duty does not rest with these Respondents.

Wherefore, premises considered, Respondents pray judgment of this Honorable Court that the writ of mandamus requiring them to admit Relator to the Law School of the University of Texas, as sought by the Relator herein, be denied, and that the Respondents go hence with their costs without day.

(S.) Grover Sellers, Attorney General of Texas; Jackson Littleton, Assistant Attorney General.

 

[fols. 693-699] Omitted.  [Resolution: Establishment of Law Course for Negro Students.  Minute Order No. 124-46: Higher Education for Negros in Texas. See bound volume at pages 429-43.]

 

[fol. 700] Judgment of the court—Filed December 17, 1946

In district court of Travis County

On this the 17th day of December, 1946, came on for hearing the Motion of the respondents in the above entitled and numbered cause pursuant to an order of this Court made and entered of record herein on the 26th day of June, 1946. All parties appeared in person or by their attorneys of record and announced ready for said hearing, and all matters of fact and law were submitted to the Court sitting without a jury, and the Court having heard the pleadings, evidence, and argument of counsel is of the opinion that the said order of June 26, 1946, has been complied with in that a law school or legal training substantially equivalent to that offered at the University of Texas has now been made available to the Relator and that the Relator may now obtain legal training within the State of Texas at the Prairie View University, an institution supported by said State, by presenting to the proper authorities a suitable transcript and a certificate from the Dean of the Law School of the University of Texas that he is scholastically prepared for legal training equivalent to that given at the University of Texas. And, further, the Court is of the opinion that provision for legal training for the Relator at said [fol. 701] Prairie View University does not constitute any abridgment or denial of his constitutional rights.

 

It is therefore ordered, adjudged and decreed that the Writ of Mandamus sought herein be in all things denied and that the costs hereof be assessed against the Relator.

To which action of the Court the relator in open Court excepted and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of the State of Texas, sitting at Austin, Texas.

And to the action of the Court in overruling the exceptions of the respondents, the respondents except and in open Court give notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, sitting at Austin, Texas.

This order made and entered on this the 17th day of December, A. D. 1946.

Roy C. Archer, Judge, 126th District Court of Travis County, Texas. [434]

 

[fol. 702] Mandate of the Court of Civil Appeals—Filed March 28, 1947

In district court of Travis County

In the court of civil appeals for the third supreme judicial district, at Austin

On Wednesday, March 26, 1947. 

Motion #10,363 Cause #9619

Heman Marion Sweatt Vs. Theophilus Shickel painter, ET AL

Appeal from District Court of Travis County 

Motion for Substitution of Appellees

This day came on to be heard the motion of the appellees to strike the names of Orville Bullington, W. H. Scherer and D. M. Strickland as appellees in this cause and to substitute therefor William E. Darden, Mrs. Margaret Batts Tobin and James W. Rockwell. It appearing that the aforesaid Orville Bullington, W. H. Scherer and D. M. Strickland have ceased to be regents of the University of Texas and in their stead the aforesaid William B. Darden, Mrs. Margaret Batts Tobin and James W. Rockwell have been appointed and qualified as such regents, It is therefore ordered that said motion be substituted and that said substitution be and same is hereby made.

 

[fol. 703]Appeal from District Court of Travis County

9619-Heman Marion Sweatt vs. Theophilus Shickel Painter, et al.

No opinion Rendered.

This cause came on to be heard on the transcript of the record and the parties, both appellant and appellee appeared by the respective attorneys of record and in open court agreed that the judgment of the trial court in this [435] cause may be set aside and the cause remanded generally to the trial court for further proceedings without prejudice to the rights of any party to this cause: It is therefore considered, adjudged and ordered that the trial court's judgment in this cause be and the same is hereby set aside and the cause is remanded generally to the trial court for further proceedings without prejudice to the rights of any party to this suit. It is further Ordered that all costs of appeal in this cause be and the same are hereby taxed against the appellees herein in their respective official capacities, and that a copy of this Judgment be certified below for observance.

Clerk's Certificate to foregoing paper omitted in printing.

 

[fol. 704] [File endorsement ommitted.]

 

[fol. 705]Respondent's Motion to Withdraw Stipulations—Filed May 12,1947

In the 126TH District Court of Travis County, Texas

To the Honorable Judge of Said Court:

Comes now Theophilus Shickel Painter, et al, Respondents in the above styled and numbered cause, before any of the parties hereto have announced ready for trial, on this the second and new trial of such cause, and would show the Court the following:

    1. That on or about June 17, 1946, the date of the first trial of this cause, and for the purposes of facilitating the Procedure thereof and saving the Court's time, a stipulation of facts was entered into and executed by all parties hereto. Such stipulation began "it is admitted by Relator and Respondent that the following facts are true and admitted in evidence upon the trial of this cause" (emphasis added.) That the stipulations were entered into for the purposes of that trial, with the facts as they were understood to be as of that time.

    2. That subsequent to that trial, the facts and conditions have materially changed, so that the former stipulations [fol. 706] do not now reflect the true facts.

    3. Specifically, the matter contained in the follow- numbered paragraphs is no longer accurate:

Sections 6, 10, II, 12, 13, 17, 20, 21, 22

Among other material changes causing the above sections to be erroneous are those brought about by the last enactment of S.B. 140, 50th Leg., 1947. This Act repealed S.B. 228, Acts 49th Leg. (1945), which was effective when the above stipulations were executed. Further, the personnel of the Board of Regents of the University of Texas has changed, rendering stipulations as to the identity thereof erroneous.

All of these inaccuracies are material and are detrimental and prejudicial to the rights of Respondents.

    4. Further, paragraphs 7 and 15, though entered into in good faith by all parties, have subsequent-y been found to contain statements which are incorrect and inaccurate.

    The inaccuracies of section 7 and 15 are material, and are detrimental and prejudicial to the rights of the State.

    5. The remainder of the stipulations formerly entered into, left standing above, and without the new facts which have subsequently come into being, leave such an erroneous and incomplete recital of the facts, as to render such stipulation useless and falacious.

    6. In the interest of shortening the record of this cause, and to conserve the Court's time, Respondents stand ready and willing to enter into and execute new stipulations. Respondents have been willing and desirous of entering into new stipulations since the reversal of this cause by the [fol.707] Court of Civil Appeals. Relator's counsel has been appraised of such willingness. By letter, such counsel has indicated a willingness to stipulate anew; and on March 26, 1947, reiterated such willingness to stipulate as soon as amended pleadings were filed. However, no stipulations have been offered by Relator, and none have executed. Respondents have prepared a set of stipulations which they now offer to Relator in good faith.[437]

Wherefore, it is respectfully prayed that the former stipulations of June 17, 1946, be in all things withdrawn; that they be not admitted in evidence; and that they form no part of the record in this cause.

.(S.) Price Daniel, Attorney General of Texas.

 

[fol. 708] Order Extending March term of court—June 14, 1947

In district court of Travis county

On this the 14th day of June, A. D. 1947, it appearing to the Court that he is in the midst of the trial of the above numbered and entitled cause and that the date for adjournment of the March Term, A. D. 1947, of the 126th Judicial District of Texas at Austin, Texas, has arrived and that there is insufficient time left during said term of said Court in which to complete the said pending trial of said cause, the Court deems it necessary and advisable that an extension of said term of said Court be granted in order that the Court may be able to complete the said pending trial of said cause;

It is therefore Ordered by the Court that this March Term, A. D. 1947, of the 126th Judicial District of Texas at Austin, Texas, be, and the same is, hereby extended solely for the purpose of terminating the trial of the above numbered and entitled cause until and including the 1st day of July, A. D. 1947, at which time, if found necessary, a further extension of said term of said Court for this cause may be had. 

Entered this the 14th day of June, A. D. 1947.

Roy C. Archer, Judge, 126th Judicial District Court, Travis County, Texas.

 

[438] [fol. 709] Judgment—Filed June 17, 1947

In district court of Travis County

74,945 Heman Marion Sweatt vs. Theophilus Shickel Painter, Et Al

On the 12th day of May, 1947, came on for hearing the petition of the Relator, Heman Marion Sweatt, for Writ of Mandamus against the following officials of the University of Texas: Theophilus Shickel Painter, President; Charles Tilford McCormick, Dean of the School of Law; Edward Jackson Mathews, Registrar; and Dudley K. Woodward, Jr., E. E. Kirkpatrick, W. Scott Schreiner, C. 0. Terrell, Edward B. Tucker, David M. Warren, William E. Darden, Mrs. Margaret Batts Tobin, and James W. Rockwell, Regents; who are the Respondents; and all parties appeared in person and by their attorneys of record and announced ready for said hearing, and all matters of fact as well as of law were submitted to the Court, without a jury, after the Court heard and passed upon the special exceptions of the parties as hereinafter set out.

 

And the Court, having heard the pleadings, evidence, and argument of counsel, finds as follows:

That this petition came on for hearing originally on the 17th day of June, 1946, and on the 26th day of June, 1946, an interlocutory order was entered finding that Relator, a [fol. 710] negro citizen seeking entrance to the School of Law of the University of Texas, was duly qualified, and under the Constitutions of the United States and the State of Texas, he was entitled to educational advantages and opportunities equal to those furnished by the State to white citizens; that the Constitution and laws of Texas provide for separate schools for the white and negro races, and that such laws were valid and did not abridge or deny Relator's constitutional rights so long as equal facilities were furnished Relator in a separate school; that a valid law, Senate Bill 228, Chapter 308, page 506, Acts of the 49th Legislature, 1945, placed a mandatory duty upon Prairie View University to establish a law school for negroes substantially equal to that of the University of Texas, and that establishment of such courses in law within a reasonable time would preserve the rights of Relator; and it was[439]thereupon ordered by this Court on June 26, 1946, that if within six months a course of legal instruction substantially equal to that offered at the University of Texas was established and made available to Relator in a State educational institution, the Writ of Mandamus would be denied; but if such a course was not so established and made available, the Writ of Mandamus would issue. Whereupon this Court retained jurisdiction and continued the cause until December 17,1946.

 

Pursuant to the interlocutory order of June 26, 1946, the further hearing was held on December 17, 1946, and this Court, after having heard the pleadings, the evidence and the argument of counsel, was of the opinion that said order had been complied with, and that legal training substantially equivalent to that offered at the University of Texas had been made available to the Relator by establishment of the Prairie View University Law School in Houston, [fol. 711] Texas. Thereupon, the Writ of Mandamus sought herein was denied, and judgment was accordingly entered, from which judgment the Relator perfected his appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, in Austin, Texas.

During the pendency of said appeal, the 50th Legislature of the State of Texas convened in Regular Session and enacted Senate Bill 140, Acts 1947, Chapter 29, page 36, creating a new first class University, The Texas State University for Negroes, and appropriated the sum of $3,000,-000.00 therefor. In Section II of said Act it was provided that Respondents herein would immediately provide for a new and separate school of law at Austin, Texas, to be known as the School of Law of the Texas State University for Negroes, and appropriated the sum of $100,000.00 for the establishment and maintenance thereof. By reason of this change in the law, and upon a showing by the Respondents that said new School of Law had been established, the parties hereto agreed before the Court of Civil Appeals, March 26, 1947, that this cause should be remanded for further proceedings, and the Court of Civil Appeals accordingly issued its mandate remanding the cause generally to this Court for further proceedings, without prejudice to either party.

And accordingly, upon this rehearing, having heard the Pleadings, evidence and arguments, this Court is of the[440]opinion and finds from the evidence that during the appeal of this cause and before the present hearing, the Respondents herein, pursuant to the provisions of Senate Bill 140, Acts of the 50th Legislature, 1947, have established the School of Law of the Texas State University for Negroes [fol. 712] in Austin, Texas, with substantially equal facilities and with the same entrance, classroom study, and graduation requirements, and the same courses and the same instructors as the School of Law of The University of Texas; that such new law school offered to Relator privileges, advantages, and opportunities for the study of law . substantially equivalent to those offered by the State to white students at the University of Texas; that Relator, although duly notified that he was eligible and would be admitted to said law school March 10, 1947, declined to register; that from his own testimony, Relator would not register in a separate law school no matter how equal it might be and not even if the separate school affords him identical advantages and opportunities for the study of law equal to those furnished by the State to the white students of the Law School of the University of Texas; and the constitutional right of the State to provide equal educational opportunities in separate schools being well established and long recognized by the highest State and Federal Courts, and the facts in this case showing that Relator would be afforded equal if not better opportunities for the study of law in such separate school, the petition for Writ of Mandamus should be denied. 

It is, therefore, Ordered, Adjudged and Decreed:

    1. That the exceptions of the Relator to the First Amended Original Answer of the Respondents, as well as the exceptions of the Relator contained in his Third Supplemental Petition be, and the same are hereby overruled, to which order the Relator in open court duly excepted and gave notice of appeal to the Court of Civil Appeals for the Third" Supreme Judicial District of Texas, at Austin, Texas.

    [fol. 713] 2. That the exceptions of the Respondents to the allegations of the Relator contained in Section III, 3, of Relator's Second Supplemental Petition relating the quantity and quality of education offered at universities and colleges maintained by the State of Texas generally, be stricken from said pleading as being immaterial and irrelevant to the issues of whether a suitable law school [441] maintained by the State is available to the Relator, and that the evidence introduced by the Relator herein over objection of Respondents, concerning the facilities provided by other State universities and colleges (specifically that of the witness, Dr. Charles H. Thompson), be stricken from the record as beyond the scope of the pleadings and the issues, and immaterial and irrelevant thereto, to which the Relator in open court duly excepted, and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, at Austin, Texas.

It is further Ordered that other exceptions presented by the Respondents herein to the Second and Third Supplemental Petition of the Relator be, and the same are hereby overruled.

    3. That the Writ of Mandamus sought herein by the Relator be, and the same is hereby in all things denied, and that the costs hereof be assessed against the Relator, to which judgment the Relator in open court duly excepted, and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, at Austin, Texas.

Entered of record on this the 17th day of June, 1947. Roy G. Archer, Judge 126th Judicial District, Travis County, Texas.

[fol. 714] Approved as to form, Thurgood Marshall and W. J. Durham, Attys. for Relator. Approved as to form, Price Daniel, Attorney General of Texas, By Joe R. Greenhill, Executive Assistant.

[fols. 715-717]  [Bond on appeal for $1,000.00 approved and filed June 17, 1947, omitted in printing.]

[fol. 718] Order of the Court Concerning Fact Stipulations—Filed June 17,1947

In district court of Travis county

On this the 17 day of June, 1947, came on to be heard the Notion of T. S. Painter, et al, to strike the stipulations from[442]the record. And it appearing to the Court that counsel for relator and respondents are agreed that such stipulations should form no part of the record on this appeal, such stipulations not having been offered in evidence by either party on this trial, and it appearing to the Court that such stipulations should not form a part of the record on this appeal,

It is therefore Ordered, Adjudged, and Decreed that such stipulations form no part of the record in this case, transcript of this appeal. Roy C. Archer, Presiding Judge.

 

[fol. 719] Order Closing March Term of Court—Filed July 1, 1947

In District Court of Travis County

 

On this the 1st day of July, 1947, it appearing to the Court that heretofore, to wit on the 14th day of June, 1947, this Court was in the midst of the trial of the above numbered and entitled cause, and that the time for the expiration of the March Term, 

A. D. 1947, of the 126th Judicial District Court of Travis County, Texas, had arrived and that the Court deemed it advisable and necessary, in order to complete the said pending trial of said cause, that said term of said Court should be extended, made and entered its order granting an extension of said term of said Court for the said purpose only;

And it now appearing to the Court that a final judgment has been entered in said cause; that all motions, if any, to perfect an appeal, if desired, have been duly filed, acted upon and appropriate orders entered thereon;

The Minutes entered in said cause, having been examined in open Court, and the same being found correct, are hereby approved. And this Court will now stand finally adjourned.

[fol. 720] Witness my hand at Austin, Texas, this the 1st day of July, 1947. C. Archer, Judge, 126th Judicial District Courts Travis County, Texas.

[fols. 721-725] Omitted.  [Relator's Motion Re Original Exhibits, filed July 8, 1947.  Order Directing Clerk to Send Original Exhibits to Court of Civil Appeals, filed July 8, 1947. Order Amending Judgement, July 8, 1947.]

[fol. 726] [Bill of Costs omitted in printing.]

[445][fol. 727] [Clerk's Certificate to foregoing transcript omitted in printing.]

[fol. 728]Opinion, Court of Civil Appeals, February 25, 1948

In the Court of Civil Appeals for the Third Supreme Judicial District of Texas.

No. 9684  Heman Marion Sweatt, Appellant, vs. Theophilus Shickel Painter et al., Appellees

Appeal from 126th District Court, Travis County

Opinion--Filed February 25, 1948

    February 26, 1946, Heman Marion Sweatt, a Negro, applied for admission to the School of Law of the University of Texas, as a first year student. Admittedly, he possessed every essential qualification for admission, except that of race, upon which ground alone his application was denied, under Sec. 7 of art. 7 of the Texas Constitution, Vernon's Ann. St., which reads:

"Separate schools shall be provided for the white and colored children, and impartial provision shall be made for both." 

May 16, 1946, he filed this suit, as Relator, for a writ of mandamus, against the President, members of the Board of Regents, Dean of the School of Law, and Registrar of the University of Texas, as Respondents, to compel his admission, upon the ground that its denial constituted an infringement of rights guaranteed to him under the equal protection clause of the Fourteenth Amendment to the Federal Constitution. In a trial to the court the sought relief was denied and Relator has appealed. 

 

At the outset it should be borne in mind that the validity of state laws which require segregation of races in state supported schools, as being, on the ground of segregation alone, a denial of due process, is not now an open question. The ultimate repository of authority to construe the Federal Constitution is the Federal Supreme Court. We cite [446] chronologically, in a note below, the unbroken line of deci-[fol. 729]sions of that tribunal recognizing or upholding the validity of such segregation as against such attack.¹ 

The gist of these decisions is embodied in the following excerpts from the opinion in Plessy v. Ferguson (Mr. Justice Brown ² writing): 

"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 un-[447]satisfactory 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 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, theaters, and railway carriages has been frequently drawn by the courts." 

 

[fol. 730] This holding had the express approval of Mr. Justice Harlan in the Cumming case, of Mr. Justice Taft in the Gong Lum case, and of Mr. Chief Justice Hughes in the Canada case. Its approval is implicit in the latest enunciation of that court on the subject (January 12, 1948) in the Sipuel case. 

Relator's brief asserts: 

"The record in the instant case for the first time presents testimony and documentary evidence dearly establishing that: 

"(1) There is no rational basis for racial classification for school purposes. 

"(2) Public schools, 'separate but equal' in theory are in fact and in practical administration consistently unequal and discriminatory. 

"(3) It is impossible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial minority group to separate schools." [448]

And further: 

"The doctrine of racially'separate but equal' public facilities is merely a constitutional hypothesis which has no application where racial segregation is shown to be inconsistent with equality." 

******* 

"Although separate school laws have been enforced by several states, an examination of the cases in the United States Supreme Court and lower courts will demonstrate that these statutes have never been seriously challenged nor their validity examined and tested upon a record adequately presenting the critical and decisive issues such as presented by the record in this case: 

"(1) Whether there is a rational basis for racial classification for school purposes. 

"(2) Whether public schools, ‘separate but equal’ in theory are in fact and practical administration consistently unequal and discriminatory. 

"(3) Whether it is possible to have the equality required by the Fourteenth Amendment in a public school system which relegates citizens of a disadvantaged racial inority group to separate schools." 

Implicit in these quotations is the assertion that race segregation in public schools, at least in the higher and pro-[fol. 731]fessional fields, inherently is discriminatory within the meaning of the Fourteenth Amendment, and cannot be made otherwise. 

This assertion in effect impeaches the soundness of the various decisions of the contrary, as being predicated upon a purely abstract and theoretical hypothesis, wholly unrelated to reality. To so hold would convict the great jurists who rendered those decisions of being so far removed from the actualities involved in the race problems of our American life as to render them incapable of evaluating the known facts of contemporaneous and precedent history as they relate to those problems. 

It is of course of the very essence of the validity of segregation laws that they provide for each segregated group [449] or class facilities and opportunities the equivalent, or (as often stated) substantial equivalent of those provided for the other group or class. Our constitution (quoted above) so provides. The brief asserts that there can be no "substantial equality, " the two words being in themselves incompatible.  This of course true in pure, as distinguished from applied, mathematics. "Equality like all abstract nouns must be defined and construed according to the context or setting in which it is employed. Pure mathematics deals with abstract relations, predicated upon units of value which it defines or assumes as equal. Its equations are therefore exact. But in this sense there are no equations in nature; at least not demonstrably so. Equations in nature are manifestly only approximations (working hypotheses) ; their accuracy depending upon a proper evaluation of their units or standards of value as applied to the subject matter involved and the objectives in view. It is in this sense that the decisions upholding the power of segregation in public schools as not violative of the Fourteenth Amendment, employ the expressions "equal" and "substantially equal" and as synonymous. The framers of the Texas constitution of 1876 recognized the necessity [fol. 732] (both inherent and under the 14^th Amendment) of "equal protection" in the (shall) requirement (art.7, Sec.7) of "impartial provision" for "both" races. The question, and we think the controlling one, which this appeal presents is whether under the record showing in this case the state at the time of the trial had provided and made available to Relator a course of instruction in law as a first year student, the equivalent or substantial equivalent in its advantages to him of that which the State was then providing in the University of Texas Law School. We are not dealing here with abstractions but with realities. 

 

In the latter portion of Relator’s brief the following proposition is asserted: 

"The expert testimony introduced at the trial establishes that there is no rational justification for segregation in professional education and that substantial discrimination is a necessary consequence of any separation of professional students on the basis of color." 

The supporting evidence deals generally with the subject of race segregation in professional and other schools from [450]  biological and other viewpoints, giving conclusions of scientists, educators and other experts in the several fields, and data compiled and conclusions reached in reports of surveys, etc. In so far as this evidence is directed against the policy of segregation the subject dealt with is outside the judicial function. The people of Texas, through their constitutional and legislative enactments, have determined that policy, the factual bases of which are not subjects of judicial review. See Watts v. Mann, Tex.Civ.App., 187 S. W. 2d 917, error refused; II Am. Jur.,§§ 142-144, pp. 82, et seq. The only appropriate judicial inquiry here is whether the facilities furnished and made available by the State to Relator as an applicant for a first year law course meet the test of due process under the Fourteenth Amendment. 

Nor are we concerned here with whether the State has discharged its obligations under that amendment in other segregated fields or branches of education. 

 

[fol. 733] For these reasons we hold that the trial court correctly excluded: (1) Relator's pleadings as to what happened at Prairie View in 1937 (Relator's first point) ; (2) evidence of Dr. Thompson regarding facilities at other state institutions and colleges (Relator's second point); and (3) evidence of Donald Murray regarding what happened at the University of Maryland in 1929-32 (Relator's third point). 

The record shows that this cause was called for trial June 17, 1946, and after a hearing the court passed an interlocutory order, which, after reciting the (below) 1945 Act, provided that, if by December 17, 1946, "a course for legal instruction substantially equivalent to that offered at the University of Texas is established and made available to the relator within the State of Texas in an educational institution supported by the State, the writ of mandamus sought herein will be denied, but if such a course of legal instruction is not so established and made available, the writ of mandamus will issue." The cause was ordered held on the docket until December 17, 1946, on which date final judgment was entered denying the writ, upon a showing by Respondents that the A & M (Texas Agricultural and Mechanical College) Board had provided for a first year law school at Houston to open with the February 1947 semester, as a branch of Prairie View University. This judgment was set aside by this court March 26, 1947, and [451] the cause remanded generally, without prejudice to the rights of either party, upon agreement of counsel in open court. Thereafter (May 17-June 17, 1947) the cause was again tried, the judgment denying the writ, upon the specific finding by the court that in compliance with the Act of 1947 (noted below) the Respondents:

" * * * have established the School of Law of the Texas State University for Negroes in Austin, Texas, with substantially equal facilities and with the same entrance, classroom study, and graduation requirements, and with [fol. 734] the same courses and the same instructors as the School of Law of The University of Texas; that such new law school offered to Relator privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas; that Relator, although duly notified that he was eligible and would be admitted to said law school March 10, 1947, declined to register; that from his own testimony, Relator would not register in a separate law school no matter how equal it might be and not even if the separate school affords him identical advantages and opportunities for the study of law equal to those furnished by the State to the white students of the Law School of the University of Texas; and the constitutional right of the State to provide equal educational opportunities in separate schools being well established and long recognized by the highest State and Federal Courts, and the facts in this case showing that Relator would be afforded equal if not better opportunities for the study of law in such separate school, the petition for Writ of Mandamus should be denied." 

The sufficiency of the evidence to support these findings and conclusions to the extent that the stated facilities provided by the State meet the requirements of due process, constitutes the controlling question in the case; upon which issue the record shows: Relator's application was the first ever made by a Negro for admission to the University of Texas Law School. It also appears to have been the first application of any Negro for admission to any other department or school of the University of Texas. The Prairie View Normal and Industrial School for Negroes was estab- [452] lished in the 1870's, and was operated under the governing [447] board of the A&M. Neither Prairie nor any other state supported school for Negroes offered any courses in law. The name of Prairie View was changed by the Act of June 1, 1945, to Prairie View University; and it was provided: 

"Whenever there is any demand for same, The Board of Directors of the Agricultural and Mechanical College, in addition to the courses of study now authorized for said institution, is authorized to provide for the establishment of courses in law, medicine, engineering, pharmacy, journalism, or any other generally recognized college course taught at the University of Texas, in said Prairie View University, which courses shall be substantially equivalent to those offered at the University of Texas." (Acts 49^th Leg., Ch.308, p. 506). 

The act of 1947, (S.B. 140, ch. 29, Acts 50^th Leg) was passed and became effective March 3, 1947. It provided (inter alia) for the establishment of "The Texas State [fol. 735] University for Negroes" to be located at Houston, with a governing board of nine "to consist of both white and negro citizens of this state," and appropriated $2,000,000 for land, buildings and equipment, and $500,000 per annum for maintenance for the biennium ending August 31, 1949. And that: 

"The Texas State University for Negroes shall offer all other courses of higher learning, including, but without limitation, (other than as to those professional courses designated for the Prairie View Agricultural and Mechanical College), arts and sciences, literature, law, medicine, pharmacy, dentistry, journalism, education, and other professional courses, all of which shall be equivalent to those offered at The University of Texas. Upon demand being made by any qualified applicant for any present or future course of instruction offered at The University of Texas, or its branches, such course shall be established in order that the separate universities for Negroes shall at all times offer equal educational opportunities and training as that available to other persons of this state."   [453]

And further: 

"Sec 11. In the interim between the effective date of this Act and the organization, establishment and operation of the Texas State University for Negroes at Houston, upon demand heretofore or hereafter made by any qualified applicant for instruction in law at the University of Texas, the Board of Regents of the University of Texas is authorized and required to forthwith organize and establish a separate school of law at Austin for negroes to be known as the ‘School of Law of the Texas State University for Negroes’ and therein provide instruction in law equivalent to the same instruction being offered in law at the University of Texas. The Board of Regents of the University of Texas shall act as the governing board of such separate law school until such time as it is transferred to the control of the Board of Directors of the Texas State University for Negroes." 

For this latter purpose $100,000 was appropriated. 

Pursuant to this Act the school for first year Negro law students was established at Austin. Relator was notified amply in advance of its opening on march 10, 1947, but did not and has not attended. A resume of the evidence showing the facilities, opportunities and advantages afforded by this school and a comparison thereof with those afforded by the University of Texas School of Law is set forth in an appendix to this opinion, 210 S.W.2d 448, copied in the main from Respond-[fol. 736]ents’ brief, and approved and adopted by us as a fair statement of the evidence in this respect. 

The evidence shows, on the part of the State of Texas, an enormous outlay both in funds and in carefully and conscientiously planned and executed endeavor, in a sincere and earnest bona fide effort to afford every reasonable and adequate facility and opportunity guaranteed to Relator under the fourteenth Amendment, within the State’s settled policy (constitutional and statutory) of race segregation in its public schools. We hold that the State has effectually accomplished that objective. 

The trial court’s judgment is affirmed. 

Affirmed 

James W. McClendon, Chief Justice

 

[454] [fol. 737] Appendix. 

Breaking the elements of the School of Law into component parts, the following evidence was deduced. 

    Entrance, Examination, Graduation, and Similar Requirements. 

The requirements for admission and fees, and regulations relating to classification of students, class work, examinations, grades and credits, standards of work required, and degrees rewarded are exactly the same as those published in the latest published catalogue of The University of Texas and used at such institution. 

The Faculty 

The instructors at the School of Law of the Texas State University for Negroes were and are the very same professors which had taught or were teaching the same courses at The University of Texas Law School. They were the same instructors Sweatt would have had if he had been enrolled in The University of Texas. The instructions from the Board of Regents were to use all of the faculty of the University Law School, so far as necessary, in order to maintain a full curriculum at the Negro Law School until four more full-time professors could be employed for the Negro Law School. The budget provided for four professors at $6,000 per year—the same pay base for professors at The University of Texas. Each of the instructors devotes all of his time to teaching—each a full-time professor. None are engaged in the private law practice. With the small enrollment at the Negro Law School, the instructors would be more available to the students for consultation then they would be to students at The University of Texas with its large class of 150 to 175 students. The Dean and Registrar of the two law schools were respectively the same persons. 

 

Curriculum

The curriculum at the Negro Law School and at The University was exactly the same; it was the same as that adopted in the latest University of Texas School of Law Bulletin. The courses offered begin-[454]ning students at the Negro Law School were identical with those offered beginning students at the University: Contracts, Torts and Legal Bibliography. These courses, with the same professors, are set out in Respondent’s Exhibit 7. 

 

Classroom 

The classroom requirements were identical. With much smaller classes, the Negro Law School would provide the student with the opportunity to personally participate in classroom recitations and discussions. In an average law class at The University of Texas Law School, an average student would be called upon to recite only an average of 1 1/2 times a semester. In a smaller class the students would receive better experience and education; they would be called on more frequently, would be more "on their toes". The students would come to class better prepared because their chances of being called upon are much greater; there would be a greater pressure to keep up their daily work. Dean McCormick testified that "in the Negro Law [fol. 738] School he (Sweatt) would have gotten a good deal more personal attention from the faculty than he would have had he been in the large entering class in The University of Texas." 

 

Library 

At the time of trial, there were on hand in the School of Law of the Texas State University for Negroes books customarily used by the first-year class of the University, and other books which Miss Helen Hargrave, Librarian of the University Law School, thought would be useful. There were about 200 of these books. There were also available for transfer to the Negro Law School between 500 and 600 books from the University, plus gifts of between 900 and 950 books. In addition, the entire library of the Supreme Court of Texas was specifically made available to the Negro Law School by Section II of H.B. 240, Acts 50^th Legislature [Vernon’s Ann.Civ.St.art. 2643b note]. The Supreme Court Library is located in the State Capitol Building on the second floor. The Capitol grounds are some 20 feet from the Negro Law School, and the entrance is only about 300 feet from that School. 

The Supreme Court Library contains approximately 42,000 volumes, which number is far in excess of the 7,500-book minimum requirement of the American Bar Association. Excluding duplicates, The University of [456] Texas Law Library contains 30,000 to 35,000 books. Counting duplicates, it contains around 65,000. These books serve 850 law students of The University of Texas. 

In some respects the Supreme Court Library is stronger than that of the University. Being a Governmental Depository, the Supreme Court Library automatically receives many reports, such as those of administrative bodies. It is the strongest library in the South on State Session Laws. It contains Attorney General’s Opinions, Tax Board Opinions, Workmen’s Compensation Reports, and other items not carried by the University. The Supreme Court Library is more spacious for a student body of ten students than are the facilities at The University of Texas Law School Library, which are exceedingly crowded. There is no more confusion, and in most instances, less confusion in the Supreme Court Library than at the Law Library at the University because of the large number of persons using the latter. 

On the other hand, the Supreme Court Library does not have as many textbooks, legal periodicals, or English reports as the University Law Library. The Court's Library contains the Harvard, Columbia, Yale, and Texas Law Reviews, and the American Bar Association Journal. It has the English Reports up to 1932. The Law Library of The University of Texas and that of the Supreme Court are substantially equal except for the texts, legal periodicals, and English Reports. 

However, all of such texts, legal periodicals, and English Reports, not available in the Supreme Court Library, are readily available to the negro Law School on a loan basis from the Law Library of The University of Texas. 

In addition to the books in the Negro Law School and in the Supreme Court Library, and those available on a loan basis from the Law Library of The University of Texas, a complete law library is being procured, consisting of some [fol. 739] 10,000 law books, some of which are already available. The rest have been placed for order through the Board of Control for the School of Law of the Texas State University for Negroes. The list of the 10,008 books which will constitute the Negro Law School Library is set out in Respondent’s Exhibit No. 8. Of such number 1,281 are immediately available, and 8,727 books requisitioned. Bids had already been requested on the 8,727 books requisitioned, and 23 bids were received. Orders have already been placed for 5,702 of the books, all deliverable within ten to sixty days. Wherever new books were available, they were ordered; second-hand books were only ordered where new ones were not available. The library requisitioned included 20 Law Reviews, Indices of legal periodicals, Citators, Digests, Restatements, textbooks, statutes, the complete west Publishing Company Reporter System, etc. The undisputed evidence is that the books ordered for the Negro Law School are sufficient to meet the requirements of the American Association of law Schools. 

 

The Physical Facilities 

Whereas The University of Texas Law School has 3 classrooms for 850 students, the School of Law of the Texas State University of Negroes has two classrooms, plus a reading room, toilet facilities, and an entrance hall, for a much smaller student body. The two law schools possess approximately the same facilities for light and ventilation, ("There are ample windows and lights.") though most law schools, including The University of Texas, need artificial light in the daytime. The Negro Law School, assuming a class of 10 students, has a greater floor space per student. 

    The location of the Negro Law School is particularly good. It is directly north of the State Capitol, separated only by a 20-foot street. It is within 100 yards of the Supreme Court of Texas, the Court of Civil appeals, the Attorney General’s Office, and the Legislature. It is between the business district of Austin and The University of Texas—8 blocks south of the University, and hence 8 blocks nearer the business district. 

The building housing the Negro Law School is a three-story building of brick construction. The first floor was occupied by the school at the time of trial, but the upper two stories of the building were available as needed. Before March 10, 1947, the premises were cleaned up and painted. The building has ample space to house the 10,000 volume library and leave sufficient space for classrooms and reading room. 

Hon. D. A. Simmons, President of the Texas Bar association 1937-38; President of the American Judicature Society 1940-42 [458]; and President of the American Bar Association 1944-45, testified: 

"In my opinion, the facilities, the course of study, with the same professors, would afford an opportunity for a legal education equal or substantially equal to that given the students at The University of Texas Law School. 

 

Hon. D.K. Woodward, Jr., Chairman of the Board of Regents of The University of Texas, testified: 

[fol. 740] "What we set up there was a plant fully adequate to give the very best legal instruction for the only man of the Negro race who had ever applied for instruction in law at the University in about 63 years of the life of the school." 

********

"I am talking as a man familiar with what it takes to provide a thorough training on law in the State of Texas, and I stated the facts within my own personal knowledge, that the facilities which the Board of Regents of the University set up in accordance with Senate Bill 140 are such as to provide the Relator in this case the opportunity for the study of law unsurpassed any time elsewhere in the State of Texas, and fully equal to the opportunity and instruction we are offering at the University any day."

Hon. Charles T. McCormick, Dean of the University of Texas Law School and President of the Association of American Law Schools, 1942, testified that the facilities at the Law School for Negro citizens furnished to Negro citizens an equal opportunity for study in law and procedure; that considering the respective use by the respective number of students, the physical facilities offered by the Negro Law School were substantially equal to those offered at The University of Texas Law School; and that: "I would say * * * the Negro student has at least equal and probably superior facilities for the study of law."

With reference to the membership requirements of the Association of American Law Schools, it was shown that the [459] Negro Law School, at the time of this trial, met 'the great majority of the 9 requirements:

(1) It is a school not operated as a commercial enterprise, and the compensation of any officer or member of its teaching staff is not dependent on the number of students or the fees received,

(2) It satisfies the entrance requirements, i.e., pre-legal training, etc.

(3) The school is a "full-time law school" The school work is arranged so that substantially the full working time of the student is required at the school.

(4) The conferring of its. degrees is conditioned upon the attainment of a grade of scholarship attained by examinations.

(5) No special students are admitted. In this, the School's requirement is stronger than that of the Association, which permits such students under certain considerations,

(6) The 10,000 volume library ordered for the School is sufficient to meet the library requirements. The selection of the books is such as to conform with the Association's requirements. In addition, the Supreme Court Library of [fol. 741] 40,000 volumes is available plus loan privileges from the Law Library of the University of Texas.

(7) The seventh requirement is that the "faculty shall consist of at least four full-time instructors who devote substantially all of their time to the work of the school." The professors in this ease are full-time professors in the sense that all of their time is devoted to teaching. However, all of their teaching is not done at the Negro school; they will also be teaching at the University.

(8) Provision has been made for keeping a complete and readily accessible individual record of each student.

(9) The requirement reads, "It shall be a school which possesses reasonably adequate facilities and which is conducted in accordance with those standards and practices generally recognized by member schools as essential to the maintenance of a sound educational policy," Dean Mc-[460] Cormick testified that in his opinion the Negro Law School met this requirement,

The testimony was that a two-year period is generally required before any law school may be admitted to membership in the Association of American Law Schools. Dean McCormick testified that he knew of no reason why the Negro Law School could not comply with all of those standards within that two-year period—before any entering student could graduate from the school.

 

In Court of Civil Appeals for the Third Suprme Judicial District of Texas

[fol. 742] Opinion on Appellant's Motion for Rehearing, Filed March 17, 1948

No. 9684,  Motion No. 10,502 

Heman Marion Sweatt vs. Theophilus Schikel Painter

Point VII in the motion complains that this court "erred in ignoring testimony introduced by appellant and merely adopting appellees' interpretation of the evidence by attaching to its opinion, an appendix copied in the main from appellees' brief, and based its opinion and judgment on said appellees ' brief, without making an independent evaluation of the record as to the comparative values of the two law schools as a basis for its opinion and judgment."

 

Implicit in the statement in our opinion that the resume of evidence set forth in the appendix was "approved and adopted by us as a: fair statement of the evidence" in the stated respect, was the assertion (which we now make explicit) that we have made an independent evaluation of the record as to the comparative values of the two law schools as a basis for its (our) opinion and judgment" and that from this "independent evaluation" we reached the conclusion and so held that the statement in the appendix contained a fair resume of the pertinent evidence, which we approved and adopted as our own. [461] It should always be held in mind that the members of this court are not the triers of fact. That is the function of the trial court This court is one of review only. Where there is no evidence of sufficient probative value to support a judgment, we have the power to set it aside and render the judgment which the trial court should have rendered. We also have the power (when our jurisdiction in that regard is properly invoked) to set aside a judgment and order a [fol. 743] new trial on the facts, where the evidence so greatly preponderates against the judgment as, in our opinion, to require that it be set aside in the interest of justice. Our jurisdiction in this latter reward was not invoked this case. See Wisdom v. Smith, SW 2d , 17 Sup. Ct Reporter, 239; Hall Music Co. v. Robertson, 117 Texas 261, 1 SW 2d 857; Phillips v. Anderson, 93 SW 2d 171. However, we have carefully considered the evidence from that viewpoint as well as from that of its sufficiency as a matter of law; and were our jurisdiction in that regard properly invoked we would be constrained to hold that its preponderance and overwhelming weight support the trial court's judgment and the specific fact findings therein which are quoted in our original opinion; if in fact it does not conclusively do so, as a matter of law.

The motion in overruled. James W. McClendon, Chief Justice.

[fol. 744] [File endorsement omitted]

 

In the Court of Civil Appeals for the Third Supreme Judicial District of Texas

Appellant's motion for rehearing—Filed March 11, 1948

This case was tried without a jury and no assignments of error were required; and appellant presents his Motion for Rehearing upon the points presented in this Court on the original hearing, together with the other errors of the Court of Civil Appeals in affirming the judgment of the trial Court. [462]

Now comes Heman Marion Sweatt, appellant in the above entitled cause, and respectfully moves the Court to set aside the judgment of this Court rendered on the 25th day of February, 1948 affirming the judgment of the lower court and to grant a rehearing herein. [fol. 745]

I

The Court of Civil Appeals erred in overruling and not sustaining appellant's First Point, reading:

The error of the Court in sustaining appellees' special exception to Allegation 3 of appellant's second supplemental petition (Paragraph 3, Relator's Second Supplemental Petition, TR page —).

II

The Court of Civil Appeals erred in overruling and not sustaining appellant's Second Point, reading:

The error of the Court in excluding the testimony of the witness, Dr. Charles H. Thompson, with reference to the quantity and quality of education offered at the universities and colleges other than Prairie View College, maintained by the State of Texas. (S. F, beginning with the testimony on page 380 and ending on page 469, inclusive).

III

The Court of Civil Appeals erred in overruling and not sustaining appellant's Third Point, reading:

The error of the trial court in excluding the evidence of the appellant as to the admission of Donald Murray to the Law School of the University of Maryland and the results thereof in a situation analogous to the instant case as shown in appellant's bill of exception as fully set out. (S.F. beginning on page 478 to page 482, inclusive).

IV

The Court of Civil Appeals erred in overruling and not sustaining appellant's Fourth Point, reading:

The Court erred in holding that the proposal of the State to establish a racially segregated law school afforded the equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United [463] States, and thus justifies the denial of appellant's petition for admission to the Law School of the University of Texas. [fol. 746]

V

The Court of Civil Appeals erred in affirming the trial court's judgment in holding that Article 7, Section 7 of the Constitution of the State of Texas was not unconstitutional in that the enforcement thereof against appellant denied to the appellant, that equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States' and thus held that the appellees had the legal authority under such Article to deny appellant admission to the Law School of the University of Texas.

VI

The Court of Civil Appeals erred in failing to hold that Article 7, Section 7 of the Texas Constitution, and the laws of Texas enacted pursuant thereto, were based upon no real distinction or actual difference; and therefore, violated the appellant's right under the equal protection clause of the Fourteenth Amendment of the Constitution of the United States.

VII

    The Court of Civil Appeals erred in ignoring testimony introduced by appellant and merely adopting appellees' interpretation of the evidence by attaching to its opinion, an appendix copied in the main from appellees' brief, and based its opinion and judgment on said appellees' brief, without making an independent evaluation of the record as to the comparative values of the two law schools as a basis for its opinion and judgment,

VIII

he Court of Civil Appeals erred in holding that the question of whether segregation in state-supported schools is a denial of due process is no longer an open question; because, in doing so, the Court thereby erred in not considering appellant's contention that the action of appellees denied appellant the equal protection of the laws guaranteed by the [fol. 747] Fourteenth Amendment to the Constitution of the United States.

[464]IX

The Court of Civil Appeals erred in holding that the appellant was not entitled to the relief sought, and that the judgment of the court below should be affirmed; and citing as a basis for said judgment and opinion, the opinions of the Supreme Court in the cases of Pleasy vs., Ferguson and Hall vs. DeCuir as the grounds for said judgment and opinion, for the reason that said decisions were predicated upon a purely abstract and theoretical hypothesis, wholly unrelated to the realities' and for the further reason that the record in this case demonstrates for the first time in any case presented for decision, the inevitable inequalities in a segregated school system.

Appellant respectfully prays that this motion be granted; and that upon final hearing, the judgment heretofore rendered be set aside and the judgment of the trial court be reversed and rendered, with instructions to the appellees to admit the appellant to the Law School of the University of Texas.

ppellant represents that the Honorable Price Daniels, Attorney General of the State of Texas, whose residence is Austin, Texas, is attorney for appellees.

W. J. Durham, Thurgood Marshall, Attorneys for Appellant.

Thurgood Marshall, 20 W. 40th Street, New York City 18; W. J. Durham, 814½ N. Good Street, Dallas 1, Texas.

I do hereby certify that I, W. J. Durham, one of the attorneys for the appellant, have on this the 10th day of March, 1948, mailed to the Honorable Price Daniels, Attorney for Appellees, whose address is Office of The Attorney General, Austin, Texas, a copy of this Motion for Behearing.

W. J. Durham.

 

[465][fol. 748] Opinion by Chief Justice McClendon, Court of Civil Appeals for the Third Supreme Judicial District of Texas

No. 9684  Heman Marion Sweatt vs. Theophilus Shickel Painter et al.

Appeal from 126th District Court of Travis County 

Opinion by Chief Justice McClendon:

Judgment—February 25, 1948

This Cause came on to be heard on the transcript of the record and same being inspected, because it is the opinion of the court that there is no error in the judgment, It [sic] Is [sic] therefore considered, adjudged and ordered that the judgment of the trial court be, and same is hereby in all things affirmed; that the appellant, Heman Marion Sweatt as Principal and E. B. Ward and G. B. Jones as sureties on the cost bond filed herein, pay all costs in this behalf expended, and that this decision be certified below for observance.

 

In court of civil appeals for the third supreme judicial district of Texas

Order Overruling Appellant's Motion for Rehearing—March 17, 1948

Appeal from 126 District Court of Travis County, Appellant's Motion for Rehearing. Motion is Submitted and Overruled

(Opinion by chief justice McClendon.)

 

[466][fol. 749]Judgement Refusing Application for Writ of Error—September 29, 1948

In Supreme Court of Texas

No. A-1695

Heman Marion Sweatt vs. Theophilus Shickel Painter et al.

From Travis County, Third District

This day came on to be heard the application of petitioner for a writ of error to the court of Civil Appeals for the Third District, and the same having been duly considered, it is ordered that the application be refused; that applicant, Heman Marion Sweatt, and his sureties, E.E. Ward and C.E. Jones, pay all costs incurred on this application.

 

Motion for Rehearing on the Petition for Writ of Error on Behalf of Heman Marion Sweatt, petitioner, in Cause #9684 in the Court of Civil Appeals for the Third Supreme Judicial District of Texas, Wherein Theophilus Shickel Painter, Et Al, Are Respondents- Filed October 13, 1948.

In the Supreme Court of Texas

 

To the Supreme Court of Texas

Petition for writ of error herein filed by Petitioner on April 17, 1948, having been denied by this Court on September 29, 1948, [467] 

Now comes Heman Marion Sweatt, Petitioner in the above entitled cause and respectfully moves this court to set aside the judgment of this court herein rendered on the 29^th day of September 1948 , refusing the petition for writ of error and to grant a rehearing for the following reasons:

I

The Court erred in refusing to grand said petition and in failing to hold that the validity under the Federal Constitution and the fourteenth Amendment and of statutes requiring segregation in Education where the claim is made that the segregated facilities are unequal presents a novel and important question which should be passed upon by the highest Court of the State.

The trial of this cause and the exception to the exclusion of evidence by the trail court present a factual picture in [fol.751] support of the contention of the petitioner herein that that the segregated educational facilities offered by the State of Texas are unequal. the question has never before been raised in this court in connection with the facilities offered by the State of Texas for graduate education in the field of law. The determination of the issues in this case will have a serious consequence for the petitioner and for all persons similarly situated. In the light of the novel and serious nature of the issues raised, this court should grant to the petitioner an opportunity to present argument and to have a full hearing upon the merits of his contention that the statutes as applied to him are unconstitutional and also that the refusal of the trial court to admit evidence o vital and relevant issued deny to petitioner due process of law.

II

The Court erred in refusing said petition for writ of error for the reason that the petitioner was denied a fair hearing and due process of law by the refusal of the trial court, affirmed by the Court of Civil Appeals to admit testimony and evidence with reference to the difference in education at white and colored colleges and universities maintained by the State of Texas.

In support of his allegation that the segregation statutes of Texas were invalid under the Fourteenth Amendment of the United States Constitution, the petitioner sought to [468] show that in every instance the State of Texas was providing fewer educational opportunities and an educational opportunity of poorer quality to Negro citizens than were offered to white citizens. Evidence in support of this contention was necessary for a fair determination of the issue involved. The refusal of the trial court to admit testimony of Dr. Charles H. Thompson with reference to the quantity [fol. 752] and quality of education offered at the universities and colleges other than Prairie View College maintained by the State of Texas denied to the petitioner the due process of law in that it prevented him from presenting competent and relevant evidence on an issue fundamental to the determination of petitioner's rights.

Ill

The Court erred in not holding that the petitioner was denied a fair hearing and due process of law by the refusal of the Trial Court, affirmed by the Court of Civil Appeals, to admit testimony as to the results of unsegregated education in other states.

The validity of laws requiring segregation was said to be established by the state on the ground that it was necessary for the maintenance of peaceful and harmonious relations between the Negro and the white race. in Texas. The statute was alleged to have been enacted under the police power of the state and to be justified as a necessary measure.

The refusal of the trial court, affirmed by the Court of Civil Appeals, to admit testimony as to the admission of a Negro student, Donald Murray, to the Law School of the University of Maryland, after a law suit challenging the constitutionality of the segregation statutes of Maryland, and the court's refusal to hear any testimony as to the harmonious and peaceful race relations resulting from the admission of Negro students to the law school of the University of Maryland, denied to petitioner an opportunity to present relevant testimony in support of his contention that the constitutionality of the segregation statutes of Texas could not be supported by resort to the police power of the State. The exclusion of this evidence of a material fact necessary for the determination of the constitutionality of a statute restricting the individual liberty within the state denied to petitioner the due process of law.

In support of his allegation that the segregation statutes of Texas were invalid under the Fourteenth Amendment of the United States Constitution, the petitioner sought to show that in every instance the State of Texas was providing fewer educational opportunities and an educational opportunity of poorer quality to Negro citizens than were offered to white citizens. Evidence in support of this contention was necessary for a fair determination of the issue involved. The refusal of the trial court to admit testimony of Dr. Charles H. Thompson with reference to the quantity [fol. 752] and quality of education offered at the universities and colleges other than Prairie View College maintained by the State of Texas denied to the petitioner the due process of law in that it prevented him from presenting competent and relevant evidence on an issue fundamental to the determination of petitioner's rights.

[469] [fol. 753] IV

The Court erred in its refusal to hear argument and determine on the merits the grave question of individual liberty of Federal Constitutional rights denies to petitioner the due process of law.

The question presented by the petition for writ of error and the issues raised by the petitioner's contention that the statutes requiring segregation in education are an infringement upon his personal liberty and a denial of property and a denial of the equal protection of the laws all in violation of the Fourteenth Amendment of the Constitution of the United States are of vital importance to petitioner's future education and to the future education of all persons similarly situated. In presenting the evidence and testimony in support of his allegations of unconstitutionality, petitioner was hampered by the refusal of the lower court to admit relevant testimony and was thus denied a fair hearing within the meaning of the guarantee of due process of law and the Fourteenth Amendment.

Further the decision of the Court of Civil Appeals summarily rejecting petitioner's contention that the statute was unconstitutional upon the theory that the constitutionality of the segregation statute could be established without regard to the quality of the facilities provided thereunder likewise constituted a denial of due process of law.

Unless this Court grant petitioner's hearing upon the merits in order to determine whether these grave constitutional issues can be decided without determining the equality of the facilities afforded to the segregated group under the statutes, petitioner will have been denied a hearing on relevant material matters necessary for the determination of his rights. Failure of the state judicial machinery to provide such a hearing for petitioner on such a vital issue constitutes a denial of due process of law.

[fol. 754] V

This Court erred in holding that the proposal of the State of Texas to establish a racially-segregated law school afforded the equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States; and thus, justified the denial of petitioner's application for admission to the Law School of the University of Texas.

 

[470]VI

This Court erred in refusing petitioner's writ of application, thereby affirming the judgment of the Court of Civil Appeals and the Trial Court and holding that Article VII, Section 7, of the Constitution of Texas was not unconstitutional, in that the enforcement thereof against petitioner denied to the petitioner that equality required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States; and thus, held that Respondents had the legal authority, under such Article of the Constitution, to deny petitioner admission to the Law School of the University of Texas.

VII

This Court erred in refusing such petition for writ of error and approving the judgment of the Trial Court and the Court of Civil Appeals that Article VII, Section 7 of the Texas Constitution and the Statutes of Texas enacted pursuant thereto segregating races solely on account of race and color, and not based upon any real distinction or actual difference, did not violate the petitioner's right under the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

Wherefore, petitioner respectfully prays that this motion be granted; that upon hearing, the judgment heretofore rendered be set aside, and that this cause be reversed and rendered, and for such other orders as the law requires.

Petitioner represents that the Honorable Price Daniel, Attorney General of the State of Texas, whose residence is [fol. 755] Austin, Texas, is attorney for Respondent. 

Thurgood Marshall, 20 W. 40th Street, New York, N. Y.; W. J. Durham, P. 0. Box 641, Dallas I, Texas, Attorneys for Petitioner.

I do hereby certify that I, W. J. Durham, one of the attorneys for Petitioner, have on this the 12th day of October, 1948, mailed to the Honorable Price Daniel, attorney for Respondents, whose address is Office of the Attorney General of Texas, Austin, Texas, a copy of this motion for rehearing. W. J. Durham, Attorney for Petitioner. [471]

 

[fol. 756] Order Overruling Motion for Rehearing—October 27, 1948

In Supreme Court of Texas

The motion for rehearing filed herein by the petitioner having heretofore been submitted to the Court, and after due consideration of same, it is ordered that the said motion be, and is hereby, overruled.

.

[fol. 757] Agreement to send original exhibits up to the Supreme Court of the United States in original form—Filed Nov. 24,1948

In the Court of Civil Appeals for the Third Judicial District of Texas

It is agreed between counsel for appellant and counsel for appellees that all the original exhibits introduced upon the trial of this case in the Trial Court by both plaintiff and defendant shall be sent to the Supreme Court of the United States in original form with the transcript and statement of facts which are now on file in the original form in the Court of Civil Appeals for the Third Supreme Judicial District Court of Texas, said exhibits having been sent to the Court of Civil Appeals in original form by order of the Trial Court. That said exhibits are to be returned to the Court of Civil Appeals for the Third Judicial District of Texas after a final disposition has been made of this case by the Supreme Court of the United States.

Dated this the 22nd day of November, 1948. [472]

Price Daniel, Attorney General of Texas, by Joe R. Executive Assistant Attorney General; Attorneys for Appellees: Theophilus Shickel Painter, Charles Tilford McCormick, Edward Jackson Mathews; Board of Regents: Dudley K. Woodward, Jr., E. E. Kirkpatrick, W. Scott Schreiner, C. 0. Terrell, Edward B. Tucker, David M. Warren, William E. Darden, Mrs. Margaret Batts Tobin and James W. Rockwell. Thurgood [fol.757-A] Marshall, W. J. Durham; Attorneys for Appellant Heman Marion Sweatt, P. 0. Box 641, Dallas, Texas.

 

end of file 

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