BEAL v. HOLCOMBE

JOSEPH C. HUTCHESON, Jr., Chief Judge.

Claiming deprivation of their civil rights in violation of Sec. 1343(3), Title 28 U.S. C.A., plaintiffs, five negroes, citizens of Texas and resident taxpayers of Houston, brought this suit under Title 28, Secs. 1331 and 2201, for a declaratory judgment as to, and an injunction for the protection of, these rights.

As specifically put in the amended petition, on which the case went to trial, their claim was that, desiring and intending, if allowed so to do, to play golf on one of the municipal golf courses maintained by the City of Houston, they purchased tickets and otherwise complied with the requirements for playing golf at the course to which they had applied, but that they were denied permission to play and prevented from playing solely because of the fact that they were of African descent and members of the negro race.

The prayer of the petition was: (1) that the court declare that the policy, custom, practice and usage of the defendants in allowing white citizens of the city to use and enjoy the golf courses and denying their use to negro citizens, is a denial of the equal protection of laws, and unconstitutional and void; (2) that the court issue a permanent injunction restraining the defendants from maintaining that policy; and (3) that Art. 1015b of the Civil Statutes of the State of Texas, and Section 1434 of the Civil and Criminal ordinances of the City of Houston be declared unconstitutional as applied to plaintiffs in connection with the use of the golf courses described in this petition and decreed to be unenforced as against these plaintiffs in their right to use said golf course.

While the answer set out fully what the City of Houston had done with reference to furnishing parks on a segregated basis for its white and colored citizens, the defense, in its essence, was that the golf course at which the plaintiffs had presented themselves for play was a facility and a part of a park set apart, under the segregation policy of the city, adopted by authority of Art. 1015b, Vernon's Civil Statutes of Texas,1 for use solely by white persons and that since the city had also set apart parks for the sole use of colored citizens, which, though there were no golf courses provided in them, were substantially equal in their facilities to those furnished in the parks set apart for whites, plaintiffs had suffered no deprivation of rights and were not entitled to a declaratory judgment and the injunction prayed for.

The prayer of the answer was: (1) that the declaration and injunction be denied; and (2) that, in the event the court ordered otherwise, the order permit defendants to provide, by rule and regulation, for the segregated, but substantially equal, use of public golf courses by negro and white citizens.

In addition to filing the above answer, defendants filed a motion for the convening of a three judge court, under Title 28 U.S. C.A., Chapt. 155, Secs. 2281 and 2284. This motion denied, the case was submitted to the court without a jury on a stipulation of facts, the substance of which, as material here, is set out below,2 and on the testimony of one of the plaintiffs, the substance of which is also set out below.3

The district judge did not treat the case, as it was, as a suit for the redress of the deprivation, for reasons of color, of the individual and personal right of the plaintiffs to play golf on facilities furnished at municipal expense to whites, while denied to negroes. He treated it, as it was not, as in short a more or less general complaint that park facilities provided for negroes were unequal to those provided for whites.

Of the opinion that the parks, as parks, furnished to whites and negroes were substantially equal in their overall facilities, he concluded,4 "I do not think the failure to provide golf courses in parks used by negroes is, either as matter of law or fact, a discrimination against negroes."

In thus holding, the district judge erred in fact and in law. He erred in fact because, if an individual negro citizen desires to play golf on a municipal course and is prevented from doing so only because he is a negro citizen, while an individual white citizen, because he is not a negro, is permitted to do so, the fact that he is being discriminated against in the assertion of a personal and individual right, because of his color, stands out like a sore thumb, or like a large blob on the end of a small nose.

He erred in law because his conclusion is contrary to the general principles established by the authorities,5 "It is the individual who is entitled to the equal protection of the laws, and if he is denied * * * a facility or convenience * * * which, under substantially the same circumstances, is furnished to another * * * he may properly complain that his constitutional privilege has been invaded."

What was accomplished here under the purported sanction of state law is the very thing the Constitution was written to make impossible, and the civil rights statutes forbid. This is denying to a negro, because he is a negro, his individual, his personal, right as a citizen to use and enjoy a facility furnished at the public expense while permitting a white man, because he is white, to use and enjoy it.

In addition to the general principles thus laid down, the precise question as to the equal right of a negro to play golf on municipal golf courses has been before the courts many times,6 and each time the decision has been in favor of the claimed right. Because these decisions, particularly that of Judge Chestnut, in Law v. Mayor and City Council, D.C., 78 F.Supp. 346, fully and adequately discuss the question here presented, as it relates precisely to playing golf, we will not further labor it. We shall content ourselves with saying that we find ourselves in full accord with the reasons given and the results reached in the cited decisions.

It remains only to briefly consider, and as briefly dispose of, adversely to defendants, their contention put forward in their brief, that the case is one for three judges. That it is not such a case, the literature on the subject and all the controlling decisions make crystal clear. In Phillips v. U. S., 312 U.S. 246, at page 250, 61 S.Ct. 480, at page 483, 85 L.Ed. 800, the court said: "The history of § 266 (see Pogue State Determination of State Law, 41 Harv.L.Rev. 623, and Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795), the narrowness of its original scope, the piecemeal explicit amendments which were made to it (see Act of March 4, 1913, 37 Stat. 1013, and Act of February 13, 1925, 43 Stat. 936, amending § 238 of the Judicial Code), the close construction given the section in obedience to Congressional policy (see, for instance, Moore v. Fidelity & Deposit Co., [272 U.S. 317, 47 S.Ct. 105, 71 L.Ed. 273] supra; Smith v. Wilson, 273 U.S. 388, 47 S.Ct. 385, 71 L.Ed. 699; Ex parte Collins, [277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990], supra; Oklahoma Gas [& Electric] Co. v. [Oklahoma] Packing Co., 292 U.S. 386, 54 S.Ct. 732, 78 L.Ed. 1318; Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877; Ex parte Public National Bank, 278 U.S. 101, 49 S.Ct. 43, 73 L.Ed. 202; Rorick v. Board of Com'rs, 307 U.S. 208, 59 S.Ct. 808, 83 L.Ed. 1242; Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249), combine to reveal § 266 not as a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such."7

The judgment is reversed and the cause is remanded with directions to enter a judgment: declaring that refusing to allow plaintiffs and others similarly situated, because they are negroes, to make use, on a substantially equal basis with white citizens, of municipal facilities for playing golf, is to practice a forbidden discrimination which must be remedied; and enjoining defendants from continuing such practice. The decree, however, shall afford defendants a reasonable opportunity to promptly prepare and put into effect regulations for the use of the municipal golf facilities, which, while preserving segregation, will be in full and fair accord with its principle. This principle is that "The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State."8 In applying this principle, that equality of treatment of white and colored citizens must be afforded which will secure to both, complete and full recognition, that, under the Constitution and laws, there are not two classes of citizens, a first and a second, but one class, with all of equal rank in respect of their rights and privileges to use and enjoy facilities provided at public expense for public use.

Reversed and remanded for further and not inconsistent proceedings.