Untitled Texas Attorney General Opinion ( 1947 )

Ron. George Moffett, Chairman
State Affairs Committee
Texas Senate
Austin, Texas
Dear Sir: Opinion No. V-31
Re: Constitutionality of Senate
Bill No. 140, establishing
a statutory university for
negroes, and related ques-
tions .
On behalf of the State Affairs Committee of the Senate,
you have submitted a copy of Senate Bill No. 140, providing
for the establishment of a negro university, together with
the following question:
"Is Senate Bill No. 140, in the form
attached hereto, constitutional? If
not, the Committee would be pleased
to have your department point out
amendments or deletions which would
bring said Bill into conformity with
the Constitution of this State."
The subject and purpose of the proposed bill is stated
in the caption as follows:
*An Act providing for the establish-
ment, support, maintenance, and direc-
tion of a University of the first class
for the instruction and training of the
colored people of this State in all
courses of instruction taught at The
University of Texas and its branches
to be known as 'The Texas State Univer-
sity for Negroes' and to be located at
Hon. George Moffett - Page 2
Houston, Harris County; and providing
for an Agricultural and Mechanical
College for colored students to be
,known as 'The Prairie View Agricul-
tural and Mechanical College' as same
is now located at Prairie View, Wailer
County; making an appropriation; and
declaring an emergency."
To fully comply with your request, it is necessary to
examine the provisions of the Texas Constitution and the
Constitution of the United States, and to review the back-
ground and interpretations thereof as applied to the field
of higher education for negroes in this State. Therefore,
you will pardon the necessary length of this opinion:
TEXAS CONSTITUTIONAL PROVISIOEF,
Under the Texas Constitution, public education is a
division or department of the government, in the conduct
of which the Legislature has all legislative power not de-
nied it by the Constitution. (Mumme, et al vs. Marrs Tex-
as Supreme Court, opinion by Judge Cureton, 40 S. W. (2d)
31). Section 1 of Article VII, of the Constitution of Tex-
as, reads as follows:
"A general diffusion of knowledge being
essential to the preservation oftthe lib-
erties and rights of the people, it shall
be the duty of the Legislature of the
State to establish and make suitable pro-
vision for the support and maintenance of
an efficient system of public fxee schools."
Section 40 of Article III of the Texas Constitution em-
powers the Legislature "to levy taxes or impose burdens upon
the people" to raise revenue for many purposes, among them
the following:
"The support of public schools, in which
shall be included colleges ja& universi-
ties established b the State; . . .'I
7‘i7Xerscoringours7
From the above it is clear that the Legislature of
Texas has the power to provide for the establishment and
bn. George Xoffett - Psge 3
operation of a negro university as contemplated by Senate
Sill 140,,unless there is some other constitutional pro-
vision which prohibits such action or directs that it be ac-
coalished in a different manner. That brings us to an ex-
amination of Section 14 of Article VII, of the Constitution
zf Texas, the only other constitutional provision relating
iiirectlyto this question. It reads as follows:
"Sec. 14. Branch University for
Colored.--The Legislature shall also
when deemed practicable, establish
and provide for the maintenance of a
College or Branch University for the
instruction of the colored youths of
the State, to be located by a vote of
the people; Provided, that no tax
shall be levied, and no money appro-
priated, out of the general revenue,
either for this purpose or for the
establishment, and erection of the
buildings of the University of Texas."
Immediately we are faced with the question of whether the
University contemplated by Senate Bill 140 is the same as.that
oontemplated by the u;ritersof the above Section of the Con-
stitution in 1876. Is it to be a College (integral part of a
university) or a Branch of the University of Texas? Does the
Le.+lature by this Bill "deem it practicable" to provide for
the establishment and maintenance of such College or Branch
out of the available fund accruing from the Permanent Univer-
sity Fund and without aid of taxes and appropriations from the
General Revenue as would be required by the above section of
the Constitution? We think the answer is *no**to both of these
questions. It is clear from a reading of Senate Bill 140 that
the proposed negro university is not to be a Cqllege or Branch
of The University of Texas. Its passage would evidence no in-
dication that the Legislature "deems it practicable" to estab-
lish and maintain such University under the limitation as to
use of taxes and general revenue for such purpose. On the
contrary, passage of Senate Bill 140 would indicate that an
entirely separate university for negroes is to be established
free and independent of The University of Texas with full right
to establishment, maintenance and erection of buildinas out of
the General Revenue Fund of the State.
This conclusion forces the question of whether the Legis-
lature having been authorized when "deemed practicable" to
establish a negro university in the manner set out in Section
14 of Article VII of the Constitution, can lawfully adopt a
Hon. George Moffett - Page 4
different method and establish a different school out of other
State funds. In other words, does the above section of our
Constitution limit the manner of establishin? a nerro school
of hither leominT to the procedure and fund~sprovided there-
in? If so, the statutory school proposer!in Senate Bill 140
is unconstitutional, and the only means of creating a negro
university in Texas is to establish it as a College or Branch
of The University of Texas without appropriations from the
general revenue, and its location nust be in Austin, the city
chosen for such college or branch by a vote of the people in
1882. If not, Senate Bill 140 is constitutional, and the ne-
gro university may be established out of general revenue and
at any location desired by the Legislature.
We are familiar with the rule of law that a constitu-
tional provision as to how a thing shall be done cotititutes
an implied prohibition of its being done in.any other manner.
However, when the constitutional provision is not mandatory
but leaves discretion with the Legislature as to when, if
and how a thing is to be done, it should never be construed
as a limitation by implication on the general power of the
Legislature to accomplish the desired end in another manner.
Especially is this true in the present case where another
constitutional provision (Section 48, Article III) written
in the same Convention; expressly recognizes the power of
the Legislature to establish and operate other colleges and
universities in another manner.
Constitutional provisions, like statutes, are properly
to be interpreted in the light of conditions existing at the
time of their adoption, the general spirit of the times and
the prevailing sentiments of the people. (Rumme vs. Marrs,
supra) The universal rule of construction is that legisla-
tive and executive interpretations of the organic law, ac-
quiesced in and long continued are of great weight in deter-
mining the validity of any Act; and in case of ambiguity or
doubt will be followed by the courts. 9 Tex. Jur. 439, 6 Rawle
C. L. 62, Mumme vs. Marrs, supra. To understand the inten-
tion of the writers of the Texas Constitution and the legis-
lative and executive interpretations of the question since
1876, it is necessary that we review the history of the edu-
cational articles of the Texas Constitution.
Hon. Geoqe Moffett - Page 5
HISTORY ANIlINTERP~ZT3TIONS OF SECTION 14, AFTTCT3
VII, AND LOTION 48, AETICLF,III,
COIZ3TITUTIONOF TEXAS:
The Constitution of 1865 provided generally for a system
of education, including "Africans and their children." The
,Zonstitutionof 1869 made no provision for a University of
any character. In 1871, taking advantage of a Federal land
rrant, the AFricultursl and Mechanical College was established
by statute and located near Bryan, Texas.
The Constitutional Convention of 1875, headed by E. B.
Xckett (who later became the President of the Board of Di-
rectors of the A6ricultursl and Mechanical College) under-
took anon.?other thing, to provide for the establishment of
oublic free schools and institutions of hi.c;her
learning. That
iody pmcose? the document vrhich becane the Constitutisn of
1976. The pertinent educational provisions still exist in the
origins1 form in X-title III as quoted hereinabove and in Ar-
ticle VII, as follows:
*Sec. 10. The.Le,&slature shall as soon
as practicable establish, organize and
provide for the.maintenance, support and
direction of a University of the first
class, to be located by a vote of the peo-
ple of this State, and stgled, 'The Uni-
versity of Texas', for the promotion of
literature, and the arts and sciences, in-
cludin,?an Agricultural, and ?Lechanical
department.
"Sec. 11. In order to enable the Legis-
lature to perform the duties set forth in
the foregoisq Section, it is hereby de-
clared that all lands and other property
heretofore set apart and agprooriated for
the establishment and maintenance of The
University of Texas, together with all the
proceeds of sales of the same, heretofore
made or hereafter to be made, and all qrants,
c'onationsand appropriations that may here-
after be mode by the State of Texas, or from
any other source, shall corstitute and be-
came a permanent University Fund. . . .
Vet. 13. The ASriculbural and Mechanical
College of Texas, established by an Act of
Hon. George Moffett- 'Page 6
the Legislature passed April 17th, 1871,
located in the County of Brazes, is hereby
made? and constituted a Branch of The Uni-
verslty of Texas, for Instruct~ionin Agri-
culture, the Mechanic Arts, and the Natural
Sciences connected therewith. And the Le-
gislature shall at its next session, make,
an appropriation, not to exceed forty thou-
sand dollars, for the construction and com-
pletion of the buildings and improvements,
and for providing,the furniture necessary
to put said College in immediate and suc-
cessful operation.
"Sec. 14. The Legislature shall also when
deemed practicable, establish and provE le
for the maintenance of a Coflege or Branch
University for the instruction ofTh=
ored youths of the State, to be located by
a vote of the people: Provided, that no
tax shall be levied, ,and no money aopropri-
ated, out of the general revenue, either for
this purpose or'for the establishment and
erection of the buildings of The University
of Texas. (Underscoring ours).
"Sec. 15. Inaddition to the lands hereto-
fore granted to The University of Texas,
there is hereby set apart, and appropria-
ted, for the endowment, maintenance, and
support of said University and its branches,
one million acres of the unappropriated pub-
lic domain of the State, to be designated
and surveyed as may be provided by law; and
said lands shall be sold under the same regu-
lations, and the proceeds invested in the
same manner, as is provided for the sale and
investment of the permanent University fund;
and the Legislature shall not have power to
grant any relief to the purchasers of said
lands."
A few months after the Constitution of 1876 became effec-
tive, the Legislature by Act of August 14, 1876 (Acts 15th Leg.
ch. 92, p. 136; 8 Gammels Laws, p. 972); provided for an Agri-
cultural and Mechanical College for the benefit of colored
youths, which was placed under the supervision of the Agricul-
tural and Mechanical College established at Bryan in 1871.
son. George Moffett - Page 7
The message of Governor 0. M6. Roberts to the Legislature,
,pril 6, 1882, discloses that instead of erecting buildings
for this institution, the land and buildings of Alta Vista,
Xempstead, were purchased and a school organized. The
::e:'r
.._
:n-ispristion
, for this institution came out of the General
.?evenueand not out of The University Funds. Governor Roberts
-aid "it is evident that this was not intended by the Legisla-
t?lreto be the 'college or branch university' referred to in
iectian 14, Article VII of the Constitution. For in the same
section providing for that branch (Sec. 14) it is expressly
orovidej that its location shall be determined by a vote of the
?eocle, and that 'no tax shall be levied and no money appro-
yriated out of the General Revenue for this purpose', which
:sulE hardly have escaped the attention of the Legislature if
?hey had intended by this Act to establish the 'college or
jranch university'."
The 16th Legislature (ch. 59, p. 181; 1879) provided for
'1normal school at Prairie View (fomnerlv called Alta Vista)
-?ndattempted to appropriate from the University Fund $S,OOO.OO
\ "or its support. Prior to 1882 there were other appropriations
:?3?eto the Prairie View School out of the available University
Yund and other indications that certain officials believed this
?:3be the Colored Branch contemplated by Section 14 of Article
VII.
Pursuant to the Constitutional mandate, the Legislature
in .1881 passed an Act creating The University of Texas and pro-
vided for a vote of the people to fix its location. The elec-
tion was held and the proposal to separate the main university
from the Medical Department prevailed, Austin being chosen
for the former and Galveston for the latter.
In 1882 the Legislature recognized that the Prairie View
Normal was not the colored branch of the University mentioned
in the Constitution, and an election was ordered for the first
Tuesday after the first Monday in November, 1882, to locate
this branch. (Acts 1882, ch. 19, p. 25). The contesting pla-
ces were Austin, Prairie View, Houston, Palestine, Paris, Bren-
ham, Pittsburg and Georgetown. Austin was again successful.
Governor Roberts in his message to the 18th Legislature, de-
livered January 10, 1883, said "all branches of The State Uni-
versity have now been located; the main branch at Austin; the
'uiedical
Department at Galveston; the Agricultural and Mechani-
cal College at Bryan; and at the late General Election, the
branch university for colored youths at Austin."
Hon. George Moffett - Page 8
At-the Regular Session of the 18th Legislature in 1883, an
Act was passed to "provide for the permanent endowment, in lands
or,its proceeds, of The University of Texas and its branches,
including the branch for the instruction of colored youths."
(Acts 18th Leg., oh. 72, p. 71). This act set aside one mil-
'lion.acres for an additional endowment of The University and
its branches. The branch for colored youths was expressly in-
cluded.
Between 1883 and 1897 no legislation pertaining to a negro
college or branch of The University of Texas was passed, althougl
several bills were proposed. In 1897 the Legislature set aside
one hundred thousand acres of.the public domain to be used for
the endowment of the colored branch'~(26thLeg., 1897, ch. 109,
p. 148), but later it was held that the public domain was ex-
hausted (92 Tex. 58) and this endowment was ‘never consummated.
In 1931 Article 2592 was enacted, which provided, among
other things, that after September 1, 1934, the Available Uni-
versity Fund, derived as revenue from the Permanent Fund of one
million acres of land provided for in the Constitution and the
additional one million acres of land provided for in the Sta-
tute of 1083, should be allocated to The University of Texas
and the Agricultural and Mechanical College in the proportions
of two-thirds and one-third, respectively.
The 49th Legislature in 1945 enacted Article 2643a which
changed the name of Prairie View State Normal and Industrial
College to "Prairie View University." The Act further provided
that "whenever there is any demand for same, the Board of Direc-
tors of the Agricultural and Mechanical College, in addition to
the courses of study now authorized for said institution is au-
thorized to provide for,the establishment of ‘-courses in law,
medicine, engineering, pharmacy, journalism, or any other gen-
erally recognized college course taught at the University of Tex-
as, in said Prairie View University, which courses shall be sub-
stantially equivalent to those offered at the ,University,of
Texas.
When two additional'statutory schools (West Texas A. & M.
College and North Texas Agricultural College) were proposed in
1917, Attorney General B. F. Looney was asked for an opinion on
the constitutionality of their establishment at places other
than Austin or Bryan. The problem involved the same question
Of whether the Legislature had the power to-establish inatitu-
tions of higher learning in any other manner than as provided
in Article VII of the Constitution. In an able opinion written
by Luther Nickels, who later served as a Commissioner to the
Texas Supreme Court,,it was held that the Legislature was au-
thorized under Seotion 48 of Article III, supra, to establish
.I
Ron. George Moffett - Page 9
other colleges and universities and support them out of the
general revenue.
Judge Nickels pointed out that such statutory universi-
ties would not be branches of The University of Texas within
the meaning of Article VII. A portion of this opinion is as
follows:
YSection 48 of Article 3 of the Consti-
tution empowers the Legislature 'to levy
taxes or impose burdens upon the people,'
to raise revenue for the economical ad-
ministration of the government in which
may be included the following purposes:
"t . . . The support of public schools,
in which shall be included colleges and
universities established by the State;
. . .,
". . . The language is that the Legisla-
ture may prov1d.efor 'colleges and uni-
versities,' -- both terms being in the
plural. This general language, undoubted-,
lv. includes the 'Universitv of Texas' and
the 'Agricultural and Mechanical College'
established by the Act of April 17, 1871,
but it also includes such other 'colleges
and universities as may be established by the
State'. The term 'established by the
State' is both prospective and retrospec-
tive in meaning; this must be true, be-
cause it modifies the term 'colleges and
universities." -- plural terms, -- while:
at the time the provision was adopted,
there was but one university and one col-
lege for whoseestablishment provmon had
been made by the Legislature. The people
certainly intended that support should be
given the one university and the one col-
lege already established; they as clearly
intended that others might be established,
else they would have limited the provision
to the one university and the one college
instead of using the general plural terms
'colleges and universities.'
Hon. George Moffett - Page 10
“. . .
n Who, then, shall determine what shall
. . .
constitute a 'college' or a 'university,'
how many and what kinds of 'colleges and uni-
versities' we shall have, and when and where
they shall be located? The answer is obvious
The body -- the Legislature -- in whom is ves-
ted,the general power, has also the power to
do all things needful for the full accomplish-
ment of the general purpose. . . . And that
the 'colleges and universities1 which may be
established under the authority of Section 40
are not limited in number or kind by the pro-
visions with respect to the 'University of
Texas' and the particular *Agricultural and
Mechanical College' referred to 1s~a proposi-
tion demonstrable by the fact that the gen-
eral language of Section 48 is much too broad
to be limited to these,two institutions and
their branches."
In 1928, the Attorney General was called upon to determir
whether the School of Mines and Metallurgy was a branch of The
University of Texas within the intendment of Article VII ~of ti
Constitution, and if so whether money could be appropriated OL
of the general-revenue to be used for the erection of buildin
at El Paso.
An Opinion by D. A. Simmons, then First Assistant Attornc
General, and recently President of the American Bar Associatic
held that the school was not a branch of The University; that
'the Legislature had full.authority to establish a School of
Mines and Metallurgy at El Paso under authority of Article II:
Section 48, including erection of buildings with general reve-
nue funds. A portion of the opinion reads:
"It is a matter of common knowledge that the
available University fund is not sufficient
at this time to pay for the erection of build-
ings needed at the main university and the
Medical-Department to say nothing of the
School of Mines and Metallurgy. . . . If
the School of Mines and Metallurgy is limited
by Article VII, Section 14, as a part of the
University of Texas, it can look only to the
available University fund just as the Univer-
sity proper, the Medical Department and the
Hon. George Moffett - Page 11
colored branch must look to that fund. Paren-
tutional provision, it may apply to the Legis-
lature for all necessary relief.
*In our opinion, the School of Mines and Metal-
lurgy is not a branch ~of the University of
Texas, as the term 'branch' is used in the
Constitution of Texas." (Underscoring ours)
In Mumme vs. Marrs.,supra, Chief Justice Cureton wrote
that Section 5 of Article VII defining the Available School
Fund, and declaring that "it shall be distributed to the
several counties according to their scholastic population",
was not a limitation which prevented the distribution of an
appropriation from the general revenue for common school dis-
tricts in accordance with the Rural Aid Act. In arriving at
such conclusion, Chief Justice Cureton said:
"The history of educational legislation in
this State shows that the~provisions of Arti-
cle VII, the educational article of the Con-
stitution, have never been regarded as limi-
tations by implication on the general Dower"--'-'-
of the Legislature to pass laws upon the sub-
ject of education. This article discloses a
Gell-considered purpose on the part of those
who framed it to bring about the establishment
and maintenance of a comprehensive system of
public education, consisting of a general pub-
lic free school system and a system~of higher
education. Three institutions of higher learn-
ing were expressly provided for.... The Legis-
lature, however, has gone far beyond the crea-
tion of the three institutions of higher learn-
ing specifically required by the organic law,
and has created ten additional MStitUtiOnS
of similar character without direct COnStitU-
tional grant, beginning with the Sam Houston
Normal in Huntsville in 1879. . . . In found-
ing these ten institutions, beginning more than
fifty years ago, the Legislature has necessar-
ily held that the specific grants of power con-
tained in the Constitution to erect and maintain
the University of Texas . were not linita-
tions on its power to create-other schools of
Hon. George Moffett - Page 12
similar purpose, and to maintain them by
appropriations from the General Revenue.
This interpretation has never been ques-
tioned, and is consistent with authorities:
from other jurisdictions. . . .I1 (Under-
scoring ours).
This holding in Mumme vs. Marrs was reaffirmed by the
Supreme court of Texas in giving an unqualified refusal to
an application for writ of error in Watson vs. Sabine Royal-
ty Corporation, 120 S. W. (2d) 938, a case upholding the con-
stitutionality of a legislative Act providing for a different
.rate of tax valuation in a particular group of counties by a
method different from that set out in the Constitution.
In the meantime, the Legislature, under its general pow-
ers and those specifically authorized by Section 48, Article
III of the Constitution, has established to date fourteen
statutory colleges, to wit:
John Tarleton Agricultural College, North Texas Agri-
cultural College, Texas State College for Women, Texas Col-
lege of Arts and Industries, College of Mines and Metallurgy,
Texas Technological College, East Texas State Teachers Col-
lege, North Texas State Teachers College, Sam Houston State
Teachers College, Southwest State Teachers College, Stephen
F. Austin State Teachers College, Sul Ross State Teachers Col-
lege, West Texas State Teachers College, and Prairie View
University.
It is important to note that although one of these sta-
tutory colleges is under management of The University of
Texas Board of Regents, none of them have been held to be a
branch of The University or subject to-limitations or restric-
tions imposed by:Article VII on the funds that may be used
therefor.
CONCLUSION OF TEXAS COBSTITUTIOX4L PROVISIOW
The above background and history of legislative, judi-
cial, and executive interpretations leave no cloubtabout the
intent of the writers of the educational provisions of our
Texas Constitution. They intended to provide for establish-
ment of a great University of Texas with a separate negro
College or Branch to be established and maintained out of the
available University Fund. But in Svicle VII,
they left the time -- the "if" and "when" -- of such estab-
lishment to the sound discretion of the Texas Legislature by
Hon. George Moffett - Page 13
use of the words "when deemed practicable"by the Legislam
ture.
The same writers, in the same document (Sec. 48, Art.
III), intended the establishment and maintenance of other
colleges and universities out of general revenue funds.
The first of these statutory institutions was in fact a
negro college at Prairie View created by legislative Act
in 1876, shortly after the present Constitution became
effective. Some of the members of the Constitutional Con-
vention were also members of the Legislature which inter-
preted the new Constitution as permitting and authorizing
a statutory college in addition to the constitutional
branch mentioned in Section 14. As heretofore pointed
out, the President of the Constitutional Convention later
served as President of the Board of Directors of A. & M.
College and helped to organize and direct the activities
of the separate negro college at Prairie View. If it be
true that Section 14 presents the only manner in which a
negro college can be established, then Prairie View Uni-
versity has been operated in violation of the Texas Consti-
tution, since 1876. Such a construction would do violence
to the plain and unambiguous words of the Constitution and
to the intent and interpretations placed thereon by the
men who wrote the document and the legislative and execu-
tive~interpretations made thereon for the past 70 years.
True, there were a few years during which certain officials
mistakenly believed that Prairie View was the constitution-
al branch of The University and entitled to 'the use of the
available University Fund (even Judge Cureton mistakenly
referred to it as such in dictum in Mumme vs. Marrs, su-
Pra). But for the past 64 years Prairie View has been
treated by the Legislature as a separate statutory insti-
tution entitled to appropriations from the General Reve-
nue Fund. As stated above, during these years the Legis-
lature has continued to so interpret and use its power in
the creation of 13 additional statutory institutions of
higher learning.
It is evident that during the past 70 years the Legis-
lature has deemed it impracticable to establish and main-
tain a negro college or branch financed wholly out of-
come from the Permanent University Fund. An examination
of the available revenues from such fund d,uringthe past
70 years reveals why such action was not only impractica-
ble but impossible. Since 1876, the revenues from the fund
have not been half enough to finance the building program,
maintenance and operation of the Main University and the
Medical Branch. During the same period of time it has been
Hon. George Moffett - Page 14
necessary for the Legislature to appropriate from the General
Revenue Fund in excess of fifty-three millionsdollars to main-
tain and operate these two institutions. Texas A. 6cM. Col-
lege received no part of the available fund until 1931, and
its share of one-third of such fund produces only a fraction
of the money necessary to maintain and o*mrate A. & M. Col-
lege. During the first year of the present biennium the net
revenue from the Permanent University Fund yielded only
$1,932,711.41 for the Main University, the Medical Branch,
and Texas A. & M. College. To this amount it was necessary
for the Legislature to add $6,299,551.89 from the General
Revenue to operate these schools for the past fiscal year.
(Records of C. D. Simmons, Comptroller, University of Texas).
With these figures in mind, the present Legislature is
certainly justified in deeming it impracticable to build and
maintain a first class negro university out of the revenues
from the University Fund. Senate Bill 140 calls for a total
expenditure of two million dollars for the acquisition of
land and the erection of buildings and provides one million
dollars for maintenance and operation during the next two
years. If maintenance of the negrc university were limited
to a portion of the available University Fund as required in
the case of the constitutional branch (Sec. 14, Art. VII),
it would be impossible to sustain a first class university of
the magnitude contemplated by Senate Bill 140.
In so far as the Texas Constitution is concerned, it is
our opinion that Senate Bill 140 is constitutional. Respect-
ing your request for suggested changes or additions, our only
advice in this connection is that a section be added specifi-
cally reciting the Legislature's intent and findings as to the
impracticability of establishing the school in any other man-
ner. Suggested wording of this section will be delivered with
this opinion.
U. S. CONSTITUTIONAL PROVISIONS
Fortunately, the operation of an educational system within
a S,tate is still a State right. It was so held in an opinion
by Chief Justice Hughes in the case of Missouri ex rel Gaines
vs. Canada, 305 U. S. Reports 337.' The Federal Government and
the Federal Courts have not thus far interfered with the nmn-
agement and operation of the educational systems of our states,
except to say that under the 14th Amendment to the Constitution
of the United States, equal protection of the law must be given
all citizens, and State supported institutions must furnish
equal facilities for both white and colored citizens. As late
Flon.George Moffett - Page 15
as 1938 in the above case, the Supreme Court of the United~
States recognized the right of the states to have separate
schools for white and negro citizens, if the separate system
furnished equal protection of the laws and substantially
equal educational facilities. The Supreme Court of the Uni-
ted States has not spoken directly on the point since 1938,
but it is sincerely believed that the Court will uphold Tex-
t right to establish separate schools for negroes if it
tztually and in fact provides substantially equivalent facili-
ties and equal protection as proposed in Senate Bill 140.
The pertinent portion of the 14th Amendment to the Con-
stitution of the United States reads as follows:
"Section 1. All persons born or natura-
lized in the United States, and subject
to the jurisdiction thereof, are citizens
of the United States and of the State
wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive
any person of life, liberty, or~property,
without due process of law; nor deny to
any person within its jurisdiction the equal
protection of the laws."
The Texas Constitution, Section 7, Article VII, provides
the following:
"Sec. 7. Separate schools shall be provided
for the white and colored children, and impar-
tial provision shall be made for both."
Since 1876 the policy of this State has been to maintain
separate schools and colleges as contemplated by Senate Bill
140. The people and public officials of Texas recognize that
equivalent educational opportunities have not been available
to the degree required by both State and Federal Constitutions,
or to the degree demanded by the public sentiment Of the State.
But the majority of the people and public officials of Texas
also recognize that the only satisfactory means of accompli-
shing equal opportunities within the social order of this
Stnte is to have separate schools for the separate races. A
recent state-wide poll of both white and colored citizens in-
dicated that such was the sentiment of a great majority of both
races. (Belden Texas Poll, January 26, 1947).
Hon. George Moffett - Page 16
In spite of previous decisions of the United States Su-
preme Court and the sentiment of the majority of both races,
there is some agitation in this and other Southern States
against separate schools. This office today is defending a
case in which one of the main contentions is that the legal-
ity of separate schools be denied. (Heman Marion Sweatt vs.
Painter, et al, now pending in the Austin Court of Civil Ap-
peals). Other cases are pending in Louisiana, Oklahoma and
South Carolina. In each instance the negro applicants are
contending for admission to the State Universities for white
citizens, alleging that equal facilities do not exist for ne-
groes, and concentrating their attack against the constitu-
tionality of laws requiring separate schools. These contes-
tants evidence as much interest in prevailing on the Supreme
Court to reverse its former holdings and abolish segregation
as in obtaining equivalent education in separate schools.
With this in mind several of the leading decisions of the
United States Supreme Court will be cited and discussed.
The United States Supreme Court in Plessy vs. Ferguson,
163 U.S. 537, said the following:
"The object of,the (14th) Amendment was
undoubtedly to enforce the absolute .equal-
ity 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 dis-
tinguished from political equality, or a
commingling of the two races upon terms un-
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
has been generally, if not universally, reo-
ognized 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 chil-
dren, which has been held to be a valid ex-
ercise of the legislative power even by
courts of States where the political rights
of the colored race have been longest and
most earnestly enforced."
Hon. George moffett - Page 17
In the case of Missouri ex rel Gaines vs. Canada, supra,
the United States Supreme Court considered the Missouri sta-
tutes requiring separate schools for colored and white stu-
dents and reversed an opinion of.the Supreme Court of Missouri,
which had denied a negro applicant entrance to the University
of Missouri Law School. In the opinion by l.9. Chief Justice
Rughes, the Court ssid:
"In answering petitioner's contention that
this discrimination constituted a denial
of his constitutional right, the state
court has fully recognized the obligation
of the State to provide negroes with advan-
tages for higher education substantially
equal to the advantages afforded to white
students. The State has sought to fulfill
that obligation by furnishing equal facili-
ties in separate schools, a method the va-
lidity of which has been sustained bv our.
decisions. Plessy v. Ferauson,-,ls~.r2.,S.
537,544; McCabe v. Atchison, T. & S. F.
Ry. Co., 235 U.S. 151 160; Gong Lum v.
Rice,~275 U. S. 70, 85: 86. Compare Cum-
minn v. Board of Education, 175 U. S-528,
544. 545. Resoondents, counsel have acoro-
priately emphasized the special solicitude
of the State for the higher education of ne-
groesas shown in the establishment of Lin-
coln University, a state institution well
conducted on a plane with the University of
Missouri so far as the offered courses are
concerned. It .issaid that Missouri~is a
pioneer in that field and is the only State
in the Union which has established a sepa-
rate university for negroes on the same
basis as the state university for white
students. But, commendable as is that ac-
tion, the fact remains that instruction in
law for negroes is not now afforded by the
State, either at Lincoln University or else-
where within the State, and that the State
excludes negroos from the advantages of the
law school it has established at the Univer-
sity of Missouri. (Underscoring ours)
"It is manifest that this discrimination,
if not relieved by the provisions we shall
Hon. George Moffett - Page 18
presently discuss, would constitute a denial
of equal protection. That was the conclusion
of the Court of Appeals of Maryland in circum-
stances substantially similar in that aspect.
University of Maryland v. Murray 169 Md. 478;
182 A. 590. It there appeared that the State
of Maryland had 'undertaken the function of
education in the law, but had 'omitted stu-
dents of one race from the only adequate pro-
vision made for it, and omitted them solely
because of their color,; that if those stu-
dents were to be offered 'equal treatment in
the performance of the function, they must at
present, be admitted to the one school provi-
ded., . . .
n . . . it appears that the policy of establish-
ing a law school at Lincoln University has not
yet ripened into an actual establishment, and
it cannot be said that a mere declaration of
purpose, still unfulfilled, is enough. The
provision for legal education at Lincoln is at
present entirely lacking. Respondents, coun-
sel urge that if, on the date when petitioner
applied for admission to the University of Mis-'
souri, he had instead applied to the curators
of Lincoln University it would have been their
duty to establish a law school; that this
'agency of the State,, to which he should
have applied, was ,specificallg charged with
the mandatory duty to furnish him what he seeks.,
We d,onot read the opinion of the Supreme Court
as construing the state statute to impose such
a 'mandatory duty, as the argument see.msto as-
sert. . . .
" . . . The basio consideration is not as to
what sort of opportunities other States pro-
vide, or whether they are as good as those in
missouri, but as to what opportunities Missouri
itself furnishes to white students and denies
to negroes solely upon the ground of color.
The admissibility of laws separating the races
in the enjoyment of privileges afforded by the
State rests wholly upon the equality of the
privileges which the laws give,to the separa-
ted groups within the State. . . .
:-
Hon. George Moffett - Page 19
"The equal protection of the laws is 'a
pledge of the protection of equal laws.'
Yick Wo v. Hopkins, 118 U.S. 356, 369.
Manifectly, the obligation of the State
to give the protection of equal laws can
be performed only where its laws operate,
that is, within its own jurisdiction. It
is there that the equality of legal right
must be maintained. . . .
"Nor can we regard the fact that there is
but a limited demand in Missouri for the
legal education of negroes as excusing the
discrimination in favor of white. . . .
"Here, petitioner's right was a personal
one. It was as an individual that he was
entitled to the equal protection of the
laws, and the State was bound to furnish
him within its borders facilities for legal
education substantially equal to those which
the State there afforded for persons of the
white race, whether or not other negroes
sought the same opportunity.
". . . We are of the opinion that the rul-
ing was error, and that petitioner was en-
titled to be admitted to the law school of
the State University in the absence of other
and proper provisions for his legal training
within the State."
It is interesting to.note that by the time this case re-
turned to the Missouri Supreme Court and thence to the trial
court, the Legislature of Missouri passed a mandatory statute
providing an equivalent law school in Lincoln University (the
State's negro university), and the applicant therefore was never
admitted to the University of Missouri.
We have quoted at length from the leading Supreme Court
decision on the subject so that your committee may have full
knowledge of the requirements therein announced necessary to
sustain the constitutionality of separate schools.
Briefly stated, to meet the U. S. Constitutional provi-
sions, the system must (1) offer equal educational opportuni-
ties and (2) offer equal protection of the laws. APPlYi%
Hon. George Moffett - Page 20
this test to the plan proposed in Senate Bill 140, the first
requirement of equal opportunities and facilities surely will
be met if this Bill is enacted and conscientiously admini-
stered by the Board to be appointed thereunder.
It is only on the second requirement -- equal protection
of the laws -- that advocates of a constitutional rather than
a statutory school raise two objections worth considering.
The first objection is that a constitutional College or
Branch under Section 14, Article VII of the Texas Constitution
would give the negro school larger and more permanent funds
than those available to a statutory university; that by de-
voting all of the available University Fund to white schools
already established, and financing the negro university from
the general revenue, equal protection of laws is denied the
negro race and the negro school. This objection involves a
distinction without a difference and would have no bearing
whatever on the constitutionality of Senate Bill 140. As far
as finances are concerned, equal protection will be given so
long as sufficient funds are appropriated to establish and
operate an equivalent university for negroes. It makes no
difference which pocket the State pays the money from so'long
as equal facilities are afforded. As far as money is con-
cerned, this bill has nothing to do with the Permanent Uni-
versity Fund. In fact, a real discrimination and unequal pro-
tection would exist if the proposed university was created as
a College or Branch under Article VII, because that Article
(Sec. 14) denies use of the general fund for maintenance of a
negro university, but permits use of the general fund for
~maintenance of the white university. Whether on purpose or
through inadvertence, the writers of Article VII included a
financial discrimination in Section 14 that does not apply to
the other Sections. Senate Bill 140 would appropriate more
money ($2,000,000.00) for construction of a negro university
than the entire University Fund produced last year. It would
appropriate $500,000.00 per year for maintenance and opera-
tion, a sum in excess of one-fourth of the total present an-
nual revenue from the University Fund. It is obvious that
this is more money than a constitutional Negro College or
Branch would ever receive if confined to a share of the Uni-
versity Fund for its existence. Therefore, financially, far
greater protection is given the statutory university under
Senate Bill 140 than it would receive as a constitutional
Branch under Section 14.
The only possible remaining financial argument is that
the University and its branches for white students (Main
Hon. George Moffett - Page 21
University, Medical School, and ~A. & M.) are using income from
the available fund,'part of which was intended for negroes, and
that the Fund,may become so great in the ,futurethat it would
adequately finance all the constitutional branches (including a
negro branch) ,when and if the general revenue should ever be in-
sufficient. Morally .this does.sound unfair, but legally the
answer is both fair and moral. .To.the extent of every dollar
intended and needed for negro~education out of the University
Fund but actually used for white schools, the Legislature has
been appropriating from the general revenue an equal amount for
Prairie View, and now seeks to appropriate an even greater amount
for a Negro University of the first class. When the day comes
that the University Fund has so much revenue that it can ade-
qsately maintain and support the present constitutional schools
2nd a Negro University, that may be the time when the Legisla-
ture will deem it practicable to establish a Negro College or
Sranch University under Section 14. Unless changed or re-
Tealed, Section 14 will remain for future use and needs if
they should 'arise, and nothing done in connection with Senate
Xl1 140 will.have any effect upon presentsor future rights of
negro citizens accorded thereby.
The second objection made to 'a statutory university, under
the requirement of equal protection of laws, is that a statu-
tory school lacks the guarantee of permanence that is enjoyed
by the constitutional schools; that equal .protectionfrom aban-
donment and change now afforded the constitutional white univer-
sity and its branches would not be.afforded the statutory negro
university. This argument has apparent merit. It is not an ob-
jection that would make Senate Bill 140 unconstitutional, but
it may be used as persuasive argument against the constitution-
ality of a system of separate schools which gives greater pro-
tection to the legal existence of the university.for whites and
its branches than to the university for negroes.
It is believed that there is enough merit in this last ob-
jection to warrant your consideration of a constitutional amend-
ment recognizing the university which may be established by Sen-
ate Bill 140 as a constitutional university for negroes and
giving the term of its existence the same guarantee as that now
afforded the Main University for white students. Such amend-
ment would necessitate no delay in consideration of Senate Bill
140. It could be submitted and voted upon after passage of Sen-
ate Bill 140, simply giving constitutional approval and recog-
nition to the new university created by Senate Bill 140.
In this connection, considering the past, present, and
prospective impossibilities and discrimination of Section 14
Hon. George Moffett - Page 22
of Article VII of our Texas Constitution, you may wish to con-
sider the advisability of repealing or amending that Section
by substituting therefor the amendment suggested above and
substituting financial provisions as contemplated by Senate
Bill 140 in place of participation in an already inadequate
Permanent University Fund. If such financial provisions are
at least equal to any anticipated share for negroes from the
University Fund, this would forever end the contentions now
being made in the courts and public forum against a statu-
tory university.
CONCLUSION ON U. S. CONSTITDTIONAL PROVISIORS
As indicated above, it is the opinion of the Attorney Gen-
eral that Senate Bill 140 does not violate the 14th amendment
to the Constitution of the United States. The State olan of
separate schools is valid so long as substantially equal fa-
cilities and equal protection of the laws are afforded.
A decision to this effect was recently made by a District
Court of Travis County in the case of Sweatt vs. Painter, et
al. This case is now on appeal, and all indications are that
it will go to the Supreme Court of the United States. Thus
unless the 50th Legislature takes immediate action on this iub-
ject, the Supreme Court may be called upon to pass on the issue
of separate schools in Texas without knowledge of the prevail-
ing sentiment, intention, and actual establishment of a first
class negro university in Texas.
Prompt enactment of a bill similar to Senate Bill 140
would actually provide what our Negro citizens are entitled
to, and it would have a great bearing upon successful defense
of the constitutionality of separate schools. Both of these
propositions are of foremost importance to Texas. If the Bill
is enacted, this office will make known its existence and ope-
ration to the courts in all pending cases.
In line with your request for suggestions, it is further
recommended that the provisions of the Bill for interim instruc-
tion pending establishment of the Texas State University for
Negroes be strengthened and made mandatory. The suggested
changes and additions have been prepared and will be delivered
herewith.
Hon. George Moffett - Page 23
SUMMARY
(1) Section 14, Article VII of the Texas
Constitution providing for a colored Col-
lege or Branch of the University "when
deemed practicable" by the Legislature,
does not limit the power of the Legisla-
ture to establish a separate and different
statutory university for negroes under the
general powers expressed in Section 48,
Article III of the Constitution.
(2) The requirement of separate schools
and colleges for negro citizens does not
violate the 14th.Amendment of the Consti-
tution of the United States if the sepa-
rate system affords substantially equal
educational opportunities and equal pro-
tection of the laws.
(3) Senate Bill 140 of the 50th Legisla-
ture is constitutional. With the added
provisions suggested in this opinion, its
enactment and contemplated operation there-
under would afford the fair and equal edu-
cational opportunities and protection of
laws to which negro citizens of Texas are
entitled. Its early enactment and opera-
tion will add great strength to Texas' posi-
tion in pending oases wherein the constitu-
tionality of separate schools is under
attack.
Respectfully yours,
Price Danie
Attorney General of Texas
oe R. Greenhill
tant Attorney General
Son. George Uoffett - Page 24
The foregoing opinion, written by the Attorney Generai and
Mr. Greenh:i.ll,
was considered and approved in Conference composed
offthe.First Assistant, and.Assistant Attorneys General Ocie
Speer, Jackson Littleton, Bruce W. Bryant, and Ben Rice TIT.
First Assistant Attorney General
Chairman of the Conferenc,e
.