*1 itself, the war the constitu- management relate to the tional basis should be scrutinized care. hardly deny power
I that the war is as think we can been valid a for federal rent control now as it has ground in a state of war. technically at time. We still are powers may I to hold war willing would not be that indefinitely prolonged merely by keeping legally alive accept I state of war that had fact ended. cannot powers last as as the effects and argument long that war war, they permanent for if so are consequences —as I find permanent as the war debts. But no reason to find fairly that we conclude could that have armies abroad exer- merely of war is technical. We power peace war and have made no terms with cising our I allies, principal our not to mention our enemies. think power applicable the war has been conclusion legislation the lifetime of this is unavoidable. during JUSTICE, HURST, v. CHIEF FISHER et al. 325, February 16, 1948. No. Misc. Decided Marshall, Hall, H. Amos T. William Hastie Thurgood, Wynn petitioner. Marian a brief for Perry filed Per Curiam. petition for a writ moves for leave to file a
Petitioner mandate compliance with our compel mandamus QC January 12, Sipuel
issued *2 We U. S. 631. there said: 332 legal is to educa petitioner entitled secure “The time, this by a institution. To tion afforded same although during the it has been denied her have been afforded period many applicants white pro must by State legal education the State. protection the conformity vide her in with it for provide and it Fourteenth Amendment clause of the group. for of applicants any as soon as it does other Canada, v. U. S. 337 Missouri ex rel. Gaines 305 (1938).” January Supreme the 17,1948,
Petitioner states that on opinion in it was Court of Oklahoma rendered an which said: hereby directed, under
“Said Board of is Regents upon by provisions of authority conferred Oklahoma, Art. the State 13-A, Constitution of 1976, 1979, to afford 1941, and Title 70 O. S. Secs. op- an plaintiff, similarly situated, and all others study of a state portunity to law at commence are groups institution as soon as citizens other opportunity, conformity afforded such Amend- equal protection clause of the Fourteenth pro- Federal and with the ment of the Constitution this state visions of the Constitution statutes of races of the the schools requiring segregation 3, Okla- 13, this Art. Sec. Constitution of state. 451-457. homa; 70 O. S. Secs. to the to take with directions trial court
“Reversed necessary fully carry may as proceedings Supreme of the United out Court opinion. The mandate is ordered States and this issue forthwith.” petitioner
It is further stated that the District Court Cleveland of Oklahoma an entered order on January 22,1948, as follows: adjudged is, therefore,
“It ordered, and decreed unless and until Court school of law for negroes, Supreme which the Court effect directed the Oklahoma State Regents for Higher Education to establish
‘with advantages substantially for education to the advantages students,’ afforded to white ready designated established and function at the time applicants group may other hereafter apply for admission to the first-year class *3 School of Law Oklahoma, of the and University of plaintiff if the proper appli- herein and timely makes cation enroll in class, defendants, said Board Regents University of of the Oklahoma, al., of be, et and the same are and hereby ordered directed to either:
“(1) enroll plaintiff, if qualified, she otherwise first-year in the class of of of the School Law of University Oklahoma, in which school she will remain on entitled the same scholastic basis as other students thereof until a separate negroes school for is established and ready to func- tion, or
“(2) any not enroll applicant any group said separate said class until school is established and ready to function. adjudged
“It ordered, is further and decreed if separate such a law school is so established ready and to function, Board defendants, Regents of the University Oklahoma, al., be, et and the same are hereby ordered and directed to plaintiff enroll in the class
not University of Oklahoma. of Law of the School is taxed to defendants. cost of this case “The jurisdiction of cause court retains this “This may arise question which hear and determine performance concerning application order.” prescribed by this the duties only petition before us a writ question The on for or not our mandate has of mandamus is whether been of Cleveland It is clear that the District Court followed. depart did not from our mandate. Sipuel for certiorari petition satisfy might whether a state not did the issue not Fourteenth Amendment protection clause of the Negroes. for On separate a law school by establishing here. The was not an issue submission, we were clear it admit upheld refusal Supreme Court to demand that she had failed ground petitioner on to it. school and admission establishment correctly understood our court remand, the district On permits clause protection to hold that the decision defense. no such orders transpired since the may have
Nothing which in the record before were issued is courts of the Oklahoma *4 petition for writ on this we consider it nor could us, Court has The District if were. Oklahoma mandamus any question determine to hear and jurisdiction retained fol- the order is Whether or not order. arising under its it in the first by be determined should disobeyed lowed or which, by or the method which, manner in The instance. re- satisfy, satisfied, or could may have Oklahoma by Court, applied of this as the mandate quirements in its order Court of Cleveland District is not before us. 22,1948, January
151 petition Motion for leave file for writ of mandamus is denied. Murphy
Mr. Justice opinion hearing that a in should be had order to determine whether the action of the Oklahoma subsequent courts to the issuance of this Court’s mandate an constitutes evasion mandate. Rutledge, Justice dissenting.
Mr. I am join unable to in the in opinion Court’s or its disposition the petition. In my judgment neither the action by Supreme taken Court of nor that of the District Court of County, Cleveland following upon the decision and issuance of our mandate No. 369, Sipuel U. S. is con- 332 sistent our with that cause or therefore with our mandate which issued forthwith.1
It is possible under those orders for the state’s officials dispose petitioner’s for a legal demand education equal to that afforded to white students establishing overnight Negroes law school for to con- or tinue affording students advantages white denying while them The could petitioner. latter done all applicants either for admission to excluding first-year university class of after school the date of the depending upon District Court’s order or, of that meaning order, by excluding applicants all asking prior enrolled to that students order’s date to withdraw from school.
Neither of those courses, my opinion, would com- ply our mandate. It plainly meant, to me at Supreme judgment reversed mandate the Oklahoma Court’s proceedings “for and remanded the cause to it not inconsistent with opinion.” *5 Ox ÍO prac-
rate, that Oklahoma should end the discrimination petitioner once, time, at not at some later against ticed done, should be near or remote. It also meant by affording peti- if all then by excluding students, not advantages tioner the of a education to those legal comprehension And in my afforded to white students. in equality required equality fact, legal was not fiction.
Obviously no law school could established capable petitioner legal overnight giving elsewhere long- education to that afforded the state’s university established and well-known state law school. necessary Nor could the time be taken to create such facilities, continuing deny petitioner, while them to incurring delay without which would continue required discrimination our mandate to end at once. comply would the state by continuing Neither deny required legal petitioner education to while student, it to affording other as it could do exclud- ing only students class from the state university school. allow
Since the state courts’ orders the state authorities pursue at their election to alternative courses, some of comply which do not with our I mandate, think those orders with it. I Accordingly inconsistent dissent from Court’s and decision this case.