*1 continuing junction, and device conceived the scheme he ** through agency his brother business contempt by way except tried This has not issue been asking respondent proceedings. It seems to me by judicial go beyond power decree without its Court to re- trial, unauthorized act of and lend its aid to the sanction rights parties by adjudicate spondent attempting rights parties contempt by as than a trial of the rather pleadings. reflected pray temporary respondent for a significant that did not It is Origin- injunction pleadings in Amended on its its Second based original petition, but asked that as did in its al Petition 7, hearing temporary injunction
upon of June final permanent. be made original injunction
Respondent upon the has elected to stand pleadings try the raised last than to issues rather is no evidence to sustain relator’s com- petition. there Since respondent solely contempt, and since the relies mitment 7, 1954, not, after June which do of the relator on the acts order, law, I violation of said conclude a matter of show discharged custody. from should be the relators 12, Opinion delivered October 1955. Blankenship McKinney C.
R. W. al v. et al E. et Decided October No. A-5483. (282 691) Series S.W. 2d *3 Dallas, Carlton Calton, & and appellants. Street Ross of Jones, Big L. Springs, Blankenship of and Guilford others, Shepperd, General, Waldrep, John Attorney Ben Burnell Davenport, Billy John Reeves, E. Lee At- and John Assistants torney General, of Commissioner Education and Comptroller. opinion delivered the of the Court. Mr. Justice Brewster appeal This is a declaratory judg direct in an action for injunction, ment as well as an McKinney, filed R. E. Ted O. Groebl, Currie, Foy Bruce, John Big Spring, and W. residents of Texas, McKinney representatives and group and Bruce as of a organization Dallas, County, against plaintiffs, Dallas Clyde Angel, Thompson, McAdams, R. Jones, W. Tom Omar Stripling, Dibrell, composing Robert and John the Board of Big Spring Independent Trustees of District, School W. C. Independent Big Spring School Blankenship, Superintendent of Education, and Edgar, District, State Commissioner J. W. Accounts, as defendants. Calvert, Comptroller of Public R. S. of Trustees Board that the alleged petition Appellants in their an order and entered made Big Spring District had School through grades six one integrating white and sought injunc- an They elementary District. public free expenditure of restrain the allocation tion to contrary to and any with manner inconsistent funds in Texas, VII, 7 of Article provisions of Texas, and Section 1 of Statutes Revised Civil Article They 2922-13, Texas Statutes. Annotated Civil Vernon’s foregoing declaring sought declaratory judgment that the also statutory provisions and enforcea- were valid and rights, obligations declaring de- ble, and duties petition the Board of In their to the fendants thereunder. answer Big Superintendent Spring District also Trustees School rights, declaring declaratory judgment duties and asked a legal obligations applicable appropriate laws and “under Attorney aligned statutes.” Texas intervened General of plaintiffs except the State in so far as the State Com- Comptroller missioner of Education and Public Accounts concerned. were judgment injunction
The trial court denied declared unconstitutional void Section 7 of VII *4 Constitution, R.C.S., language, 2900, and to the Article certain later, be noted 1 Article It then Section 2922-13. remaining portions
the of Article 2922-13 valid and enforceable. Appellants’ points that first three of error assert the trial granted injunction should court have to restrain the various the certifying, paying expending public defendants from school funds in and free any manner with the inconsistent statutory provisions. certify The duties of the to Commissioner of Education funds to which a school district is entitled and of the State Comptroller to purely issue and are transmit warrants therefor mandatory. V.A.T.C.S.; 2922-20, ministerial and 2663, R.C.S.; City Independent Marrs, of Austin Dist. v. School 72, injunction against 121 Texas parties 41 2d 9. S.W. these properly agree. parties was denied. To this all defendants, As to the judgment other the trial court’s was 636 undoubtedly predicated Supreme decision of the Court on Topeka, States in v. Board of Education of United Brown
Kansas, 483, 686, 873, on 347 74 98 L. Ed. decided U.S. S. Ct. 17, May 31, May 1954, in final was entered on which decree 1955, 294, 753, 757, 349 U.S. L. Ed. 1083. Brown v. S. Ct. Board of Education of four from states of was one cases Kansas, Carolina, Virginia Delaware, respectively, South argued together Supreme which were because before the Court they segregation had to do with in of white and public Virginia Carolina, Delaware The South constitutionality cases involved the state constitutional and statutory provisions requiring segregation. The Kansas statute permitted segregation 15,000 popu- forced in cities of more than “ ” Rejecting lation. ‘separate equal,’ the doctrine but announced in Plessey Ferguson, 1896 in v. 1138, 537, 16 S. Ct. 163 U.S. 41 by L. Ed. Supreme held, opinion Court in an written Warren, separate Chief Justice educational facilities inherently therefore, unequal, that, plaintiffs similarly others brought situated for whom four suits were been, by had segregation, deprived reason of equal protection granted the laws as the Fourteenth Amendment. In its final origin- decree the Court it said had declared in its opinion al principle “the fundamental that racial discrimination uneonstitional,” education proceeded and it then declare that federal, “all state or local law re- quiring permitting yield such discrimination this must principle.”
At the threshold of our consideration of issues in argument case we are met with the that since the constitutional statutory provisions segregation requiring in Texas schools Supreme were not they before the Court the Brown were case and we condemned should them hold valid and enforceable. proposition utterly That is so merit we without overrule discussion, except say without further Article VI of of the United declares: States “This Constitution and Laws of the United States * * * thereof, supreme made in shall be Pursuance shall be Judges Land; every Law of the and the bound any *5 thereby, any Thing in or Laws of State the Constitutions notwithstanding.” Contrary to the 2900 the Constitution and Article 7 of Article VII of
Section by trial statutes, and void unconstitutional our pro- Separate shall be court, schools follows: “Sec. read as provi- children, impartial for white and vided and colored pub- All available shall made for “Article 2900. sion be both.” county appropriated in each lic school funds of this state be children, and im- and colored for the education alike of white partial provision child No white made for both races. shall be children, supported nor shall colored shall attend schools supported children. for white colored children attend children’, as used in this terms and The ‘colored race’ ‘colored negro title, persons from all of mixed blood descended include statutory ancestry.” and that these constitutional To the extent segregation provisions require white and students and can- public they and void unconstitutional expenditure public in inte- bar not stand as a grated however, follow, It schools. does Section 2900 of the statutes Constitution and Article Article VII subject mat- applied and void to other are unconstitutional they by their terms intended to cover. ter which were reading of the Even 7 of Article VII a casual clear will make and Article the statutes segregation they they purpose: require a two-fold have and and schools of this state white students provision they require impartial made for equal and be invalidity should of both. The of their be education extent light by Supreme Court determined in the of what said was before of the United limited the facts of cases States as it evi it. is so limited will be When the Court unconstitutional and dent that what condemned as Court constitutional, statutory, void, condemned, and all it were segregation require permit forced law which local through agencies. by governmental officers and complete immediate Supreme did Court not direct integration 7 of Article VII in all To declare Section Article 2900 of the statutes unconstitu- of the Constitution and safeguards destroy entirety tional and void guarantee equal impartial provision for therein which found yet integrated. judgment No which in schools not should rendered unless it is neces- would lead to that result be sary, unnecessary. that a often we find While it is said purpose is unconstitu- and void one law unconstitutional purposes, held that a it is nevertheless tional void may applied law unconstitutional and void when state be subject laws the Constitution or prohibited matter applied may constitutional and valid when the United States Bevins, subject prohibited. v. 210 Iowa matter not so to a
638 1031, 865, appeal dismissed, Iowa, 230 N.W. Bevins v. 815, 282 216, U.S. 51 729; S. Ct. 75 L. Ed. Ratterman v. Western Telegraph Co., Union 411, 1127, 127 U.S. 8 32 Ed. S. Ct. L. 229; Cooley’s Limitations, Ed., 1, p. Constitutional 8th Vol. 366; 857, 11 Am. Law, Jur. Constitutional conclude We § that Section 7 of Article VII of they require are unconstitutional and void in far as so segregation negro public of white and students in of Texas. problem
The most difficult in the case involves a determina- 2922-13, tion of V.A.C.S., whether Article articles one several (Article through 2922-22, 2922-11 V.A.T.C.S.) part, together whole, were a constituted the the Founda- Program (Acts Leg., p. 625, tion School Act ch. 51st 334) popularly Law, prohibits, known as Gilmer-Aikins expenditure integrated public It is asserted by appellants that it does. declaratory judgment portions The trial court’s certain held sentences, of the first two unconstitutional. These two sentences being parts (under-
with the declared italicized unconstitutional scored), as follows: professional purpose
“The number of units for the alloted district, except provided, each this act to school herein upon average daily be based and determined attendance separate preceding year, for the district the next school separate negroes. upon whites and allotments based Such white attendance shall be utilized white allot- upon negro ments based attendance utilized in shall be Stat., schools.” Am. Vernon’s Civ. Art. 2922-13.
Evidently language the trial court held un- the italicized theory prohibited public on the the use of and, effect, practical required funds in segregation proper were the white and students. If that language might interpretation of we be faced with the well questions the trial serious constitutional which confronted same (a) funds to a school dis- whether the denial of court integration required segre- program which undertook trict offending (b) so, rendered gation, whether agree we void. But do not Act unconstitutional the entire language. interpretation proper is the that language remaining interpreted in its context must be provisions of the Act. oper- in their district
Article 2922-12 authorizes services, professional operating costs trans- ation to utilize portation By it is 2922-15 costs. of Article salaries, operating *7 professional that transportation the of all costs sum Act, costs, computed provided in the shall as Program. the the Foundation School constitute total cost of Program provides financed Article 2922-16 the be County funds, payments from from Avail- school local basis, per capita and such additional able School Funds on a program payments appropriations the Foundation from state to pro- necessary provide with the as to each school district transportation services, operating costs to fessional costs and computed Act. which entitled and determined under the it is as determining provides a amount This Article then formula for the program in local each district contribute the school must toward 1 of 2922-15 used in Section Article funds to be provides the district. determining each dis- the manner amount which of the costs, operating trict from Foundation Fund for is allotted the transportation, and while the other than salaries and cost upon item teacher units amount of this authorized, “separate is based the number of negroes,” separate for we for whites and language deny find the such in the Act no use of integrated pro- Article to Section 2 of 2922-15 funds vides determining to manner amounts be allotted from the services, again transportation fund language there is no for but here deny use of which would to schools the transportation money allotted students. brings us a consideration Article 2922-13. The
This to only allocation teachers and adminis- Article deals with the personnel. unconstitutional The trative trial court does not stand right alone. no declare We have to it means. ascertain until determine what To unconstitutional we meaning to 2922-12 Article we must look remaining provisions of Article 2922-13. and the parties have in the second treated word “allotments” meaning “funds.” It Article as does sentence of 2922-13 “professional term 2922-12 mean defines funds. personnel, re who will be and administrative units” teachers sentence of “teachers.” The first ferred to hereafter as professional units allot “The number of provides that 2922-13 upon and be determined district shall based to each school ted” by preceding average daily of students attendance negroes.” separate for “separate whites and year, (7) (4), (5), (6) and (1), (2), (3), of Sub-sections provide determining 1 Article 2922-13 the basis for the num- ber of teachers be allotted to each school district. Thus it appears the word “allotments” as used in under sentence “teacher,” consideration speaks means and when it of “such speaks allotments” it of “such teachers.” As reconstructed in setting, provides: second sentence “Such teachers based upon white attendance shall be utilized in white upon teachers based attendance shall utilized in limitation, imposed by schools.” It any, follows that sentence on applies only use their use payment assigned of salaries to teach in teachers in- tegrated schools. Superintendent Counsel for Board of Trustees and
Big Spring argument School District admitted in oral that there necessity declaring is no or occasion for the last words seven *8 in the first sentence of Section 1 Article unconsti 2922-13 tutional, agree. nothing requir we There in is those words ing segregation, nothing and there is in the Brown decision directing can interpreted nullifying which be as a state statute negro white separately, that students be enumerated on the average daily attendance, determining basis in the number a teachers which Whether district is entitled. requires first sentence of Article 2922-13 that the number of teachers allotted on basis of attendance of white students be white teachers and on the number of teachers allotted negro negro basis students be is in issue in this teachers not unnecessary It question case. is a to decide the as basis for granting denying injunctive sought, and there relief is justiciable controversy parties respect no with between declaratory judgment which thereto would authorize a thereon. remaining question Our is this: Does the second sentence 2922-13, it, prop 1 of have Section as reconstructed we erly interpreted, prohibit teachers in inte the utilization of grated and, incidentally, pay schools in use of ing assigned? question salaries of teachers thus We answer a no. at answer from consideration of the sen We arrive our legal considered its tence in and factual context. give might question well an affirmative to the
To answer holding unconstitu lead to further that the sentence was segregation, a requiring elementary it stat tional interpreted render it in manner as to un ute will not be such any may held if construction it be reasonable 516, 8 Robison, 117 S.W. 2d v. Texas Greene constitutional.
641 655; 206, Jur., Statutes, Brown Texas Section 111. In v. Galveston, 1, 9, 488, 492, approved Texas this court S.W. “ Cooley question the rule as stated Mr. as follows: ‘The a repugnancy whether law be void for its to the Constitution ought seldom, delicacy, question is at times of much ever, to be decided in the affirmative in a case’.” doubtful Moreover, surely adopt there no was need as late as 1949 to any segregation Texas, sort of statute in because 7 of seventy-three Article VII was written into the Constitution years before and Article 2900 had been enacted as statute forty-four years hand, need, before. On the was a other there light long-standing of Section Article VII, statutes, of the Constitution and 2900 of the language providing complying used in the mechanics for equal impartial direction for treatment white and negro therefore, conclude, students. It seems reasonable to requirement the number of on at- teachers calculated tendance of white students be utilized in white negro number of teachers calculated on attendance of guarantee utilized was inserted the Act to equal impartial provision for white and students in teacher-pupil load. mandatory accomplish of the sentence is
purpose prohibitory. but requires it is not it the use of While teachers allotted on basis of attendance white students white negro and the use of teachers alloted on the basis of negro schools, provide
attendance in does that none may of such be used in teachers *9 legislature
There are other considerations. has made appropriations to finance the share state’s of the Foundation Program years 1956-57; Fund of for the school 1955-56 and payment it has authorized the certification and school to districts necessary operating schools, of all funds costs of all with no against integrated prohibition restriction or use of such funds in schools; it payment has authorized the certification to school necessary defray transport of all districts ing to the cost of schools, prohibition students to all with no restriction or against integrated transport use of funds to such students to schools; employment payment it has the of and the authorized given to a of teachers in each of salaries all of number school money help salaries; appropriated pay to district has (Arts. 2693, R.C.S.) 2750 and that teachers a matter of law is employment and a matter of under contracts common work usually knowledge customarily contracts exe- that such are cuted beginning year several months before the school they for which are executed. to Under these circumstances hold may officials of a school district not utilize the whole num- teachers, employed ber contract, and entitled to their salaries under assigning integrated some to them teach proscribed by not laws state, segregated once need teachers in district, any, satisfied, has been would lead a foolish result. legislature It mean that authorized the use of had public transport a funds to common students of both races building public pay and had authorized use of funds to operating integrated established, costs thus school but teachers, employed that a number of under for the contract year full school and entitled to demand their there- salaries under, could not teach in the school thus established would remain and the would be but idle school alternative, a left without instruction. Unless there is no stat- interpreted a absurd ute will not be so as to lead to foolish or 222, Statutes, result. Texas Jur. the law Sec. While district, a number allotted to school controls the of teachers assignment teachers, once need for teachers in se- the gregated reasonably satisfied, largely matter left is school authorities. discretion local was, purpose Act of the The dominant Gilmer-Aikin age guarantee terms, in Texas “to to each child of school own Program availability Foundation School of minimum eligibility year, (9) and to establish the full months of the nine requirements in con
applicable districts to Texas we have The construction 2922-11. therewith.” Article nection given 2922-13 will 1 of Article sentence of Section the second fulfill, defeat, purpose. that no funds has said it follows what been
From being expended manner in a inconsistent school district VII, of the Constitution provisions of Section the valid statutes, judgment and the and 2922-13 of our or Articles injunction affirmed. is therefore denying an court trial declaratory as fol- judgment is modified court’s The trial lows: *10 un- declared is of Article VII the Constitution segrega- requires the to extent and void
constitutional negro schools. and tion of white The first of Article 2900 declared constitutional sentence is and valid. The declared uncon- second sentence the article is and stitutional void. The third sentence immaterial. given first
The two of Article are a sentences 2922-13 con- opinion struction consistent with and this are consti- tutional and valid.
Opinion delivered October concurring. Walker, Mb. joined Justice Griffin Justice majority I concur in the which has been result reached agree majority opinion except as to the construc- provisions Legisla- tion of Art. 2922-13. If an act of the given any per- ture be can which will reasonable construction valid, mit law to be sustained adopted. adopt construction should be But we should not simply strained unreasonable construction enable us say act is constitutional. my opinion language (whether
It is that the “such allotments upon teachers) funds or white based attendance be negro schools, upon utilized in white and allotments based at- exclusionary. mandatory tendance schools” is I stronger can think of no than “shall be utilized.” It requires in no uncertain terms that the allotments teachers in either used or white there is nothing authorizing in the act the school authorities to use them give
To hold this second valid sentence this case requiring separate force and effect to law schools for whites negroes. object particular enjoin this is to suit use of Foundation School funds in which have been integrated by injunc- local school board. The result of tion, granted, would be the abandonment of the limited dese- gregation policy voluntarily adopted by the thus local school authorities, unlikely unless the should alter- trustees choose operating my Foundation funds. It is native without School therefore, opinion, of the United that under decision States case, quoted provisions Supreme in the Brown Court Art. applied when facts of 2922-13 unconstitutional case. of all the of the Foundation School Pro-
In view *11 gram Act, severability particularly purpose and sec- Legislature tions, primary purpose and the which motivated pro- statute, my opinion quoted enact it is also unconstitutionality applied when is severable and that vision validity impair affect or character does not to a case of this operation the statute. of the remainder of reasoning opinion equal and majority All the races impartial support both Program fully and Act will be apply; the Foundation School support that are provide for schools completely effective Supreme Court’s legally segregated States under United in- case, been and for schools have Brown decision using judgment and their best tegrated by boards local school support case), and for done in this (as has been discretion or both. either 12, 1955. delivered October
Opinion