185 N.E. 196 | Ohio | 1933
The relator asks for a writ of mandamus in this court under the provision of Section 12283, General Code, which authorizes a writ to issue "commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." In order to obtain the relief sought the relator must disclose a case wherein no discretion is imposed upon the respondents in the performance of that duty; if discretion is imposed, we have frequently held that such discretion cannot be controlled *295 by a writ of mandamus; and it has also been held by this court that, before the writ will issue, a plain dereliction of duty must be established by the relator.
In the last analysis the question here to be determined is whether the regulations adopted by the respondents, who are Ohio State University officials, contravene the provisions of the State and Federal Constitutions. In their brief counsel for the relator concede "that the acts sought to be compelled of them (the respondents) are not enjoined by statute." There has been no violation of any state law. With that concession we are in accord. Such being the case, although relator's counsel disclaim the presentation of a constitutional question, in order to obtain a writ in mandamus the relator must show that she has been denied a substantial right guaranteed to her by our organic, fundamental laws; that she has been deprived of a constitutional right under our state or Federal Constitution. Section 1 of the
The Ohio State University was established by special act of the General Assembly. Section 7942, General Code, reads: "The government of the Ohio state university shall be vested in a board of seven trustees," etc. Section 7948, General Code, reads: "The board of trustees may adopt by-laws, rules and regulations for the government of the university." By virtue of these sections, in respect to this university, the General Assembly not only vested the government thereof in the respondent board, but specifically granted that board full power to adopt rules and regulations for its government. If such rules and regulations are reasonable, and not arbitrary; if they furnish similar, adequate facilities to the races; if both races enjoy similar educational advantages in the university; if they reasonably regulate the purely social status of students, it cannot be claimed that the constitutional rights of either race, white or colored, have been abridged.
We come now to the instant case. The relator asks for a writ of mandamus commanding the respondents to admit her "to residence in the home management house as the same is usually conducted, and to make all the advantages, facilities and privileges thereof available to her without discrimination against her in any respect on account of her race and color." The substantial facts presented by the pleadings are not in dispute. Upon the university campus there is a double building providing the housing of students pursuing the course of Home Economics. This building is under a single roof, divided into two halls or compartments separated by a partition, each hall being similarly and equally well equipped and furnished; each compartment accommodates six girls and a supervisor. The house is so managed that its student residents "buy, cook and dine together as a common enterprise." The respondents' answer alleges: "In such hall the young women usually live two in a room, with *297 room mates of their own selection and have a common bath room and toilet facilities." They also allege that "in such house the students arrange among themselves concerning the cooking and serving of meals, buying of food and carrying on all of the activities of a family circle, under the supervision of a supervisor from the faculty of the university." The answer further alleges, and it is not denied, that the respondents have offered the relator quarters and opportunity to pursue her residence service in such house in one of its compartments which is "furnished and equipped in an equivalent and similar manner as to quality and quantity of furnishings as is the other compartment of the building," in which the relator may perform the necessary laboratory work, dwell and entertain her friends and associates in a similar manner and under like circumstances permitted other students enrolled in the course.
The relator has been denied no educational advantages or privileges that are not similarly used and enjoyed by other students; nor has she been denied the privilege of taking her degree, should she consent to occupy available space in the Home Economics house.
On page 211, in the Ohio case, Garnes v. McCann, supra, the learned judge said: "Any classification which preserves substantially equal school advantages is not prohibited by either the State or federal constitution, nor would it contravene the provisions of either." The relief that the relator seeks in this suit is such as to compel the respondents to grant her, not equal school advantages, but the same social intercourse. Under the provisions of Section 7948, General Code, the respondents had full authority to prescribe regulations that will prove most beneficial to the university and state and will best conserve, promote and secure the educational advantages of all races. The purely social relations of our citizens cannot be enforced *298
by law; nor were they intended to be regulated by our own laws or by the state and Federal Constitutions. Plessy v. Ferguson,
Writ denied.
WEYGANDT, C.J., DAY, ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
KINKADE, J., not participating.