The opinion of the court was delivered by: MATTHEWS
Welker C. Mitchell, a colored youth, by his mother, Margaret U. Mitchell, brought this suit for himself and on behalf of others similarly situated. The defendants are the Boys Club of Metropolitan Police, D.C., a corporation, and Robert E. McLaughlin and Alvin C. Welling who are sued in their official capacity as members of the Board of Commissioners of the District of Columbia. David B. Karrick, the remaining member of the three member Board of Commissioners of said District, is not a party to this suit, his substitution for his predecessor in office not having been made as provided by Rule 25(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
The plaintiff seeks to have the Court (1) declare the club corporation an agency of the District of Columbia Government, (2) enjoin the club corporation from denying membership in any of its clubs to plaintiff and other boys solely because of their color, (3) compel the acceptance of plaintiff's application for admission to Club Number Five now maintained for white boys, and (4) in the alternative (if plaintiff is not entitled to the above relief), enjoin the said Board of Commissioners from contributing to the club corporation any of the property, facilities, personnel or services of the District of Columbia so long as the club corporation operates racially segregated clubs.
It is conceded that the plaintiff was denied admission to Club Number Five solely because of his color pursuant to the uniform policy of the club corporation to maintain racially segregated clubs. Upon his premise that the club corporation is an agency of the District of Columbia Government the plaintiff contends that the denial of his admission constitutes an arbitrary deprivation of his liberty by the municipality itself in violation of the Fifth Amendment to the Constitution. The defendants deny that the club corporation is an agency of the District of Columbia Government. They deny that any constitutional right secured to the plaintiff is being infringed. Their position is that the club corporation is a private charitable organization, and therefore that its practice of racial segregation in its clubs is private action which is not forbidden by the Fifth Amendment.
The question presented here is whether the club corporation is an agency of the District of Columbia Government. In other words, the issue is whether the racial segregation about which plaintiff complains is public action or private action. If it is public action, then it violates the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884. On the other hand, if it is private action it is lawful and does not offend the guarantees of the Fifth Amendment. National Federation of Railway Workers v. National Mediation Board, 71 App.D.C. 266, 110 F.2d 529, certiorari denied 310 U.S. 628, 60 S. Ct. 975, 84 L. Ed. 1399.
'Public corporations are generally esteemed such as exist for public * * * purposes only, such as towns, cities, parishes and counties; * * * strictly speaking, public corporations are such only as are founded by the government, for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under charter of the government, the corporation is private, however extensive the uses may be to which it is devoted * * *
'When the corporation is said, at the bar, to be public, it is not merely meant that the whole community may be the proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control and direct the corporation, and its funds and franchises, at its own good will and pleasure. Now, such an authority does not exist in the government, except where the corporation is in the strictest sense, public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself.'
It is undisputed that the club corporation was organized as a private institution. No claim is made that it has consented to being turned into a public corporation or that Congress has passed legislation purporting to accomplish such a transformation. What the plaintiff argues is that the corporation's operations and finances have become so dependent upon and 'involved and emmeshed' with the District of Columbia that it now constitutes a de facto arm or agency of the municipal government. He grounds this theory on the fact that police officers aid the club corporation in its activities and participate in its fund-raising campaigns and that it is permitted free use of certain property and facilities belonging to the District of Columbia.
An evaluation of the claim of the plaintiff depends upon the surrounding circumstances. Therefore the circumstances in this case will now be reviewed.
When the plaintiff was ten years old he applied for and was admitted to membership in a club operated by the club corporation for colored boys at 1200 U Street, N.W. Deciding after about six months that he no longer wanted to be a member he ceased to be one. Five years later while still living in Northwest Washington he presented himself, with an executed application of membership, to Club Number Five in Southeast Washington which is located in an abandoned fire house owned by the District of Columbia. Membership in that club for white boys being refused, plaintiff filed this action.
The club corporation was organized in 1934 under the laws for the District of Columbia as a private charitable organization, the incorporators being three civilians and one police official who is called the Founder.
The aims of the club corporation are to develop correct speech, beneficial sports and clean habits among the boys of Washington, to cooperate with all recognized agencies in their work for the development of good citizenship in Washington, to teach boys the fundamentals of law observances, by a proper direction of recreational activities to lessen juvenile delinquency, and to create an interest among the citizens of Washington in their responsibilities to youth.
A boy become a member of a club without cost to him or his parents in the way of fees, dues or assessments, all expenses being borne by the club corporation.