the city, if the pool is operated, must operate it itself, or, if leased, must see that it is operated without discrimination because of race.
Missing from the instant case are the critical facts present in Lawrence v. Hancock. The boys clubs were not set up as was the swimming pool by the city. Neither were the clubs established as was the pool with public funds under a legislative act. Moreover, the club corporation was not set up as a private corporation in a scheme to have the District of Columbia get around the Fifth Amendment.
It is well settled that aid given by a government to a private corporation is not enough in itself to change the character of the corporation from private to public. Maiatico Const. Co. v. United States, 65 App.D.C. 62, 79 F.2d 418, 421, certiorari denied 296 U.S. 649, 56 S. Ct. 309, 80 L. Ed. 462. This case involved interpretation of a Federal statute requiring a person entering into a contract with the United States for the construction of a 'public building' or completion of any 'public work' to execute a bond conditioned that the contractor shall promptly make payment to all persons supplying him with labor and materials in the prosecution of the work, and giving to all such persons the right to intervene in a suit upon the bond. In a suit claimed to be on such a bond the question was whether three dormitories built on land owned by Howard University (a private corporation) were 'public buildings' or 'public works', the United States having borne the cost of the dormitories and entered into the agreement with the contractor for their erection. It became necessary to decide whether Howard University had lost its private character because of an Act of Congress providing for large annual appropriations for construction, maintenance and development of the institution including payment of personnel, and stipulating that the University be open for inspection by the Bureau of Education and that the Bureau report yearly to Congress regarding its inspection.
In reaching the conclusion that the University had retained its character as a private corporation, that its rights, powers and liabilities were fixed by its charter and the laws in relation to private corporations, and that the dormitories involved were neither public buildings nor public works, the court said in part:
'Congress has passed no law giving the Secretary of the Interior or any other officer of the government control of the University, and we think it is obvious it could not do so without the consent and approval of the corporate authorities of that institution. Hence, in the view we take, the generosity of the government is not enough in itself to change a private into a public institution.'
The court cited many cases supporting its ruling and distinguishing public corporations from private corporations, and concluded as follows:
'Numerous other cases to the same effect can be cited and, so far as our examination has gone, there are none to the contrary; and so we reach the conclusion that Howard University is a private institution;
'That its right and title to its buildings is not affected by the fact that many of them may be the result of the generosity of the national government * * *.'
It is the view of this court that the upholding of the contention in the instant case that the club corporation has become an agency of government because of aid given it by the District of Columbia as above outlined would not only be contrary to legal precedent but would produce startling results as well. The Board of Commissioners of the District of Columbia has allowed the use of property and facilities belonging to the District to certain private institutions in the pursuit of their civic, benevolent and charitable objects. Among these institutions are several societies for the blind, Alcoholics Anonymous, a nursery school, and a congress of parents and teachers. In the money raising campaign for the benefit of agencies such as the Boy Scouts, the Red Cross, the Salvation Army, and the Prevention of Blindness Society which is now being conducted by the United Givers Fund of the National Capital Area, Inc., many government employees are being permitted to solicit contributions on official time as policemen have done for the club corporation. If each time a government lends its assistance to a private institution it were to acquire that institution as an arm of government, then government would indeed become a many armed thing. According to the two members of the Board of Commissioners of the District of Columbia who are before the court the Board treats as a matter within its discretion such aid as the District gives to private institutions whose activities promote community interests. In their judgment the time that police officers devote to Boys Club work cannot be considered a deviation from police duties since the moulding of the future of the city's underprivileged boys towards good citizenship constitutes a major phase of police work, and ultimately accomplishes the prevention of juvenile delinquency and crime. However that may be, it is clear that police officers only participate in the affairs of the club corporation. They do not control the corporation. Government control is the decisive factor in the determination of whether a corporation is public or private and governmental control of the club corporation does not exist. The club corporation, a private institution, acting on its own initiative and expressing its own will, may segregate its clubs without thereby offending the guaranties of the constitution. 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.
On the basis of the facts in the present case and established principles of law the court concludes:
(1) That the Boys Club of Metropolitan Police, D.C., is a private charitable corporation, directed, maintained, and operated predominantly by private citizens;
(2) That the use of certain District of Columbia property and facilities by said club corporation and the participation of policemen in its work and in its fund raising campaigns have not changed its private nature or made it an instrument of government for the administration of public duties;
(3) That said club corporation is not a de facto arm or agency of the District of Columbia government;
(4) That the practice of said club corporation of maintaining segregated clubs is private action not forbidden by the Fifth Amendment;
(5) That the court is not empowered to interfere with the segregation practices of a private corporation;
(6) That the court lacks jurisdiction over the statutory three-member Board of Commissioners for the District of Columbia, only two members of the Board being defendants in this action; and
(7) That the complaint should be dismissed as to all defendants.
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