State Board of Public Welfare v. Myers

²⁴⁹ PIiíndersojí, J., delivered the opinion of the Court. On February 26, 1960, Myers, a Negro boy thirteen years of age, by his mother and next friend, on behalf of himself and others similarly situated, filed a bill of complaint in the Circuit Court of Baltimore City for declaratory relief against the State Board of Public Welfare and the Boards of Managers of Maryland Training School, Boys’ Village, Montrose School for Girls, and Barrett School for Girls. The appellees filed demurrers and answers to the bill. The case was set for hearing, testimony was taken, and the chancellor passed a declaratory decree.

The Department of Public Welfare has the general supervision of all four schools, under Chapter 797, sec. 17, Acts of 1943 (Code (1960 Supp.), Art. 88A, sec. 33). The bill alleged that Code (1957), Art. 27, secs. 657 and 659 are unconstitutional insofar as the Boys’ Village and the Maryland Training School are declared to be public agencies of the State “for the care and reformation of colored male minors committed or transferred” thereto and “for the care and reformation of white male minors * * * committed thereto”, respectively. There was a similar prayer as to the two girls’ schools, involving secs. 660 and 661. The appellee contends and the chancellor agreed that these sections established racially segregated training schools for the detention and training of delinquent minors committed thereto.

The appellants concede that segregation is mandatory or at least that it has been invariably observed in practice. The chancellor held that insolar as the sections required a separation of the two races in those schools, they were in violation of the Fourteenth Amendment of the United States Constitution, and hence invalid and unenforceable, and entered a declaration to that effect, applicable to all four schools. The defendants appealed here. It was shown at the hearing below that Myers had been adjudged to be a delinquent child by the Circuit Court of Baltimore City, Division of Juvenile Causes, on October 28, 1959, acting under the authority conferred by sec. 249 of the Charter and Public Local Laws of Baltimore City (1949 ed.).

At that time he was ordered detained at Boys’ Village “sub curia as to final disposition.” The record shows that his ²⁵⁰ detention was extended by successive orders until July 6, 1960, when he was discharged from detention at Boys’ Village and committed to the Maryland Training School. At the time of the determination of delinquency the judge announced his intention to commit Myers to a training school since he was on probation at the time for previous thefts. Counsel for Myers then moved that he be sent to Maryland Training School rather than to Boys’ Village where Negro boys in his situation have always been committed. It was conceded, and later stipulated, that the tangible and physical facilities of the two schools are substantially equal.

Both provide cottage type housing and educational instruction substantially equivalent to that offered in the public schools. Counsel for Myers maintained that Boys’ Village could not provide him with rehabilitation and educational training equal to that provided at Maryland Training School because the former is racially segregated. Judge Moylan, sitting in the Juvenile Division, took no action upon the motion at that time but held the matter sub curia. He heard the declaratory judgment case then filed in the equity court.

On the same day that he passed the declaratory decree, July 6, 1960, he in effect granted the pending motion in the Juvenile Division and passed an order committing Myers to the Maryland Training School “subject to further order of this court.” No appeal was taken from that order. Nor was any application for a stay of the order made to the trial court or to the Court of Appeals. It was suggested at the argument that the case may have become moot upon the passage of the order of commitment to the Maryland Training School. That action would have been appealable under section 255 of the Charter and Public Local Laws of Baltimore City (1949 ed.), the local law applicable to Juvenile Causes in Baltimore City, which provides that “Any interested party aggrieved by any order or decree of the Judge, may, within thirty days after the entry of such order or decree, appeal therefrom to the Court of Appeals.” This section further provides that “The pendency of any such appeal * * * shall not suspend the order of the Judge regarding such child, * * * unless the Court of Appeals shall so ²⁵¹ order.” Obviously, the final order of commitment superseded the temporary orders of detention while the matter was held sub curia.

The failure to appeal or seek a stay would seem to preclude an attack upon the final order by the appellants. In Doremus v. Board of Education, 342 U. S. 429, 433 , an appeal to the United States Supreme Court was dismissed because the child, whose parents objected to Bible reading in a New Jersey public school, had graduated after the appeal was noted. Mr. Justice Jackson, for the Court, observed that “this Court does not sit to decide arguments after events have put them to rest.” Recent Supreme Court cases have applied the same general principle. See Oil Workers Unions v. Missouri, 361 U. S. 363, 367 ; Parker v. Ellis, 362 U. S. 574, 575 .

For similar holdings in Maryland under comparable factual situations, see Public Ser. Com’n v. Chesapeake & Potomac Tel. Co., 147 Md. 279 , Lloyd v. Bd. of Sup’rs of Elections, 206 Md. 36, 39 , and Lake Falls Ass’n v. Bd. of Zon. Appeals, 209 Md. 561, 564 .

We think the cases cited are distinguishable. In Moquin v. State, 216 Md. 524, 531 , we held that an order of commitment could be revoked even though the purpose of the revocation was to waive jurisdiction and require the delinquent to stand trial in the criminal court. It would seem that in the event of a reversal by this Court of the declaratory decree as to the constitutionality of the segregation statute, the trial court would possess the power to rescind the order of commitment, and might even be obliged to do so. The statute indicates that this Court has the power to suspend the operation of the trial court’s decree, at least upon timely application.

Thus the question is not necessarily academic. We may also note, although we leave the question open, that as pointed out in the Lloyd case, supra at p. 42, many courts regard the doctrine of mootness as a rule of decision rather than a question of jurisdiction and hold that where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest, a departure from the general rule and practice of not deciding academic questions may be justified. Cf. Avery v. Wichita Falls Independent School Dist., 241 F. 2d 230 (5th Cir.), cert. denied, 353 U. S. 938 . ²⁵² Another preliminary question is presented by the record concerning the appellee’s standing to sue or interest in the subject matter as against one or more of the parties defendant.

The fact that the question was not raised below, or even in this Court, is not controlling. See Kreatchman v. Ramsburg, 224 Md. 209 , and cases there cited. It is well settled that this Court does not decide constitutional questions in the abstract or at the instance of persons without standing to sue. Hammond v. Lancaster, 194 Md. 462, 471 (motion to stay denied, 339 U. S. 908 ); State v. Cherry, 224 Md. 144 .

Cf. Tanner v. McKeldin, 202 Md. 569, 580 . The cases indicate that the necessity of standing is not obviated by seeking relief in the form of a class action. It seems clear that Myers has no standing to attack the State policy in regard to the operation of the reform schools for girls, for he is not eligible for admission to either on account of his sex.

It is not contended that segregation according to sex is unconstitutional, whatever psychological harm he may suffer thereby. Nor do we think that Myers has shown any standing in the instant case to ask