Where return to alternative writ of mandamus seeking to compel admission of Negro to University Law School alleged that newly established Negro law school would be equal to the University Law School, relator, by moving for issuance of a peremptory writ notwithstanding the return, admitted truth of the allegations and could not contend that facilities at the Negro law school would not be adequate.
A final point suggested by the relator--but one we deem to be without merit on the state of the pleadings--is that inasmuch as the law school at Florida Agricultural and Mechanical College for Negroes has been but recently established, it must follow that proper adequate facilities and sufficient teaching personnel will not be actually available at the Negro college when the time comes for him to begin his course of study.
It is clear from the record that at the present time the relator does not have an application pending for admission to a current or future term of a first-year law class at any State maintained institution of higher learning; the application formerly submitted by him being only for admission to the first year class of the College of Law of the University of Florida for attendance at the 1949 summer session, now long since past. What the relator suggests, *616 therefore, with respect to facilities at the Negro college, may or may not prove true, in whole or in part; the matter being dependent upon the seasonableness with which he renews his application. Certainly, the requirement that he keep his application current for each succeeding term is not unreasonable, for as much as this is required of every student, whether white or Negro, desirous of attending classes at any state maintained institution of higher learning. Without such requirement it is plain that budgets comprehensive enough to meet legitimate educational needs could never be intelligently framed nor could state funds be made available in every instance to meet them.
The bona fides of the alternative plan offered by the Board of Control and the Board's authority to establish the law school at the Negro college are not open to question by the relator under the pleadings in this proceeding, for by its answer the Board has shown that it will offer substantially equal opportunities to the relator and under the controlling statute the Board 'has jurisdiction over and complete management and control' of the several universities and college of the State's University system, and ' is invested with full power and authority to make all rules and regulations necessary for their governance, not inconsistent with the general rules and regulations made or which may be made at any joint meeting of the said board with the state board of education * * * to have full management, possession and control of each and every of the said institutions and every department thereof * * * to provide for the course of instruction and the different branches and grades to be kept and maintained thereat, and to alter and change the same * * * to make and prepare all necessary budgets of expenditures for the enlargement, proper furnishing, maintenance, support and conduct of the same * * *.' Section 240.04, Florida Statutes, 1941, F.S.A.
The Board's resolution appended to the answer mandatorily requires, withort a single element of discretion left to any school head whether or not to obey the mandate, the physical establishment of the law school thereby created at the Florida Agricultural and Mechanical College for Negroes, with public funds (of which there are some for these purposes) as soon as the necessary physical equipment and teaching personnel can be assembled. It also mandatorily requires that if the law school is not in position actually to function at the time of the enrollment of the relator after timely renewal of his application, then and in that event, the relator will be given instruction in his desired course at any other State institution within the State offering the course. Under these arrangements it is apparent that whatever the state of the facilities present at the Negro college at the time of the enrollment of the relator at the college, he will receive immediate instruction in his desired course of a calibre substantially equal to, perhaps identical with, that received by any white student enrolled at the only tax-supported institution now offering the course of study within the State of Florida.