The opinion
*448 On Appellant’s Motion for Rehearing.
Point VII in the motion complains that this court “erred in ignoring testimony introduced by appellant and merely adopting appellees’ interpretation of the evidence by attaching to its opinion, an appendix copied in the main from appellees’ brief, and based its opinion and judgment on said appellees’ brief, without making an independent evaluation of the record as to the comparative values of the two law schools as a basis for its opinion and judgment.”
Implicit in the statement in our opinion that the resume of evidence set forth in the appendix was “approved and adopted by us as a fair statement of the evidence” in the stated respect, was the assertion (which we now make, explicit) that we had made “an independent evaluation of the record as to the comparative values of the two law schools as a basis for its (our) opinion and judgment,” and that from this “independent evaluation” we reached the conclusion and so held that the statement in the appendix contained a fair résumé of the pertinent evidence, which we approved and adopted as our own.
It should always be held in mind that the members of this court are not the triers of fact. That is the function of the trial court. This court is one of review only. Where there is no evidence of sufficient probative value to support a judgment, we have the power to set it aside and render the judgment which the trial court should have rendered. We also have the power (when our jurisdiction in that regard is properly invoked) to set aside a judgment and order a new trial on the facts, where the evidence so greatly preponderates against the judgment as, in our opinion, to require that it be set aside in the interest of justice. Our jurisdiction in this latter regard was not invoked in this case. See Wisdom v. Smith, Tex.Sup., 209 S.W.2d 164 ; Hall Music Co. v. Robertson, 117 Tex. 261 , 1 S.W.2d 857 ; Phillips v. Anderson, Tex.Civ.App., 93 S.W.2d 171 . However, we have carefully considered the evidence from that viewpoint as well as from that of its sufficiency as a matter of law; and were our jurisdiction in that regard properly invoked we would be constrained to hold that its preponderance and overwhelming weight support the trial court’s judgment and the specific fact findings therein which are quoted in our original opinion; if in fact it does not conclusively do so, as a matter of law.
The motion is overruled.
Overruled.
Appendix.
Breaking the elements of the .School of Law into component parts, the following evidence was deduced.
Entrance, Examination, Graduation, and
Similar Requirements.
The requirements for admission and fees, and regulations relating to classification of students, classwork, examinations, grades and credits, standards of work required, and degrees rewarded are exactly the same as those published in the latest published catalogue of The University of Texas and used at such institution.
The Faculty
The instructors at the School of Law of the Texas State University for Negroes were and are the very same professors which had taught or were teaching the same courses at The University of Texas Law School. They were the same instructors Sweatt would have had if he had been enrolled in The University of Texas. The instructions from the Board of Regents were to use all of the faculty of the University Law School, so far as necessary, in order to maintain a full curriculum at the Negro Law School until four more full-time professors could be employed for the Negro Law School. The budget provided for four professors at $6,000 per year — the same pay base for professors at The University of Texas. Each of the instructors devotes all of his time to teaching — each a full-time professor. None are engaged in the private law practice. With the small enrollment at the Negro Law School, the instructors would be more available to the students for consultation then they would be to students at The University of Texas with its large class of 150 to 175 students. The Dean and Registrar of the two law schools were respectively the same persons.
*449 Curriculum
The curriculum at the Negro Law School and at The University was exactly the same; it was the same as that adopted in the' latest University of Texas School of Law Bulletin. The courses offered beginning students at the Negro Law School were identical with those offered beginning students at the University: Contracts, Torts and Legal Bibliography. These courses, with the same professors, are set out in Respondent’s Exhibit 7.
Classroom
The classroom requirements were identical. With much smaller classes, the Negro Law School would provide the student with the opportunity to personally participate in classroom recitations and discussions. In an average law class at The University of Texas Law School, an average student would be called upon to recite ■ only an average of 1⅜ times a semester. In a smaller class the students would receive better experience and education; they would be called on more frequently, would be more “on their toes”. The students would come to class better prepared because their chances of being called upon are much greater; there would be a greater pressure to keep up their daily work. Dean McCormick testified that “in the Negro Law School he (Sweatt) would have gotten a good deal more personal attention from the faculty than he would have had he been in the large entering class in The University of Texas.”
Library
At the time of trial, there were bn hand in the School of Law of the Texas State University for Negroes books customarily used by the first-year class of the University, and other books which Miss Helen Hargrave, Librarian of the University Law School, thought would be useful. There were about 200 of these books. There were also available for transfer to the Negro Law School between 500 and 600 books from the University, plus gifts of between 900 and 950 books. In addition, the entire library of the Supreme Court of Texas was specifically made available to the Negro Law School by Section 11 of H. B. 240, Acts 50th Legislature [Vernon’s Ann. Civ. St. art. 2643b note]. The Supreme Court Library is located in the State Capitol Building on the second floor. The Capitol grounds are some 20 feet from the Negro Law School, and the entrance is only about 300 feet from that School.
The Supreme Court Library contains approximately 42,000 volumes, which number is far in excess of the 7,500-book minimum requirement of the American Bar Association. Excluding duplicates, The University of Texas Law Library contains 30,-000 to 35,000 books. Counting duplicates, it contains around 65,000. These books serve 850 law students of The University of Texas.
In some respects the Supreme Court Library is stronger than that of the University. Being a Governmental Depository, the Supreme Court Library automatically receives many reports, such as those of administrative bodies. It is the strongest library in the South on State Session Laws. It contains Attorney General’s Opinions, Tax Board Opinions, Workmen’s Compensation Reports, and other items not carried by the University. . The Supreme Court Library is more spacious for a student body of ten students than are the facilities at The University of Texas Law School Library, which are exceedingly crowded. There is no more confusion, and in most instances, less confusion in the Supreme Court Library than at the Law Library at the University because of the large number of persons using the latter.
On the other hand, the Supreme Court Library does not have as many textbooks, legal periodicals, or English reports as the University Law Library. The Court’s Library contains the Harvard, Columbia, Yale, and Texas Law Reviews, and the American Bar Association Journal. It has the English Reports up to 1932. The Law Library of The University of Texas and that of the Supreme Court are substantially equal except for -the texts, legal periodicals, and English Reports.
However, all of such texts, legal periodicals, and English Reports, not available in the Supreme Court Library, are readily available to the Negro Law School on a *450 loan, basis from the Law Library of The University of Texas.
In addition to the books in the Negro Law School and in the Supreme Court Library, and those available on a loan basis from the Law Library of The University of Texas, a complete law library is being procured, consisting of some 10,000 law books, some of which are already available. The rest have been placed for order through the Board of Control for the School of Law of the Texas State University for Negroes. The list of the 10,008 books which will constitute the Negro Law School Library is set out in Respondent’s Exhibit No. 8. Of such number 1,281 are immediately available, and 8,727 books were already requisitioned. Bids had already been requested on the 8,727 books requisitioned, and-23 bids were received. Orders have already been placed for 5,702 of the books, all deliverable within ten to sixty days. Wherever new. books' were available, they were ordered; second-hand books were only ordered where new ones were not available. The library requisitioned included 20 Law Reviews, Indices of legal periodicals, Citators, Digests, Restatements, textbooks, statutes, the complete West Publishing Company Reporter System, etc. The undisputed evidence is that the books ordered for the Negro Law School are sufficient to meet the requirements of the American Association of Law Schools.
The Physical Facilities.
. Whereas The University of Texas Law School has 3 classrooms for 850 students, the School of Law of the Texas State University of Negroes has two classrooms, plus a reading room, toilet facilities, and an entrance hall, for a much smaller student body. The two law schools possess approximately .the same facilities for light and' ventilation, , (“There -are ample windows and lights.”) though most law schools, including The University of Texas, need artificial light in the daytime. The Negro Law School, assuming a class of 10 students, has a greater floor space per student.
The location of the Negro Law School is particularly good. It is directly north of the State Capitol, separated only by a 20-foot street. It is within 100 yards of the Supreme Court of Texas, the Court of Civil Appeals, the Attorney General’s Office, and the Legislature. It is between the business district of Austin and The University of Texas — 8 blocks south of the University, and hence 8 blocks nearer the business district.
The building housing the Negro Law School is a three-story building of brick construction. The first flopr was occupied by the School at the time of trial, but the upper two stories of the building were available as needed. Before March 10, 1947, the premises were cleaned up and painted. The building has ample space to house the 10,000 volume library and leave sufficient space for classrooms and reading room.
Plon. D. A. Simmons, President of the .Texas Bar Association 1937-38; President of the American Judicature Society 1940-1942; and President of the American Bar Association 1944-1945, testified: “In my opinion, the facilities, the course of study, with the same professors, would afford an opportunity for a legal education equal or substantially equal to that given the students at The University of Texas Law School.”
Hon. D. K. Woodward, Jr., Chairman of the Board of Regents of The University of Texas, testified:
“What we set up there was a plant fully adequate to give the very best legal instruction for the only man of the Negro race who had ever applied for instruction in law at the University in about 63 years of the life of the School.”
* * * * * *
“I am talking as a man familiar with what it takes to provide a thorough training in law in the State of Texas, and I stated the facts within my own personal knowledge, that the facilities which the Board of Regents of the University set up in accordance with Senate Bill 140 are such as to provide the Relator in this case the opportunity for the study of law unsurpassed any time elsewhere in the State of Texas, and fully equal to the opportunity and instruction we are offering at the University any day.”
*451 lion. Charles T. McCormick, Dean of the University of Texas Law School and President of the Association of American Law Schools, 1942, testified that the facilities at the Law School for Negro citizens furnished to Negro citizens an equal opportunity for study in law and procedure; that considering the respective use by the respective number of students, the physical facilities offered by the Negro Law School were substantially equal to those offered at The University of Texas Law School; and that: “I would say * * * the Negro student has at least equal and probably superior facilities for the study of law.”
With reference to the membership requirements of the Association of American Law Schools, it was shown that the Negro Law School, at the time of this trial, met the great majority of the 9 requirements:
(1) It is a school not operated as a commercial enterprise, and the compensation of any officer or member of its teaching staff is not dependent on the number of students or the fees received.
(2) It satisfies the entrance requirements, i. e., pre-legal training, etc.
(3) The school is a “full-time law school.” The school work is arranged so that substantially the full working time of the student is required at the school.
(4) The conferring of its degrees is conditioned upon the attainment of a grade of scholarship attained by examinations.
(5) No special students are admitted. In this, the School’s requirement is stronger than that of the Association, which permits such students under certain considerations.
(6) The 10,000 volume library ordered for the School is sufficient to meet the library requirements. The selection of the books is such as to conform with the Association’s requirements. In addition, the Supreme Court Library of 40,000 volumes is available, plus loan privileges from the Law Library of the University of Texas.
(7) The seventh requirement is that the “faculty shall consist of at least four full-time instructors who devote substantially all of their time to the work of the school.” The professors in this case are full-time professors in the sense that all of their time is devoted to teaching. However, all of their teaching is not done at the Negro school; they will also be teaching at the University.
(8) Provision has been made for keeping a complete and readily accessible' individual record of each student.
(9) The requirement reads, “It shall be a school which possesses reasonably adequate facilities and which is conducted in accordance with those standards and practices generally recognized by member schools as essential to the maintenance of a sound educational policy.” Dean McCormick testified that in his opinion the Negro Law School met this requirement.
The testimony was that a two-year period is generally required before any law school may be admitted to membership in the Association of American Law Schools. Dean McCormick testified that he knew of no reason why the Negro Law School could not comply with all of those standards within that two-year period — before any entering student could graduate from the school.