Supplemental Appendix of Appellant (Detroit Board of Education v. Bradley)

    IN THE

Supreme Court of the United States
October Term, 1952

No. 517

Olive B. Barrows, R ichard P ikaar and M. M. O ’Gara,

Petitioners,

L eola J ackson,
vs.

Respondent.

BR IEF FOR R E SPO N D EN T.

L oren M iller ,
T hurgood M arshall, 
F r a n k l in  H . W illia m s ,

542 South Broadway,
Los Angeles 13, California,

Counsel for Respondent.

M aurice W albert, 
J ames S im s ,
H arold J. S in c la ir ,

Of Counsel.

The Myers Legal Press, Los Angeles. Phone VAndike 9007.



SUBJECT INDEX

PAGE

Jurisdictional statement ..................................................   1

The issue involved............................................................................  1

Statement of facts............................................................................  3

Questions presented ......................    5

Summary of argument..........................     6

Argument.........................................................    8

1. The impairment of contract claim........................................  8

2. The effect of enforcement.......................................................  14

3. Petitioners’ claim of denial of due process of law........... 19

4. Petitioners’ claimed denial of equal protection of the law 21

5. Enforcement of the agreement would deny respondent
due process of law........... .......................................................  22

6. Failure to incorporate the prospective clause....................... 30

7. “Anticipated defenses” ...........................................................  30

Conclusion 31



TABLE OF AUTHORITIES CITED

Cases page

Alderson v. Cutting, 163 Cal. 503....................................................  10
American Federation of Labor v. Swing, 312 U. S. 321............... 22
Atlantic Coast Line v. Riverside Mills, 219 U. S. 186................... 19
Bailey v. Alabama, 219 U. S. 219..... ............... ...........................3, 23
Bank of United States v. Deveaux, 5 Cranch 61........................... 29
Buchanan v. Warley, 245 U. S. 60...............1, 7, 23, 24, 25, 26, 27
Burkhardt v. Lofton, 63 Cal. App. 2d 230......................................  10
Civil Rights Cases, 109 U. S. 3.................................................. 16, 28
Cleveland & P. R. Co. v. Cleveland, 235 U. S. 50......................... 12
Continental Paper Co. v. St. Louis Vaight, 212 U. S. 227...........  16
Cummings v. Hokr, 31 Cal. 2d 844................................................ 11
Endicott v. Rosenthal, 216 Cal. 721, 16 P. 2d 673......................... 15
Fairchild v. Raines, 24 Cal. 2d 818  .................................... 9, 10
Fay v. New York, 332 U. S. 261................................................15, 28
Fewell v. Pratt, 17 Cal. 2d 85..................................... ....................  16
Friesen v. Glendale, 209 Cal. 524....................................................  10
Harmon v. Tyler, 273 U. S. 668......... ...........................................2, 25
Hudson Water Co. v. McCarter, 209 U. S. 349........................... 19
Hurd v. Hodges, 334 U. S. 24......................................................2, 18
Letteau v. Ellis, 122 Cal. App. 584..................................................  10
Littlejohn v. Henderson, 111 Cal. App. 115..................................  10
Lochner v. New York, 178 U. S. 45.......................................... 19, 28
Los Angeles Investment Co. v. Gary, 181 Cal. 681...................8, 10
Marsh v. Alabama, 326 U. S. 501..................................................  7
Martin v. Holm, 197 Cal. 773..........................................................  9
Oakland Car Co. v. Indiana Motors, 201 Fed. 499......................... 14
Orlinoff v. Campbell, 91 Cal. App. 2d 382, 205 P. 2d 67...........  16
Richmond v. Dean, 281 U. S. 704....................................................  2
Sage v. Hume, 235 U. S. 99........................................................15, 20



PAGE

Sauer v. New York, 206 U. S. 536.............................................  12
Shelley v. Ivraemer, 334 U. S. 1....1, 6, 7, 8, 11, 12, 13, 16, 17, 18

19, 21, 22, 23, 25, 26, 27, 29, 30, 31
Stratton v. Cornelius, 99 Cal. App. 8....................................... - ..10, 11
Takeuchi v. Schmuck, 206 Cal. 782, 276 Pac. 345.......................... 15
Title Guarantee & Trust Co. v. Garrott, 42 Cal. App. 152.....  8
Wayt v. Patee, 205 Cal. 46........................................ 3, 7, 8, 9, 10, 30
Werner v. Graham, 181 Cal. 874......................................................  9

S tatutes

California Civil Code, Sec. 1213 — ............................................. 7, 30
California Constitution, Art. I, Sec. 10..........................................  6
Rules of the United States Supreme Court, Rule 38, 5 (a )........... 1
United States Code Annotated, Title 28, Sec. 1257(3)............. 1
United States Constitution, Fourteenth Amendment.....................

.................................................................. 5, 6, 7, 14, 15, 17, 28, 30

T extbooks

33 Harvard Law Review, p. 813................................ -.......... .........  9
16 Michigan Law Review, p. 90.... .................................................  9
4 Pomeroy, Equity Jurisprudence (5th Ed.), p. 845................... 9
1 Restatement of Law of Contracts, Sec. 1........ ........... -.............  17
1 Restatement of Law of Contracts, Sec. 13................................. 14
1 Restatement of Law of Contracts, Sec. 14................................. 14
1 Restatement of Law of Contracts, Sec. 178...............................  14
1 Restatement of Law of Contracts, Sec. 225............................... 14
1 Restatement of Law of Contracts, Sec. 327............................... 14
2 Restatement of Law of Contracts, Sec. 598............................... 14
2 Restatement of Law of Contracts, Sec. 609............................... 14

10 Southern California Law Review, p. 281..................................  9



IN THE

Supreme Court of the United States
October Term, 1952

No. 517

Olive B. Barrows, R ichard P ikaar and M. M. O ’Gara,
Petitioners,

Leola J ackson,
vs.

Respondent.

BRIEF FOR R ESPO N D EN T.

Jurisdictional Statement.

This case is here on certiorari to the District Court of 
Appeal, Second Appellate District, State of California. 
Jurisdiction of this Court was invoked under 28 U. S. 
C. A. 1257(3) and Rule 38, 5(a) of this Court.

The Issue Involved.

This is another attempt to induce this court to hold 
that the Constitution sanctions exertion of state power to 
enforce racial residential segregation. Ordinances de­
signed to accomplish that end—sometimes through at­
tempts to restrict ownership of urban land1 on the basis

1Buchanan v. Warley, 245 U. S. 60. The Louisville, Kentucky, 
ordinance drawn in question there interdicted Negro occupancy in 
certain sections of the city and, conversely, forbade white occupancy 
in others. The effect was to limit ownership.



—2—

of race, and at others to limit occupancy rights of Negroes 
at the whim of neighbors2—were held unconstitutional 
thirty-five years ago. Five years ago state courts were 
denied the right to use their process to restrain ownership 
or occupancy of real property by Negroes.3

The variant here is that the objective of residential 
segregation is sought to be achieved through a levy of 
damages against the signer of a race restrictive covenant 
whose property is ultimately occupied by a Negro after 
the agreement was signed and after sale by the signer. 
Petitioners carefully avoid any mention here of their segre- 
gatory purpose but the agreement they signed is eloquent 
of their intentions.3” They were not so reticent in briefs 
filed in the state courts. There they complained that they:

. . are obliged to anticipate the influx into
their neighborhood of genuinely unwholesome fac­
tors.”

They foresaw all manner of evil if their claim for dam­
ages were denied. A decision adverse to them, they said, 
would lead:

“. . . first, to use and occupancy of other real
property by non-Caucasians, and second, to the repre­
hensible tactics of unscrupulous real estate dealers 
who canvass a neighborhood afflicted by the breach 
of promise against use and occupancy and harass

2Harmon v. Tyler, 273 U. S. 668. A New Orleans ordinance 
forbade Negro occupancy in “white” blocks and white occupancy 
in “Negro” blocks without the consent of the majority of residents. 
See, also: Richmond v. Dean, 281 U. S. 704.

sSheiley v. Kraemer, 334 U. S. 1; Hurd v. Hodge, 334 U. S. 24. 
As we shall show later the race restrictive covenants drawn in ques­
tion in those cases were similar in form and identical in aim with 
the agreement that bottoms this action.

SaThe agreement proscribed occupancy by all but persons “wholly 
of the white or Caucasian race” [R. p. 3].



3—

and intimidate and alarm the residents in an intensive 
drive for listings, and third, to the appearance upon 
the streets of the afflicted neighborhood of an unusual 
number of strangers of a demeanor and countenance 
such as to cause concern for the safety of the wives 
and daughters of the residents, and, fourth, to the 
anxiety of parents that their children will grow up 
to marry, or worse, with a neighbor playmate of a 
different race. These four unwholesome factors and 
others do not consist in any part of sale to non- 
Caucasians and all are traceable only to use and oc­
cupancy by non-Caucasians.”

Seldom has the case for racial residential segregation 
been put in more direct, or more emotional, terms. The 
purpose of a contract like “The purpose of a rule of law 
must be found in its natural operation and effect.”4

Statement of Facts.

There are three Petitioners here;
All of them are home owners in a Los Angeles resi­

dential tract.
Two of them—Barrows and O’Gara—and Respondent, 

who was then a home owner in the tract, signed a race 
restrictive agreement on October 21, 1944.

One of them—Pikaar—was not a signer of the agree­
ment, but is a successor in interest of another signer.

The agreement was properly recorded5 on May 5, 1945.
Respondent sold her home on February 2, 1950, but 

did not include the proscriptive racial clause in her deed as 
she had promised in the 1944 agreement.

4Holmes, J., dissenting in Bailey v. Alabama, 219 U. S. 219.
5Such agreements may be recorded in California, Wayt v. Patee, 

205 Cal. 46.



4

Respondent vacated her home on September 3, 1950. 
After she had moved out, and seven months after she 
had sold the home the non-conforming occupancy began.

Petitioners make no claim here that Respondent was 
the efficient cause of that non-conforming occupancy.511 
They construe the 1944 document as an agreement in the 
nature of an insurance contract and rest their charge of 
breach on the fact that Negro occupancy occurred after 
the signing of the agreement.

The agreement is not pleaded in haec verba, nor is it 
attached to the complaint but Petitioners plead that:

“by the terms of said Agreement each of the signers 
promised and agreed in writing and bound himself, 
his heirs, executors, administrators and assigns by a 
continuing covenant that no part of his said real 
property should ever at any time be used or occupied 
by any person not wholly of the white or Caucasian 
race, and also agreed and promised in writing that 
this restriction should be incorporated in all papers 
and transfers of lots. . . . That said Agreement 
was agreed to be a covenant running with the land. 
That each provision was for the benefit for all the 
lots therein described” [R. p. 3].

Petitioners’ claim for damages is predicated on two 
grounds:

1. Respondent’s failure to incorporate the pro­
scriptive racial clause in her deed of February 2, 
1950.

2. The occurrence, per se, of Negro occupancy 
after Respondent had signed the 1944 agreement.

5aThat claim is asserted in the complaint but has been abandoned 
for reasons that will be pointed out later.



—5—

Questions Presented.

Although Petitioners’ arguments are diffuse and dif­
ficult to isolate it is fairly apparent that their claims of 
error in the court below rest on the following propositions:

1. The claim that the refusal of the state courts 
to entertain the suit and the consequent failure to 
enforce the agreement through a levy of damages 
against Respondent impaired the obligation of a con­
tract—the contract referred to being the 1944 agree­
ment.

2. The claim that the California court erred in 
permitting Respondent to assert by way of defense 
that since a levy of damages would eventuate in exer­
tion of state power to enforce racial residential seg­
regation, in contravention of the command of the 
Fourteenth Amendment, state courts could not en­
force the claim for damages for an alleged breach of 
a race restrictive agreement.

3. The claim that Petitioners were denied due 
process of law through the refusal of the California 
courts to enforce their claim for damages for an 
alleged breach of the 1944 agreement.

4. The claim that Petitioners were denied equal 
protection of the law because they were denied the 
right, accorded other persons, of enforcement by 
securing damages for breach of a “contract.”

We consider these claims in that order.56

5bWe also assert another ground which, we believe, will sustain 
Respondent’s position. That claim is urged in Point 5.



Summary of Argument.

1. The action of the state court in refusing to enforce 
a claim for damages against the signer of a 1944 race 
restrictive agreement, where Negro occupancy eventuated 
after her sale of the restricted property, does not impair 
the obligation of a contract in violation of Article I, 
Section 10, of the Constitution. California has not changed 
its law in respect of such agreements, as it existed in 
1944, except to the extent that it has assimilated the rule 
in Shelley v. Kraemer, 334 U. S. 1, and no longer toler­
ates judicial enforcement of race restrictive agreements.

2. The state court was correct in holding that the 
action of Petitioners seeks to nullify the decision of this 
court in Shelley v. Kraemer, supra, in that they seek to 
use state judicial machinery to enforce an agreement 
which would exclude non-Caucasians from occupying real 
property. In the Shelley case the signers of the agree­
ment sought injunctive relief and in this case, damages, 
but in both cases the end-purpose is to use the enforce­
ment powers of the state to deprive non-Caucasians of 
their right to occupy real property. Under those circum­
stances the state court was powerless to aid Petitioners.

3. Petitioners were not denied due process of law 
through being denied access to the state courts to enforce 
their claim for damages. The Fourteenth Amendment 
deprives them of the use of the courts when their purpose 
is the enforcement of a discriminatory agreement.



-7-

4. Petitioners were not denied equal protection of the 
law in being denied access to the courts to enforce race 
restrictive agreements since the Constitution confers on no 
individual the right to demand action that will result in 
denial of equal protection of the law to other individuals 
(■Shelley v. Kraemer, supra) and it is plain the power 
of the state to make and enforce property rights must be 
exercised within the boundaries of the Fourteenth Amend­
ment (Marsh v. Alabama, 326 U. S. 501).

5. Enforcement of the claim for damages against Re­
spondent signer of a race restrictive agreement where 
non-conforming occupancy eventuated after her sale of 
the property would deny Respondent due process of law 
(.Buchanan v. Warley, 245 U. S. 60).

6. Failure of Respondent to include the terms of pro­
scriptive racial agreement in her deed of sale, given seven 
months before non-conforming occupancy began, gave rise 
to no cause of action since the recorded restrictive agree­
ment gave notice to all future purchasers (Cal. Civ. Code, 
Sec. 1213; Wayt v. Patee, 205 Cal. 46). In any event 
the failure is de minimis.

7. This case is governed by the Fourteenth Amend­
ment and there is no need here to invoke considerations 
of public policy or the consequences flowing from our ad­
herence to the Charter of the United Nations.



— 8-

ARGUM ENT.

1. The Impairment of Contract Claim.

Petitioners do not claim, as indeed they cannot, that 
any legislative enactment is involved here. California 
does not have, and never has had, a statute defining the 
rights, duties and obligations that accrue to signers of 
agreements restricting land use or occupancy on the basis 
of race. California does have a substantial body of sub­
stantive law bearing on those issues. That law was de­
veloped between 1919 and the decision in Shelley v. 
Kraemer, 334 U. S. 1, in 1948. A goodly portion of it 
was analogized from the contemporary and ever develop­
ing law respecting building restrictions.

The following rules of substantive law encompass the 
field:

1. Agreements restraining sale of land to mem­
bers of defined racial groups were unenforcible be­
cause they contravened the state’s statutory rule and 
public policy against restraints on alienation.

Title Guarantee & Trust Co. v. Garrott, 42 Cal. 
App. 152;

Wayt v. Patee, 205 Cal. 46.

2. Agreements restraining use and occupancy of 
land by members of defined racial groups were en- 
forcible and it made no difference whether the re­
straint on use and occupancy was imposed by deed 
or through neighborhood agreement.

L. A. Investment Co. v. Gary, 181 Cal. 681;
Wayt v. Patee, supra.



-9-

3. Agreements restraining use and occupancy 
were entitled to recordation under the state’s record­
ing statute and when so recorded imparted construc­
tive notice to all future purchasers.

Wayt v. Patee, supra.

The doctrine of enforcibility of restraints on use and 
occupancy rested on the following propositions:

(a) The signing of an agreement by lot owners, 
or the imposition of a condition in a deed, forbidding 
use and occupancy by members of a defined racial 
group imposed an equitable servitude on the then 
owned lots.6

Werner v. Graham, 181 Cal. 874;
Martin v. Holm., 197 Cal. 773;
Wayt v. Patee, 205 Cal. 46;
Fairchild v. Raines, 24 Cal. 2d 818.

(b) The courts would charge the conscience of 
the signer, or his subsequent grantee, with observance 
of the agreement where such person had notice, actual 
or constructive, of the terms of the agreement and 
would enforce the agreement either by the command 
of specific performance or through a levy of dam-

6In developing this rule of substantive law as to equitable servi­
tudes, California followed the general trend of the law in this field. 
(See: 4 Pomeroy Equity Jurisprudence (Fifth Ed.) 845 et seq.; 33 
Harvard Law Review 813; 10 So. Cal. Law Review 281; 16 Mich. 
Law Review 90.) In respect of the character of the burden im­
posed the law was the same in race restrictions as in building 
restrictions in California.



- 10-

ages and it made no difference whether the covenant 
did, or did not, run with the land.

L. A. Investment Co. v. Gary, 181 Cal. 681;
Littlejohn v. Henderson, 111 Cal. App. 115;
Alderson v. Cutting, 163 Cal. 503;
Burkhardt v. Lofton, 63 Cal. App. 2d 230.

(c) The right to enforcement, either to compel 
observance or force a response in damage accrued to 
lot owners—both original signers and their successors 
in interest as against subsequent violators.63

Littlejohn v. Henderson, supra;
Wayt v. Patee, supra.

(d) Even where a valid restraint on use and oc­
cupancy subsisted the courts might refuse enforce­
ment upon considerations of public policy or because 
of changes in or surrounding the bound lots.

Letteau v. Ellis, 122 Cal. App. 584;
Fairchild v. Raines, 24 Cal. App. 2d 818;
Friesen v. Glendale, 209 Cal. 524.

(e) No cause of action arose as against a seller 
of race restricted property for sale of that property 
to a member of the proscribed class.

Stratton v. Cornelius, 99 Cal. App. 8.

This was the law as enforced by the California courts 
in 1944 when the agreement in question was drafted and

6aPetitioner Pikaar, a nonsigner and a successor in interest of a 
signer, seeks to avail himself of this rule of law. Otherwise he 
is an improper party.



— 11

signed by Petitioners and Respondent. It continued to 
be the law of the state until this court decided the Shelley 
case in 1948. Thereafter the California courts assimilated 
the ruling in the Shelley case to state law and conse­
quently declined to use their process to enforce race re­
strictive covenants through application of law that had 
theretofore been considered applicable.

Cummings v. Hokr, 31 Cal. 2d 844.

Petitioners pleaded in their complaint that Respondent 
“moved out of the house . . .  in order to permit” non- 
Caucasian occupancy and that “in violation of said Agree­
ment, has permitted persons not wholly of the white or 
Caucasian race to occupy” her lot [R. p. 4]. These aver­
ments would have been adequate prior to the Shelley case 
to have stated a cause of action against her. She could 
have been compelled to specifically perform by ousting 
her permitees or to have responded in damages, under the 
California cases just cited.6b The court below held that 
prior to the Shelley case a cause of action for damages as 
against Respondent would have been stated, not for the

6bPetitioners admit in their brief (p. 28) that in any action 
against her for sale of the property “respondent could make the 
non-federal defense that her promise was void in California as a 
restraint on alienation.” It is also apparent that since the occu­
pancy complained of took place after sale and after Respondent 
had parted with power to control occupancy she could not “per­
mit” non-Caucasian occupancy. No cause of action arose in Cali­
fornia by reason of sale to non-Caucasians who might be expected 
to occupy the home they had purchased. (Stratton v. Cornelius, 
99 Cal. App. 8.) Thus, on closer examination, Petitioners have 
been forced to abandon the averment of “permitting” and are 
thrown back on the theory that the agreement is in the nature of 
a contract of insurance. They now claim that occurrence of occu­
pancy, per se, imports liability. This is not an action for breach 
attendant on the sale but for a breach flowing from occupancy of 
the premises by non-Caucasians after the completed sale,



- 12-

sale but because of her alleged “permitting” the Negro 
occupancy.

However, Petitioners’ contention that California courts 
have impaired the obligation of a contract is untenable. 
The insuperable barrier to enforcement in this case is not 
the whim or caprice of the California courts but the hold­
ing of this Court in the Shelley case. Parenthetically, 
we do not know of any constitutional impediment to a 
change of decisions by state courts where, as here, no 
statute is drawn into question or construed. Had the 
state court held that enforcement of race restrictive cove­
nants worked a restraint on alienation or was contrary to 
state public policy, in direct contradiction to prior rulings, 
no impairment of the obligation of a contract in a consti­
tutional sense would have resulted.

Cf:
Cleveland & P. R. Co. v. Cleveland235 U. S. 50; 
Sauer v. New York, 206 U. S. 536.

In any event, the court below laid aside all questions of 
state law and posited its decision squarely on the Shelley 
case. There this court held that:

“We conclude, therefore that the restrictive standing 
alone cannot be regarded as a violation of any rights 
guaranteed to petitioners by the Fourteenth Amend­
ment.”

Shelley v. Kraemer, supra, p. 13.

That had been the law of California prior to the 
Shelley case and the court below did not disturb that 
concept or change, or alter, it in any respect. That is 
still the law of California.



13-

In rejecting arguments made in the Shelley case that 
race restrictive agreements were void this Court held that:

“So long as the purposes of these agreements are 
effectuated by voluntary adherence to their terms it 
would appear that there has been no action by the 
State and the provisions of the Amendment have not 
been violated.”

Shelley v. Kraemer, supra, p. 13.

The court below did not narrow that right of voluntary 
adherence to the terms of this or any other race restrictive 
agreement in any particular. Petitioners are as free as 
they ever were to enter into, and observe, or voluntarily 
adhere to the terms of any race restrictive agreement they 
can devise.

In summary, the California court, looking through form 
and at substance, came to the conclusion that the end 
sought in this action was enforcement of race restrictive 
agreements. It was clear to that court that:

“Racial discrimination is inherent in the covenant; 
its purpose and impact is to prevent use or occupancy 
of real property by non-Caucasians, to segregate non- 
Caucasians ‘simply that and nothing more.’ The 
basic pattern of racial discrimination is much the 
same in an action for damages as it is in a suit in 
equity” [R. p. 53].

Having decided that question to its own satisfaction it 
simply declined to exert its power, which is state power, 
to effectuate the end. Its declination to do in 1952, what 
it might have done in 1944, was not due to any notion of 
its own as to state law but in response to the decision of 
this court in the Shelley case in correcting the erroneous 
concept of state action which the California courts had



— 14—

entertained since 1919. There is no impairment of the 
obligation of a contract in such a situation.

The short of the matter is that Petitioners drafted and 
signed the 1944 agreement60 in what proved to be the vain 
belief that constitutional interpretation of their enforce­
ment rights would remain static. The enforcement of 
what they choose to call the “contract” has been fore­
closed, not by the California courts, but by the command 
of the Fourteenth Amendment.

2. The Effect of Enforcement.
Petitioners next argue that even if it is true that the 

end envisaged by the court below to the effect that an 
award of damages would eventuate in enforcement of 
the race restrictive agreement and would thus effectively 
deny members of the proscribed group “equality in en­
joyment of property rights” and “prevent use and occu­
pancy of real property by non-Caucasians . . . segre­
gate non-Caucasians,” through exertion of state power, 
Respondent cannot avail herself of those facts as a de­
fense in this action for damages. This is only another 
way of saying that although this agreement cannot be 
enforced by state courts by a decree in specific perform­
ance it can be enforced by the same courts in a damage 
action.7

8cAgain we wish to point out that Petitioner Pikaar was not a 
signer of the 1944 agreement. As to him and Respondent there 
was no privity. His presence here as a complainant underscores 
the proposition that enforcement rights under these agreements 
accrued through operation of substantive rules of law devised to 
effectuate the ends sought by covenantors and do not rest on ordi­
nary rules governing contractual duties as such.

7Of course an award of damages for breach of a contract is only 
a method of enforcing a contract. (See: Restatement, Vol. I, 
Secs. 13, 14, 178, 225, 327; Vol. II, Secs. 598, 609. See also, 
Oakland Car Co. v. Indiana Motors, 201 Fed. 499.)



15-

Petitioners’ citation of authorities holding that constitu­
tional guarantees accrue to the advantage of individuals 
before the court are correct, but not relevant here. They 
mistake the rationale of the decision of the California 
court. As we have pointed out the court below found 
that “racial discrimination is inherent in the covenant; 
its purpose and impact is to prevent use or occupancy 
of real property by non-Caucasians, to segregate non- 
Caucasians . . . the basic pattern of racial discrimina­
tion is much the same in an action for damages as it is 
in a suit in equity” [R. p. 53].

Having arrived at that very obvious and, it seems to us, 
incontrovertible conclusion the court below was faced with 
the question of whether or not it could exert its power— 
the power of the state—to enforce the “racial discrimina­
tion inherent in the covenant” [R. p. 53]. Its position 
at that posture of the case was the same as that of any 
court called upon to enforce an agreement contrary to 
good morals, or public policy, or contrary to express 
statutory or constitutional command.781 California courts 
have always declined to act under such circumstances, 
leaving the parties where they found them.

Takeuchi v. Schmuck, 206 Cal. 782, 276 Pac. 345; 
Endicott v. Rosenthal, 216 Cal. 721, 16 P. 2d 673. 

Cf.:
Sage v. Hume, 235 U. S. 99.

7aThe Fourteenth Amendment is an express command in these 
circumstances.

“The majestic generalities of the Fourteenth Amendment 
are thus reduced to a concrete statutory command when cases 
involve race or color which is wanting in every other case 
of alleged discrimination.”

Fay v. New York, 332 U. S. 261, 282.



16—

The purpose of the courts in refusing to act in such 
circumstances is not to punish the individuals before them 
but to uphold the policy of the law.

Orlinoff v. Campbell, 91 Cal. App. 2d 382, 205 
P. 2d 67.

Cf.:
Continental Paper Co. v. St. Louis Vaight, 212 

U. S. 227.

California courts, trial or appellate, assert the power 
to decline intervention to enforce such contracts on their 
own motion and without regard to the pleadings of the 
parties, under those circumstances.

Fewell v. Pratt, 17 Cal. 2d 85.

The command against exertion of state power to en­
force racial residential segregation—the end found in­
herent in any award of damages by the court below— 
flows from a higher source than the state constitution 
or laws, or California’s public policy. It comes from the 
Constitution itself, as demonstrated by this court in the 
Shelley case. Plainly, the court below was compelled to 
measure its powers and duties by the terms of that deci­
sion. Its discussion of the consequences that would have 
flowed from enforcement of the agreement drawn in ques­
tion here and its repeated emphasis on the civil rights of 
non-Caucasians were not advanced by the court below to 
justify the decision on the ground that constitutional 
rights of non-parties to the litigation, as such, would be 
affected but rather to demonstrate the reasons why it 
was compelled to leave the parties where it found them. 
It also considered the application of the Civil Rights Cases, 
109 U. S. 3, with their recurrent reiteration of the



—17-

proposition that the Fourteenth Amendment “makes void 
state action of every kind” indulged in to aid individual 
invasions of civil rights. Out of these considerations the 
court below held correctly that:

“The Fourteenth Amendment does not proscribe in­
dividual action; but when, as here, the aid of a court 
is sought to compel one of the parties to the restric­
tive covenant to abide by its terms by subjecting 
him to an action for damages because of use or occu­
pancy of the property by non-caucasians—it is no 
longer a matter of individual action; it is one of state 
participation in the maintenance of racial residential 
segregation. ” [R. p. 53.]

Petitioners’ only answer to this conclusion is to repeat 
endlessly that they were signatories, with Respondent, to 
a “contract” and that the Shelley case held such “con­
tracts” to be “valid.” These assertions are only semantic 
exercises. This court did not talk about “contracts” in 
the Shelley case.8 It talked about “agreements.”

The very word “contract” imports enforcibility9 and 
not every writing is a “contract” in that sense. When 
agreements of the kind drawn in question here are 
equated with the holding in the Shelley case—to the effect 
that they are unenforcible—they are not “contracts” in the 
technical sense. There are many agreements, not void as 
between the parties and susceptible of voluntary compli­
ance, that will not be enforced by the courts, whether be-

8The phrase “agreements” appears some 18 times in the court’s 
discussion. The word “contract” is used only twice and then in a 
particular context.

9“A contract is a promise or set of promises for breach of which 
the law gives a remedy or the performance of which the law in 
some way recognizes as a duty.” (Restatement of Law of Con­
tracts, Vol. I, Sec. 1.)



—Ig—_
cause of statutory interdiction or because of substantive 
rules of law. For example, California courts will not en­
force an agreement outside the Statute of Frauds, or 
one barred by the Statute of Limitations, or where laches 
is shown. We have pointed out that agreements of the 
kind under consideration were denied enforcement by Cali­
fornia courts, even where valid, because of change of con­
ditions or for reasons of public policy. Validity alone 
was never the test of whether a restrictive agreement 
would be enforced.

Moreover, this court did not hold such agreements 
“valid,” in the narrow technical sense, in the Shelley 
case.10 It did not even use that word to describe them or 
their attributes. It said simply and with finality that 
“so long as the purposes of these agreements are effectu­
ated by voluntary adherence to their terms it would appear 
that there has been no action by the State and the provi­
sions of the Amendment have not been violated.” It 
reiterated that view in Hurd v. Hodge, supra, saying of 
the applicable federal law, “the statute does not invalidate 
private restrictive agreements so long as the purposes of 
those agreements are achieved by the parties through 
voluntary adherence to the terms.”

The right of the parties to voluntary adherence is not 
questioned here. However, the concept of voluntary ad­
herence is a far cry from that of the technical attributes 
Petitioners would read into the terms “valid” as used in 
the law of contracts.

10The California District Court of Appeal did use the term 
“valid” but it is apparent from a reading of its decision that it 
did not use the term in any narrow technical sense. It meant only 
that the agreements were not void. The phrase used is “consti­
tutionally” valid.



— 19—

3. Petitioners’ Claim of Denial of Due Process of
Law.

Petitioners next move to their claim that they have been 
denied due process of law through refusal of the Cali­
fornia courts to entertain their action for damages. Ap­
parently that claim is posited on the contention that 
the liberty of contract has been effectively denied them 
because they have been denied their claim for enforce­
ment of the 1944 agreement. We have no quarrel with 
the generalization that liberty of contract is one of the 
rights protected by the Constitution. It is equally well 
settled that:

“There is no such thing as absolute freedom of 
contract . . . the power to make contracts may in 
all cases be regulated as to form, evidence, and 
validity as to third persons.”

Atlantic Coast Line v. Riverside Mills, 219 U. S.
186, 202.

“General propositions do not govern concrete cases”10a 
and the situation here is not illuminated by reiteration of 
the truism that enforcement is the ordinary consequence 
attendant on signing of agreements. What is involved 
here is a concrete kind of an agreement, out of which 
particular relationships arise. While “all rights tend to 
declare themselves absolute to their logical extreme”11 
the fact is that the “right” involved here is not absolute 
as shown by the ruling in the Shelley case. This court 
did foreclose enforcement of agreements of the kind under 
consideration here in that very case. It denied to signers

10aHolmes, J., dissenting in Lochner v. New York, 178 U. S. 45. 
u Hudson Water Co. v. McCarter, 209 U. S. 349, 355.



-20—

of race restrictive agreements the right to secure enforce­
ment through specific performance and there, as here, 
there was vigorous argument that denial of the remedy 
would rob such agreements of vitality and effect. There 
is no more reason why the remedy of enforcement through 
damage actions should be preserved than there is for the 
preservation of the remedy of specific performance. Both 
are methods of enforcement. Both affront constitutional 
guarantees. Denial of the former no more denies due 
process than denial of the latter. As the court below 
phrased it:

“The denial of access to the courts does not deprive 
plaintiffs (Petitioners) of their property without 
due process of law. The Constitution itself deprives 
them of the use of the courts when their purpose 
is in the enforcement of their discriminatory cove­
nant.” [R. p. 55.]

The right to enforcement does not accrue simply be­
cause parties have signed an agreement:

“And more broadly it has long been recognized that 
contracts that obviously and directly tend in a marked 
degree to bring about results that the law seeks to 
prevent cannot be made the ground of successful 
suit.”

Sage v. Hume, 235 U. S. 99, 105.

The agreements they sign must be assessed in the light 
of the result they seek and when those results collide with 
constitutional commands the courts must decline enforce­
ment.



— 21—

4. Petitioners’ Claimed Denial of Equal Protection
of the Law.

Petitioners’ claim that denial of access to the courts to 
enforce the terms of their agreement denies them equal 
protection of law is insubstantial. The short, and com­
plete, answer is afforded by the Shelley case:

“Nor do we find merit in the suggestion that persons 
who are parties to these agreements are denied equal 
protection of the laws if denied access to the courts 
to enforce the terms of restrictive covenants and to 
assert property rights which the state courts have 
held to be created by such agreements. The Consti­
tution confers upon no individual the right to demand 
action by the State which results in the denial of equal 
protection of the laws to other individuals. And it 
would appear beyond question that the power of the 
State to create and enforce property rights must be 
exercised within the boundaries defined by the Four­
teenth Amendment.. Cf. Marsh v. Alabama, 326 U.
S. 501.”

Shelley v. Kraemer, supra, p. 22.

Here again the applicability of the language just quoted 
turns on the finding of the court below that the purpose 
of the agreements was discriminatory and that their en­
forcement through the levy of damages would result in 
exertion of State power to effectuate the discriminatory 
purpose. That being so, there is no more of denial of 
equal protection where access to the courts is denied in a 
suit for damages than there is in an action for specific 
performance.



-22—

5. Enforcement of the Agreement Would Deny 
Respondent Due Process of Law.

There is an additional ground, not relied upon by the 
court below but urged by Respondent at every stage of 
the proceeding, that bars Petitioners’ claim for enforce­
ment [R. pp. 8, 32],

There can be no doubt since the Shelley case that judicial 
action in enforcing substantive common law rules is state 
action as that term is used in a constitutional sense.

“It has been recognized that the action of State 
courts in enforcing substantive common law rules 
formulated by those courts may result in denial of 
rights guaranteed by the Fourteenth Amendment.”

Shelley v. Kraemer, supra, p. 17.

We do not understand Petitioners to contend that a 
statute, ordinance or other legislative enactment of a state, 
or one of its subdivisions, imposing a fine on the signer 
of a race restrictive agreement or prescribing damages, in 
the case where Negro occupancy eventuated after the 
signing of the agreement, would escape constitutional con­
demnation. Nor would the result depend upon whether 
the accused had, or had not, signed the agreement. It 
would be clear in such a situation that the State had ex­
erted its power to enforce racial residential segregation 
through this attenuated device. The denial of due process 
would be apparent whether the fine, or the award of dam­
ages, took the entire proceeds of sale or only part of it.

A substantive rule of law is no less, and no more, sub­
ject to legislative scrutiny than a legislative enactment.

Shelley v. Kraemer, supra, p. 14;
American Federation of Labor v. Swing, 312 U. S.

321.



-2 3 -

The fact that State participation is invoked to enforce 
the terms of a private agreement is not significant in this 
context.

“Nor is the Amendment ineffective simply because 
the particular pattern of discrimination, which the 
State has enforced, was defined initially by the terms 
of a private agreement. State action, as that phrase 
is understood for the purpose of the Fourteenth 
Amendment, refers to exertion of state power in all 
forms.”

Shelley v. Kraemer, supra, p. 20.

The ultimate effect of enforcement is the same where 
breach of contract is claimed, whether that enforcement 
is secured through levy of damages in a civil action or 
by a fine in a criminal action.

“Any legal liability for the breach of a contract is a 
disagreeable consequence which makes the contractor 
do as he said he would. Liability to an action for 
damages has that tendency as well as a fine.”

Bailey v. Alabama, 219 U. S. 219, 246 (Holmes, 
J., dissenting).

The proposition that exertion of State power to clog 
the sale of real property for racial considerations denies 
due process of law was originally decided by this Court in 
Buchanan v. Warley, 245 U. S. 60.

A Louisville ordinance prescribed racial residential seg­
regation through the device of forbidding occupancy of 
certain real property by Negroes. Buchanan, a white per­
son, agreed to sell a parcel of interdicted property to 
Warley, a Negro. Warley breached the contract and 
pleaded the ordinance by way of defense, on the ground 
that his agreement of purchase required consummation



•24—

only if he was free to occupy the parcel. He prevailed in 
the State Court (Buchanan v. Warley, 165 Ky. 559).

On writ of error to this Court, Buchanan attacked the 
constitutionality of the ordinance on the ground that it 
nullified his civil right to dispose of his property as he 
saw fit. There, as in the comparable situation here, the 
objection:

“• • • is made that this writ of error should be
dismissed because the alleged denial of constitutional 
rights involves the rights of colored persons and 
plaintiff in error is a white person.”

Buchanan v. Warley, supra.

This Court in the Buchanan case, as was the case with 
the court below, assessed the situation and saw readily 
enough that what was on the surface a mere breach of 
contract action was, in reality, an attempt to secure con­
stitutional sanction for exertion of State power to en­
force racial residential segregation. In the Buchanan 
case the command of the ordinance against Negro oc­
cupancy, and ownership of which occupancy is a mere in­
cident, was absolute. Here the attempt to forestall Negro 
occupancy, as an incident of ownership, is sought to be 
achieved through a levy of damages against the owner 
whose sale eventuates in such occupancy but it is plain 
that the imposition of damages on the seller is designed 
to achieve the absolute of preventing the unwanted occu­
pancy. The avowed end of the Louisville ordinance was 
to prevent occupancy of certain property by Negroes; the 
avowed end of the 1944 agreement in this case is to pre­
vent occupancy of certain property by non-Caucasians. In 
the Buchanan case the ordinance was drawn into issue 
through an attempt to penalize the seller by annulling his



—25—

sale; in this case the 1944 agreement is drawn into issue 
through an attempt to penalize Respondent through a levy 
of damages that will annul the sale by taking away the 
monetary advantage that may have accrued.

This Court epitomized the issue in the Buchanan case 
with the holding that:

“The right which this ordinance annulled was the 
civil right of a white man to dispose of his property 
if he saw fit to do so to a person of color.” (Italics 
added.)

Buchanan v. Warley, supra, p. 81.

This dispositive right as a civil right was reaffirmed and 
emphasized in the Shelley case:

. . among the civil rights intended to be pro­
tected from discriminatory State action by the Four­
teenth Amendment are the rights to acquire, enjoy, 
own and dispose of property.” (Italics added.)

Shelley v. Kraemer, supra, p. 10.

What Petitioners seek here is enforcement of a rule 
of law which will annul the civil right of Respondent to 
dispose of her property as she sees fit.12 There is here 
the same issue abstracted by this Court from the Bu­
chanan case and the Harmon case:

“The precise question before this Court in both the 
Buchanan and Harmon cases involved the right of

12Under Petitioner’s theory that non-conforming occupancy, per 
se, attaches liability to the signer of a race restrictive agreement the 
limitation on her right to sell is severe. Such liability might attach 
long after her disposal of the property and whenever the non- 
conforming occupancy began. Plainly the precise purpose of the 
suit to enforce the contract through a damage action is to annul 
the right to dispose of her property as Respondent sees fit. That 
is what Petitioners want. That is why they are here.



-26—•

white sellers to dispose of their properties free from 
restrictions as to potential purchasers based on con­
siderations of race or color.”

Shelley v. Kraemer, supra, p. 12.

That is the precise question here. In truth, the issues 
confronting the Court in the Buchanan case and those pre­
sented in this one are reverse sides of the same coin. In 
the former the State Court was enjoined by the ordinance 
to penalize the seller by nullifying his contract of sale; 
in this case the State Court is urged to penalize the seller 
by, in effect, nullifying his sale through taking the incre­
ment of the sale by way of a levy of damages. The aim 
is to impose “restrictions as to potential purchasers’ non- 
racial considerations” in both instances. The command 
in the former case is statutory; in the latter the State 
Court is asked to reach the identical end through the self- 
discipline of a substantive rule of law.

It is at this posture of the case that Petitioners inter­
pose the contention that Respondent as a signer of the 
1944 agreement is bound by it and does not stand before 
the Court on the same terms as the “willing sellers” in the 
Buchanan case or the Shelley case. The vice of this argu­
ment is the tacit assumption that the civil right to “ac­
quire, enjoy, own and dispose” without restrictions as to 
race or color of real property is a mere contract right or 
property right which the State may curtail or regulate. 
If that were so then the ordinance in the Buchanan case 
could have been justified” under the authority of the State 
in the exercise of police power.”13 But there this Court 
held with finality:

“It is urged that this proposed segregation will pro­
mote the public peace by preventing race conflicts.

lsBuchanan v. Warley, supra, p. 81.



- 2 7 -

Desirable as this is, and important as is the preser­
vation of the public peace, this aim cannot be ac­
complished by laws or ordinances which deny rights 
created or protected by the Federal Constitution.”

Buchanan v. Warley, supra, p. 81.

It is clear, then, that the command of the Fourteenth 
Amendment is addressed to the State and that the pur­
port of that command is that the State cannot annul the 
civil right of free disposal of property, on considerations 
of race or color through the exercise of its police power. 
The Shelley case holds that the power thus denied to the 
State in the exercise of its police power cannot be con­
ferred on it by inducing it to enforce a private agreement. 
On the one hand the State undoubtedly has an interest in 
enforcing private agreements; on the other the Amend­
ment stays its hand where exertion of its power would 
annul this civil right. Thus whenever the Respondent as­
sumed the status of a “willing seller,” as she did in this 
case, the State could not use its process to abort the sale 
she proposed to make. The taking of her property, 
through an award of damages, would constitute a denial 
of due process of law as to her. To return to our earlier 
example, there would be no difference in a constitutional 
sense whether the State sought to abort such a sale 
through law or ordinance, imposing a fine or assessing 
damages against the signer of a race restrictive agree­
ment for a sale which eventuates in Negro occupancy, or 
whether it reached the same end through application of a 
substantive rule of law making that signer liable in dam­
ages to other signers. Petitioners and Respondent were, 
and are, free to enter into the discriminatory agreement, 
and to observe it, but they cannot confer on the State 
Court jurisdiction to exert its power to enforce that



— 28-

agreement. The Fourteenth Amendment forbids what 
they propose.14

Petitioners suggest finally that the sale to the non- 
Caucasian had been made in this case and that hence no 
levy of damages could assist their discriminatory intent to 
invoke exertion of state power to enforce racial residential 
segregation. That unsophisticated concept slurs reality. 
“Every opinion tends to become a law,”16 Justice Holmes 
admonished us a long time ago. That admonition has 
greater significance in this case than it may have in other 
litigation. Judges and lawyers do not need to be told that 
the end-purpose of a suit of this kind—chosen, Petitioners 
said in briefs filed in the state courts, as a test case—is to 
create precedential substantive law that will have conse-

1‘‘Implicit in Petitioner’s argument on this phase of the matter 
is the theory made explicit in the brief of St. Louis Amicus, that 
private individuals have a constitutionally protected “right” to dis­
criminate on the basis of race or color. St. Louis Amicus epito­
mizes that view on page 12 when reference is made to “private 
discrimination protected by the Civil Rights Cases . . .” The
Civil Rights Cases did not impute that meaning to the Fourteenth 
Amendment. What they did hold is that the Fourteenth Amend­
ment did not impose prohibitions on individuals, as such, and that 
the State cannot be said to “sanction” or “support” discriminatory 
acts of individuals merely because it does not make them unlawful. 
Once however the State forsakes that passive role and lends its 
sanction or support “by some shield of State law or State au­
thority” its action stands condemned by the Amendment. So here, 
the State may not sanction or support Petitioners in their effort 
to induce exertion of its power and that, not because of, or in 
spite of, Petitioner’s morality, or lack of it, in not observing the 
agreement, but because of the restraint imposed on the State. On 
the other hand the State is entirely free to curb, or to prohibit, 
“private discrimination” precisely because such discrimination is not 
“protected.”

Fay v. New York, 332 U. S. 261.

15tIolmes, J., dissenting in Lochner v. New York, 178 U, S. 45,



-29-

quences far beyond the outcome of this case,18 The State 
has neither the duty nor the power to take Respondent’s 
property, under the guise of an award of damages, to 
create the pattern of segregation.

Cases involving issues of this kind call into full play the 
century old declaration of this court that it must ever be 
kept in mind that “it is a constitution we are expound­
ing”17 and of the admonition in the Shelley case that:

“The historical context in which the Fourteenth 
Amendment became a part of the Constitution should 
not be forgotten. Whatever else the framers sought 
to achieve, it is clear that the matter of primary con­
cern was the establishment of equality in the enjoy­
ment of basic civil and political rights and the preser­
vation af those rights from discriminatory action on 
the part of the States based on considerations of race 
or color. Seventy-five years ago this Court announced 
that the provisions of the Amendment are to be con­
strued with that fundamental purpose in mind.”

Shelley v. Kraemer, supra, p. 23.

The claimed right of Petitioners for blind judicial enforce­
ment of what they, by a process or rationalization call 
“contract rights,” must yield to constitutional implementa­
tion of the fundamental purpose of the Amendment.

18The filing of amicus briefs on behalf of widely scattered prop­
erty owners’ organizations, all interested in the preservation of 
racial residential segregation, would seem to indicate that these 
laymen do not regard this case as having a narrow compass.

17Marshall, C. J., in Bank of U. S. v. Deveaux, 5 Cranch 61.



■30-

6. Failure to Incorporate the Proscriptive Clause.

The court below believed that its view of the impropriety 
of granting Petitioners access to the courts to enforce 
their claim for damages obviated any necessity for con­
sidering the claim for damages against Respondent for 
her failure to include the proscriptive racial clause in her 
deed of February 1950. We agree but we would like to 
point out that her failure had no practical consequences. 
Petitioners plead that the agreement was recorded. Under 
California law recordation imparted constructive notice 
of its terms and subsequent purchasers were as tightly 
bound as if the clause had been inserted in the deed.18 In 
any event the claim is a mere quibble under the rule of 
de minimis.

7. “Anticipated Defenses.”

We have not dealt with or presented the so-called “an­
ticipated defenses” referred to in Petitioners’ brief of 
public policy or consequences flowing from adherence to 
the Charter of the United Nations. The Fourteenth 
Amendment governs this situation so clearly and com­
pletely that other arguments are surplusage. The thorough 
consideration given all aspects of this problem in the 
Shelley case is so recent that we have not felt it necessary 
to review sociological and statistical data presented there 
as to the gravity and importance of this issue.

18California Civil Code, Sec. 1213; Wayt v. Patee, 205 Cal. 46. 
Recitals of this kind are surplusage.



— 31—

Conclusion.

The constitutional considerations that compelled the re­
sult reached in the Shelley case, and related cases, require 
affirmance of the judgment below.

Respectfully submitted,

L oren M iller ,
T hurgood M arshall,
F r a n k lin  H . W illia m s ,

Counsel for Respondent.

M aurice W albert,
J ames S im s ,
H arold J. S in cla ir ,

Of Counsel.



Service of the within and receipt of a copy
thereof is hereby admitted this................-day of
April, A. D. 1953.

4-16-53—150