Anderson v. Auseth,Brief of the Attorney General of the State of California as Amicus Curiae

    L. A. No. 19,759
In the Supreme Court of the State of California

A ne Marie A nderson, e t al.,
Plaintiffs and Appellants, 

vs.

JOSEFA H. TOLHURST,
P lain tiff and A ppellan t, 

vs.
E arl F. A useth , e t a l ,

D efendants and Respondents.
Nellie B. Venerable, et al.,

D efendants and Respondents.

F rancis L. Sm ith ,
P lain tiff and A ppellant, 

vs.

E dna I. W h ite ,
P lain tiff and A ppellant, 

VS.

Omelia Craigen Crawford, et al.,
D efendants and Respondents.

Russell T. Sm ith , et al.,
D efendants and Respondents.

V ictor J. Maricq, et al.,
P laintiffs and Appellants, 

vs.

E lmer C. W eber, et al.,
Plaintiffs and Appellants, 

vs.
J ames Sumner P ickett, J r ., et al.,

D efendants and Respondents.
A rthur T w yne, Sr ., e t al.,

D efendants and Respondents.

L eila Daniels,
P lain tiff and A ppellant, 

vs.

F red B. M cComas,
P lain tiff and A ppellant,

vs.
H allie D. J ohnson, et al.,

D efendants and Respondents.
T ruman R. L ott, e t al.,

D efendants and Respondents.

BRIEF OF THE ATTORNEY GENERAL OF THE 
STATE OF CALIFORNIA, AS AMICUS CURIAE.

R obert W. K enny ,
Attorney General of the State of California,

Clarence A. L in n ,
Assistant Attorney General of the State of California, 

600 State Building, San Francisco, California.

D. 0 . McGovney,
School of Jurisprudence, University of California,

Boalt Hall, Berkeley, California,
Special Advisor to the Attorney General 

of the State of California,.

P ehnati-Wa l s h  P e in t Ing  Co., San F bancisco



Subject Index

Page
Foreword.......................................................................Preface
Argument .........................................................................  1
The Contract Law Aspect............................................................ 3
The Property Law Aspect ......................................................... 5

State of the authorities on the constitutional issue in this case 11
(a) Supreme Court of California...........................................  11
(b) The United States Supreme Court decisions cited and

relied upon in the Gary case.............................................  12
(e) Decisions of other state courts.........................................  15

Corrigan v. Buckley .....................................................  16
The United States Supreme Court’s decisions on the separate 

factors involved in the present case.........................................  19
(1) Racial zoning by State statutory law.............................  19
(2) A state court’s decision giving effect to the State’s non-

statutory law is State action within the meaning of the 
Fourteenth Amendment ...................................................  21

Conclusion ......................................................................................  26



Table of Authorities Cited

Cases Pages
A. F. of L. v. Swing, 312 U. S. 321.........................................  22

Bailey v. Alabama, 219 U. S. 219.............................................  3
Bakery Drivers Local v. Wohl, 315 U. S. 760.........................  22
Bridges v. California, 314 U. S. 252.....................................  22
Buchanan v. Warley, 245 U. S. 60................................. 2,7,19,25

Cantwell v. Connecticut, 310 U. S. 296.....................................  22
Carter v. Texas, 177 U. S. 442...................................................  23
Chandler v. Zeigler, 88 Colo. 5, 291 Pac. 822........................  16
Civil Rights Cases, 109 U. S. 3 ...................................................13,15
Corrigan v. Buckley, 271 U. S. 323.......................................... 15,16

Doherty v. Rice, 240 Wis. 389, 3 N. W. (2d) 734.................  15

Harmon v. Tyler, 273 U. S. 668................................................20,25

Janss Investment Co. v. Walden (1925), 196 Cal. 753.......... 12

Koehler v. Rowland, 275 Mo. 573, 205 S. W. 217.................. 8

Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186 Pac.
596 ........................................................................ 8,10,11,12,14,15

Lyons v. Wallen, 191 Okla. 567, 133 P. (2d) 555.................. 6,15

McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 141..........  26
Meade v. Dennistone, 173 Md. 295, 196 Atl. 330.................... 15,16
Missouri ex rel. Gaines, 305 U. S. 337.....................................  26
Mitchell v. United States, 313 U. S. 80............................... .. 26
Moore v. Dempsey, 261 U. S. 86.............................................  21
Morgan v. Commonwealth of Virginia, 66 S. Ct. 1050.......... 24

Norris v. Alabama, 294 U. S. 587.............................................  23

Parmalee v. Morris, 218 Mich. 625, 188 N. W. 330.............. 16
Porter v. Barrett, 233 Mich. 373, 206 N. W. 523.................. 16
Powell v. Alabama, 287 U. S. 45.............................................  21

Queensborough Land Co. v. Cazeaux, 136 La. 724, 67 So. 641 8,16

Ridgway v. Coburn, 163 Misc. 511, 296 N.Y.S. 936..............15,16
Rogers v. Alabama, 192 U. S. 226............................................. 23



T able op A u t h o r it ie s  C ited iii

Pages
Slaughter-House cases, 16 Wall. 36.........................................  23

Thornhill v. ITerdt (Mo. App.), 130 S. W. (2d) 175.......... 15
Twining v. New Jersey, 211 U. S. 78..................................... 2,6,21

United Cooperative Realty Co. v. Hawkins, 269 Ky. 563, 108
S. W. (2d) 507........................................................................  15

United States v. Cruikshank, 92 U. S. 542.............................  12
United States v. Harris, 106 U. S. 629...................................  14

Virginia v. Rives, 100 U. S. 313............................................... .. 13

Wayt v. Patee (1928), 205 Cal. 46.............................................  9

Yick Wo v. Hopkins, 118 U. S. 356.........................................  23

Statutes
Civil Code, Section 711 ............................................................. 8
Civil Rights Bill of 1866, 14 Stat. 27.....................................  7,8
Civil Rights Bill, Section 18 of the Act of May 31, 1870, 16 

Stat. 144 ..............................................................................  7,8.

Indian Contract Act, 1872 (codifying the English common 
law) ............................................................................................  4

United States Constitution:
Fifth Amendment .............................................................. 17,18
Thirteenth Amendment ....................................................... 7,17
Fourteenth Amendment .....................................................

................................. 2, 3, 6, 7, 8,14,17,18,19, 20, 21, 22, 25, 26
Eighteenth Amendment ..................................................... 3

Texts
33 Cal. L. Rev., p. 15..................................................................  9
Corbin, Anson on Contracts, Sec. 9, note 2 .............................  4

31 Harv. L. Rev., 479................................................................. 25

Los Angeles Daily Journal, June 14, 1945.............................  10

Pollack on Contracts (1885 and subsequent editions).......... 4

Restatement of the Law of Contracts, Sec. 1 .........................  4



FOREWORD.

The Attorney General of the State of California respectfully 
requests the permission of the Court to file this brief in the 
above cases and to have the same considered in other companion 
cases now under submission to this Court, as amicus curiae.

Although these actions are entitled as though they were be­
tween private litigants this is not really the fact. Whole sec­
tions of the population are to be affected by the outcome of 
this litigation. Some persons of one race seek to fence in all 
persons of another race and by agreement among themselves 
have attempted to fix the bounds of the habitations of that other 
race.

But this is not all. Some of the parties to the agreement, 
either because of avarice or change of heart, have failed and 
refused to live up to their agreement. The other parties to the 
agreement now call into play all of the machinery of the State 
for the purpose of giving effect to this agreement.

The State as 'a whole is interested in this matter. The aid 
of its Courts, nisi prius and appellate, has been sought; its 
clerks, sheriffs and constables have been called to issue and 
serve writs which issue in the name of the People of the State 
of California; ultimately (if the hopes of plaintiffs and appel­
lants are realized) even the jails of the State may be called 
upon to play a part in these actions.

Under such circumstances we do not feel that the legal arm 
of the State should remain inactive.

When the State is called upon to take State action in its own 
name against a large segment of its law-abiding citizens the 
law officers of the State should be heard.

To this end we ask that this Court consider this brief.



L. A. No. 19,759

In the Supreme Court of the State of California

A ne Marie A nderson, et al.,
Plaintiffs and Appellants, 

vs.

JOSEFA H. TOLHURST,
P lain tiff and A ppellant, 

v s.

E arl F. A useth , e t al.,
D efendants and Respondents.

Nellie B. Venerable, et al.,
D efendants and Respondents.

F rancis L. Sm ith ,
Plaintiff and A ppellant, 

vs.

E d n a  I. W h i t e ,
P lain tiff and Appellant,

v s .

Omelia Craigen Crawford, et al.,
D efendants and Respondents.

B ussell T. Sm ith , e t al.,
D efendants and Respondents.

V ictor J. Maricq, e t al.,
Plaintiffs and Appellants, 

vs.

E lmer C. W eber, et al.,
P laintiffs and Appellants, 

v s.

J ames Sumner P ickett, J r ., et al.,
D efendants and Respondents.

A rthur T wyne, Sr ., e t al.,
D efendants and Respondents.

L eila Daniels,
P lain tiff and Appellant, 

vs.

F red B. McComas,
P lain tiff and A ppellan t, 

v s .

H allie D. J ohnson, et al.,
D efendants and Respondents.

Truman B. Lott, et al.,
D efendants and Respondents.

BRIEF OF THE ATTORNEY GENERAL OF THE 
STATE OF CALIFORNIA, AS AMICUS CURIAE.

ARGUMENT.

The Supreme Court of the United States holds that a 
State in enacting a statute which attempts to set off 
particular residential districts for occupation exclusively



2

by members of a particular race violates the Fourteenth 
Amendment, Buchanan v. Warley, 245 IT.S. 60.

The question in this case is whether a law, not enacted 
by the legislature, can exist and be enforced in a State, 
under which residential districts for exclusive occupancv 
by a particular race may be created, consistently with the 
Fourteenth Amendment. Can the courts of a State by their 
decisions make a law, or give effect as law to rules, which 
its legislature is forbidden to enact 1 The framers and 
adopters of the Fourteenth Amendment knew as well as 
we do that the body of law in every State consists partly 
of the law enacted by the legislature and partly of the 
law which results from the decisions of its courts. Con­
sequently the Fourteenth Amendment was drafted to 
read “ No State shall” and the Supreme Court of the 
United States has repeatedly held this to mean that no 
State shall through action of any of its organs bring 
about the results which the Amendment forbids. State 
action of any kind producing a prohibited result is with­
in the scope of the Fourteenth Amendment. In particular 
the Supreme Court holds:

“ The judicial act of the highest court of the State, 
in authoritatively construing and enforcing its laws, 
is the act of the State.”

Twining v. New Jersey, 211 U.S. 78, 90.

On the other hand it is true that the Supreme Court 
holds that the Due Process and Equal Protection Clauses 
of the Fourteenth Amendment lay no restrictions upon the 
purely private actions of unofficial persons, unsupported 
by a State. The appellants contend that the result they



3

seek in this suit is solely a product of their private agree­
ments. They pretend that that result may be recognized 
by the Court as something already accomplished, and that 
no State action of any kind is required, and this not­
withstanding they have petitioned the Superior Court 
to grant a decree ousting the respondents from their 
homes, and now call upon this Court to recognize a state 
of law in the State authorizing the Superior Court to 
grant such a decree.

The lack of merit in this contention wrill be examined 
in two aspects of these racial exclusionary agreements (1) 
their contract law aspects (2) their property law aspects.

THE CONTRACT LAW ASPECT.

Not every agreement is a contract, which is the same 
as saying, that not every agreement is enforceable by 
courts. Some agreements are illegal by the common law 
on grounds of public policy, and therefore unenforceable 
by courts. By statutes others are declared unenforceable. 
Some are rendered unenforceable by constitutional pro­
visions. Peonage contracts are made unenforceable by the 
Thirteenth Amendment. Bailey v. Alabama, 219 U.S. 219. 
While the Eighteenth Amendment was in force all courts 
in the United States were deprived of power to enforce 
contracts for the sale of intoxicating liquors. The re­
strictive agreement at issue, the respondents contend, is 
unenforceable by a State court because the Fourteenth 
Amendment deprives the State of power to enforce it by 
action of its courts.



4

“ A contract is a promise or a set of promises for the 
breach of which the law gives a remedy, or the perform­
ance of which the law in some wav recognizes as a duty.” 
Restatement of the Law of Contracts, § 1.

“ A briefer definition, of the same general purport, is, 
‘a promise that is directly or indirectly enforceable at 
law’.” Corbin, Anson on Contracts, §9, note 2.

“* * * a promise or set of promises which the law 
ivill enforce.” Pollack on Contracts (1885 and subse­
quent editions).

“ An agreement enforceable by law is a contract.” 
Indian Contract Act, 1872 (codifying the English 
common law).

All of these standard definitions of “ contract” em­
phasize enforceability “ at law”1 or “ by law” as the es­
sential element of “ contract” . Enforceable “ at law” or 
“ by law” is a figure of speech. It means that a court 
will give some effect to the agreement. The law of itself, 
and until a court acts, is an abstraction that enforces 
nothing. Only when a judgment or decree may be ob­
tained in a court to give some effect to an agreement 
can it be said that the agreement is a contract. An agree­
ment to Which courts will give no effect is binding only 
upon the consciences of the makers. Thus the alleged con­
tract, the agreement, between the appellants not to per­
mit non-Caucasians to occupy the residences covered by 
the agreement is of no legal significance either between 
them, or the respondents, unless a court will enforce it. 
This is true of every agreement that is claimed to be a 
contract, and necessarily is true of the agreement here in 
litigation. Thus the position is untenable that a State in



5

enforcing such an agreement is not ACTING, but merely 
taking a neutral position, accepting a consequence that 
is brought about merely by a private agreement, for no 
legal consequence can possibly result from this private 
agreement unless a court will hold that the agreement is 
a contract and renders some decree giving it legal effect. 
The legal effect petitioned for by the plaintiffs is that the 
present occupants be ousted from their homes because of 
their race, and that they be ousted by a decree of the 
court. The grievance of the appellants is that some of 
the co-parties to their agreement have broken faith and 
permitted the respondents to become occupants of some 
of the residential properties. Thus their private agree­
ment has become of no avail, and unless the State through 
its courts takes affirmative action it will continue to be of 
no avail. The very fact that the appellants’ agreement 
has proved futile, and that they are frustrated in at­
taining their objective by their own action, led them to 
bring this suit. The suit is nothing but a petition for 
action by the State to make effective an agreement, other­
wise ineffective, by a decree ousting the respondents from 
their homes.

THE PROPERTY LAW ASPECT.

Racial residential segregation by neighborhood agree­
ments, covenants or conditions in deeds would be only 
temporarily effective, assuming them enforceable, un­
less they can be tied to the land, and bind subsequent 
purchasers, Recently—not earlier than 1915—the courts 
of some States evolved the doctrine that these racial re-



6

strictive agreements constitute what they call “ equi­
table servitudes”, meaning that a court of equity will en­
force them against subsequent holders who acquire the 
land with notice, or knowledge of the agreements. To per­
fect the plan of perpetuating these exclusive districts for 
generations to come, the agreements are recorded and rec­
ordation is held to make them effective against pur­
chasers without actual notice. In at least one instance 
an agreement provided that it was to continue in force 
for ninety-nine years from the date of recording. See 
Lyons v. Wallen (1942), 191 Okla. 567, 133 P. (2d) 555. It 
cannot be denied that the act of the State in recording 
these instruments is essential to the program. Equally 
essential is the act of the State through its legislature or 
its courts in making the law to be that recordation makes 
the agreements binding upon future holders without no­
tice.

Even without this last perfecting feature of recordation 
and its effect, the doctrine of racial equitable servitudes 
has come into existence by State action, by the action of 
the Supreme Courts of the relatively few States that have 
adopted it.

“ The judicial act of the highest court of the State, 
in authoritatively construing and enforcing its laws 
is the act of the State.”

Twining v. New Jersey, supra.

One has to reflect but a moment on the consequences 
of a State’s maintaining such a system of land law to see 
that the Equal Protection of the Law Clause of the Four­
teenth Amendment forbids it. The American people in the 
Reconstruction period were in deadly earnest in giving



7

equality of civil rights to all races of our citizens. Con­
gress quickly saw that the abolition of slavery by the 
Thirteenth Amendment was but a slight step. It pro­
ceeded to enact the Civil Rights Bill of 1866, 14 Stat. 27. 
It sought by that, statute to nullify the racial discrimina­
tion made in the property law and contract law of many 
States. The statute declared that:

“ citizens, of every race and color * * * shall have 
the same right, in every State and Territory of the 
United States, to make and enforce contracts, to sue, 
be parties, and give evidence, to inherit, purchase, 
lease, sell, hold and convey real and personal property 
* * * as is enjoyed by any white citizen,”

Fear arose, however, that authority to enter this field 
of legislation, formerly exclusively in the power of the 
States, was not given to Congress by the Thirteenth 
Amendment, Consequently the Fourteenth Amendment 
was drafted to forbid the States to deny equality of civil 
rights to any race among our citizens. This is the well- 
known history of the origin of the Equal Protection 
Clause of the Fourteenth Amendment, As soon as the lat­
ter Amendment was ratified Congress expressly “ re­
enacted” the Civil Rights Bill of 1866. See Section 18 of 
the Act of May 31, 1870, 16 Stat. 144.

In Buchanan v. Warley, 245 U.S. 60, 78, the Supreme 
Court, after recounting the history of the Equal Pro­
tection Clause, as above, said:

“ Colored persons are citizens of the United States 
and have the right to purchase property and enjoy 
and use the same without laws discriminating against 
them solely on account of color.” (Emphasis added.)



8

Referring to the two Civil Rights Acts of 1866 and 1870, 
as contemporary interpretations by Congress of the mean­
ing of the Fourteenth Amendment, the Court said:

“ These enactments did not deal with the social 
rights of men, but with those fundamental rights in 
property which it was intended to secure upon the 
same terms to citizens of every race and color.”

Is there a more fundamental right in property than that 
of a family to live in a home which they legally own1? 
Let any man ask himself that question with respect to 
his own house. Is it possible to conceive that the gen­
eration that framed and adopted the Fourteenth Amend­
ment meant that the States were still free to create 
through the decisions of their courts a body of contract 
law or a body of property law under which all the resi­
dential area of an entire town or city can be closed against 
Negroes or people of any other race?

It was long after that generation passed away before 
attempts were begun to get around the Constitution by 
restrictive conditions and eonvenants in deeds, and later, 
by neighborhood agreements. The earliest court decision 
on them was in 1915 by the Supreme Court of Louisiana. 
Queensborough Land Co. v. Gazeaux, 136 La. 774, 67 So. 
641, sustaining a covenant against sale to any Negro. The 
Supreme Court of Missouri held likewise in 1918. Koehler 
v. Rowland, 275 Mo. 573, 205 S.W. 217. The next year this 
Court refused to follow this novel doctrine and held 
that a condition in a deed for forfeiture in case of sale 
to any non-Caucasian was an illegal restraint on aliena­
tion forbidden by the Civil Code, § 711. Los Angeles In­
vestment Co. v. Gary, 181 Cal. 680, 186 Pac. 596. Un-



9

fortunately, however, the Court drew a distinction and 
held that a condition for forfeiture in case of occupancy 
of the property by a non-Caucasian was not a forbidden 
restraint on alienation. This was the start in making the 
rule of law in this State upon which appellants rely. 
It is to be noted, however, that the Court stated, “ what 
we have said applies only to restraints on use imposed 
by way of condition and not to those sought to be im­
posed by covenant merely.” (p. 683, emphasis added.)

The fact that the Court expressly confined its decision 
to conditions in deeds, even saying that it did not apply 
to covenants in deeds, shows that it did not intend the 
decision to apply to “ neighborhood agreements,’’ which 
are not made in instruments of conveyance, but are agree­
ments between present owners, often very numerous, 
covering large areas of cities, and capable of covering 
a whole city. These when recorded were later held to 
create “ equitable servitudes” closing the entire area 
covered by them to all members of any proscribed race. 
Wayt v. Patee (1928), 205 Cal. 46. Often these agree­
ments exclude all non-Caucasians, and sometimes some 
branches of the Caucasian race, such as Armenians and 
Turks. (See 33 Calif. L. Rev. at p. 15.)

These agreements are motivated by race prejudice and 
operate without regard to the culture or refinement of the 
individuals affected. This is illustrated by an unappealed 
decision of the Superior Court for the County of Los 
Angeles. In enforcing a neighborhood agreement against 
use or occupancy “ by any person whose blood is not 
entirely that of the Caucasian or white race,” Judge 
Myron Westover said:



10

“ The evidence showed and the Court finds that 
both defendants are American Indians of the Nanti- 
coke tribe, but with some white blood. Mr. Rodgers 
says his mother was Indian and his father white, but 
with some Indian blood, while all the blood of Mrs. 
Rodgers is Indian. She received her Bachelor’s and 
Master’s degree from New York University and also 
studied psychiatry in Vienna under Dr. Alfred L. 
Adler, and taught public school in New Jersey for 
from ten to twelve years.

However desirable the defendants may be in the 
cultural life of the immediate community and as 
neighbors, we must apply the law as it exists. Re­
strictions as to use or occupancy will be enforced in 
a court of equity.”

Los Angeles Daily Journal, June 14, 1945.

In view of the Court’s caution in the Gary case, in say­
ing that its decision did not apply even to covenants in 
deeds, it is highly probable that it would have reached 
a different result if it had foreseen that its doctrine would 
be extended to “ neighborhood agreements,” which make 
wholesale exclusions from large areas in cities of all 
persons who have any trace of non-Caucasian blood, re­
gardless of their social or economic status, and regardless 
of their culture and refinement.

The concluding short paragraph of the Court’s opinion 
in the Gary case was addressed to a constitutional ques­
tion but as this brief will later show it was not the con­
stitutional issue presented to the Court in this ease.



11

STATE OF THE AUTHORITIES ON THE CONSTITUTIONAL 
ISSUE IN THIS CASE.

It is submitted that the constitutional issue made in 
this case, the sole ground of decision of the Court below, 
has never been decided by the Supreme Court of Cali­
fornia.

It will further appear that the Supreme Court of the 
United States has never decided the question, never 
having been presented with a case involving it.

But it will still further appear that the Supreme Court 
of the United States has decided every one of the separate 
elements involved in the constitutional issue and decided 
them favorably to respondents’ contentions. It is submit­
ted that the combined effect of the prior decisions of that 
Court would compel it to reach a result in this case 
favorable to the respondents.

(a) Supreme Court of California.

In their opening brief counsel for appellants rely almost 
wholly upon Los Angeles Investment Co. v. Gary, 181 
Cal. 680 and the United States Supreme Court decisions 
therein cited, as decisive of the constitutional issue.

What was the constitutional issue to which this Court 
addressed itself in the Gary case?

All that this Court said was:
“ The particular condition in this ease being one 

against the occupation of the property by persons 
not of the Caucasian race, the question suggests it­
self as to whether it is unlawful discrimination 
against certain classes of citizens and, therefore, 
within the prohibition of the federal Constitution.



12

* * # Construing this amendment [the Fourteenth], 
the Supreme Court of the United States has held in a 
number of cases that the inhibition applies exclusively 
to action by the State and has no reference to taction 
by individuals, such as is invoked here.” (p. 683, 
emphasis added.)

The only other reference in any opinion of this Court 
to any constitutional issue in cases of this kind is in 
Jams Investment Go. v. Walden (1925), 196 Cal. 753, 754. 
The opinion there makes a passing reference to “ the 
authorities presented by appellant in support of his con­
tention touching the constitutionality of the condition set 
forth 'in the contract.” (Emphasis added.) The Court 
cited the Gary case as settling this, issue.

Thus it appears that this Court has never had brought 
to its attention that while the acts of individuals in making 
such agreements are not of themselves unconstitutional 
any act of the State in recognizing them as legal and 
enforcing them is unconstitutional.

(b) The United States Supreme Court decisions cited and re­
lied upon in the Gary case.

United States v. Cruikshank, 92 U. S. 542: In this case 
the Supreme Court was concerned with the question 
whether criminal or tortious acts committed by one private 
person against another were forbidden by the Fourteenth 
Amendment and therefore brought within the power of 
Congress to penalize or redress. The Court held that 
such private acts were not within the scope of the Amend­
ment. Obviously criminal and tortious acts of one private 
person against another are purely private acts, unaided



13

and unsupported by State action, and even contrary to 
State law.

Civil Bights Cases, 109 U. S. 3: What was characterized 
in these cases as merely the “ action of private indi­
viduals” was the refusal of the keeper of a hotel or other 
place of entertainment or public amusement to admit or 
serve a patron because of his color. It is obvious that 
such refusal is operative without aid or support of the 
State. The Court made it clear, however, that the Four­
teenth Amendment does forbid a State to legalize or aid 
such discriminatory practices either by act of the legis­
lature or by act of any other officer or organ of State 
government, including its Courts. That action of a State 
court, in rendering a decree ousting a person from his 
quarters in a hotel solely because of his race wrould be a 
violation of the Amendment is clear. How does that 
differ from a decree ousting a person from his home 
because of his race? The opinion in the Civil Bights 
Cases, repeatedly affirms that it was dealing with private 
action that is exclusively such, unaided, unsanctioned and 
unsupported, by action of any organ of State government. 
It repeatedly states that the command “ No State shall 
* * *” includes “ the action of State officers, executive, 
or judicial,” (p. 11, emphasis added); “ acts done under 
State authority.” (at p. 13.) It carefully points'out that 
it is dealing with “ wrongful acts of individuals, unsup­
ported by State authority in the shape of laws, customs, 
or judicial or executive proceedings.” (p. 17, emphasis 
added.)

Virginia v. Bives, 100 U. S. 313: While it is true that 
the opinion in this case says that the Fourteenth Amend-



14

ment has “ reference to State action exclusively, and not 
to any action of private individuals” (p. 318), it also 
refers to “ the violation of the constitutional provisions, 
when made by the judicial tribunals of a State.” (p. 319.)

United States v. Harris, 106 U. S. 629: A provision of 
an Act of Congress was held not within the power given 
Congress to enforce the Fourteenth Amendment. The 
Court said:

“ As, therefore, the section ;of the law under con­
sideration is directed exclusively against the action 
of private persons, without reference to the laws of 
the State or their administration 'by her officers, we 
are clear in opinion that it is not warranted by any 
clause in the Fourteenth Amendment to the Consti­
tution.” (Emphasis added.)

If counsel in the Gary case had clearly presented to 
the Court the real issue, State Court enforcement of a 
body of State contract law or property law under which 
racial zoning may be accomplished, is it conceivable that 
this Court would have thought the cited cases decisive?

In fact the grounds assigned for demurrer to the com­
plaint in the Gary case do not mention State court en­
forcement of the condition as a ground. No brief or 
argument was presented to this Court in behalf of Gary. 
(See 181 Cal. at p. 681.)

Counsel for appellants in that case (Los Angeles In­
vestment Co.) argued in their brief:

“ The provision in the deed forbidding alienation 
to persons other than of the Caucasian race is not the 
act of the State. It is the act of an individual—the 
corporation that made the condition in the deed.” 
(p. 37.)



15

It is submitted that this Court was left to believe that 
that was the whole of the constitutional issue raised. And 
it is submitted that the Court is now presented with the 
real constitutional issue for the first time.

(e) Decisions of other State Courts.

While remarks have been made in the opinions of 
Supreme Courts of six other States, and of lower courts 
of two more States about some kind of a constitutional 
issue in this class of cases, these remarks fall into two 
classes: (1) a brief reference to the decision of the 
Supreme Court of the United States in Corrigan v. 
Buckley, 271 U. S. 323, as settling that racial restrictive 
agreements are not unconstitutional; (2) those which dis­
pose of the supposed issue by citing the Civil Rights Cases 
and other decisions of the United States Supreme Court 
like those cited in the Gary case.

Of the first class are:
Lyons v. Wallen, 191 Okla. 567, 569, 133 P. (2d) 

555, 558 (dictum,, issue not pleaded);
Ridgway v. Coburn, 163 Misc. 511, 514, 296 N.Y.S. 

936, 942;
United Cooperative Realty Co. v. Hawkins> 269 Ky. 

563, 565, 108 S. W. (2d) 507, 508 (apparently 
dictum) ;

Meade v. Dennistone, 173 Md. 295, 302, 196 Atl. 
330, 333;

Doherty v. Rice, 240 Wis. 389, 397, 3 N. W. (2d) 
734, 737;

Thornhill v. Herdt (Mo. App.), 130! S. W. (2d) 175, 
178.



16

Of the second class are:
Queensborough Land Co. v. Caseaux, 136 La. 724, 

67 So. 641;
Chandler v. Zeigler, 88 Colo. 5, 6, 291 Pac. 822, 823;
Meade v. D'ennistone, supra,;
Par male e v. Morris, 218 Mich. 625, 627, 188 N. W. 

330;
Porter v. Barrett, 233 Mich. 373, 376, 206 N. W. 523, 

533.
It is to this last group of four States that this Court 

must look for whatever aid they afford on the present 
question, for the Courts in the first class so completely 
misconceived the decision of the Supreme Court of the 
United States in Corrigan v. Buckley that what considera­
tion they gave to the question is negligible. Typical of 
the opinions in this first group is the statement in 
Ridgwuy v. Coburn, supra:

“ It is sufficient to say that the United States Su­
preme Court has held that a covenant of this precise 
character violated no constitutional right, Corrigan 
v. Buckley, 271 U. S. 323.”

If emphasis be put on the word “ covenant” in this 
passage the statement is not wide of the mark, but the 
New York Court was misled into assuming that this 
settled the question of State court enforcement of such a 
covenant, a question that was not before the Supreme 
Court in Corrigan v. Buckley.

Corrigan, v. Buckley.
Corrigan, et ial. v. Buckley, 271 U. S. 323, was an appeal 

from a decision of the Court of Appeals of the DISTRICT



17

OF COLUMBIA. Corrigan, Buckley and other landown­
ers had made mutual agreements not to sell) to any person 
of Negro race or blood. Corrigan contracted to sell to a 
Negro, and Buckley, before any conveyance, sued to re­
strain Corrigan from conveying to Curtis, the Negro 
buyer, and the latter from taking title. The Supreme 
Court of the District granted an injunction and the Court 
of Appeals affirmed, 299 Fed. 899. The latter Court, 
differing from the Supreme Court of California, held that 
a restriction against sale to all members of a particular 
race was not an illegal restraint on alienation by the com­
mon law of the District.

The defendant, Curtis, had pleaded that the covenant 
is void, as a denial of due process of law and equal pro­
tection of the laws, relying on the Fifth, Thirteenth and 
Fourteenth Amendments.

The Supreme Court of the United States dismissed the 
appeal on the ground that the pleading had raised no 
substantial constitutional or statutory question, which was 
then necessary to its having appellate jurisdiction. Since 
it had long been settled that the Thirteenth Amendment 
is directed at nothing but slavery, and that the Four­
teenth Amendment applies only to the States, the Court 
regarded the contentions based upon them as frivolous. 
There remained the Fifth Amendment, which contains no 
equal protection clause, but does contain a due process 
of law clause. The Court, said: “ The Fifth Amendment 
‘is a limitation only upon the powers of the General 
Government’ * * * and is not directed against the action 
of individuals.” The Court made it clear that it was 
answering only the contention that “ the indenture or



18

covenant which is made the basis of the bill, is ‘void.’ ” 
Summarizing, it said:

“ It is obvious that none of these Amendments pro­
hibited private individuals from entering into con­
tracts respecting the control and disposition of their 
own property; and there is no color whatever that 
they rendered the indenture void.” (Emphasis added.)

Then comes this most significant fact, the Court pointed 
out that whether enforcement of the covenant by a Court 
of the District of Columbia would be unconstitutional was 
not in issue in the case, saying, “it was not raised by the 
petition for the appeal), or by any assignment of error, 
either in the Court of Appeals or in this Court.”

Counsel for appellants had attempted to raise that issue 
in their brief (271 U. S. at p. 324), but the Supreme Court 
holds that a constitutional issue cannot be raised in that 
manner.

Even if that issue had been raised it would not have 
been the issue in the present case. Whether the due 
process of law clause of the Fifth Amendment forbids 
Courts of the District of Columbia or the Territories to 
enforce such covenants, is not the question in this case, 
which is, whether a State court consistently with the 
Equal Protection Clause of the Fourteenth Amendment 
can enforce a body of State contract law or a body of 
State property law under which racial zoning may be 
accomplished, in face of the decisions of the United States 
Supreme Court that a State may not accomplish it by act 
of any of its legislative organs.

This question has never been presented to the United 
States Supreme Court.



19

[Note also that the Supreme Court did not even affirm 
the holding of the Court of Appeals that such covenants 
were legal as a matter of the property law of the District 
of Columbia. That question was not then appealable to 
the Supreme Court, and that Court has never yet con­
sidered it.]

THE UNITED STATES SUPREME COURT’S DECISIONS ON THE 
SEPARATE FACTORS INVOLVED IN THE PRESENT CASE.

1. Is racial zoning by State legislation unconsti­
tutional?

2. Are the decisions of State courts creating or 
recognizing a body of non-statutory law in the State, 
which legalizes racial zoning State action forbidden 
by the Fourteenth Amendment?

(1) Racial zoning by State statutory law.
Buchaium v. Warley, 245 IT. S. 60, held that State ac­

tion, namely by city ordinance, zoning a city racially was 
a violation of the Fourteenth Amendment. The ordinance 
forbade any white or Negro person to move into a resi­
dential block in which a majority of the houses are already 
occupied by persons of the other race. A Negro had 
contracted to buy a house and lot on the condition that 
he could legally occupy the property as a residence. The 
seller sued for specific performance, and challenged the 
validity of the ordinance. The Court being conscious 
that few persons buy residential property in which they 
cannot legally live, saw that the ordinance was a restraint 
on sale, cutting out all members of a particular race as 
buyers, and held that such a reduction of an owner’s right



20

to sell was a deprival of property without due process of 
law, and that the ordinance therefore violated the Four­
teenth Amendment. Since under the ordinance it was 
immaterial what was the race of a seller, the seller could 
not invoke the Equal Protection Clause. It seems clear 
from statements in the opinion that from a buyer’s 
point of view the ordinance violated the Equal Protection 
Clause, by excluding him from occupancy because of his 
race. Mr. Justice Day, for a unanimous Court, discussed 
the history of the Fourteenth Amendment, showing that 
one of its chief purposes was to secure to all persons 
“ the right to purchase property and enjoy and use the 
same without laws discriminating against them solely on 
account of color.” (pp. 78-79.)

The Court further said:
“ It is urged that this proposed segregation will 

promote the public peace by preventing race conflicts. 
Desirable as this is, and important as is the preserva­
tion of the public peace, this aim cannot be accom­
plished by laws or ordinances which deny rights 
secured or protected by the Federal Constitution.”
(p. 81.)

So also the Court brushed aside the contention that 
acquisition of property by colored persons in white neigh­
borhoods depreciates the value of property, (p. 82.) Where 
this is true it but illustrates that the Constitution some­
times subordinates pecuniary interests to more funda­
mental rights.

Harmon v. Tyler, 273 U. S. 668: The decision in this 
case is even more closely in point. A New Orleans ordi­
nance barred whites or Negroes from any “ community or



21

portion of the city * * * except on the written consent of 
a majority of the opposite race inhabiting such com­
munity or portion of the city.” (See 1Tyler v. Harmon, 
158 La. 439, 441, 104 So. 200.) The Supreme Court held 
the ordinance unconstitutional. The scheme which the 
ordinance sought to establish was close to legalizing 
neighborhood agreements such as are in issue in the 
present case. Instead of neighborhood agreements to 
exclude, as in the present case, the ordinance attempted 
to require neighborhood agreements to admit. The prac­
tical result of the two schemes is the same. Both require 
a combination of State action and action by private per­
sons. If a State is prohibited from legalizing the one by 
legislative action is it free to legalize the other by judicial 
action ?

(2) A State Court’s decision giving effect to the State’s non- 
statutory law is State action within the meaning of the 
Fourteenth Amendment.
“ The judicial act of the highest Court of the State in 
authoritatively construing and enforcing its laws is 
the act of the State.” Twining v. Neiv Jersey, 211 
U. S. 78, 90-91.

The law construed and enforced by the State Court in 
that case was its common law, judge-made or non-statutorv 
law.

There are many decisions in which the only action of 
a State held by the Supreme Court to be a violation of 
the Fourteenth Amendment consisted of a judgment of a 
State court interpreting and enforcing its common law.

Powell v. Alabama, 287 U. S. 45 (procedural law);
Moore v. Dempsey, 261 U. S. 86 (procedural law);



22

Bridges v. California, 314 U. S. 252 (substantive 
law);

Cantwell v. Connecticut, 310 U. S. 296 (substantive 
law);

A. F. of L. v. Swing, 312 IT. S. 321 (substantive 
law);

Bakery Drivers Local v. Wohl, 315 IT. S. 760 (sub­
stantive law).

If the plea that the action of these State courts of itself 
was a violation of the Fourteenth Amendment raised no 
constitutional issue the Supreme Court of the United 
States would not have had jurisdiction to review and 
reverse the State Court decisions in the above cases, for 
no other unconstitutional action of a State was pleaded 
in any of them.

“ No State shall * * * deprive any person of life, 
liberty or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.” Fourteenth Amendment, 
Section 1.

If, as is held in the above cited cases, a judgment of a 
State Court interpreting and enforcing its non-statutory 
law is State action under the first clause, it is equally 
State action under the second or Equal Protection Clause.

The United States Supreme Court so holds. Three 
times for a unanimous Court the following has been 
stated, once by Mr. Justice Cray, once by Mr. Justice 
Holmes, and once by Chief Justice Hughes:

“ Whenever by any action of a State, whether 
through its legislature, through its courts, or through 
its executive or administrative officers, all persons of



23

the African race are excluded solely because of their 
race or color, from serving as grand jurors in the 
criminal prosecution of a person of the African race, 
the equal protection of the laws is denied him con­
trary to the Fourteenth Amendment of the Consti­
tution of the United States.” (Emphasis added.)

So in
Carter v. Texas, 177 U. S. 442, 447;
Rogers v. Alabama, 192 U. S. 226, 231;
Norris v. Alabama, 294 U. S. 587, 589.

If by holding it to be a rule of the common law of a 
State that Negroes are ineligible to jury service a State 
Court could break through the command of the Equal 
Protection Clause there are still a few States in which 
the Courts would oblige the advocates of white supremacy.

The Equal Protection Clause was put into the Consti­
tution primarily to nullify the Block Codes of the South 
which discriminated against Negroes with respect to their 
civil rights. With this origin freshly in mind, the Su­
preme Court said, in 1873,

“ We doubt very much whether any action of a State 
not directed by way of discrimination against the 
Negroes as a class, or on account of their race, will 
ever be held to come within the purview of this provi­
sion.” (Slaughter-House cases, 16 Wall. 36, 81.)

Soon, however, it was perceived that the language of the 
clause was general, “ deny to any person”, and the Court 
held that administrative action of officials in San Fran­
cisco in excluding Chinese from operating laundries was 
a denial of Equal Protection. (Tick Wo v. Hopkins, 118 
U. S. 356.)



24

Soon also it was perceived that the clause prohibits 
irrational discrimination against any class of persons, 
whether because of their race or on any other ground that 
bears no rational relation to the object of the legislation. 
A formula for interpretation of the Equal Protection 
Clause evolved:

“ It does not prevent classification, but does require 
that classification shall be reasonable, not arbitrary, 
and that it shall rest upon distinctions having a fair 
and substantial relation to the object sought to be 
accomplished by the legislation.”

This is repeated in numerous cases.

Because, however, the primary purpose of the Clause 
was to prevent racial discrimination there is not a single 
decision of the Supreme Court that recognizes that race 
alone is a rational justification for any discrimination 
with respect to civil rights. So far as the Supreme Court 
has sustained State laws which require racial separation 
in public conveyances and public schools, it has been ex­
pressly put on the ground that no discrimination is made 
by such laws in that to be valid they must provide equal 
facilities. [Compare the recent decision that a State may 
not require racial separation in the State of persons 
travelling into or through the State. Morgan v. Common­
wealth of Virginia, 66 S. Ct. 1050.]

Any State law that outright forbade Negroes to ride 
on any railroad or any street car line would unquestion­
ably be invalid, even if the law applied to a single rail­
road or a single street car line. We are here concerned 
with a body of State law under which Negroes or any 
other proscribed race can be totally excluded from par-



25

ticular districts or portions of a city, and no one pretends 
that the districts left open to them are equal.

Surely the appellants will not contend that a body of 
State law escapes unconstitutionality by permitting Ne­
groes to make agreements excluding whites from their 
neighborhood as an offset to legalizing agreements of 
whites to exclude Negroes from their neighboi’hood. It is 
obvious that such a law

“ while equal and reciprocal in phraseology, as re­
gards the two races, does in reality, the facts of life 
being what they are; discriminate heavily against the 
Negro race.” 31 Harv. L. Rev., 479.

The ordinance held void in Buchanan v. War ley, supra, 
had the reciprocal feature of forbidding whites to move 
into “ black blocks” and Negroes to move into “ white 
blocks.” So the ordinance held void in Harmon v. Tyler, 
supra, reciprocally forbade whites to move into Negro 
“ communities or districts” without the consent of a ma­
jority of the Negroes residing there. This reciprocity 
saved neither ordinance.

A judgment of a State court ousting a white family 
from a home subject to a restrictive agreement against 
occupancy by whites would be as unconstitutional as the 
action sought by appellants in this case. It is the con­
tention of the respondents that a State court judgment 
ousting any person from his home because of his race, 
whatever it may be, is State action violating the Equal 
Protection Clause of the Fourteenth Amendment. That 
Clause extends its protection to every person. Denial 
to one fman of the privilege of living in his home is not 
made constitutional by denying another man, of a dif-



26

ferent race, the privilege of living in his home. Under 
the Equal Protection Clause, “ the essence of the consti­
tutional right is that it is a personal one.” McCabe v. 
Atchison, T. \& S. F. R. Co., 235 U. S. 141, 161; Missouri 
ex rel. Gaines, 305 U. S. 337, 351; Mitchell v. United 
States, 313 IT. S. 80, 97.

CONCLUSION.
The respondents acquired their home from a willing 

seller and are, under the law of this State, the legal 
owners. This, is a suit to oust them from their home 
solely because they are non-Caucasians. If they were 
Caucasions, concededly no action would lie. Without ac­
tion by the State of California they may continue to 
reside in their home. This Court is asked, by appellants, 
to interpret and enforce the law of this State as requiring 
action by the State, through its Court, to oust them. Such 
action would be in violation of the Equal Protection Clause 
of the Fourteenth Amendment.

The judgments below should be affirmed.

Dated, San Francisco, California,
September 4, 1946.

Respectfully submitted,
R obert W. K e n n y ,

Attorney General of the State of California,
Cla ren ce  A. L i n n ,

Assistant Attorney General of the State of California.

D . 0 .  M cG ovney ,
School of Jurisprudence, University of California,

Special Advisor to the Attorney General 
of the State of California.