Harmon v. Tyler Briefs
Public Court Documents
January 1, 1924 - January 1, 1927
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Brief Collection, LDF Court Filings. Harmon v. Tyler Briefs, 1924. b5943d4d-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1d0ca793-ae97-490b-97dc-82243da7177b/harmon-v-tyler-briefs. Accessed September 18, 2025.
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3 9IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1926. ft A. A. C«
FIFTH AVE,
No. 353
K NEW YORK \cnl
BENJAMIN OR BEN HARMON,
Plaintiff in Error,
versus
JOSEPH W. TYLER,
Defendant in Error.
In Error to the Supreme Court of the State of
Louisiana.
BRIEF OF PLAINTIFF IN ERROR ON THE
MERITS.
LOYS CHARBONNET,
FRANK B. SMITH,
Attorneys for Plaintiff in Error.
■ OHTROHERYARRREE M IRTH ® CO. IR C ..*07 CHARTRES. R .O .
*
*
/
SUBJECT INDEX.
Page
Statement of the Case............................................... 1
Federal Questions Involved....................................... 3
Joint Motion Consolidating Cases............................. 7
Writ of Error Allowed............................................... 8
Brief and Argument................................................... 8
Ordinance No. 8037, (C. C. S.) of New Orleans,
under Acts 117 of 1912, and 118 of 1924 of
Louisiana, discussed........................................... 9
Ordinance is unconstitutional, null and void.......... 10
Ordinance is violative of Fourteenth Amendment
of the Constitution of United States.............. 12
Ordinance deprives plaintiff in error of property
without due process of law................................ 14
APPENDIX:
Agreed Statement of Facts.............................. 26
Ordinance No. 8037, Commission C o u n c i l
Series, of the City of New Orleans............ 27
CASES CITED.
Page
Bowen v. City of Atlanta, 159 Ga., 145........ 13, 16, 24
Buchanan v. Warley,
245 U. S., 60. . .9, 11, 12, 15, 17, 18, 19, 21, 23, 24
Carey v. Atlanta, 143 Ga., 192.............................. 24
Glover v. City of Atlanta, 148 Ga., 285............ 16,24
Hall v. Decuir, 95 U. S., 485................................... 18
Holden v. Hardy, 169 U. S., 366.......................... 17
Terrace v. Thompson, 263 U. S., 215.................. 12
Plessy v. Ferguson, 163 U. S., 537,
differentiated...........................................9, 23, 25
OTHER AUTHORITIES CITED.
United States Constitution, Amendment 13........ 17
United States Constitution,
Amendment 14.............................4, 17, 20, 23, 24
United States Statutes 1866 (Chapter 31, Sec. 1,
14 Stat. at L. 27, Comp. Stat. 1916, Sec. 3931) 14
United States Statutes 1870 (Chapter 14, Sec. 16,
16 Stat. atL. 144, Comp. Stat. 1916, Sec. 3925) 14
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1926.
No. 353
BENJAMIN OR BEN HARMON,
Plaintiff in Error,
versus
JOSEPH W. TYLER,
Defendant in Error.
In Error to the Supreme Court of the State of
Louisiana.
BRIEF OF PLAINTIFF IN ERROR ON THE
MERITS.
STATEMENT OF THE CASE.
The opinion here to be reviewed may be found at
pages 43 to 64 of transcript of record, and it is re
ported in 158 La., 1*39; 10k So., 200, and 160 La., 9k3;
107 So., 70k.
2
Defendant in error, Joseph W. Tyler, filed a peti
tion (R. 28) against Benjamin or Ben Harmon, plain
tiff in error, alleging that said Joseph W. Tyler was
the owner of a certain piece of real estate on the lower
side of Audubon Street between Magazine and
Meadow Streets, in the City of New Orleans, State of
Louisiana; and that plaintiff in error is the owner of
a certain piece of real estate on the upper side of
Audubon Street between Magazine and Meadow
Streets, square bounded by Broadway Street, in the
City of New Orleans, State of Louisiana, known by
the Municipal No. 232 Audubon Street; and that both
of said properties are located in what is known as a
white community under Sections 2, 3 and 5 of Ordi
nance No. 8037, Commission Council Series of the
City of New Orleans, adopted September 18th, 1924,
by the Commission Council of the City of New Or
leans, under the provisions of Act 117 of 1912 and Act
118 of 1924 of the State of Louisiana.
Defendant in error, Joseph W. Tyler, further
alleged that Benjamin or Ben Harmon, plaintiff in
error, according to the information and belief of the
said Joseph W. Tyler, was about to convert the single
cottage at No. 232 Audubon Street in the City of
New Orleans into a double cottage with a view and
for the purpose of renting one side thereof to negro
tenants, as a home residence, and that plaintiff in
error had actually commenced the work of repairing
and conversion.
Joseph W. Tyler, defendant in error, further
alleged that under Sections 2, 3 and 5 of Ordinance
No. 8037 Commission Council Series of the City of
3
New Orleans, adopted September 18th, 1924, under
and by virtue of Act 117 of 1912 and Act 118 of 1924
of the State of Louisiana, it was necessary that Ben
jamin or Ben Harmon should have secured the writ
ten consent of a majority of the persons of the white
race inhabiting such community or portion of the
City of New Orleans to be affected, before he could
rent the said property to negro tenants for occupancy
as home residences; that he has not obtained such
written consent and he was proceeding to convert his
said single cottage into a double cottage for the pur
pose of renting one side thereof to negro tenants, as
a home residence; and that a rule nisi (R. 30) should
issue under Act 29 of 1924 of the State of Louisiana
against plaintiff in error to show cause on Tuesday,
October 21st, 1924, at 10:30 o’clock a. m., why an
injunction should not issue against him preventing
him from renting his said premises to negro tenants
as a home residence.
Said rule nisi issued; and that plaintiff in error
raised timely and properly in the lower Court by
special plea (R. 32) under the practice prevailing in
the State of Louisiana, the following Federal ques
tion :
“ That Act 117 of 1912, Act 118 of 1924
and ordinance No. 8037 C. C. S. (Commis
sion Council Series), New Orleans, adopted
September 18th, 1924, are unconstitutional,
null and void and of no effect because they
violate the Fourteenth Amendment of the
Constitution of the United States, in that
they seek to deprive exceptor (plaintiff in
error), a citizen of the United States, of his
4
property without due process of law by at
tempting to deprive him of the right to dis
pose of it or to lease it to a constitutionally
qualified person, on the sole ground of race
or color.”
The Judge of the lower Court, Hon. Hugh C.
Cage, maintained said plea (R. 34-39), declared Act
117 of 1912, Act 118 of 1924 and Ordinance No. 8037,
Commission Council Series of the City of New Or
leans, adopted September 18th, 1924, unconstitu
tional, null, void and of no effect, because they vio
lated the due process clause of the Fourteenth Amend
ment of the Constitution of the United States, and,
accordingly, recalled said rule nisi and dismissed
plaintiff’s action.
Defendant in error, Joseph W. Tyler (R. 39),
took an appeal from the judgment to the Supreme
Court of the State of Louisiana, the Court which had
sole jurisdiction of an appeal from that judgment.
In this cause bearing the No. 26,948 of the docket
of the Supreme Court of the State of Louisiana the
aforesaid Federal question was again specially sub
mitted to that Honorable Court, under said pleadings,
and was considered and passed upon by a judgment
and decree which were rendered on March 2nd, 1925,
against the interest and prejudicial to plaintiff in
error, reversing the said judgment, holding that the
said acts and ordinance did not violate the equal pro
tection and due process clauses of the Fourteenth
Amendment of the Constitution of the United States,
maintaining their constitutionality and validity and
remanding the said cause to the lower Court (R. 43-
5
64); within the fourteen days required under the laws
of the State of Louisiana, plaintiff in error did, on
March 14th, 1925, apply for a rehearing (R. 64) in
which he specifically set forth, in detail, the grounds
of error which were prejudicial to him in said opinion
and decree; and, more particularly, the error of the
Supreme Court of Louisiana in holding that said acts
and ordinance did not violate the due process clause
of the Fourteenth Amendment of the Constitution of
the United States; and that he filed in connection with
said application for a rehearing, a printed brief, elab
orating said grounds and assignment of errors; and
that on April 27th, 1925, said application for a rehear
ing was denied. (R. 66.)
The said opinion and decree of this Honorable
Court was not a final judgment because this cause was
remanded by this Court to the lower Court with the
following instructions:
“ The judgment is annulled and it is
ordered that the case be remanded to the
Civil District Court for further proceedings
consistent with the foregoing opinion. The
defendant is to pay the costs of this appeal.
All other costs are to depend upon the final
judgment.”
Tyler v. Harmon, 158 La., 1*39, at p.
U59; 10% So., pp. 200, et seq.
This cause being remanded, the Judge of the lower
Court, after considering an agreed statement of facts
(R. 2) which had been submitted to him, issued a pre
liminary injunction (R. 3), enjoining and restraining
plaintiff in error from renting his premises, No. 232
6
Audubon Street, New Orleans, Louisiana, to negro
tenants as home residences or places of abode; plaintiff
in error joined issue on the merits (R. 4), again attack
ing Ordinance No. 8037, Commission Council Series
of the City of New Orleans, adopted September 18th,
1924, under Act 117 of 1912 and Act 118 of 1924, laws
of Louisiana, and also Act 117 of 1912 and Act 118 of
1924, laws of Louisiana, on the ground that they are
unconstitutional, null, void and of no effect because
they violate the Fourteenth Amendment of the Con
stitution of the United States, in that they seek to de
prive plaintiff in error, a negro citizen of the State of
Louisiana and of the United States of America, of his
property without due process of law by attempting to
deprive him of the right to dispose of it or to lease it
as a home or residence or place of abode to other
negroes who are citizens of the State of Louisiana and
of the United States of America, constitutionally quali
fied persons, on the sole ground of race or color, and
urging that the said preliminary injunction be re
called.
The Judge of the lower Court held said acts and
said ordinance valid and not in violation of the Four
teenth Amendment of the Constitution of the United
States and perpetually enjoined and restrained plain
tiff in error (R. 8) from renting premises No. 232
Audubon Street, New Orleans, Louisiana, as home
residences or places of abode to negro tenants, citi
zens of the United States of America and citizens of
the State of Louisiana.
Plaintiff in error took and perfected a suspensive
appeal from that judgment (R. 9) within ten days, the
7
delay fixed by statutory law of Louisiana to the Su
preme Court of Louisiana; which matter bears the No.
27,579 of the docket of said Court.
On February 26th, 1926 (R. 10), petitioner (de
fendant in error), Joseph W. Tyler, filed a joint motion
to consolidate cause No. 27,579 (Joseph W. Tyler v.
Benjamin or Ben Harmon) with cause No. 26,948
(Joseph W. Tyler v. Benjamin or Ben Harmon) and
that said causes were ordered consolidated.
The Supreme Court of Louisiana did reconsider
whether Ordinance No. 8037, Commission Council
Series of the City of New Orleans, adopted September
18th, 1924, under Act 117 of 1912 and Act 118 of 1924
and Act 117 of 1912 and Act 118 of 1924, laws of
Louisiana, violated the due process clause of the Four
teenth Amendment of the Constitution of the United
States of America, and on March 5th, 1926 (R. 13-14),
it affirmed the judgment of the lower Court, holding
that said ordinance and statutes did not violate the
due process clause of the Fourteenth Amendment of
the Constitution of the United States of America, and
it adhered to its former ruling, judgment, opinion and
decree.
On March 18th, 1926, within fourteen days from
the rendition of said judgment, the time limit fixed
by the statutory law of Louisiana, plaintiff in error
filed an application for a rehearing (R. 14),urging the
errors, in said ruling, judgment, opinion and decree,
prejudicial to his interests and more particularly to
the ruling of the Court that Ordinance No. 8037, Com
mission Council Series of the City of New Orleans,
8
adopted on September 18th, 1924, under Act 117 of
1912 and Act 118 of 1924, laws of Louisiana, and Act
117 of 1912 and Act 118 of 1924, laws of Louisiana,
did not violate the due process clause of the Fourteenth
Amendment of the Constitution of the United States.
The Supreme Court of Louisiana did, on March
29th, 1926, refuse the application of plaintiff in error
for a rehearing (R. 14-15).
The Supreme Court of the State of Louisiana was
the last and highest Court in this State to which plain
tiff in error could apply for relief against said uncon
stitutional ordinance and acts; that said judgment,
rendered on March 5th, 1926, in which a rehearing was
denied on March 29th, 1926, is final, in so far as the
Courts of the State of Louisiana are concerned.
The plaintiff in error, Benjamin or Ben Harmon,
applied to the Supreme Court of the State of Louisiana
for writ of error and for supersedeas on April 17th,
1926 (R. 15); together with assignments of error (R.
23); an order of said Court allowed the writ of error,
April 17th, 1926 (R. 25); see writ of error (R. 26).
BRIEF AND ARGUMENT.
We will first discuss the constitutional questions
embodied in points I, II, III, IV, and V, as set forth
on pages 66 to 69 of the printed record.
These points also embody the matters contained
in the assignments of error numbered I, II, III, IV and
V (R. 23-25).
These points constitute a specification of such of
the assigned errors as are intended to be urged and
upon which plaintiff in error relies for judgment in
this Court reversing the Supreme Court of Louisiana.
9
Ordinance No. 8037, Commission Council Series
of the City of New Orleans, adopted September 18th,
1924, under Act 117 of 1912 and Act 118 of 1924, is in
language almost identical, and in substance the same
as the ordinance of the City of Louisville, approved
May 11th, 1914, which the Supreme Court of the
United States in the case of Buchanan v. Warley, 2^5
U. S., p. 60, held deprived plaintiff in that cause of his
property without due process of law under the Four
teenth Amendment of the Constitution of the United
States of America. The Supreme Court of Louisiana
refused to follow Buchanan v. Warley because it con
sidered that that case was not applicable to the present
one, and it held that the case of Plessy v. Ferguson,
163 U. S., p. 537, governed and controlled.
The final opinion, judgment and decree of the
Supreme Court of the State of Louisiana to the effect
that Ordinance No. 8037, Commission Council Series
of the City of New Orleans, adopted September 18th,
1924, under Act 117 of 1912 and Act 118 of 1924, laws
of Louisiana, and Act 117 of 1912 and Act 118 of 1924,
laws of Louisiana, are not violative of the due process
clause of the Fourteenth Amendment of the Constitu
tion of the United States, and that Buchanan v. War-
ley, 2U5 U. S., p. 60, does not apply, but that Plessy v.
Ferguson, 163 U. S., 537, is controlling are erroneous
and contrary to the proper interpretation of the due
process clause of the Fourteenth Amendment of the
Constitution of the United States, and, more particu
larly, to the opinion of the Supreme Court of the
United States in Buchanan v. Warley, 2U5 U. S., 60,
that such an ordinance and such statutes violate the
due piocess clause of the Fourteenth Amendment of
10
the Constitution of the United States, and that Plessy
v. Ferguson, 163 U. S., p. 537, does not apply to such
an ordinance and to such statutes.
The acts and the ordinance in question make it un
lawful, on the sole ground of race or color, for a white
man or a colored man to establish a home residence on
any property located in a negro community or white
community, unless he obtains the written consent of a
majority of the opposite race to which he belongs.
“A white community” and “ a negro community”
are defined by Act 118 of 1924 to mean and embrace
“ every residence fronting on either side of any street
within three hundred feet of the location of the prop
erty involved, measured along the middle of the streets
in any and all directions.”
The Supreme Court of the United States, in con
struing a similar statute of Louisville, Kentucky, said:
“A City ordinance which forbids colored
persons to occupy houses in blocks where the
greater number of houses are occupied by
white persons, in practical effect prevents
the sale of lots in such blocks to colored per
sons, and is unconstitutional. A white
owner who has made an otherwise valid and
enforceable contract to convey such a lot to
a colored person, for the erection of a house
upon it for occupancy by the vendee, is de
prived, in violation of the Fourteenth Amend
ment of an essential element of his prop
erty— the right to dispose of it to a constitu
tionally qualified person, and may attack the
11
prohibition under the Fourteenth Amend
ment in a suit for specific performance of the
contract against the vendee.
“A city ordinance forbidding- colored
persons from occupying houses as residences,
or places of abode or public assembly, on
blocks where the majority of the houses are
occupied by white persons for those purposes,
and in like manner prohibiting white per
sons when the conditions as to occupancy are
reversed, and which bases the interdiction
upon color and nothing more, passes the legit
imate bound of police power and invades the
civil right to acquire, enjoy and use property,
which is guaranteed in equal measure to all
citizens, white or colored, by the Fourteenth
Amendment.
“ Such a prohibition cannot be sustained
upon the grounds that through race segrega
tion it serves to diminish miscegenation and
promotes the public peace by averting race
hostility and conflict, or that it prevents de
terioration in value of property only when
occupied by white people, nor does the fact
that upon its face it applies impartially to
both races relieve it of the vice of discrimina
tion or obviate the objection that it deprives
of property without due process of law.”
Buchanan v. Warley, 2J+5 U. S., p. 60-
61.
It will be noted, that every conceivable argument
was presented to the Supreme Court of the United
12
States upon which it was thought that the Louisville
ordinance could stand the test of the Fourteenth
Amendment of the Constitution of the United States.
Yet, the Supreme Court of the United States, in clear
and unmistakable language, disposed of all those con
tentions and held the ordinance in question null, void
and violative of the Fourteenth Amendment of the Con
stitution of the United States.
The case of Buchanan v. Warley, 21̂ 5 U. S., 60,
above referred to, was argued thoroughly and exten
sively by eminent counsel. The decision itself shows,
on its face, that twenty-one attorneys were heard, and
seventeen briefs were filed. Five of those attorneys
actively took part in the argument before the Supreme
Court and sixteen of the attorneys filed briefs as
amici curiae. The decision also shows that the
Mayor and City of Baltimore (Baltimore having a sim
ilar statute), the Baltimore Board of National Associa
tion for the Advancement of Colored Persons, the City
of Richmond, Virginia (Richmond having a similar
statute), and the United Welfare Association of St.
Louis were among those who presented their conten
tions to the Supreme Court of the United States.
The Supreme Court of the United States referred,
with approval, to the Buchanan v. Warley case, 2^5
U. S., 60, at page 7U, in the case of Terrace v. Thomp
son, 263 U. S., 215, as follows:
“ The Terrace’s property rights in the
land include the right to use, lease and dis
pose of it for lawful purposes.”
The Supreme Court of Georgia had, at one time,
held a statute, similar to the one now before you, valid.
However, in the case of Glover v. City of Atlanta, 11+8
Ga., 285, the Supreme Court of Georgia, upon the
strength of the case of Buchanan v. Warley, 21+5 U. S.,
60, which the Supreme Court of Georgia specifically
quoted, reversed its prior decision and held that the
same ordinance of the City of Atlanta was null, void
and repugnant to the Constitution of the United States.
The Supreme Court of Georgia, in the case of
Bowen, et al., v. City of Atlanta, 159 Ga., 11+5, reaf
firmed its decision in the case Glover v. City of At
lanta, 11+8 Ga., 285.
It is, therefore, submitted that the acts and ordi
nances in question are likewise repugnant to the Four
teenth Amendment of the Constitution of the United
States and are therefore null, void and without effect.
The case of Buchanan v. Warley, 21+5 U. S., 60-61,
relied upon by plaintiff in error in his contention that
the State of Louisiana and the Parish of Orleans are at
tempting to deprive him, in violation of the Fourteenth
Amendment of the Constitution of the United States,
of an essential element of his property— the right to
dispose of it to a constitutionally qualified person— is
so clear and so sound in principle that we will not
attempt to add one word to what was said therein.
It may not be out of place, however, to briefly
quote two excerpts from that decision:
“ In giving legislative aid to these' con
stitutional provisions, Congress enacted in
14
1866 (Chapter 31, section 1, 14 Stat. at L. 27,
comp. stat. 1916, section 3931) that: ‘All
citizens of the United States shall have the
same right in every state and territory, as is
enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold and convey, real and
personal property.’
“And in 1870 (Chapter 14, section 16, 16
Stat. at L. 144, Comp. Stat. 1916, section
3925) that:
“ ‘All persons within the jurisdiction of
the United States shall have the same right in
every state and territory to make and enforce
contracts, to sue, be parties, give evidence,
and the full and equal benefit of all laws and
proceedings for the security of persons and
property as is enjoyed by white citizens, and
shall be subject to like punishment, pains,
penalties, taxes, licenses and executions of
every kind and no other.’ ”
It is not our contention that, under the “ due pro
cess of law” clause of the Constitution of the United
States, a negro citizen has any greater civil rights than
a white citizen. Our contention is merely this: That
a white citizen has the absolute right, under the Four
teenth Amendment of the Constitution of the United
States, to purchase property in a negro neighborhood
(provided someone is willing to sell it to him), to live
therein, if he feels so disposed, or to lease it to white
people who, likewise, may have no objection to living
in such a neighborhood. The white citizen having that
absolute right, under the Fourteenth Amendment of
15
the Constitution of the United States, no State Legis
lature or municipal corporation can make that absolute
right depend upon the consent of a majority of the
negro property holders in the said negro community.
The negro citizen, therefore, also has the same civil
right, under the Fourteenth Amendment of the Con
stitution of the United Stodes, to purchase property, in
a white community, if someone is willing to sell it to
him, and to live therein himself, or to lease it to other
colored persons. Any statute of a State or ordinance
of a city which attempts to make that absolute right,
granted to him under the Fourteenth Amendment of
the Constitution of the United States, dependent upon
the consent of a majority of the white property holders
in that white community is clearly repugnant to the
Constitution of the United States. The case of Buch
anan v. Warley, 2U5 U. S., 60-61, clearly so holds.
The Supreme Court of the United States, in that
case, stated that an owner of property, under the “ due
process” clause of the Constitution, could not be de
prived of the right to “ dispose of his property” to a con
stitutionally qualified person on the sole ground of
color, and we submit that that principle applies to this
case, although the plaintiff in error is not attempting
to sell any property but is merely trying to rent it.
Because the statute of 1866 already referred to in
this brief, provides that:
“All citizens of the United States shall
have the same right in every state and terri
tory as is enjoyed by white citizens, thereof,
16
to inherit, purchase, lease, sell, hold and con
vey real and personal property.”
Because the principle of law involved is, therefore,
the same and equally applicable.
The Supreme Court of Georgia, recognizing its
bounden duty to adhere to the interpretation placed by
the Supreme Court of the United States upon the Fed
eral Constitution and its amendments, cast aside its
pride of opinion and reversed itself in the case of Glover
v. City of Atlanta, 1U8 Ga., 285, and based that rever
sal solely on the authority of Buchanan v. Warley, 21̂ 5
U. S., 60-61.
It again reaffirmed the case of Glover v. City of
Atlanta, llf.8 Ga., 285, in the case of Bowen, et al., v.
City of Atlanta, 159 Ga., 11*5. The ordinance, which
the Supreme Court of Georgia held unconstitutional,
under the authority of Buchanan v. Warley, was, in
all respects, similar to the one now before you.
The point in this case is not whether or not a negro
is or is not the social equal of a white man, but solely
and exclusively whether or not a State or municipality
can deprive a white man or a negro, on the sole ground
of race or color, of the right claimed by him to live in
a certain locality, notwithstanding the fact that the
owner of that property is willing to sell or lease it to
him for the purpose of residing there. Let us, there
fore, not overlook or confuse the sole question before
17
the Court by injecting the matter of social equality,
which has nothing to do with the case.
“ These enactments (the Thirteenth,
Fourteenth Amendments and Acts of Con
gress carrying these amendments into ef
fect) did not deal with social rights of men,
but with those fundamental rights in prop
erty, which it was intended to secure upon the
same terms to citizens of every race and
color.”
Buchanan v. Warley, 21*5 U. S., 60, at
p. 79.
The Fourteenth Amendment to the Constitution
of the United States made all persons born or natural
ized in the United States, citizens of the United States
and of the State in which they reside, and provided that
no State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States, and that no State shall deprive any
person of his life, liberty, or property without due pro
cess, nor deny to any person the equal protection of the
laws.
Long before Buchanan v. Warley was decided, the
Supreme Court of the United States, in the case of
Holden v. Hardy, 169 U. S., 366, at p. 391, had held:
“As to the possession of property, of
which a person cannot be deprived, doubtless
implies that such property may be acquired,
it is safe to say that a state law, which under
takes to deprive any class of persons of the
general power to acquire property would be
obnoxious to the same provision.”
18
Again, in Buchanan v. Warley, 21*5 U. S., 60, at
p. 7k, we find the same thought expressed in clear and
forceful language, as follows:
“ The Federal Constitution and laws
passed within its authority are, by the ex
press terms of that statute, made the su
preme law of the land. The 14th Amend
ment protects life, liberty and property from
invasion by the state without due process of
law. Property is more than the mere thing
which a person owns. It is elementary that
it includes the right to acquire, use and dis
pose of it. The Constitution protects these
essential attributes of property. Holden v.
Hardy, 169 U. S., 366, 391. Property con
sists of the free use, enjoyment, and disposal
of a person’s acquisitions without control or
diminution save by the law of the land.”
At pages 78 and 79 of the same decision, we read:
“ 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.”
In the case of Hall v. Decuir, 95 U. S., k85, at p.
508, it was held:
“ Colored persons, it is admitted, are
citizens, and that citizens without distinction
of race or color, or previous condition of
servitude, have the same right to make and
enforce contracts, to sue, be parties and give
19
evidence, to inherit, purchase, lease, sell, hold
and convey real and personal property and
to full and equal benefit of all laws and pro
ceedings for the security of personal prop
erty, as are enjoyed by white citizens.”
It is, therefore, patent, that the right of a white
man to buy property and to live therein and for a negro
to purchase property for the same purpose is a prop
erty right and not a social right, and that the Four
teenth Amendment to the Constitution of the United
States guarantees such property right to each of them.
Any attempt, therefore, by a state, or by a munici
pality to deprive a citizen of the United States, whether
of the white or of the colored race, on the sole ground of
color, of that property right is null, void, unconstitu
tional and of no effect. The case of Buchanan v. War-
ley, 2U5 U. S., 60, unqualifiedly so holds.
Buchanan v. Warley, 21,5 U. S., 60, at pp. 71* and
75, disposed of the zoning ordinances, with the follow
ing comment:
“ True it is that dominion over property
springing from ownership is not absolute and
unqualified. The disposition and use of prop
erty may be controlled, in the exercise of the
police power, in the interest of the public
health, convenience, or welfare. Harmful
occupations may be controlled and regulated.
Legitimate business may also be regulated in
the interest of the public. Certain uses of
property may be confined to portions of the
municipalities other than the residence dis
trict, such as livery stables, brick yards, and
20
the like, because of the impairment of the
health and comfort of the occupants of neigh
boring property. Many illustrations might
he given from the decisions of this Court and
other courts, of this 'principle, but these cases
do not touch the one at bar”
The agreement in the case of Buchanan v. Warley
is to be found on pages 69 and 70 of the opinion, and
reads as follows:
“ It is understood that I am purchasing
the above property for the purpose of having
erected thereon a house which I propose to
make my residence, and it is a distinct part
of this agreement, that I shall not be required
to accept a deed to the above property unless I
have the right, under the laws of the State of
Kentucky and the City of Louisville, to occupy
said property as a residence.”
The Supreme Court of the United States, there
fore, in that case, had to deal with the legal right guar
anteed under the Fourteenth Amendment of the Con
stitution of the United States of the owner of property
to sell it to a constitutionally qualified person, and also
with the right of a constitutionally qualified person
to purchase that property for the specific purpose of
occupying it himself as a home residence or dwelling.
It also had to decide whether or not such persons could
be deprived of the said right granted to them on the
sole ground of race or color.
That the Court, in the case of Buchanan v. War-
ley, did pass upon the question of the right of the occu-
21
pancy of the property in question appears from the fol
lowing excerpts from the opinion:
“ The concrete question here is : May the
occupancy, and, necessarily, the purchase and
sale of property of which occupancy is an in
cident, be inhibited by the state or by one of
its municipalities, solely because of the color
of the proposed occupant of the premises.
That one may dispose of his property, subject
only to the control of lawful enactments cur
tailing that right in the public interest, must
be conceded. The question now presented
makes it pertinent to inquire into the consti
tutional right of the white man to sell his
property to a colored man, having in view the
legal status of the purchaser and, occupant”
Buchanan v. Warley held the Louisville ordinance
unconstitutional, although at the time that the said
agreement was entered into, the said ordinance was in
existence and in full force and operation.
Buchanan v. Warley quotes the Louisville ordi
nance, as follows:
“ By the first section of the ordinance it
is made unlawful for any colored person to
move into and occupy as a residence, place of
abode, or to establish and maintain as a place
of public assembly, any house upon any block
upon which a greater number of houses are
occupied, as residences, places of abode, or
places of public assembly by white people
than are occupied as residences, places of
22
abode, or places of public assembly by colored
people.
“ Section two provides that it shall be un
lawful for any white person to move into and
occupy as a residence, place of abode, or to
establish as a place of public assembly, any
house upon any block upon which a greater
number of houses are occupied as residences,
places of abode or places of public assembly
by colored people than are occupied as resi
dences, places of abode or places of public
assembly by white people.” (Page 71 of the
Opinion.)
The following language is found on page 73 of
that opinion:
“ This ordinance prevents the occupancy
of a lot in the City of Louisville, by a person
of color, in a block where the greater number
of residences are occupied by white persons;
where such a majority exists, colored persons
are excluded
The Louisville ordinance, which was thus inter
preted by the Supreme Court of the United States, and
held unconstitutional, did not, therefore, prevent the
sale of property in white neighborhoods to colored
people or in colored neighborhoods to white people.
The prohibition was exclusively against the residing
of white persons in colored neighborhoods and of col
ored persons in white neighborhoods, without the per
mission requested and obtained from those of the op
posite race. Therefore, the ordinances are identical
23
in purpose and almost identical in language. The
present case cannot, and should not, be differentiated
from the Louisville case.
The case of Plessy v. Ferguson, 163 U. S., 537,
which the Supreme Court of Louisiana cites as con
trolling, is disposed of, as foreign to the issue, by the
Supreme Court of the United States, in the case of
Buchanan v. Warley, 21*5 U. S., 60, at p. 79, as follows:
“ The defendant in error insists that
Plessy v. Ferguson, 163 U. S., 537, is control
ling in principle in favor of the judgment of
the court below. In that case this court held
that a provision of a statute of Louisiana re
quiring railway companies carrying passen
gers to provide in their coaches equal but sep
arate accommodations for the white and col
ored races did not run counter to the provi
sions of the Fourteenth Amendment. It is to
be observed that in that case there was no
attempt to deprive persons of color of trans
portation in the coaches of the public carrier,
and the express requirement were for equal
though separate accommodations for the
white and colored races. In Plessy v. Fergu
son, classification of accommodations was
permitted upon the bases of equality for both
races.”
Brushing aside, finally, all further reference to
Plessy v. Ferguson, the Court, in Buchanan v. Warley,
says:
“ As we have seen, this Court has held
laws valid which separated the races on the
24
basis of equal accommodations in public con
veyances, and Courts of high authority have
held enactments lawful which provide for
separation in the public schools of white and
colored pupils where equal privileges are
given, but, in view of the right secured by
the Fourteenth Amendment of the Constitu
tion, such legislation must have its limita
tions, and cannot be sustained ivhere the ex
ercise of authority exceeds the restraints of
the Constitution. We think these limitations
are exceeded in laios and ordinances of the
character notv before us.”
It is one thing for a white man or a negro to be
told that, in order to avail himself of the accommoda
tions of a public carrier, or to receive education, at the
hands of the State, he must abide by the rules and regu
lations of the carrier or of the State, provided that the
rules and regulations apply equally to both of them.
The property in both of these cases is that of another.
It is an entirely different matter, however, when the
States or a municipality tries to interfere with a prop
erty right of a white man or of a negro, such as the
right to own, use, and dispose of real estate, on the sole
ground of race or color. In the latter case the white
man or the negro, as the case may be, is attempted to
be deprived of a constitutional right guaranteed to him
by the Fourteenth Amendment of the Constitution. It
is, therefore, clear, on principle, without even the au
thority of Buchanan v. Warley, 2J/.5 U. S., 60, of Carey
v. Atlanta, 11̂ 3 Ga., 192, of Glover v. City of Atlanta,
H 8 Ga., 285, and of Bowen v. City of Atlanta, 159
25
Ga., lJf-5, that Plessy v. Ferguson has no application.
Eliminating, however, mere arguments, Buchanan v.
Warley, the latest case on the subject, in so far as the
Supreme Court of the United States is concerned, posi
tively states that Plessy v. Ferguson is not in point.
Buchanan v. Warley is the law today on the question
now before you.
It is respectfully submitted that the judgment of
the Supreme Court of the State of Louisiana is erron
eous and should be reversed.
Respectfully submitted,
LOYS CHARBONNET,
FRANK B. SMITH,
Attorneys for Plaintiff in Error.
26
APPENDIX.
AGREED STATEMENT OF FACTS (R. 2).
It is admitted between counsel for plaintiff and
defendant, as follows :
I.
That plaintiff is a citizen and tax payer of the
City of New Orleans and that he is the owner of the
property described in his petition.
II.
That defendant is the owner of the property de
scribed in paragraph II of plaintiff’s petition; that de
fendant is a negro citizen of the State of Louisiana
and of the United States of America.
III.
That the property of plaintiff and of defendant is
in a locality inhabited principally by white persons and
is known as a white community.
IV.
That defendant intends to rent his premises de
scribed in paragraph II of plaintiff’s petition, as
belonging to the defendant, to negroes as home resi
dences ; or places of abode and that the said negroes to
whom he intends to rent the said property are citizens
of the State of Louisiana and of the United States of
America.
27
V.
That defendant has not secured the written con
sent of a majority of the persons of the white race of
the portion of the city to be affected and has not filed
such written consent with the Mayor of New Orleans
as required by the acts upon which plaintiff relies.
That the enforcement of said acts and ordinances
would deprive defendant of rentals exceeding
$3500.00.
(Signed) W. W. Wright, Attorney for Plaintiff.
Frank B. Smith, Attorney for Defendant;
Loys Charbonnet, F. F. Teissier,
Attorneys for Defendant.
THE ORDINANCE IN QUESTION (R. 30-32).
Ordinance No. 8037, Commission Council Series,
Mayoralty of New Orleans, City Hall, September 18,
1924. No. 8037, Commission Council Series, Calendar
No. 8347.
An ordinance relative to Negro and White Com
munities.
Whereas, Act 117 of 1912 authorizes municipali
ties to withhold permits for white or negro houses,
under certain circumstances; and
Whereas, Act 118 of 1924 prohibits white persons
from establishing a home residence in a negro com
28
munity and prohibits negroes from establishing a home
residence in a white community and,
Whereas, in the interest of public peace and wel
fare, it is advisable to foster the separation of white
and negro residential communities; therefore,
Section 1. Be it ordained by the Commisison
Council of the City of New Orleans, That whenever the
City Engineer shall have notice or information that
any person whatsoever proposes to construct a house
for negroes in a white community, or portion of the
municipality inhabited principally by white people, or
a house for white persons in a negro community, or
portion of the municipality inhabited principally by
negroes, he shall not issue a building permit for said
house except on the written consent of a majority of
the persons of the opposite race inhabiting such com
munity or portion of the City to be affected.
Section 2. Be it further ordained, etc., That it
shall be unlawful for any white person to hereafter
establish a home residence on any property located in a
negro community, or portion of the municipality in
habited principally by negroes, or for any negro to
establish a home residence on any property located in a
white community, or portion of the municipality in
habited principally by white people, except on the
written consent of a majority of the persons of the op
posite race inhabiting such community or portion of
the City to be affected; the aforesaid written consent
to be filed of record with the Mayor.
29
Section 3. Be it further ordained, etc., That it
shall be unlawful to maintain any home-residence es
tablished in violation of Section 2 of this ordinance.
Section 4. Be it further ordained, etc., That
each seven days’ maintenance of any home residence
established in violation of Section 2 of this ordinance
shall be deemed to be a separate and distinct offense.
Section 5. Be it further ordained, etc., That the
terms “white community” and “negro community” as
used in this ordinance shall be taken and held to mean
and embrace every residence fronting on either side of
any street within three hundred feet of the location
of the property involved, measured along the middle of
the streets in any and all directions.
Section 6. Be it further ordained, etc., That any
person violating any of the provisions of this ordinance
shall on conviction be punished for each offense by a
fine not exceeding twenty-five dollars, or by imprison
ment not exceeding thirty days, or by such fine and
such imprisonment in default of payment of the fine,
or by both such fine and such imprisonment, in the dis
cretion of the Court having jurisdiction.
Section 7. Be it further ordained, etc., That
should any provision of this ordinance be invalid, its
invalidity shall not annul the other provisions of this
ordinance, which shall nevertheless have the fullest
effect possible in such case.
30
Adopted by the Commission Council of the City of
New Orleans, September 16, 1924.
George Ferrier, Jr., Clerk of Commission Council.
Approved: September 18, 1924.
Andrew J. McShane, Mayor.
A true copy: F. C. Font, Secretary to the Mayor.
THE ACTS IN QUESTION.
The acts of the Legislature in question are Act
117 of 1912 and 118 of 1924 of the State of Louisiana.
October Term, 1925.
No. 104.
IR E N E H A N D C O RR IG AN and H E L E N CU RTIS,
against
Appellants,
JO H N J. BU C K LE Y,
Appellee.
Appeal erom the Court oe Appeals op the D istrict op
Columbia.
APPELLAN TS’ POINTS.
JA M E S A. COBB,
H E N R Y E. D A V IS ,
W IL L IA M H. L E W IS ,
JA M E S P. SCH IC K ,
Mooreield Storey, Attorneys fo r Appellants.
Louis Marshall,
A rthur B. Spingarn,
H erbert K . Stockton,
o f Counsel.
P bess of F remont P ayne , 80 Washington Street, New Y ork City.
Subject Index.
PAGE
Statement ............................................................................. 1-5
Assignments o f Error ..................................................... 5-6
Argum ent:
Point I.— The decrees o f the courts below
constitute a violation of the F ifth and Four
teenth Amendments to the Constitution, in that
they deprive the appellants of their liberty and
property without due process of l a w ................ 6-27
The Applicability o f C o n s t i t u t i o n a l
Amendments to D istrict o f C o lu m b ia ........... 17-26
The Right to Review the Rulings on Pub
lic Policy on this A p p e a l ................................. 26-27
P o i n t I I . — The covenant the enforcement of
which has been decreed by the courts below is
contrary to public p o l i c y ...................................... 27-62
(1 ) The public policy o f this country is to
be ascertained from its Constitution, statutes
and decisions, and the underlying spirit
illustrated by t h e m .............................................. 27-29
(2 ) The covenant is not only one which re
stricts the use and occupancy by negroes o f
the various premises covered by its terms, but
it also prevents the sale, conveyance, lease
or gift o f any such premises by any o f the
owners or their heirs and assigns to negroes
or to any person or persons of the negro race
or blood perpetually, or at least for a period
of twenty-one years. I t is in its essential
nature a contract in restraint o f alienation
and is, therefore, contrary to public policy 29-39
11
(3 ) Independently o f our public policy as
deduced from tbe Constitution, statutes and
decisions, with respect to the segregation o f
colored persons and the fact that the cove
nant sued upon is in restraint o f alienation,
we contend that such a contract as that now
under consideration militates against the
PAGE
public w e lfa re ......................................................... 40-46
The covenant is not A ncillary to the
main purpose of a Valid Contract and
therefore is an Unlawful E e stra in t........... 46-55
(4 ) W e are not unmindful o f the cases
relied upon in the court below to sustain
the enforcement of this covenant. W e con
tend that these decisions are not only un
sound but also d istingu ishable........................ 55-61
(5 ) Here the appellee has resorted to a
court o f equity to enforce a covenant which,
so far as Mrs. Curtis is concerned, who was a
stranger to the covenant, is oppressive and
unreasonable and lacking in e q u it y ............. 61-62
I l l
CASES CITED.
PAGE
Adldns v. Cliildren’s H ospital (261 U. S., 525) . . . . 22
Anderson v. Carey (36 O. St., 506) ............................. 36
Attwater v. Attwater (18 Beavon, 330) .................... 35
Barnard v. Bailey (2 Harrington, Del., 56) ................ 37
Bennett v. Chapin (77 Mich., 527) ................................. 34
Berea College Case (211 U. S., 45) ................................. 56
Billing v. W elch (Irish Bep., 6 C. L., 88) .................... 35
Block y . Hirsh (256 U. S., 135) ................................. 22, 53
Brewer v. Marshall (19 N. J. Eq., 537) ........................ 46
Brothers v. M cCurdy (36 Pa. St., 407) ........................ 37
Buchanan v. W arley (245 U. S., 60) 6, 7, 12, 14, 15, 16,
29, 55, 56, 57
Callan v. W ilson (127 U. S., 540) .................... 20, 21, 54
Carey y . City o f Atlanta (143 Ga., 192) ......................... 56
Cathcart v. Robinson (5 Pet., 263) ............................. 62
Chastleton Corpn. v. Sinclair (264 U. S., 543) . . . . 22
Chicago, B. & O. R. R. Co. v. Chicago (166 U. S., 226) 9
Clark v. Clark (99 Md., 356) .......................................... 38
Cowell v. Springs Co. (100 U. S., 57) .................... 56, 58
Cross v. U. S. Trust Co. (131 N. Y., 344) .................... 28
Curran v. Holyoke W ater Co. (116 Mass., 90) ........... 62
Curry v. D istrict of Columbia (14 App. D. C., 423) 19, 20
DeGra.y v. Monmouth Beach Club House Co. (50
N. J. Eq., 329) ................................................................ 46
DePeyster v. Michael (6 N. Y., 497) ............................... 30
District o f Columbia v. Brooke (214 U. S., 138) 18, 23
Downes v. Bidwell (182 U. S., 244) .................... 18, 21, 23
Dr. Miles Medical Co. v. Park & Sons Co. (220
U. S., 373) ....................................................................... 50
Dugdale, Re (L. R., 38, Ch. Div., 176) ......................... 37
Eastern States Lumber Assn. v. United States (234
U. S., 6 0 0 ) ......................................................................... 55
Evans v. United States (31 App. D. C., 544)
E x parte Virginia (100 U. S., 339) ...............
PAGE
7, 8
Geofroy v. Kiggs (133 U. S., 258) ............................. 24,
Gondolfo v. Hartman (49 Fed. Eep., 181) ................ 1G,
Granada Lumber Co. v. Mississippi (217 U. S., 440)
H artford Fire Ins. Co. v. Chicago, M. & St. P. E. E.
Co. (70 Fed. Eep., 201) ............................................
H ollins v. Drew Theological Seminary (95 1ST. Y., 172)
Home Tel. & Tel. Co. v. Los Angeles (227 U. S., 278)
H orner v. United States (143 U. S., 570) ...............
Hovey v. E lliott (167 U. S., 409) .................................
Johnson v. Preston (226 111., 447) .................................
Jones v. Port H uron Engine & Thresher Co. (171
111., 502) .................. ......................................................
Kennett v. Chambers (14 How., 49) .............................
Koehler v. Eowland (275 Mo., 573) ................ 55, 57,
Lappin v. D istrict o f Columbia (22 App. D. C., 68)
Latimer v. W addell (119 N. C., 370) .............................
Lee Sing, Ee (43 Fed. Eep., 359) ......................................
Los Angeles Ins. Co. v. Gary (181 Cal., 680) 43, 55, 56,
Loughborough v. Blake (5 Wheat., 317) . . . . 18, 21,
Macleay, Ee (L. E., 20, Eq., 186) ............................. 33,
Mandlebaum v. M cDonell (29 Mich., 79) ................ 33,
Manierre v. W elling (32 K. I., 104) ................ 32, 37,
Messersmith v. American Fidelity Co. (232 K. Y., 161)
Moses v. United States (16 App. D. C., 428) ................
M urray’s Lessee v. H oboken Land & Imp. Co. (18
How., 276) .......................................................................
McCabe v. Atchison, T. & S. F. Ey. Co. (235 U. S.,
151) ....................................................................................
M cCullough’s Heirs v. Gilmore (11 Pa. St., 370)
18
!, 9
26
42
54
28
28
10
27
11
36
39
17
59
20
39
54
59
23
37
46
46
28
19
10
17
34
y
Pardue v. Givens (54 N. C., 300) ................................. 36
Parmalee y. M orris (218 Mich., 625) ........... ............. 55, 59
People v. Ha-whins (157 N. Y., 12) ................................. 28
Penn Mutual Life Ins. Co. v. Austin (168 U. S., 695) 27
Plessy y. Ferguson (163 U. S., 537) ................ 13, 17, 56
Pope Mfg. Co. v. Gorm ully (144 U. S., 236) ................ 62
Potter v. Couch (141 U. S., 315) ............................. 32, 33
Queensborough Land Co. v. Cazeaux (136 La.,
724) ...................................................................... 55, 57, 59
Renaud v. Tourangeau (L. R., 2 P. C. App., 4) ___ 37
Rosher, Re (L. R., 26 Ch. Hiv., 801) ........................ 33, 37
Schermerhorn y. Negus (1 Denio, 148) ........................ 35
Schilling, Re (102 Mich., 612) ........................................ 39
Scott v. McNeal (154 U. S., 34) ...................................... 9
Siddons v. Edir.ondston (42 App. D. C., 459) ____17 22
Slaughter House Cases (16 W all., 36) ........................ ’ 7
Smith v. Clark (10 Md., 186) .......................................... 33
Smoot y. Heyl (227 U. S., 5 1 8 ) ......................................21, 27
State v. Darnell (166 N. C., 300) ..............................’ 44
Stoutenburgh v. Frazier (16 App. D. C., 229) ........... 19
Strauder v. W est V irginia (100 U. S., 303) ................ 7
Talbot v. Silver Bow County (139 U. S., 444) ........... 25
Test Oil Co. v. La Tourrette (19 Okla., 214) ............. 47
Title Guarantee & T. Co. v. Garrott (42 Cal. App.,
150) .............................................................. 42, 43, 56, 57
United States v. Addyston Pipe Co. (85 Fed. Rep
271) ............................................................................... 48
United States v. Harris (106 U. S., 629) .................... 9
Vidal v. Girard’s Exrs. (2 How., 127) ......................... 28
Virginia v. Rives (100 U. S., 313) ............. .’ 8
PAGE
W alker v. Gish (260 U. S., 447) ............................... 22, 27
W hitney v. Union Ry. Co. (11 Gray, 359) .................... 45
W ight v. Davidson (181 U. S., 371) ............................. 19
W illiam s v. Jones (2 Swan, Term., 620) ........................ 37
W insor v. Mills (157 Mass., 362) ..................................... 39
Zilliner v. Landguth (94 W is., 607) ............................. 39
STA TU TES AN D T E X T BOOKS.
Corpus Juris, 13, “ Contract,” Sec. 420, page 477------ 49
Gray on Restraints on the Alienation o f Property,
Secs. 40, 52-54 ................................................................ 59
K ent’s Commentaries, 4, page 1 3 1 ................................ 37
Pom eroy’s Equity Jurisprudence, 4, 3d ed., Secs.
1404, 1405 ......................................................................... 62
United States Rev. St., Secs. 1977, 1978 ........................ 12
United States St., L. 9, page 3 5 ...................................... 18
W illiston on Contracts, 3, Sec. 1642 ............................. 50
vi
PAGE
Supreme Court of the United States
October Term, 1925.
No. 101.
Irene H and Corrigan and Helen
Curtis,
Appellants,
against
John J. Buckley,
Appellee.
Appeal from the
Court of Appeals
o f the D istrict
o f Columbia.
APPELLANTS’ POINTS.
The appellee filed a bill in equity in the Supreme Court
o f the D istrict o f Columbia in which he sought a perma
nent injunction against the defendant Irene Hand
Corrigan, restraining her “ from directly or indirectly sell
ing and conveying or causing to be sold and conveyed to
the defendant Helen Curtis” certain land in the City of
Washington pursuant to a contract entered into, from
malting and delivering a deed or any other form o f con
veyance of the land to the defendant Helen Curtis, and
enjoining the latter, her heirs and assigns, for the period
o f twenty-one years from talcing title, directly or indi
rectly, to such land, and from using or occupying it and
from selling, conveying, leasing, renting or giving the
same to or permitting the same to be used or occupied
by any negro or negroes or person or persons of the negro
race or blood (Bee., pp. 5, 6 ).
The facts set forth in the bill and upon which this
prayer for equitable relief is based are undisputed. The
2
appellee is the owner o f premises known as 1719 S Street,
1ST. W ., Washington. The appellant Irene Hand Corrigan
was the owner o f premises known as 1727 S Street, N. W .,
Washington. On June 1, 1921, Buckley, Mrs. Corrigan
and twenty-eight other persons, all of whom at the time
owned twenty-three other parcels of land improved by
dwelling houses adjacent and contiguous to and in the
same immediate neighborhood as the lands o f the appellee
and Mrs. Corrigan and severally situated on both the
north and south sides o f S Street between New Hampshire
Avenue and 18th Street, N. W ., in the City of W ashington,
entered into a covenant which is set forth in the Record
at pages 6-9.
This instrument, after reciting that the parties who
executed it are the owners o f real estate located in the
D istrict described and that they “ desire, for their mutual
benefit, as w ell as for the best interests o f the said com
munity and neighborhood, to improve— in any legitimate
way further the interests o f said community,” provides
that the parties thereto mutually covenant, promise and
agree with each other and for their respective heirs and
assigns “ that no part of the land now owned by the parties
hereto, a more detailed description of said property being
given after the respective signatures hereto, shall ever be
used or occupied by or sold, conveyed, leased, rented, or
given, to Negroes or any person or persons o f the Negro
race or blood. This covenant shall run with the land and
bind the respective heirs and assigns o f the parties here
to for the period of twenty-one (21) years from and after
the date o f these presents.”
A ll the persons who executed this covenant are white
persons, a large number of whom occupied, resided in and
made their homes, and continued to occupy, reside and
make their homes in the premises described (Bee., p. 2 ).
On September 26, 1922, Mrs. Corrigan entered into a
sales contract with Mrs. Curtis, by which the latter agreed
to purchase from Mrs. Corrigan and she agreed to sell
3
and convey to Mrs. Curtis the premises 1727 S Street,
Northwest, which instrument was duly recorded in the
office of the Recorder of Deeds o f the D istrict of Colum
bia (Bee., pp. 3, 9, 10). Mrs. Curtis is a person o f the
Negro race and blood.
A number o f parties to the covenant thereupon “ objected
and protested to the defendant Corrigan against the ex
ecution or carrying out by her of the terms and provisions
o f said contract of sale,” but on November 8, 1922, she
definitely stated “ that she would not fight the said con
tract of sale, that is to say, would not refuse to execute
and carry out the terms and conditions thereof, nor would
she refuse to sell and convey to the defendant Curtis the
land and premises involved as aforesaid, nor would she
refuse to make, sign, seal and deliver a deed to the same
to said defendant last named, * * * and now is threat
ening to execute and carry out and is about to execute
and carry out the terms and provisions of the aforesaid
contract of sale and in pursuance thereof to sell and con
vey to the defendant Curtis the land and premises in
volved as aforesaid and to make, sign, seal and deliver
a deed to the same to said defendant Curtis” (Bee., pp.
4, 5 ).
A fter setting forth these facts, the bill of complaint
alleges (Bee., p. 5) :
“ 14. That if the threats aforesaid are fulfilled and
carried out and the defendant sells and conveys to
the defendant Curtis the said land and premises and
makes, signs, seals and delivers a deed to the same to
said defendant Curtis, irreparable injui*y w ill be done
to the plaintiff and to the other persons who are
parties to the aforesaid indenture or covenant and
that plaintiff has no plain, adequate or complete
remedy at la w ; and plaintiff further avers that he is
entitled to specific performance on the part of the
defendant Corrigan of her said agreements amd cone
4
nants as set out in the said Indenture or Covenant
mentioned and described in paragraph 6 of this bill
and to Juwe the terms and provisions of said Indenture
or Covenant specifically enforced in equity by means
of an injunction preventing both the said defendants
Corrigan and Curtis from carrying into effect the said
contract of sale mentioned and described in paragraph
1 of this bill/'
Mrs. Curtis moved to dismiss the bill of complaint on
the grounds that the alleged indenture or covenant was
void, in that it attempts to deprive her and others of
property without due process o f la w ; abridges the privi
leges and immunities of citizens o f the United States, and
other persons within this jurisdiction, o f the equal pro
tection of the law, and is forbidden by the Fifth, Thir
teenth and Fourteenth Amendments to the Constitution o f
the United States and the laws enacted in aid and under
the sanction of the Thirteenth and Fourteenth Am end
ments (Bee., p. 11).
As appears from the opinion of the Supreme Court of
the D istrict of Columbia “ the defendant urges very
strongly in her brief that such a restriction is against
public policy and the point is perhaps one that should be
considered” (Bee., p. 14). The Court thereupon discussed
at length this point and passed upon it, and decided it
adversely to the contention o f Mrs. Curtis.
Mrs. Corrigan also moved to dismiss the complaint on
the ground that the alleged indenture is void, that it is
contrary to and in violation of the Constitution o f the
United States, and that it “ is void in that the same is
contrary to public policy” (Bee., p. 17).
Both of these motions were overruled and both of the
parties electing to stand on their motions to dismiss the
Court permanently enjoined both of them in conform ity
with the prayer o f the bill o f complaint {Bee., pp. 17-19).
An appeal was thereupon taken by both defendants to
5
the Court of Appeals of the D istrict of Columbia, where
error was assigned not only on the ground of the con
stitutional questions above stated, but also that the Court
erred in holding that the covenant set out in the bill
was not void as against public policy and in not holding
to the contrary {Rec., p. 19). The Court o f Appeals af
firmed the decree of the Supreme Court {Rec., p. 25 ), and
thereafter an appeal to this Court was allowed {Rec., pp.
25-27).
Assignments of Error.
Am ong the Assignments o f Error are the follow ing
{Rec., p. 26) :
“ 3. The Court erred in holding that the indenture
or covenant set out in appellee’s bill o f complaint
is not void as against public p o licy /’
“ 4. The Court erred in holding to the contrary.”
“ 5. The Court erred in not holding that the said
indenture or covenant is void in that it deprives the
defendants, appellants, and others, of property with
out due process of law.”
“ 6. The Court erred in holding to the contrary.”
“7. The Court erred in not holding that the said
indenture or covenant is void in that it abridged the
privileges and immunities o f citizens o f the United
States, including the defendants, appellants, Irene
Hand Corrigan and Helen Curtis, and other persons
within this jurisdiction.”
“8. The Court erred in holding to the contrary.”
“ 9. The Court erred in not holding that the said
indenture or covenant is void in that it denied to
the said defendants, the said Irene H and Corrigan
and Helen Curtis, and other persons within this juris
diction, the equal protection o f the law.”
‘TO. The Court erred in holding to the contrary.”
6
“ 11. The Court erred in not holding that the said
indenture or covenant is void in that it is forbidden
by the Constitution of the United States and espe
cially by the Fifth, Thirteenth and Fourteenth Am end
ments thereof, and the laws enacted in aid and under
the sanction of the said Fifth, Thirteenth and Four
teenth Amendments.”
“ 12. The Court erred in holding to the contrary.”
POINTS.
L
The decrees of the Courts below constitute a viola
tion of the Fifth and Fourteenth Amendments to the
Constitution, in that they deprive the appellants of their
liberty and property without due process of law.
This proposition is the legitimate and logical conse
quence of the unanimous decision rendered by this Court in
Buchanan v. Worley, 245 U. S., 60. There it was at
tempted, by legislation in the form of a city ordinance,
to forbid colored persons from occupying houses as resi
dences, or places o f abode, or public assembly, on blocks
where the m ajority o f the houses were occupied by white
persons for those purposes, and in like manner forbidding
white persons when the conditions as to occupancy were
reversed, and which based the interdiction upon color and
nothing more.
Here the decrees o f the Supreme Court and the Court
o f Appeals o f the D istrict of Columbia have forbidden
Mrs. Corrigan, a white person, from selling to Mrs.
Curtis, a colored person, and Mrs. Curtis from buying, a
house in the residential district of W ashington, solely
because Mrs. Curtis is of Negro race or blood, and for
bidding Mrs. Curtis, her heirs and assigns, for a period of
twenty-one years, from taking title to this property, from
7
using or occupying it, and from selling, conveying, leasing,
renting or giving it to or permitting it to be used or oc-
cuped by any [Negro or Negroes or persons o f the Negro
race or blood.
The question that was to be determined in Buchanan v.
Worley was thus stated by Mr. Justice Day (p. 75) :
“ The concrete question here i s : May the occu
pancy, and, necessarily, the purchase and sale o f prop
erty of which occupancy is an incident, be inhibited
by the State, or by one of its municipalities, solely
because of the color o f the proposed occupant o f the
premises ?”
In the course of the discussion of this proposition, it
was sa id :
“ Property is more than the mere thing which a
person owns. It is elementary that it includes the
right to acquire, use, and dispose o f it. The Con
stitution protects these essential attributes of prop
erty. Holden v. Hardy, 169 U. S., 366, 391. P rop
erty consists o f the free use, enjoyment, and disposal
of a person’s acquisitions without control or diminu
tion save by the law of the land. 1 Blackstone’s Com
mentaries (Cooley’s E d .), 127.”
The opinion then considers the history o f the Thirteenth
and Fourteenth Amendments, quoting from the Slaughter
House Cases, 16 W all., 36; Strunder v. West Virginia, 100
U. S., 303, and E x parte Virginia, 100 U. S., 339, 317.
A part o f the quotation from Strauder v. West Virginia
consisted o f these passages (p. 77) :
“ W hat is this (the Fourteenth Amendment) but
declaring that the law in the States shall be the same
for the black as for the w h ite ; that all persons,
whether colored or white, shall stand equal before the
8
laws of the States, and, in regard to the colored race,
for whose protection the amendment was primarily
designed, that no discrimination shall be made against
them by law because of their color? * * * The Four
teenth Amendment makes no attempt to enumerate
the rights its designed to protect. It speaks in gen
eral terms, and those are as comprehensive as pos
sible. Its language is prohibitory; but every prohi
bition implies the existence of rights and immunities,
prominent among which is an immunity from in
equality of legal protection, either for life, liberty, or
property. A ny State action that denies this immunity
to a colored man is in conflict with the Constitution.”
The quotation from E x parte Virginia, supra, is espe
cially im portant:
“ Whoever, by virtue o f public position under a
State government, deprives another of property, life,
or liberty, without due process o f law, or denies or
takes away the equal protection o f the laws, violates
the constitutional inhibition; and as he acts in the
name and for the State, and is clothed with the State’s
power, his act is that of the State.”
It is proper to pause at this point to refer to the de
cision in Virginia v. Rives, 100 U. S., 313, rendered con
currently with E x parte Virginia, where Mr. Justice
Strong sa id :
“ It is doubtless true that a State may act through
different agencies,— either by its legislative, its ex
ecutive, or its judicial authorities; and the prohibi
tions of the amendment extend to all action o f the
State denying equal protection of the laws, whether
it be action by one o f these agencies or by another.
Congress, by virtue o f the fifth section o f the Four
teenth Amendment, may enforce the prohibitions
9
whenever they are disregarded by either the Legisla
tive, the Executive, or the Judicial Department of
the State.”
W e add a further quotation from the opinion in E x
parte Virginia (pp. 346, 347) :
“ W e have said the prohibitions o f the Fourteenth
Amendment are addressed to the States. * * * They
have reference to actions of the political body de
nominated a State, by whatever instruments or in
whatever modes that action may be taken. A state
acts by its legislative, its executive or its judicial
authorities. It can act in no other way.”
In United States v. Harris, 106 U. S., 629, 639, this
Court said:
“ W hen the State has been guilty o f no violation of
its provisions; when it has not made or enforced any
law abridging the privileges or immunities of citizens
of the United States; when no one of its departments
has deprived any person of life, liberty, or property
without due process of law, or denied to any person
within its jurisdiction the equal protection of the
laws; when, on the contrary, the laws of the State,
as enacted by its legislative, and construed by its
judicial, and administered by its executive depart
ments, recognise and protect the rights of all persons,
the amendment imposes no duty and confers no power
upon Congress
So in Scott v. McNeal, 154 U. S., 34, it was held that
the prohibitions o f the Amendment extended to “ all acts
of the State, whether through its legislative, its executive,
or its judicial authorities.”
And in Chicago, Burlington & Quincy R. R. Co. v.
Chicago, 166 U. S., 226, 233, Mr. Justice Harlan, said:
10
“ But it must be observed that the prohibitions of
the amendment refer to all the instrumentalities of
the State, to its legislative, executive and judicial
authorities, and, therefore, whoever by virtue o f
public position under a State government deprives
another o f any right protected by that amendment
against deprivation by the State, violates the con
stitutional inhibition ; and as he acts in the name and
for the State, and is clothed with the State’s power,
his act is that o f the State.”
Further Mr. Justice Harlan says (pp. 234, 235) :
“ But a State may not, by any o f its agencies, dis
regard the prohibitions o f the Fourteenth Amend
ment. Its judicial authorities may keep within the
letter o f the statute prescribing forms o f procedure
in the courts and give the parties interested the fu ll
est opportunity to be heard, and yet it might be that
its final action would be inconsistent with that amend
ment. In determining what is due process o f law re
gard must be had to substance, not to form .”
See also Home Telephone & Telegraph Co. v. Los
Angeles, 227 U. S., 278, where it was again declared that
these provisions o f the Constitution are generic in terms
and are addressed not only to the States, but to every per
son, whether natural or judicial, who is the repository o f
State power, and that their reach is co-extensive w ith any
exercise by a State o f power in whatever form asserted.
The same effect has been given to the due process clause
o f the F ifth Amendment to the Constitution. Seventy
years ago, in Mu/rra/y’s Lessee v. Hoboken Land & Im
provement Co., 18 How., 276, Mr. Justice Curtis said :
“ It is manifest that it was not left to the legisla
tive power to enact any process which might be de
vised. The article is a restraint on the legislative
11
as well as on tlie executive and judicial powers of
the Government
In Hovey v. Elliott, 167 U. S., 409, this Court was
called upon to determine the effect o f an order rendered
by the Supreme Court o f the D istrict of Columbia at
General Term in a contempt proceeding, which decreed
that the defendants’ answer be stricken out and removed
from the files of the court because of non-compliance on
their part with the requirements o f a decree previously
rendered by the court, and that the cause should then
proceed as if no answer had been interposed. It was
held that the action of the court was a violation of the
F ifth Amendment. Mr. Justice W hite, in the course of
his comprehensive opinion, said:
“ To say that courts have inherent power to deny all
right to defend an action and to render decrees with
out any hearing whatever is, in the very nature o f
things, to convert the court exercising such an au
thority into an instrument of wrong and oppression,
and hence to strip it of that attribute of justice upon
which the exercise o f judicial power necessarily de
pends” (p. 414).
Again, on page 417, he said, in words which could be
well applied here:
“ I f the legislative department o f the government
were to enact a statute conferring the right to con
demn the citizen without any opportunity whatever
of being heard, would it be pretended that such an
enactment would not be violative of the Constitution?
I f this be true, as it undoubtedly is, how can it be
said that the judicial department, the source and foun
tain of justice itself, has yet the authority to render
lawful that which if done under express legislative
12
sanction would be violative of the Constitution? I f
such power obtains, then the judicial department of
the government sitting to uphold and enforce the
Constitution is the only one possessing a power to
disregard it. I f such authority exists then in conse
quence of their establishment, to compel obedience to
lane and to enforce justice courts possess the right
to inflict the very wrongs which they were created to
prevent
Returning to the opinion in Buchanan v. Warley, sup
plemented by these utterances, which include in the con
stitutional inhibition not merely executive and legislative
invasions o f the right sought to be protected, but also
those o f the judicial arm of the Government, we find that,
in giving legislative aid to these constitutional provisions,
Congress made two statutory declarations, which consti
tute Sections 1977 and 1978 of the United States Revised
Statutes. The first of these reads:
“ All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal bene
fit o f all laws and proceedings for the security o f per
sons and property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, penalties,
taxes, licenses and exactions o f every land, and no
other.”
Section 1978 declares:
“ A ll citizens o f the United States shall have the
same right in every State and Territory as is enjoyed
by white citizens thereof to inherit, purchase, lease,
sell, hold and convey real and personal property.”
A fter referring to the authorities and statutes cited by
Mm, Mr. Justice Day very appropriately asked: “ In the
face o f these constitutional and statutory provisions, can
a Avliite man be denied, consistently with due process o f
law, the right to dispose of his property to a purchaser by
prohibiting the occupation of it for the sole reason that the
purchaser is a person of color intending to occupy the
premises as a place o f residence?” He answered (p. 78) :
“ The statute o f 1866, originally passed under sanc
tion o f the Thirteenth Amendment, 14 Stat., 27, and
practically reenacted after the adoption of the Four
teenth Amendment, 16 Stat., 144, expressly provided
that all citizens of the United States in any State
shall have the same right to purchase property as is
enjoyed by white citizens. Colored persons are c iti
zens of the United States and have the right to pur
chase property and enjoy and use the same without
laws discriminating against them solely on account o f
color. H all v. DeCuir, 95 U. S., 485, 508. These en
actments did not deal with the social rights o f men,
but with those fundamental rights in property which
it was intended to secure upon the same terms to
citizens o f every race and color. Civil Rights Cases,
109 U. S., 3, 22. The Fourteenth Amendment and
these statutes enacted in furtherance o f its purpose
operate to qualify and entitle a colored man to ac
quire property without State legislation discriminat
ing against him solely because o f color.”
The opinion then refers to and distinguishes Plessy v.
Ferguson, 163 U. S., 537, and other cases, which w ill be
considered later.
The final paragraph o f the opinion states the deliberate
conclusion of this C ou rt:
“ W e think this attempt to prevent alienation of
the property in question to a person o f color was
not a legitimate exercise o f the police power o f the
14
State, and is in direct violation o f the fundamental
law enacted in tlie Fourteenth Amendment of the
Constitution preventing State interference with prop
erty rights except by due process of law. That being
the case the ordinance cannot stand.”
W e have, therefore, the solemn pronouncement o f this
tribunal, that it was not within the legislative power o f the
State, or any of its instrumentalities, to forbid Mrs. Corri
gan from selling her house to Mrs. Curtis, or the latter
from purchasing and occupying it.
F or the reasons considered in Buchanan v. Worley, it
would have been beyond the legislative power to have en
acted that a covenant in the precise terms o f that involved
in the present case should be enforceable by the courts by
suit in equity and by means of a decree o f specific perfor
mance, an injunction, and proceedings for contempt for
failure to obey the decree. I t seems inconceivable that, so
long as the legislature refrains from passing such an en
actment, a court of equity may, by its command, compel
the specific perform ance o f such a covenant, and thus give
the sanction of the judicial department of the Government
to an act which it was not within the competency o f its
legislative branch to authorize.
As has been shown, this court has repeatedly included
the judicial department within the inhibitions against the
violation o f the constitutional guaranties which we have
invoked.
W e cannot emphasize too strongly that the immediate
consequence o f the decrees now under review is to bring
about that which the legislative and executive departments
o f the Government are powerless to accomplish. I t would
seem to follow that by these decrees the appellants have
been deprived of their liberty and property, not by indi
vidual, but by governmental action. These decrees have all
the force of a statute. They have behind them the sov
ereign power. It is not Buckley, the appellee, but the sov
ereignty, which speaks through the Court, that has issued
15
a mandate to the appellants which prevents Mrs. Corrigan
from selling, leasing or giving her property to Mrs. Curtis,
and the latter from acquiring and occupying the property,
simply because she is of the negro race or blood.
In rendering these decrees, the Courts which have pro
nounced them have functioned as the law-making power.
It is they who are seeking to effectuate the policy o f racial
segregation based on color. They have virtually an
nounced to all colored persons: “ You shall not inherit,
purchase, lease, sell or hold real property for the acquisi
tion o f which you have entered into a contract, simply be
cause you are of the negro race or blood.” They have told
those o f the white race who have entered into a covenant
such as is referred to in the decrees: “ You shall not sell,
lease or give your property to any person of the negro race
or blood.”
They have practically declared: “ I f the owners of prop
erty in a particular locality, however extensive its area
may be, see fit to agree on such a policy of segregation,
these Courts, sitting in equity, may nevertheless by their
decrees enforce such a policy, even if it be conceded that
they would be prohibited from doing so by the decision of
the Supreme Court o f the United States i f the legislative
branch of the Government had established a like policy.”
To test the incongruity of such a situation, let us sup
pose that after the decision in Buchanan v. Wa/rley the
Common Council of the City o f Louisville had adopted an
ordinance permitting the residents of the same districts
which were affected by the ordinance which this Court had
declared unconstitutional, to enter into a covenant in the
precise terms of that which the Courts below have enforced
m this case, would it not at once have been said that it was
an intolerable invasion of the Constitution as interpreted
by this Court. But that is exactly what has been done in
the pT&ent case by the adjudications which are now here
for review.
Or let us suppose, that after the rendition o f these de-
16
crees, Mrs. Corrigan, standing on her constitutional rights,
had executed a deed of the premises here in question to
Mrs. Curtis, and the latter had proceeded to occupy them,
would it have been within the competency of the court to
have imprisoned either or both of them as for a contempt
o f court? The exercise by the Court of its power to enforce
its decrees through the medium of contempt proceedings,
would be nothing more or less than the enforcement o f the
policy o f racial segregation based on color, in violation of
the letter and spirit of the Constitution as interpreted in
Buchanan v. Warley.
A fter Buchanan v. Warley had been remanded by this
Court to the Kentucky Court of Appeals for further pro
ceedings not inconsistent with the opinion rendered, would
this Court have countenanced an amendment of the decree
which it had reversed, providing that ninety per cent, o f
the residents of the district in which segregation had been
attempted might enter into a covenant in precisely the
same terms as the ordinance and that, thereupon, such
covenant should be in full force and effect?
In Gondolfo v. Hartman, 49 Fed. Rep., 181, Judge Ross
said (p. 182) :
“ It would be a very narrow construction o f the con
stitutional amendment in question and of the decisions
based upon it, and a very restrictive application of the
broad principles upon which both the amendment and
the decisions proceed, to hold that, while the State and
municipal legislatures are forbidden to discriminate
against the Chinese in their legislation, a citizen o f the
State may law fully do so by contract, which the Courts
may enforce. Such view is, I think, entirely inadmis
sible. A ny result inhibited by the Constitution can no
more be accomplished by contract o f individual citi
zens than by legislation, and the Court should no
more enforce the one than the other. This w ould seem
to be very clear.”
17
After citing Kermett v. Chambers, 14 How., 49, the opin
ion continues (p. 183) :
“ But the principle governing the case is, in my
opinion, equally applicable here, where it is sought to
enforce an agreement made contrary to the public po l
icy o f the government, and in violation of the prin
ciples embodied in its Constitution. Such a contract
is absolutely void and should not be enforced in any
court, certainly not in a court o f equity o f the United
States.”
In Plessy v. Ferguson, as pointed out by this Court,
there was no attempt to deprive all persons of color of
transportation in the coaches o f a public carrier. The ex
press requirements o f the statute there challenged were
for equal, though separate, accommodations for the white
and colored races.
On the other hand, in McCabe v. Atchison, Topeka &
Santa Fe By. Co., 235 U. S., 151, a statute which allowed
railroad companies to furnish dining cars for white peo
ple and to refuse to furnish them for colored people, was
held to be unconstitutional.
The Applicability of Constitutional Amendments to the
District of Columbia.
In the opinion rendered by the Supreme Court o f the
D istrict of Columbia in the present case it was suggested
(Bee., p. 12) that the Court of Appeals o f the D istrict
had held that the Fourteenth Amendment was not in force
in the D istrict o f Columbia, citing Siddons v. Edmonston,
42 App. D. C., 459; at the same time adding that since
the provisions of that Amendment are, so far as concerns
the question here involved, as broad at least as those ol
the F ifth and Thirteenth Amendments and if the provi
sions of the Fourteenth Amendment would not, i f applica
ble, sustain the defendants’ contention, it was unnecessary
18
to consider the other two Amendments (District of Colum
bia v. Brooke, 214 U. S., 138, 149). In that view o f the
case, the Court decided that the Fourteenth Amendment
did not sustain the defendants’ contention.
W e have already considered that aspect o f the subject.
W e deem it appropriate, however, to call attention to the
decisions which we contend render applicable to the Dis
trict o f Columbia the several constitutional amendments
to which reference has been made.
In Downes v. Bidwell, 182 U. S., 244, 259, 263, the ap
plicability o f the Constitution to the D istrict of Colum
bia was exhaustively considered. Referring to Loughbor
ough v. Blake, 5 Wheat., 317, attention was called to the
fundamental fact that the D istrict of Columbia consisted
of territory which had been originally a part of the States
o f M aryland and Virginia. Subsequently, in 1846, the
portion of the territory granted by Virginia was retro
ceded to that State (9 U. S. St. L., 35; Evans v. United
States, 31 App. D. C., 544). Therefore the territory that
now constitutes the D istrict of Columbia was Maryland
territory. Consequently, as said by Mr. Justice B row n:
“ It had been subject to the Constitution and was
a part o f the United States. The Constitution had
attached to it irrevocably. There are steps which can
never be taken backward. The tie that bound the
States of Maryland and Virginia to the Constitution
could not be dissolved, without at least the consent
o f the Federal and State governments to a form al
separation. The mere cession of the D istrict of
Columbia to the Federal government relinquished the
authority o f the States, but it did not take it out of
the United States or from under the aegis of the Con
stitution. Neither party had ever consented to that
construction o f the cession. If, before the D istrict
was set off, Congress had passed an unconstitutional
act, affecting its inhabitants, it would have been void.
19
I f done after the D istrict was created, it would have
been equally vo id ; in other words, Congress could not
do indirectly by carving out the D istrict what it could
not do directly. The D istrict still remained a part
of the United States, protected by the Constitution.
Indeed, it would have been a fanciful construction to
hold that territory which had been once a part of
the United States ceased to be such by being ceded
directly to the Federal government.”
It was accordingly held that Article I, Section 8, o f the
Constitution, which gave Congress the power “ to lay and
collect taxes, imposts and excises” which “ shall be uni
form throughout the United States,” extended to the D is
trict of Columbia. This conclusion, so far as it affected
the District of Columbia, was approved in the opinion of
Mr. Justice Brown, although he and four other Justices
of this Court did not consider the constitutional provi
sion there under consideration as applicable to the Terri
tories. On the other hand, however, the members o f the
Court who were in the minority, namely, Chief Justice
Fuller, Mr. Justice Harlan, Mr. Justice Brewer and Mr.
Justice Peckham, went even further than Mr. Justice
Brown, and held that the constitutional provision followed
the flag and operated throughout “ the geographical
unit known as the United States,” “ our great Republic,
which is composed of States and Territories” (182 U. S.,
356). I t follows that a majority of the Court recognized
that the Constitution applied to the District of Columbia.
It has been held expressly that the Fourth Amendment,
relating to searches and seizures, Stoutenburgh v. Frazier,
16 App. D. C., 229, Cwrry v. District, of Columbia, 14 App.
D. C., 423; the F ifth Amendment, Wight v. Davidson, 181
U. S., 371, Moses v. United States, 16 App. D. C., 428; the
Eighth Amendment, concerning excessive bail, fines and
unusual punishments, Stoutenburgh v. Frazier, 16 App.
D: C., 229; and the provisions relating to jury trials, Cal-
20
lan v. Wilson, 127 U. S., 540, are all applicable to the
D istrict of Columbia.
In Gurry v. District of Columbia, supra, the Court said:
“ N o more in the D istrict o f Columbia than any
where else within the United States, could the legis
lature of the Union pass a bill of attainder or an
ex post facto law, or dispense with trial by jury, or
establish a religion, or authorize unreasonable
searches. A ll the general limitations imposed by the
Constitution upon its authority are as applicable in
the D istrict o f Columbia as in any other part o f the
United States. And not only are these express limita
tions applicable, but * * * all the ‘implied limita
tions which grow out o f the nature of all free gov
ernments’ are equally applicable. The ‘exclusive’
power o f legislation over this D istrict which is vested
in Congress by the Constitution, must be assumed to
extend only to all lawful subjects of legislation ; and
invasions of those fundamental individual rights,
which lie at the foundation of the social compact, and
for the maintenance of which free governments exist,
are not lawful subjects o f legislation.”
In Lappin v. District of Columbia, 22 App. D. C., 68,
75, Mr. Justice Shepard said:
“ It must be conceded that the Fourteenth Amend
ment, which expressly declares that no State shall
deny to any person within its jurisdiction the equal
protection o f the laws, does not purport to extend to
authority exercised by the United States. But it
does not follow that Congress in exercising its power
o f legislation within and for the D istrict of Columbia
may, therefore, deny to persons residing therein the
equal protection o f the laws. A ll of the guaranties
o f the Constitution respecting life, liberty, and prdp-
2 1
erty are equally for the benefit and protection of all
citizens of the United States residing permanently
or temporarily within the District of Columbia, as of
those residing in the several States. Callan v. W il
son, 127 U. S., 540; United States ex rel. K err v. Ross,
5 App. D. C., 241, 247; Curry v. District of Columbia,
14 App. D. C., 423.”
In Callan v. Wilson, supra, Mr. Justice H arlan said (p.
549) :
“ And as the guarantee o f a trial by jury, in the
third article, implied a trial in that mode and accord
ing to the settled rules of the common law, the enu
meration in the Sixth Amendment, of the rights o f
the accused in criminal prosecutions, is to be taken
as a declaration o f what those rules were, and is to
be referred to the anxiety of the people of the States
to have in the supreme law of the land, and so far
as the agencies of the General Government were con
cerned, a full and distinct recognition of those rules,
as involving the fundamental rights o f life, liberty
and property. This recognition was demanded and
secured for the benefit o f all the people o f the United
States, as well those permanently or tem porarily re
siding in the D istrict of Columbia, as those residing
or being in the several States. There is nothing in
the history o f the Constitution or of the original
amendments to justify the assertion that the people
of this D istrict may be lawfully deprived of the bene
fit of any of the constitutional guarantees of life, lib
erty and property— especially o f the privilege o f trial
by jury in criminal cases.”
In the opinion of Mr. Justice Brown in Downes v. Bid-
well, supra, Callan v. Wilson was declared to be in line
with Loughborough v. Blake.
in Smoot v. Beyl, 227 U. S., 518, which related to the
2 2
validity of a building regulation adopted by tbe Commis
sioners of tbe D istrict of Columbia, which was challenged
on the ground that it was “ unconstitutional and void be
cause its effect is to deprive your complainants of their
property without due process of law and just compensa
tion,” this Court, in assuming jurisdiction, necessarily de
cided that the due process clause o f the Constitution was
applicable to the D istrict of Columbia; and in the subse
quent case of Walker v. Gish, 2G0 U. S., 447, in which the
validity o f a regulation relating to party walls in the City
o f W ashington was challenged on the same ground, this
Court likewise considered the due process clause as ap
plicable to the D istrict of Columbia.
In Block v. Hirsh, 256 U. S., 135, in which the consti
tutionality of the Kent Laws o f 1919 enacted for the Dis
trict o f Columbia was attacked on the ground that they
involved the taking of property not for public use and
without due process o f law, this Court elaborately dis
cussed their constitutionality; as it did in Chastleton Cor
poration v. Sinclair, 264 IT. S., 543, that o f the act passed
in 1922, whereby it was attempted to extend the duration
o f these laws.
In Adkins v. Children’s Hospital, 261 IT. S., 525, which
related to the constitutionality o f the D istrict of Colum
bia Minimum W age Law, this Court declared the law to
be in contravention of the Constitution, particularly of
the due process clause o f the F ifth Amendment.
When, therefore, the Court below (Bee., p. 12), in the
face o f these decisions, based its assertion that the Four
teenth Amendment was not in force in the D istrict o f
Columbia, on the alleged authority o f Siddons v. Edmon-
ston, 42 App. D. C., 459, it is not surprising that we find
that the Court there confined itself to a bald statement
which as the context shows was clearly obiter,
“ The prohibition in this Amendment, to which the
appellee refers, applies to the States and not to the
D istrict of Columbia.”
23
It is, however, surprising that the citation in support of
that assertion is District of Columbia v. Brooke, 214 U. S.,
138, when it distinctly appears that in that case, this Court
declared it to be unnecessary to determine whether or not
the Fourteenth Am endment applied to the D istrict o f Co
lumbia, because it was conceded that the F ifth Amend
ment unquestionably did, and that it was not more exten
sive in its provisions than the Fourteenth Amendment.
Therefore, reaching the conclusion that the legislation
which was challenged on the ground that it denied the
equal protection o f the laws, merely involved such classifi
cation as had frequently been regarded as permissible
under the Fourteenth Amendment, it was upheld as consti
tutional.
Hence, this Court did not in District of Columbia v.
Brooke render a decision warranting its citation as author
ity for the proposition asserted.
It would seem, however, that if, as adjudged in Lough
borough v. Blake and Downes v. Bidwell, the Constitution
became irrevocably attached to the land which originally
was a part of Maryland, upon its incorporation into the
D istrict o f Columbia, the Constitution in its entirety be
came applicable to the D istrict o f Columbia. The Thir
teenth Amendment, which abolished slavery and involun
tary servitude, certainly d id ; that portion of the Four
teenth Amendment which related to citizenship, unques
tionably d id ; as did the Fifteenth, Sixteenth and Nine
teenth Amendments.
The suggestion that, because the prohibitions o f Section
1 of the Fourteenth Amendment, against the abridgment o f
the privileges and immunities o f citizens of the United
States and against the deprivation o f any person of life,
liberty and property without due process of law and the
denial to any person “ within its jurisdiction” of the equal
protection o f the laws” , begin with the words “ No State”
and “ N or shall any State” , they do not apply to the Dis-
^ s t r i c t o f Columbia, is a proposition that disregards the
24
manifest intention which gave rise to this Amendment and
the historical conditions out o f which it arose. From a con
stitutional standpoint, the D istrict of Columbia at that
time was regarded as on the same level with the State of
Maryland, of which it had constituted a part.
To give so narrow an interpretation to the word “ State”
ignores not only the history of the D istrict of Columbia,
but also the fact that it was the very nucleus o f the storm-
centre out o f which emerged the Fourteenth Amendment,
that it was there that not only the Civil W ar had its most
important setting, but where the pre-war and the post-war,
scenes of the great drama which culminated in the adop
tion of the Thirteenth and Fourteenth Amendments were
enacted. It is, therefore, as inconceivable that the D istrict
o f Columbia is to he excluded from the operation o f the
Fourteenth Amendment as that it was intended to exclude
it from the operation o f the Eighteenth Amendment.
This Court had occasion in Oeofroy v. Riggs, 133 U. S.,
258, to consider the phrase “ States o f the Union” as con
tained in a clause o f a treaty between the United States
and France which related to the right o f Frenchmen to en
joy the privilege of possessing personal and real property
in “ the States of the U nion” . There the question arose as
to whether under this treaty, a citizen o f France could take
land in the D istrict o f Columbia by descent from a citizen
o f the United States. It was held that the D istrict of Co
lumbia, as a political community, was one o f “ the States of
the Union” within the meaning of that term as used in the
treaty, Mr. Justice Field saying in support o f that conclu
sion :
“ This article is not happily drawn. It leaves in
doubt what is meant by ‘States o f the U nion’ . Ordi
narily these terms would be held to apply to those
political communities exercising various attributes of
sovereignty which compose the United States, as dis
tinguished from the organized municipalities known
as Territories and the D istrict o f Columbia. A nd ye*
separate communities, with an independent local gov
ernment, are often described as states, though the ex
tent of their political sovereignty be limited by rela
tions to a more general government or to other coun
tries. Halleck on Int. Law, c. 3, sections 5, G, 7. The
term is used in general jurisprudence and by writers
on public law as denoting organized political societies
with an established government. W ithin this defini
tion the District of Columbia, under the government
o f the United States, is as much a State as any of
those political communities which compose the United
States. W ere there no other territory under the gov
ernment o f the United States, it would not be ques
tioned that the D istrict of Columbia would be a State
within the meaning o f international la w ; and it is not
perceived that it is any less a State within that mean
ing because other States and other territory are also
under the same government. In Hepburn v. Ellzey, 2
Cranch, 445, 452, the question arose whether a resident
aud a citizen o f the D istrict of Columbia could sue a
citizen of Virginia in the Circuit Court of the United
States. The Court, by Chief Justice Marshall, in de
ciding the question, conceded that the D istrict o f Co
lumbia was a distinct political society, and therefore a
State according to the definition of writers on general
la w ; but held that the act o f Congress in providing for
controversies between citizens of different States in
the Circuit Courts, referred to that term as used in the
Constitution, and therefore to one o f the States com
posing the United States. A similar concession, that
the D istrict of Columbia, being a separate political
community, is, in a certain sense, a State, is made by
this Court in the recent case of Metropolitan Railroad
Co. v. District of Columbia, 132 U. S., 1, 9, decided at
the present term.”
A In Talbot v. Silver Bow County, 139 U. S., 444, Mr. Jus-
Ace Brewer, referring to a statute o f M ontana Territory
26
which undertook to tax the shares o f a national bank pur
suant to Section 5219 o f the Revised Statutes, which con
ferred the power o f taxation upon the legislature o f each
State, no reference being made to Territories, sa id :
“ But it would militate much against its national
character if banks organized under it (the national
banking system) were subjected to local taxation in
one part of the Union, and exempted from it else
where. No such intent ought lightly to be imputed to
Congress. * * *
Still further, while the word ‘State’ is often used in
contradistinction to ‘Territory’, yet in its general pub
lic sense, and as sometimes used in the statutes and
the proceedings of the government, it has the larger
meaning of any separate political community, includ
ing therein the D istrict of Columbia and the Territor
ies, as well as those political communities known as
States o f the Union. Such a use of the w ord ‘State’
has been recognized in the decisions o f this Court.”
Then follow quotations from Hepburn v. Ellzey, Metro
politan Railroad Co. v. District of Columbia and Ceofroy
v. Riggs, supra.
A t all events, there can be no question but that the due
process clause of the F ifth Amendment applies to the Dis
trict o f Columbia, and, as has been shown, the same inter
pretation that has been given to the Fourteenth Amend
ment as to its applicability to the action of the judicial as
well as o f the executive and legislative departments o f the
Government, has been given to the F ifth Amendment.
The Right to Review the Rulings on Public Policy on
this Appeal.
The appeal to this Court has been taken pursuant to Sec
tion 250 o f the Judicial Code, for the purpose o f present
ing the constitutional questions thus far considered. That
procedure was pursued in Smoot v. Heyl, 227 U. S., 518,
and in Walker v. Gish, 2G0 U. S., 447.
In the first of these cases it was also decided that the ap
peal brought the entire case here, thus enabling this Court
to determine not merely the question o f constitutionality,
but all other questions involved in the record.
Horner v. United States, No. 2, 143 U. S., 570;
Penn Mutual Life Ins. Co. v. Austin, 168 U. S.,
695.
This is in conform ity with the procedure under Section
238 of the Judicial Code as laid down in numerous cases.
Pursuing the procedure thus authorized we w ill proceed
to discuss other questions presented by the record and set
forth in the assignments o f error—
II.
The covenant the enforcement of which has been
decreed by the Courts below is contrary to public
policy.
(1 ) The public policy of this country is to be ascer
tained from its Constitution, statutes and decisions, and
the underlying spirit illustrated by them.
The constitutional provisions considered under Point I
unmistakably indicate that the segregation o f colored peo
ple from white people and the statutory prohibition
against the occupancy by colored persons of houses in re
stricted areas, are contrary to the genius o f our institu
tions. A n act which the legislature is prohibited from
doing oi authorizing must in its essence necessarily be
opposed to public policy, go, likewise, whatever the leg
islative branch of the Government inhibits must be an
offence against public policy.
28
A s lias been shown, Section 1978 o f the Revised Stat
utes declares that all citizens of the United States shall
have the same right in every State and Territory as is en
joyed by white citizens thereof, to inherit, purchase, lease,
sell, hold and convey real and personal property. One
would suppose that, if in the face of such a declaration
a contract is entered into calculated to prevent the inheri
tance, purchase, lease, sale, holding and conveyance of
real property by colored citizens of the United States in
any State or Territory, such a contract is repugnant to
our policy. It certainly was not intended that, if the white
citizens of W ashington agreed among themselves that
they would not sell or lease any real property lying within
the territorial limits o f that city to a colored person, such
an agreement would be enforceable as consonant with the
controlling public policy.
And so when this Court has announced that legislation
looking to the prevention of the acquisition o f realty with
in a specified district by colored persons, is contrary to
the Constitution and laws, it would seem to follow that
a covenant between the white residents o f that same dis
trict intended to prevent the acquisition o f realty by col
ored persons, was contrary to our public policy.
In Vidal v. Girard’s Executors, 2 How., 127, Mr. Justice
Story pointed out that the policy of Pennsylvania on a
particular subject was indicated by its Constitution and
laws and judicial decisions. This view has been frequently
adopted.
Hartford Fire Ins. Co. v. Chicago, M. & St. P.
B. R. Co., 70 Fed. Rep., 201, 202;
Hollins v. Drew Theological Seminary, 95 N. Y .,
172;
Cross v. United States Trust Co., 131 N. Y ., 344;
People v. Hawkins, 157 N. Y., 12.
In Messer smith v. American Fidelity Co., 232 N. Y .,
161, 163, Judge Cardozo said:
29
“ The public policy o f this State (N ew Y ork) when
the legislature acts is what the legislature says that
it shall be.”
Where would one be more likely to arrive at the sources
from which our public policy is derivable than by explor
ing the Constitution and statutes of the United States
and the adjudications of this Court? A student o f our
history like DeTocqueville, Bryce or von Holst would at
once be struck by the inconsistency of the principle laid
down in Buchanan v. Warley, w ith that expressed in the
opinions rendered in the present case by the Courts below.
It would appear to be obvious that, where a legislature
is prohibited from sanctioning a particular policy, indi
viduals may not enter into contracts in direct derogation
of the same policy. Surely that which a legislature can
not sanction should not be compelled to be done by a
decree of a court of equity enforcing specific performance
o f an agreement between third parties, which is the equiva
lent of such legislation and is productive o f identical re
sults.
I f such a contract as that involved in the present case
is valid as affecting a limited area, it would be equally
effective if it included an entire city, a county, or a State.
I f the Constitution could be evaded as it is attempted to
be by the device here employed, it would not be difficult
to create a situation bearing the elements o f a contract
that would prevent a colored person from owning realty,
or from taking up his habitation, in any State or in any
part of a State.
(2 ) The covenant is not only one which restricts the
use and occupancy by negroes of the various premises cov
ered by its terms, but it also prevents the sale, conveyance,
lease or gift of any such premises by any of the owners
or their heirs and assigns to negroes or to any person or
persons of the negro race or blood perpetually, or at least
30
for a period of twenty-one years. I t is in its essential
nature a contract in restraint of alienation and is, there
fore, contrary to public policy.
In the present case it is to be observed that the parties
to the instrument sought to be enforced in this action have
covenanted that no part o f the land therein described
owned by them “ shall ever be used or occupied by or sold,
conveyed, leased, rented, or given to negroes or any per
son or persons o f the negro race or blood” (Bee., p. 7 ). It
binds the parties, their respective heirs and assigns, for
all time. It is true that in the succeeding sentence it is
declared that the covenant “ shall run with the land * * *
for the period o f twenty-one years from and after the date
of these presents.” That does not, however, cut down
the covenant as between the parties so as to lim it it to
a period of twenty-one years. But whether the covenant
be regarded as a perpetual covenant or as one running for
twenty-one years only, it is equally opposed to public
policy.
The subject of such restraints is learnedly discussed in
DePeyster v. Michael, 6 N. Y., 497, by Chief Judge Bug
gies. H e points out that they were of feudal orig in ; cre
ative of a violent and unnatural state o f things, contrary
to the nature and value of property and the inherent and
universal love o f independence; that they arose partly
from favor to the heir and partly from favor to the lord,
“ and the genius o f the feudal system was originally so
strong in favor of restraints upon alienation, that by a
general ordinance, mentioned in the Book o f Fiefs, the
hand of him who wrote a deed of alienation was directed
to be struck off” (p. 498). To deal with this tyranny the
statute of Qum Emptores was enacted in 18 Edward I,
which provided “ that from henceforth it shall be law ful
for any freeman to sell, at his own pleasure, his lands
and tenements, or part of them, so that the feoffee shall
hold the same lands and tenements of the chief lord of
the same fee, by such service and customs as the feoffee
held before.”
31
As Chief Judge Buggies says (p. 500) :
“ The effect of this statute is obvious. B y declaring
that every freeman might sell his land, at his OAvn
pleasure, it removed the feudal restraint ■which pre
vented the tenant from selling his land, without the
license of his grantor, who was his feudal lord. This
was a restraint imposed by the feudal law, and was
not created by express contract in the deed of con
veyance; it was abolished by this clause in the stat
ute. By changing the tenure from the immediate to
the superior lord, it took away the reversion from
the immediate lo rd ; in other words, from the grantor,
and thus deprived him of the power of imposing the
same restraint, by contract or condition expressed in
the deed of conveyance. The grantor’s right to re
strain alienation immediately ceased, when the stat
ute put an end to the feudal relation between him and
his grantee; and no instance of the exercise o f that
right, in England, since the statute was passed, has
been shown, or can be found, except in the case of
the king, whose tenure was not affected by the stat
ute, and to whom, therefore, it did not apply.
The reason given by Lord Coke, why a condition
that the grantee shall not alien, is void, is as fo llow s :
‘For it is absurd and repugnant to reason, that he
that hath no possibility to have the land revert to
him, should restrain his feoffee of all his power to
alien. And so it is, if a man be possessed of a term
for years, or of a horse, or any other chattel, real
or personal, and give or sell his whole interest or
property therein, upon condition that the donee or
vendee shall not alienate the same, the condition is
void, because his whole interest and property is out
of him, so that he hath no possibility o f reverter; and
it is against trade and traffic, and bargaining between
man and man.’ ”
32
In Potter v. Couch, 141 U. S., 296, 313, Mr. Justice Gray
said:
“ But the right o f alienation is an inherent and in
separable quality of an estate in fee simple. In a
devise of land in fee simple, therefore, a condition
against all alienation is void, because repugnant to
the estate devised. Lit., Sec. 360; Co. Lit., 206b, 223a;
4 Kent Com., 131; McDonogh v. Murdock, 15 How.,
367, 373, 412. F or the same reason, a lim itation over,
in case the first devisee shall alien, is equally void,
whether the estate be legal or equitable. How w d v.
Cwrusi, 109 U. S., 725; Ware v. Cann, 10 B. & C.,
433; Shaw v. Ford, 7 Ch. D., 669; In re Dugdale, 38
Ch. D., 176; Corbett v. Corbett, 13 P. D., 136; Steib
v. Whitehead, 111 Illinois, 247, 251; Kelley v. Meins,
135 Mass., 231, and cases there cited. And on princi
ple, and according to the weight of authority (not
withstanding opposing dicta in Cowell v. Springs Co.,
100 U. S., 55, 57, and in other books), a restriction,
whether by way o f condition or of devise over, on
any and all alienation, although for a limited time,
o f an estate in fee, is likewise void, as repugnant to
the estate devised to the first taker, by depriving bim
during that time o f the inherent power of alienation.
Roosevelt v. Thurman, 1 Johns., Ch. 220; Mandlebaum
V. McDonell, 29 Mich., 77; Anderson v. Cary, 36 Ohio
St., 506; Twitty v. Camp, Phil. Eq. (No. Car.) 61; In
re Rosher, 26 Ch. D., 801.”
Especial attention is called to the exhaustive opinion
in Manierre v. Welling, 32 R. I., 104, where many cases
are cited and ably reviewed, and where one of the im port
ant conclusions reached in the case next to be cited was
adopted :
“ W e are entirely satisfied there has never been a
time since the statute quia emptores when a restric
33
tion in a conveyance of a vested estate in fee sim
ple, in possession or remainder, against selling for a
particular period of time, was valid by tbe common
law. And we think it would be unwise and injurious
to admit into the law the principle contended for by
the defendant’s counsel, that such restrictions should
be held valid, if imposed only for a reasonable time.
It is safe to say that every estate depending upon
such a question would, by the very fact o f such a
question existing, lose a large share of its market
value. W ho can say whether the time is reasonable,
until the question has been settled in the Court of
last resort; and upon what standard of certainty can
the Court decide it? Or, depending as it must upon
all the peculiar facts and circumstances of each par
ticular case, is the question to be submitted to a jury?
The only safe rule of decision is to hold, as I under
stand the common law for ages to have been, that a
condition or restriction which would suspend all
power of alienation for a single day, is inconsistent
with the estate granted, unreasonable and void.”
Equally important is the classic opinion of Mr. Jus
tice Christiancy in Mandlebaum v. McDonell, 29 Mich.,
79, from which the foregoing excerpt is taken. That deci
sion was approved not only by this Court in Potter v.
Couch, 141 U. S., 315, 316, but also by the English Court
o f Chancery in Be Bosher, L. R. 26 Ch. Div., 801, an un
usual compliment, especially since it resulted in the re
jection o f the decision of Sir George Jessel in Be Macleay,
L. R. 20 Eq., 186.
The significance of this proposition is regarded as a
justification fo r the citation of the follow ing pertinent
decisions.
In Smith v. Clark, 10 Md., 186, a devise o f a w oodlot
to the testator’s w ife and daughters “ on the express con
dition that the same is not at any time to be cleared or
34
converted into arable land,” and a further condition that
the land “ shall be at all times held together by those
who may be entitled to the same by virtue of the w ill,”
was held to be void.
In McCullough’s Heirs v. Gilmore, 11 Pa. St., 370, the
testator declared it to be his w ill and desire that a certain
farm “ fall into the possession of W , laying this injunction
and prohibition not to leave the same to any but the le
gitimate heirs o f W ’s father’s family at his W ’s decease.”
This restraint on the power o f alienation was held to be
void.
In Bennett v. Chapin, 77 Mich., 527, it was held that
when a restriction in a conveyance of a vested estate in
fee simple, in possession or remainder, is against selling
for a particular time, such restriction is invalid. Mr.
Justice Long said:
“ Such restraints are not favored in the law. It is
true that many restrictions or qualifications upon the
rights of the devisee or grantee may be made effectual
by making the estate itself dependent upon such con
dition ; but where the estate granted is absolute, such
restriction can impose no legal obligation upon the
devisees, or lim it their power over the estate, when
the observance or violation of the restriction can
neither promote nor prejudice any interest but their
own. This rule was very fu lly discussed by this Court
in Mandlebaum v. McDonell, 29 Mich., 87, and in
support of this principle the Court cited H all v. Tufts,
18 Pick., 459; Bank v. Davis, 21 Id., 42; Brandon v.
Robinson, 18 Ves., 429; Doebler’s Appeal, 64 Pa. St.,
9 ; Craig v. Wells, 11 N. Y ., 315.
Aside from these reasons, however, we think the re
strictions upon the sale cannot be upheld. No such
restrictions are valid. W hen a restriction in a con
veyance of a vested estate in fee simple, in possession
or remainder, is against selling for a particular time,
such a restriction is invalid. W hen a person is en
titled absolutely to property, any provision postpon
ing its transfer or payment to him is void. Gray,
in his rules against Perpetuities, thus states the ru le :
‘Suppose property is given to trustees in trust to
pay the principal to A when he reaches thirty. W hen
any other person than A is interested in the prop
erty, when, for instance, there is a gift over to B if
A dies under thirty, the trustee w ill retain the prop
erty for the benefit of B ; but when no one but A is
interested in the property, when, should he die before
thirty, his heirs or representatives would be entitled
to it, when, in short, the direction for postponement
has been made for A ’s supposed benefit, such direc
tion is void, in pursuance of the general doctrine that
it is against public policy to restrain a man in the
. use or disposition of the property in which no one but
himself has any interest.’
The principle is generally held to be that all rights
o f property are alienable, and that a condition or re
striction which would suspend all power of alienation
for any length of time is inconsistent with the estate
granted, and void.”
In Attwater v. Attwater, 18 Beavan, 330, a devise of cer
tain real estate to A “ to become his property on attain
ing the age of twenty-five years, with the injunction never
to sell it out of the family, but if sold at all it must be
to one o f his brothers hereinafter named,” was held to be
in restraint of alienation, and void.
In Billing v. Welch, Irish Bep., 6 Common Law, 88, a
covenant by the grantee of land that he, his heirs and as
signs would not alien, sell or assign to any one except his
or their child or children without the license of the
grantor, was declared void on the authority o f the opinion
of Lord Rom illy in Attwater v. Attwater, supra.
In Schermerhorn v. Negus, 1 Denio, 148, a provision in
36
a devise to children that no part of the land should he
aliened by any o f the children or their descendants ex
cept to each other or their descendants, was held bad.
To the same effect are the decisions in Johnson v. Pres
ton, 226 111., 447, 462, and Pardue v. Givens, 54 N. C.,
306.
In Anderson v. Carey, 36 Ohio St., 506, the testator de
vised a farm to his two sons, Thomas and Lincoln, upon
condition that they should not be allowed to sell and dis
pose of it until the expiration of ten years from the time
his son Lincoln arrived at full age, except to one another,
nor to mortgage or encumber it in any manner whatsoever
except in the sale to one another. It was held that the
restraint attempted to be imposed was void as repugnant
to the devise and contrary to public policy. Mr. Justice
M cllvaine said:
“ Instead of giving to his sons an estate in the land
less than a fee simple the intent and purpose was to
give them the fee simple but to eliminate therefrom
this inherent element o f alienability for a limited
period or to incapacitate his devisees, although sui
juris, from disposing of their property for the same
limited period, to wit, until the younger should ar
rive at thirty-one years o f age— each and both o f
which purposes was repugnant to the nature o f the
estate devised. B y the policy o f our laws it is of the
very essence of an estate in fee simple absolute, that
the owner, who is not under any personal disability
imposed by law, may alien it or subject it to the pay
ment of his debts at any and all tim es; and any at
tempt to evade or eliminate this element from the
fee simple estate, either by deed or by will, must be
declared void and o f no force. * ' * * In holding
that such restraint is repugnant to the nature o f the
estate devised and is void as against public policy,
which, in this State, in the interests of trade and com-
37
merce, gives to every absolute owner of property who
is sui juris the power to control and dispose of such
property and subject the same to the payment of his
debts, we are fully aware o f the fact that many other
authorities may and have been cited to the contrary.”
In Barnard v. Bailey, 2 Harrington (D e l.), 56, a con
dition in a devise that the devisee should not dispose of
the property to the blood kin o f either the testator or the
devisee, was held to be bad.
In Williams v. Jones, 2 Swan (T enn .), 620, there was
a bequest to A on condition that she should not dispose
of the property so as to allow either o f four persons to
get it. The condition was declared to be void.
In Brothers v. McCurdy, 36 Pa. St., 407, a testator di
rected that land devised to his son should not be sold to
any person for the purpose of making brick or carrying
on a brickmaking business, and more especially that he
should not sell it to Lotz and Beasley, and declared that
the devise o f the lot was to be void in case of a sale con
trary to his will, in which event the lot was to be held
in common by the testator’s other heirs. The gift over
was adjudged to be void.
See also Be Bosher, L. R. 26 Ch. Div., 801, 816, and Be
Dugdale, L. It. 38 Ch. Div., 176, 179, in both o f which
cases In re Macleay, L. R. 20 Eq., 186, was disapproved,
as it likewise was in Manierre v. Welling, 32 R. S., 104.
In Benaud v. Tourangeau, L. R., 2 Privy Counsel App.,
4, where a testator in Lower Canada devised real estate to
her children, providing that they should in no way alien
ate the property until twenty years after his death, the
Judicial Counsellor, per Lord Rom illy, held that the re
striction “ was not valid either by the old law o f France,
or the general principle o f jurisprudence.”
In 4 Kent’s Commentaries, 131, Chancellor Kent, dis
cussing this general subject, said:
“ Conditions are not sustained when they are re-
38
pugnant to the nature o f the estate granted or in
fringe upon the essential enjoyment and independent
rights of property and tend manifestly to public in
convenience. A condition annexed to a conveyance
in fee or by devise that the purchaser and devisee
should not alien, is unlawful and void. I f the grant
be upon condition that the grantee shall not permit
waste or not take the profits, or his w ife not have
her dower or the husband his curtesy, the condition
is repugnant and void, for those rights are insepar
able from the estate in fee. N or could a tenant in
tail, though his estate was originally intended as a
perpetuity, be restrained by any proviso in the deed
creating the estate from suffering a common recovery.
Such restraints were held by Lord Coke to be ab
surd and repugnant to reason and to “ the freedom
and liberty o f freemen.” The maxim which he cites
contains a just and intelligent principle worthy of
the spirit of the English law in the best ages o f Eng
lish freedom : iniquum est ingenuis hominibus non
esse liberam renim swarum alienationem. If, how
ever, a restraint upon alienation be confined to an in
dividual named to whom the grant is not to be made,
it is said by very high authority to be a valid con
dition. But this case falls within the general princi
ple and it may be very questionable whether such a
condition would be good at this day. In Newkirk v.
Newkirk (2 Caines, 345), the Court looked with a
hostile eye upon all restraints upon the free exercise
o f the inherent right of alienation belonging to es
tates in fe e ; and a devise o f lands to a testator’s chil
dren in case they continued to inhabit the town of
Hurley, otherwise not, was considered to be unrea
sonable and repugnant to the nature o f the estate.”
To the same effect are the follow ing decisions:
Clark v. Clark, 99 Md., 356; 58 A tl. Rep., 24;
39
Winsor v. Mills, 157 Mass., 362; 32 N. E. Rep.,
352;
Latimer v. Waddell, 119 N. C., 370; 26 S. E. Rep.,
122;
Be Schilling, 102 Mich., 612;
Zillmer v. Landguth, 91 W is., 607; 69 If. W . Rep.,
568;
Jones v. Port Huron Engine & Thresher Co., 171
111., 502; 49 N. E. Rep., 700.
That the natural operation of such a covenant as that
under consideration is opposed to the public welfare, is il
lustrated by the allegations of the bill of complaint. It
there appears {Bee., pp. 4, 5) that after Mrs. Corrigan had
entered into the contract to sell her residence to Mrs. Cur-
. tis, a number o f the other parties to the covenant protested
against her act. W hereupon Mrs. Corrigan wrote to these
persons stating “ in effect that her personal interests made
it imperative that she dispose of said lands and premises at
once.” She offered, however, to sell the premises to them
on the same terms as were provided in the contract o f sale
to Mrs. Curtis, provided they would indemnify her, but the
plaintiff alleges “ that such proposal last named has not
been and w ill not be accepted by plaintiff, nor, so far as
plaintiff is aware and believes, by any of the other parties
to said indenture or covenant.”
B y reason of this covenant Mrs. Corrigan, therefore,
however imperative her needs, is prevented from selling
her property to a w illing purchaser at a price which her
co-covenantors are unwilling to pay. She is thus at their
mercy, as are her creditors. The market value o f her prop
erty is consequently seriously impaired, and as the years
go on and surrounding conditions are likely to change, its
marketability may become more and more lessened, and
with it its assessable value, to the serious detriment o f the
public.
40
(3 ) Independently of our public policy as deduced from
the Constitution, statutes and decisions, with respect to
the segregation of colored persons and the fact that the
covenant sued upon is in restraint of alienation, we con
tend that such a contract as that now under consideration
militates against the public welfare.
There can be no permissible distinction between citi
zens based on race, creed or color if we are to remain a
free and harmonious nation. To have it appear in the
judicial annals o f our courts that one part of our citizenry-
may enter into contracts which are derogatory to another
part, is intolerable, unless we are to abandon our most
cherished traditions. I f the different component elements
constituting the body of American citizens can vote to
gether and serve under the same flag, perform the same
civic duties, pay the same taxes and cooperate in the de
velopment of our national resources, to say that a part
o f them shall not breathe the same air or live in the same
neighborhood or pursue the same business as the other
part, because they are colored, is to sow the seeds o f dis
cord and would tend to destroy that unity and harmony
which should prevail in a free country.
The restrictive covenant in the present case relates to
the ownership and occupation of property in a residen
tial district. I f such a covenant is valid, then what would
prevent similar covenants with respect to districts devoted
to commerce or manufacture? W hat would there be to
prevent a similar covenant concerning the sale or holding
o f store property on F ifth Avenue or Broadway in the
City o f New York, on Pennsylvania Avenue in the City
of W ashington, on Chestnut Street in the City o f Phila
delphia, on State Street in the City o f Chicago, to negroes
or to any person or persons of the negro race or blood?
W hat would prevent such a contract with regard to land
devoted to mining or to agriculture, to forestation or to
any other lawful human activity?
B ut why need this discussion be limited to a covenant
41
restricting the sale, conveyance, lease or gift of land to
negroes or to any person or persons of the negro race or
blood? Following the precedent created by the decisions
rendered in the Court below, similar covenants have made
their appearance in various parts of the country restric
tive of sales and leases of land not only to negroes, but
also to Jews. It will not take long before the prohibition
will be extended to Catholics, and the entire Ku Klux
Elan program of elimination might be made effective by
means of restrictive covenants. By means of like cove
nants differences might be made between rich and poor,
between members of different churches, between the ad
herents of different political parties, between the descend
ants of those of different origins, betAveen native and natu
ralized citizens, betAveen those who have come from the
North and the South, the East and the West. It Avould
lead to positive public misfortune and Avere our Courts
to sanction such covenants it Avould give rise to untold
evils.
It is also significant that the covenant forbids the use
or occupancy by or the sale, conveyance, lease, rental or
gift to “any person or persons of the negro race or blood.”
That would mean that a person Avho has floAving in his
veins a single corpuscle of negro blood would come within
the prohibition of the covenant. It would have included
Alexander Dumas, and thousands of men and Avomen, one
of whose remote ancestors, not only of an antecedent third
or fourth generation, but of the tenth generation back,
might have been a negro. H oav is that damning taint to
be ascertained? Who is to determine when negro blood
changes its color? Are the courts to make the miscro-
scopic and biological tests which Avill determine whether
an intending purchaser or occupant of premises coming
within the scope of this covenant is to be precluded from
the ownership or occupancy of so sanctified a piece of
land?
Let us noAv consider the decisions bearing on the aspect
42
o f the covenant com ing within this subdivision o f our
argument.
W e have already referred to Gondolfo v. Ha/rtman, 49
Fed. Rep., 181, as discountenancing such covenants.
A similar case is Title Guarantee & Trust Co. v. Gar-
rott, 42 Cal. App., 150, 152, where the Court refused to
enforce a condition in a deed providing for forfeiture in
case o f the sale or lease o f property to any person of
African, Chinese or Japanese descent.
A t page 157 the Court said:
“ The rule that conditions restraining alienation,
when repugnant to the estate conveyed, are void, is
founded on the postulate that the conveyance o f a
fee is a conveyance o f the whole estate, that the right
o f alienation is an inherent and inseparable quality
of an estate in fee simple, and that, therefore, a con
dition against alienation is repugnant to and incon
sistent with, the estate conveyed. To transfer a fee
and at the same time restrain the free alienation of
it is to say that a party can grant and not grant, in
the same breath. But the rule is not founded exclu
sively on this principle o f natural law. I t rests also
on grounds of clear public policy and convenience in
facilitating the ewcho/nye of property, in simplifying
its ownership and in freeing it from embarrassments
which are injurious not only to the possessor, but to
the public at large
A t page 160:
“ I f the continuation o f the estate in the grantee
may be made to depend upon his not selling or leasing
to persons of A frican, Chinese, or Japanese descent,
it may be made to depend upon his not selling or
leasing to persons o f Caucasian descent, or to any
but Albinos from the heart o f A frica, or blond Eslri-
43
mos. It is impossible on any known principle to say
that a condition not to sell to any of a very large class
o f persons, such as those embraced within the cate
gory o f descendants from African, Chinese, or Japa
nese ancestors, shall not be deemed an unreasonable
restraint upon alienation, but that the proscribed
class may be so enlarged that finally the restriction
becomes unreasonable and void. W here shall the di
viding line be placed? W hat omniscience shall tell
us when the restraint passes from reasonableness to
unreasonableness? W ho can know whether he has
title to land until the question of reasonableness has
been passed upon by the court o f last resort? No
matter how large or how partial and infinitesimal the
restraint may be; the principles of natural right, the
reasons of public policy, and that principle of the com
mon law which forbids restraints upon the disposi
tion of one’s own property, are as effectually over
thrown by the one as by the other.”
A petition to have the case heard in the California Su
preme Court was unanimously denied September 8, 1919.
In the opinion subsequently rendered in Los Angeles In
vestment Co. v. Gary, 181 Cal., 680, which w ill be pres
ently discussed, the Court referred in terms of praise and
approval to the opinion o f Judge Finlayson in Title Guar
antee & Trust Co. v. Garrott, adding:
“ The decision in that case was presented to us for
consideration by a petition for rehearing, and the peti
tion was denied because of our conclusion that the
decision was correct, a conclusion from which we see
no reason for departing.”
Consequently the Supreme Court of California likewise
decided that a condition or covenant that property con
veyed “ shall not be sold, leased or rented to one not of
44
the Caucasian race until after January 1, 1930/’ was void
at common law as against public policy, irrespective of
the fact that the restraint on alienation was but partial
and was limited to persons of a particular class or to a
comparatively brief period.
In State v. Darnell, 1G6 N. C., 300, 302, 303, 81 S. E.
Rep., 338, an ordinance Avas adopted by the Board of
Aldermen of W inston, N. C., pursuant to a provision of
the city charter authorizing them to pass any ordinance
which they deemed proper for the good order and general
Avelfare of the city if it does not contravene the laAvs and
Constitution of the State, which made it unlaAvful for
any colored person to occupy as a residence any house
upon any street on which a greater number of houses are
occupied by white people than are occupied by colored
people, and containing a . similar provision as to whites.
This ordinance was declared void in an interesting opinion
by Chief Justice Clark, who pointed out that such legisla
tion was similar in its character and tendency to that
which years ago prescribed in Ireland limits beyond which
the native Irish or Celtic population could not reside, thus
creating Avhat was called the “ Irish Pale,” and similar
more recent legislation in Czaristic Russia, where the Jews
were restricted in the right of residence in a limited terri
tory known as the so-called Jewish Pale of Settlement. In
each instance the consequences were tragic and resulted
in infinite harm, and constituted powerful incentives to
disorder and revolution. The follow ing passage in his
opinion calls attention to the underlying vice o f the ordi
nance then under consideration, in terms which Ave regard
as equally applicable to the covenant involved in the
present case :
“ W e do not think that the authority conferred by
Section 44 o f the Charter to enact ordinances for the
‘general Avelfare o f the city ’ can justly be construed
as intended by the Legislature to authorize an ordi-
45
nance o f this land which establishes a public policy
which has hitherto been unknown in the legislation
o f our State. To do so would give the words ‘general
welfare’ an extended and wholly unrestricted scope
which we do not think the Legislature could have con
templated in using those words. I f the Board of A l
dermen is thereby authorized to make this restriction
a bare m ajority of the board could, if they may ‘deem
it wise and proper/ require Republicans to live on
certain streets, and Democrats on others, or that Pro
testants shall reside only in certain parts of the town,
and Catholics in another, or that Germans or people
of German descent should reside only where they were
in the majority, and that Irish and those of Irish
descent should dwell only in certain localities, desig
nated for them by the arbitrary judgment and per
mission of a m ajority o f the aldermen. They could
apply the restriction as well to business occupations
as to residences, and could prescribe the localities
allotted to each class o f people without reference to
whether the m ajority already therein is o f the pro
scribed race, nationality, or political or religious
faith.
“ Besides, an ordinance of this kind forbids the
owner of property to sell or to lease it to whomsoever
he sees fit, as well as forbids those who may be desir
ous o f buying or renting property from doing so where
they can make the best bargain. Y et this right o f
disposing of property, the jus disponendi, has always
been held one of the inalienable rights incident to
the ownership o f property Avhich no statute w ill be
construed as having power to take away.”
It has been frequently laid down that even a restriction
as to the manner o f using land, in order to be valid, must
not be contrary to public policy.
Whitney v. Union Railway Co., 11 Gray, 359;
46
DeGray v. Monmouth Beach Club House Co., 50
N. J. Eq., 329, 24 Atl. Rep., 388;
Brewer v. Marshall, 19 1ST. J. Eq., 537.
The Covenant is Not Ancillary to the Main Purpose of a
Valid Contract and therefore is an Unlawful
Restraint.
Thus far we have treated the covenant the enforcement
o f which the Courts below have decreed, in its general as
pects. I t now becomes important to call attention to an
outstanding fact, namely, that at the time when the cove
nant was entered into, the various parties who executed
it, severally owned the twenty-four parcels of lands de
scribed therein and on which at the time there had been
erected separate dwelling houses. None of them at the
time of its execution and in connection therewith acquired
from any of the others title to the lands which they re
spectively owned. None of them had entered into a con
tract with the others to which the covenant was an inci
dent or ancillary. W e have, therefore, an agreement be
tween twenty-four adjoining landowners whereby they
agreed among themselves not to sell, convey, lease, rent
or give the premises owned by them respectively to ne
groes or to any person or persons o f the negro race or
blood.
W hile it may be claimed that this covenant was not one
relating to trade or commerce, in the strict sense o f the
term, nevertheless, in these later days, the tendency of
the law has been to encourage the transferability of real
estate with the same facility as has long existed in the
case of personalty. The public policy of today favors the
ready transfer of realty from one person to another. In
Manierre v. W illing, 32 R. I., 104; 78 A lt. Rep., 519, Mr.
Justice Parkhurst, quoting the opinion o f Mr. Justice
Christiancy in Mandlebaum v. McDouall, 29 Mich., 79,
expressed the prevailing policy when he said:
47
“ and certainly, in a country like ours, where lands
are as much an article of sale and traffic as personal
property, and the policy o f the State has been to
encourage both the acquisition and easy and free
alienation o f lands, such restrictions ought not be en
couraged by the Courts.”
The same idea was expressed by Mr. Justice Garber in
Test Oil Co. v. LaTourrette, 19 Okla., 214, 91 Pac. Rep.,
1025, 1028:
“ In this country land is one o f the chief objects of
trade and investment— ‘mud and civilization go to
gether’ . As the latter advances the transfer o f the for
mer becomes more frequent. Just in the degree that
the temporary owner of a tract of land is permitted to
impress his notions or caprices upon the fee restricting
its future alienation, just in that degree does it ham
per the terms and facility of its exchange in trade and
destroy that continuance which has given it the repu
tation o f being the subject of safe and sound invest
ment. Hence restrictions upon the alienation o f the
fee in land are repugnant to trade and commerce, and
are looked upon with disfavor by the law.”
Moreover, as has been shown under the preceding sub
division of this argument, long before the rule of public
policy which forbade restraint of trade in merchandise
or the like, came into being, contracts in restraint o f the
alienation of realty had been treated as opposed to public
policy. Hence it is our contention that the covenant now
under consideration, which, as an independent agreement
between the parties thereto, limits the sale o f land or its
occupancy to a certain class o f human beings and excludes
other o f God’s children from the right to occupy or pur
chase it, in the aspect o f public policy comes at least
within the rules applicable to the restraint o f trade in
personalty.
48
In United States v. Addyston Pipe Go., 85 Fed. Rep.,
271, affd. 175 U. S., 211, Mr. Chief Justice Taft, then w rit
ing for the Circuit Court of Appeals for the Sixth Circuit,
classified the decisions in which covenants in partial re
straint of trade had been upheld. They involved agree
ments (1) by the seller o f property or business not to com
pete with the buyer in such a way as to derogate from the
value of the property or business sold ; (2 ) by a retiring
partner not to compete with the firm ; (3 ) by a partner
pending the partnership not to do anything to interfere by
competition or otherwise with the business o f the firm ; (4 )
by the buyer of property not to use the same in competi
tion with the business retained by the seller; and (5 ) by
an assistant, servant or agent not to compete with his mas
ter or employer after the expiration of his time o f service.
Referring to this classification, it was added (p. 281) :
“ Before such agreements are upheld, however, the
Court must find that the restraints attempted thereby
are reasonably necessary (1, 2 and 3) to the enjoy
ment by the buyer o f the property, good-will or inter
est in the partnership bought; or (4 ) to the legitimate
needs o f the existing partnership; or (5 ) to the pre
vention o f possible in jury to the business o f the seller
from the use by the buyer o f the thing sold; or (6 ) to
protection from the danger of loss to the employer’s
business caused by the unjust use on the part o f the
employee of the confidential knowledge acquired in
such business. * * * I t would be stating it too
strongly to say that these five classes o f covenants in
restraint o f trade include all o f those upheld as valid
at the common law ; but it would certainly seem to
follow from the tests laid down for determining the
validity o f such an agreement that no conventional
restraint of trade can be enforced unless the covenant
embodying it is merely ancillary to the main purpose
of a lawful contract, and necessary to protect the cove-
49
nmitee in the enjoyment of the legitimate fruits of the
contract, or to protect him from the dangers of an un
just use of those fruits by the other party. In Horner
v. Graves, 7 Bing., 735, Chief Justice Tindal, who
seems to he regarded as the highest English judicial
authority on this branch of the law (see Lord Mac-
naghten’s judgment in Nordenfeldt v. Maxim* Norden-
feldt Co. (1894) App. Cas. 535, 567) used the follow
ing language:
‘We do not see how a better test can be applied to
the question whether this is or is not a reasonable re
straint o f trade than by considering the restraint is
such only as to afford a fair protection to the interests
of the party in favor of ivhom it is given, and not so
large as to interfere with the interests of the public.
W hatever restraint is larger than the necessary pro
tection o f the party requires can be of no benefit to
either. It can only be oppressive. It is, in the eye o f
the law, unreasonable. Whatever is injurious to the
interests of the public is void on the ground of public
policy/
This very statement of the rule implies that the con
tract must be one in which there is a main purpose, to
which the covenant in restraint of trade is merely an
cillary. The covenant is inserted only to protect one
one of the parties from the in jury which, in the execu
tion of the contract or the enjoyment of its fruits, he
may suffer from the unrestrained competition of the
other. The main purpose o f the contracts suggests the
measure of protection needed, and furnishes a suffi
ciently uniform standard by which the validity of
such restraints may be judicially determined.”
See also 13 Corpus Juris, title “Contract,” Section 420,
page 477, and cases cited. »
In the present case there is an utter absence o f those ele
ments which in the case cited were deemed to ju stify cove
nants in partial restraint of trade.
50
That this principle is applicable to restrictive covenants
affecting real estate appears from the decisions collated
in 3 W illiston on Contracts, Sec. 1642.
This doctrine does not owe its existence to the Sherman
Act, or any other similar legislation. It is a principle
enforced by the courts both at common law and in equity,
long prior to such legislation.
A s applicable to this discussion, we take the liberty of
quoting extensively from the opinion o f Mr. Justice
Hughes in D r. Miles Medical Co. v. Park & Sons Co., 220
U. S., 373. The question there involved was as to whether
a manufacturer, in connection with the sale o f his product,
may affix conditions as to the use o f the article sold or as
to the prices at which purchasers may dispose o f it. There
the condition was ancillary to a sale. Yet it was held, for
reasons about to be pointed out, that such conditions were
contrary to public policy, and, therefore, void. Mr. Jus
tice Hughes sa id :
“ B ut because a manufacturer is not bound to make
or sell, it does not follow that in case o f sales actually
made he may impose upon purchasers every sort of re
striction. Thus a general restraint upon alienation is
ordinarily invalid. ‘The right o f alienation is one of
the essential incidents o f a right o f general property
in movables, and restraints upon alienation have been
generally regarded as obnoxious to public policy,
which is best subserved by great freedom of traffic in
such things as pass from hand to hand. General re
straint in the alienation of articles, things, chattels,
except when a very special land o f property is in
volved, such as a slave or an heirloom, have been gen
erally held void. ‘I f a man,’ says Lord Coke, in Coke
on Littleton, section 360, ‘be possessed o f a horse or
any other chattel, real or personal, and give his whole
interest or property therein, upon condition that the
donee or vendee shall not alien the same, the same is
void, because his whole interest or property is out of
51
him, so as he hath no possibility o f reverter; and it is
against trades and traffic and bargaining and con
tracting between man and man.’ Park v. Hartman,
153 Fed. Rep., 24. See also Gray on Restraints, on
Alienation, Sections 27, 28.”
A t page 406 the opinion continues:
“ W ith respect to contracts in restraint o f trade, the
earlier doctrine o f the common law has been substan
tially modified in adaptation to modern conditions.
But the public interest is still the first consideration.
To sustain the restraint, it must be found to be reason
able both with respect to the public and to the parties
and that it is limited to what is fairly necessary, in the
circumstances of the particular case, for the protec
tion of the covenantee. Otherwise restraints of trade
are void as against public policy. * * * ‘The true view
at the present time’, said Lord Macnaghten in Nordem
feldt v. Maxim Nordenfeldt t6 Co., 1904, A. C., page
565, ‘I think, is th is : The public have an interest
in every person’s carrying on his trade free ly : so has
the individual. A ll interference with individual lib
erty of action in trading, and all restraints of trade of
themselves, if there is nothing more, are contrary to
public policy, and therefore void. That is the general
rule. But there are exceptions: restraints of trade and
interference with individual liberty o f action m ay be
justified by the special circumstances of a particular
case. It is a sufficient justification, and indeed it is
the only justification, if the restriction is reasonable—
reasonable, that is, in reference to the interests o f the
parties concerned and reasonable in reference to the
interests o f the public, so framed and so guarded as
to afford adequate protection to the party in whose
favor it is imposed, while at the same time it is in no
way injurious to the public.’
52
The present case is not analogous to that of a sale of
good will, or of an interest in a business, or of the
grant of a right to use a process of 'manufacture. The
complainant has not parted with any interest in its
business or instrumentalities of production. I t lias
conferred no right by virtue of which purchasers of its
products may compete with it. I t retains complete
control over the business in which it is engaged, man
ufacturing what it pleases and fixing such prices for
its own sales as it may desire. N or are we dealing
with a single transaction, conceivably unrelated to the
public interest. The agreements are designed to main
tain prices, after the complainant has parted with the
title to the articles, and to prevent competition among
those who trade in them.”
Let us apply the principle o f this decision to the case
now under consideration. Here the various covenantors
merely combined among themselves to restrain one an
other and their respective heirs and assigns either per
manently or for a period of twenty-one years, from selling
property belonging to them respectively, in the ownership
of which they continued, to negroes or any person or per
sons of the negro race or blood. They thereby limited the
number o f possible purchasers. The effect would be either
unduly to depress or unduly to increase the price at which
the property might be sold. A t all events it tended to
restrict competition. The covenant happened to exclude
from the list of possible purchasers or occupants negroes
or persons o f the negro race or blood. That excluded up
wards of ten m illion citizens of the United States, or ten
per cent, of the entire population. I f Catholics and Jews
had been added to the number o f those blacklisted, it
would have limited the possible purchasers to the extent of
upwards of twenty m illion more of our citizens, or aD
additional twenty per cent, of the population.
I f a covenant like that under consideration, entered into
53
by white persons, is valid, then a corresponding covenant
by colored land-owners restricting the sale o f their prop
erty so as to exclude all white persons or those o f the
Caucasian race or blood as possible purchasers, would be
equally permissible. That would affect at least 100,000,000
o f our population. Is that not a reductio ad absurdwn o f
the contention that covenants o f this character are not
opposed to public policy?
I f the various dealers in woolen cloth or shoes or pre
pared articles of food carrying on business in W ashington
had covenanted with each other not to sell or to give any of
their products to these several classes of human beings
coming within the ban of their displeasure, it is believed
that our courts would not long hesitate to declare such a
covenant as contrary to public policy. H ow does the il
lustration differ in principle from the covenant now under
discussion? The fact that in the one case the covenant re
lates to the acquisition o f a habitation and in the other o f
articles o f clothing or of food, does not constitute a valid
ground for differentiation. As was said by Mr. Justice
Holmes in Block v. Hirsli, 256 U. S., 156, “ housing is a
necessary of life.” It is as much a necessity for those of
the negro race or blood as it is for those of the white race.
I f covenants o f this character are valid in relation to the
property on one city block, they would be equally appli
cable to a hundred, or, if there were so many, a thousand
city blocks in the City of W ashington, and since, as was
said in the opinion in the case just cited, “ the space in
W ashington is necessarily monopolized in comparatively
few hands” , the cumulative effect o f such covenants w ould
be to drive out of the City of W ashington, and for that
matter out of the D istrict of Columbia, all or m ost o f the
persons of the negro race or blood whose business or occu
pation or interest it is to pursue their respective vocations
in that City or D istrict as it is a matter o f public interest
that they should pursue their vocations there. Such a
scheme is not an unheard of conception. It was attempted
54
in In re Lee Sing, 43 Fed. Rep., 359. According to the
census o f 1920 the white popualtion of the D istrict num
bered 326,800 and the negro population 109,966, or nearly
a quarter of the entire population. It is also interesting
to note parenthetically that the covenant would prac
tically preclude the white owner o f any one o f the houses
affected by it, to permit domestic servants o f the negro
race or blood to live upon his premises.
It surely cannot be said that our courts are more tender
in their consideration for those affected by trade and com
merce in personal property than they are for the welfare
o f those human beings who desire to establish homes and
to acquire the ownership or the right o f occupancy of a
place which they may call their own.
Mrs. Curtis is certainly entitled to as much freedom
from restraint upon her right to acquire a habitation where
she and her fam ily may lay their heads, as were the ven
dees of the patent medicine o f Dr. Miles M edical Company
to be free from the restrictions as to price imposed by the
vendor of that panacea. She should not for a moment be
lost sight o f in this controversy. H er liberty to acquire
property is as much involved as is the liberty of Mrs.
Corrigan to sell hers. The right o f both o f them to con
tract with respect to the premises here in question is to
be determined, that is, the right of disposition by the one,
and the right of acquisition by the other.
In the aspect o f the case now under discussion, namely,
that o f a covenant containing a restraint on the right
o f alienation or o f use or occupation which is not inci
dental to and in support o f another contract, or a sale
o f property or o f a business, it is a subject o f serious con
sideration as to whether such a covenant entered into, as
in this case, by twenty-four different, individuals, would
not constitute a common law conspiracy. The decision
in Callan v. Wilson, 127 U. S., 540, 555, 556, would so
indicate.
That case was cited in Granada Lumber Co. v. Missis
sippi, 217 U. S., 440, 441, where Mr. Justice Lurton said:
55
“ But when the plaintiffs-in-error combine and agree
that no one of them w ill trade with any producer or
wholesaler who shall sell to a consumer within the
trade range of any o f them, quite another case is pre
sented. An act harmless when done by one may be
come a public wrong when done by many acting in
concert, for it then takes on the form of conspiracy,
and may be prohibited or punished if the result be
hurtful to the public or to the individual against
whom the concerted action is directed” (Callan v.
Wilson, 127 U. S., 555, 556).
To the same effect is Eastern States Lumber Assn. v.
United States, 234 U. S., 600, 614.
W hile it is true that in the first o f these cases, the ques
tion directly involved related to the constitutionality o f a
statute of Mississippi, and that the second was an action
brought under the Sherman Anti-Trust A ct, it is never
theless believed that the principle invoked was one which
related to a common law conspiracy.
(4) We are not unmindful of the cases relied upon in
the court below to sustain the enforcement of this cove
nant. We contend that these decisions are not only un
sound but also distinguishable.
They are:
Los Angeles Investment Co. v. Gary, 181 Cal.,
680;
Queensboro Land Co. v. Cazeaux, 136 La., 724;
Koehler v. Rowland, 275 Mo., 573;
Parmalee v. Morris, 218 Mich., 625.
(a) So far as they undertake to sustain the validity o f
such a covenant as that now under discussion, we contend
that the conclusions reached are erroneous, since they dis
regard the legitimate scope and effect of the decision in
Buchanan v. Warley and o f Sections 1977 and 1978 o f the
Bevised Statutes and the mischief that is inherent in such
56
a covenant. They fail to differentiate between restrictions
in deeds which prohibit the use of property for certain pur
poses, such as that considered in Cowell v. Springs Co., 100
U. S., 57, and a covenant which constitutes a segregation
of negroes from other citizens. They likewise overlook the
distinction between such a case as the present and cases
like Plessy v. Ferguson, 163 U. S., 537, and the Berea
College Case, 211 U. S., 45, which was fu lly pointed out in
Buchanan v. Warley and in Carey v. City of Atlanta, 143
Ga., 192.
(6 ) In Los Angeles Investment Co. v. Cary, supra, the
Court as has already been pointed out, approved of the de
cision in Title Guarantee & Trust Co. v. Garrott, supra, in
so far as to hold that a condition or covenant in partial
restraint on alienation, whether limited to a particular
class o f persons or to a comparatively brief period, was
void because contrary to public policy. The Court,, how
ever, held that so much of the covenant which it then had
under consideration as provided “ nor shall any person or
persons other than o f Caucasian race be permitted to oc
cupy said lot or lots,” was not a restraint upon alienation,
but upon the use o f the property, and was, therefore,
valid.
The decision was by a divided court which consisted
of five members, two of whom, Mr. Chief Justice Angel-
lotti and Mr. Justice Lennon, having dissented. It like
wise appears from the opinion of Mr. Justice Olney, that
the Court had “ not been favored by either brief or argu
ment on behalf o f the respondents,” that is, the parties
against whom the condition was sought to be enforced.
Moreover, the question o f public policy in its broad aspects
was not discussed.
The prevailing opinion further contains the striking
qualification :
“ In connection with this decision it may be well
to add that what we have said applies only to re-
57
straints upon use imposed by way o f condition, and
not to those sought to be imposed by covenant merely.
The distinction between conditions and covenants is
a decided one and the principles applicable quite d if
ferent.”
Furthermore, it would seem that, if a restriction upon
alienation is opposed to public policy, a covenant which
would seek to prevent the use and occupancy o f property
by its owner would be equally contrary to public policy.
It would tend to produce the same evils as those which
brought about the rule with respect to restraints on aliena
tion. The right to use and occupy property is an essential
incident o f ownership. It was so recognized in Buckamm
v. Warley (see p. 7, supra). O f what avail would be the
right to acquire the title of property, if the grantee may
not take it into his possession and enjoy its use? I f Mrs.
Curtis could not be debarred from becoming the owner
of the fee of the premises which Mrs. Corrigan was ready
to convey to her, was her right o f ownership to be lim ited
to the leasing of the property to white tenants? The dis
tinction sought to be drawn leads to a palpable absurdity.
(c ) In Queensborough Land Go. v. Cazeaux, supra, and
Kohler v. Rowland, supra, the Court had under consid
eration conditions in deeds which provided for forfeiture
were the premises conveyed to be sold or leased by the
grantee to a negro. In both cases it was held that the
conditions did not constitute unlawful restraints upon
the power o f alienation.
Commenting on these decisions in his opinion in Title
Guarantee & Trust Co. v. Garrott, Mr. Justice Finlayson
said:
“ W ith neither o f them do we agree. The Louisiana
case was decided in accordance with the principles o f
the civil law, and can throw but little, i f any, light
upon the construction o f our Code provision, based,
as it is, on the common law of England— a body o f
law that, ever since the statute quia emptores, has
58
more and more treated land as an article of sale and
traffic, as much so as personal property. In the Mis
souri case the Court in one brief paragraph disposes
o f this difficult question out o f hand, citing but one
case, Cowell v. Colorado Springs Co., 100 U. S., 55, to
sustain its statement that, ‘it is entirely within the
right and power o f the grantor to impose a condition
or restraint upon the power of alienation in certain
cases to certain persons, or for a certain time, or for
certain purposes.’ In short, the Missouri court’s deci-
cision is based upon a dictum of Mr. Justice Field—
a dictum by one o f the country’s most learned jurists,
it is true, but a dictum nevertheless which, so far as
it refers to a time lim itation upon alienation, is con
trary to all the well-reasoned cases, such as Handle-
baum v. McDonell, supra, and in so far as it refers
to restraints that are partial as to persons or classes
of persons, is, we believe, contrary to logic and con
trary to the clear im plication o f the Supreme Court
o f this State in Murray v. Green, 64 Cal., 367, 368,
that any restraint whatever upon the power of aliena
tion, however partial or temporary, or o f whatever
character, is violative o f Section 711 o f our Civil
Code, and, furthermore, it is dictum that is pregnant
with uncertainties that necessarily would produce the
greatest inconvenience in the w orld of trade and com
merce, for no one could say whether any particular
restriction was reasonable until the question had been
litigated to the court o f last resort, and no judge could
know what standard of certainty should be employed
to determine the question.”
Further referring to Cowell v. Colorado Springs Co.,
Mr. Justice Finlayson pointed ou t:
“ W hat that learned jurist (Mr. Justice F ield ) said
about restraint upon alienation was dictum pure and
59
simple and not in accord with the weight of authority
nor the better reasoned cases. That that part o f the
excerpt from the opinion of Mr. Justice F ield wherein
he animadverts upon restraints upon alienation, is dic
tum, the Federal Supreme Court itself has declared
in the subsequent case o f Potter v. Couch, 141 U. S.,
315.”
In this connection it is likewise proper to refer to the
comments of Professor Gray upon Cowell v. Springs Co.,
and other similar cases, in Sections 40, 52-54 of the second
edition of his scholarly work on “ Restraints on the Aliena
tion of Property.”
(d ) Parmalee v. Morris, supra, like Los Angeles Invest
ment Co. v. Gary, Kohler v. Rowland and Queensborough
Land Co. v. Cazeaux, was a case arising on a condition con
tained in a deed which conveyed property which was the
subject of the restriction. In neither of these cases was
there a covenant between independent owners o f land each
o f whom had acquired a title free from condition or re
striction of the character sought to be created. Moreover,
Parmalee v. Morris was decided on the authority o f the
other three cases, and, therefore, depends upon the sound
ness o f the reasoning of those cases, which, we contend,
does not subserve the public welfare.
The opinion o f Mr. Justice Moore in Parmalee v. Morris
seems to proceed on a misunderstanding of a legitimate
argument presented in opposition to the validity o f such a
condition. The fallacy of the conclusion reached becomes
evident from these excerpts from the op in ion :
“ Suppose the situation was reversed and some negro
who had a tract o f land platted it and stated in the
recorded plat that no lot should be occupied by a Cau
casian, and that the deeds that were afterwards ex
ecuted contained a like restriction; would any one
think that dire results to the white race w ould fo l
low an enforcement of the restriction?”
60
W e answer that such a restriction would be as vicious
as that o f which we are now complaining. I f the negroes
possessed the wealth of the Caucasians and could acquire
property just as the Caucasians are now enabled to acquire
it, would it not lead to unfortunate consequences if such
a condition were aimed at a Caucasian by a negro?
Let us continue the argument to its legitimate conse
quences, and suppose that it was a Catholic who had con
veyed lands with the condition that it should not be oc
cupied by a Protestant, or vice versa, or if one of German,
Irish, French or Italian descent had conveyed property on
the condition that it was not to be occupied by an English
man or a Scotchman or by one who was a native o f New
England, or California, or Iowa, or Tennessee. W ould it
not be said at once that such a restriction boded mischief
to the public good?
The opinion continues:
“ The issue involved in the instant case is a simple
one, i. e., shall the law applicable to restrictions as to
occupancy contained in deeds to real estate be en
forced, or shall one be absolved from the provisions
o f the law simply because he is a negro?”
Our answer is that the provision is void, not “ simply”
because the person against whom it is sought to be en
forced is a negro, but because it is contrary to the genius
o f our Am erican institutions, to the spirit of the Consti
tution, and to the peace, quiet, good order, unity, harmony
and dignity o f the people o f the United States.
The attack is made on this covenant because it is op
posed to the fundamental principles on which our Gov
ernment rests, that all men are created equal and that
they are entitled to the protection o f their lives, their
liberty, and their property. It is believed that our courts
w ill not, by their decrees, effectuate a purpose which de
stroys our cherished traditions and which would recognize
61
and tend to create a system of caste. Tlie moment that
there is a differentiation in our courts between white and
black, Catholic and Protestant, Jew and non-Jew, hatreds
and passions w ill inevitably be aroused, and that which
has been most noble and exalted and humane in Am eri
can life will have been shattered. Great as are the mental
and spiritual sufferings o f those against whom the shafts
o f prejudice and intolerance are aimed, the lasting in
jury is, however, inflicted upon the civilization o f a coun
try which connives at a covenant such as that which has
been enforced by the decrees here sought to be reviewed.
Mrs. Curtis may well say to the covenantors, in the words
o f the unknown Negro poet celebrated by Thomas W ent
worth H igginson:
“ I go to de jedgment in de evenin’ o f de day
W hen I lay my body down,
A n ’ my soul an’ your soul Avill meet in de day
W hen I lay dis body down.”
(5 ) Here the appellee has resorted to a court of equity
to enforce a covenant which, so far as Mrs. Curtis is con
cerned, who was a stranger to the covenant, is oppressive
and unreasonable and lacking in equity.
She was not a party to the agreement. She is a victim
of its prohibitions. I t is an impairment o f her right to
acquire real property as conferred by Section 1978 o f the
Revised Statutes, and, consequently, it is believed that a
court of equity should not make itself a party to effectuate
the scheme whereby it is sought to deprive her o f the rights
secured to her by the Constitution and the statutes of the
United States and its public policy.
4 Pom eroy’s Equity Jurisprudence, 3d ed., Secs
1404, 1405;
Cathcart v. Robinson, 5 Peters, 263;
Pope Mfg. Co. v. Gormully, 144 U. S., 236, 237;
Curran v. Holyoke Water Co., 116 Mass., 90.
62
III.
It is respectfully submitted that the decrees appealed
from should be reversed and the motion to dismiss the
bill of complaint granted.
JA M E S A. COBB,
H E N R Y E. D A V IS ,
W IL L IA M H. LE W IS,
JA M E S P. SCH ICK,
Attorneys for Appellants.
Moobfield Storey,
Louis Marshall,
Arthur B. Spingarn,
H erbert K. Stockton,
o f Counsel.
[42821]
I
t
rt. A. A, C. P,
IN THE 70 FIFTH AVE„
NEW YORK CITYCourt of,appeal, Btetrict of Columbia
No. 4745.
A pril Term, 1928.
E dward Ĝ .RxjggELL, Susie E. Russell, E dgab T.
Newton, Robert H. Peterson, and Sarah P.
Newton,
Appellants,
versus
Frank S. W allace, F rancis J. P. Cleary, A nn
F rances Cleary,""Charles J. Orem, Martha S.
Orem, A gnes Ramsay, Mary E. Ragan, and
H enry H oiby,
Appellees.
BRIEF FOR THE APPELLANTS NEWTON AND
PETERSON.
Louis Marshall
A rthur B. Spingarm
O f Counsel.
W illiam E. Leahy
George E. L. H ayes
E rnest J. Davis
E dmund M. Toland
{Local Counsel)
Press of Byron S. Adams, Washington, D. C.
*
/
>*
♦
IN D E X .
Statem ent.......................................................................... 1-4
The D e c r e e ...................................................................... 4-5
Assignments o f E r r o r .................................................. 5-6
P o in ts : .................................................................................. 7-48
I. Even if the covenant were properly signed
and executed and seasonably recorded, still
by its very nature it is void and ineffective . 7-32
A. The covenant is contrary to the public pol
icy o f the United S ta te s ............................... 7-18
B. The covenant is void as against public
policy because the covenant is not ancil
lary to the main purpose o f a valid con
tract, and, therefore, is an unlawful re
straint ............................................................... 18-28
C. The covenant is so unreasonable and dis
crim inatory that a court o f equity will
not enforce i t ................................................ 28-32
II. Cases involving proposition^ n'T":'nr to the
p resen t................................................................... 33-45
III. No effective covenant has ever been executed 45-48
IN D E X OP C A SE S.
Anderson vs. Cary, 36 Ohio St. 506 ...................... 34, 43
Attwater vs. Attwater, 18 Beav. 330 ......................... 42
Bennett vs. Chapin, 77 Mich. 527 ............................. 35
Block vs. H irsh, 256 U. S. 1 5 6 ..................................... 25
Brewer vs. Marshall, 19 N. J. Eq. 537.................... 40
Buchanan vs. W arley, 165 K y. 559, 245 U. S. 60
11, 12, 18
Cathcart vs. Robinson, 5 Pet. 263................................. 45
Chicago, Burlington & Quincy R. R. Co. vs. Chi
cago, 116 U. S. 226, 233............................................ 16
Page
11 Index Continued.
Page
Civil Rights Cases, 109 U. S. 322 ............................... 14
Corrigan vs. Buckley, 299 Fed. 8 9 .......................... 7, 17
Cowell vs. Springs Co., 100 U. S. 5 5 ........................ 42
Corpus Juris 13, 420 ....................................................... 22
DeGray vs. M onmouth Beach Club House C o........ 40
D ePeyster vs. Michael, 6 N. Y . 597 .......................... 33
Doe d. Gill vs. Pearson, 1 East 113............................ 42
Edgecom b vs. Edm onston, 153 N. E. 99 .................... 32
E x parte V irginia, 100 U. S. 339, 347 ........................ 15
Gary vs. City o f Atlanta, 143 Ga. 1 9 2 ...................... 11
Giant Pow der Co. vs. R. R. Co., 42 Fed. Rep. 470 9
Gondolfo vs. Hartman, 49 Fed. Rep. 1 8 1 ............... 36
Hall vs. DeCuir, 95 U. S. 485, 508................................. 14
H arm on vs. Tyler, 273 U. S. 668 ................................. 12
H artford F ire Insurance Co. vs. Chicago, etc.,
R, R, C o......................................................................... 10
Hennessy vs. W oolw orth , 128 U. S. 438.................... 45
H ovey vs. Elliott, 167 U. S. 409 ................................. 16
In r e : Lee Sing, 43 Fed. Rep. 359 ............................. 26
Johnson vs. Preston, 226 111. 447 ............................... 44
K intz vs. H arrigan, 99 Ohio State 240 .................... 9
Langdon vs. Congdon, 93 N. W .................................... 10
Los Angeles Investment Co. vs. Ganz, 181 Cal.
680 ................................................................................... 38
Mandlebaum vs. McDonnell, 29 Mich. 79 ............. 19, 35
M anierre vs. W elling, 32 R. I. 104.................... 19, 34, 43
M iller vs. Jersey Coast Resorts Corporation, 98
N. J. Eq. 289 .............................................................. 44
M u rray ’s Lessee vs. H oboken & Im provem ent Co.,
18H ow ard 276 ........................................................... 16
M cDonogh vs. Murdock, 15 H ow. 367 .................... 34
N ordenfeldt vs. M axim N ordenfeldt Co., 1894
A pp. Cas. 535, 567 .............................................. 21, 24
Parm alee vs. M orris, 218 Mich. 625 ........................ 43
Pickett Publishing Co. vs. Carbon Co., 13 L. R.
A . N. S. 1 1 5 .............................................................. 10
Plessy vs. Ferguson, 163 IT. S. 537 ............................. 14
P ope M fg. Co. vs. Gormully, 144 IT. S. 236, 237___ 45
P orter vs. Barrett, 233 Mich. 373 ............................ 40, 44
Index Continued. in
Page
Potter vs. Couch, 141 U. S. 296, 313 ........................ 33, 35
P om eroy ’s Equity Jurisprudence, 3d ed., Secs.
1404, 1408 .................................................................... 45
Ruling Case Law, 6, page 707 ..................................... 9
Scott vs. McNeal, 154 U. S. 3 4 ..................................... 16
Slaughter House Cases, 16 W all. 3 6 ....................... 13
Smith vs. Am erican Fidelity Co., 232 N. Y . 161,163 10
State vs. Gurry, 121 Md. 534, 47 L. R. A. N. S.
1087 ................................................................................ 11
State vs. Darnell, 166 N. C. 300, 57 L. R. A . N. S.
332 ............................................................................. 11, 38
Strauder vs. W est V irginia, 100 U. S. 303 ......... 13, 14
Taylor Iron & Steel Co. vs. Nichols, 70 N. J.
Equity 541 .................................................................. 32
Telephone & Telegraph Co. v. Los Angeles, 227
U. S. 278 ...................................................................... 16
Test Oil Co. vs. La Tourette, 19 Okla. 214............... 19
Title Guaranty & Trust Co. vs. Garrott, 42 Cal.
App. 150 ........... ...................................................... 36, 38
Twitty vs. Camp, Phil. E quity 6 1 ............................... 20
United States vs. Addyston P ipe Co., 85 Fed. 271;
175 U. S. 211 ........................................................... 16
United States Revised Statutes 1977 ...................... 16
United States Revised Statutes 1978 ...................... 17
Virginia vs. Rives, 100 U. S. 3 1 3 ................................. 15
W hitney vs. Union Railway Co., 11 Gray 359......... 40
W illiston on Contracts, 3, Section 1642 .................... 22
IN T H E
(Cmxrt o f Appeals, listrirt o f (Mimtbla
No. 4745.
A p ril Term, 1928.
E dward G. Russell, Susie E. Russell, E dgar T.
Newton, Robert H. Peterson, and Sarah P.
Newton,
Appellants,
versus
F rank S. W allace, F rancis J. P. Cleary, A nn
F rances Cleary, Charles J. Orem, Martha S.
Orem, A gnes Ramsay, M ary E. Ragan, and
Henry H oiby,
Appellees.
BRIEF FOR THE APPELLANTS NEW TON AND
PETERSON
STATEMENT.
This action was brought to restrain the defendants
Russell, the alleged owners o f premises described as
2
L ot 77 in Square 3105 in the City o f W ashington, D is
trict o f Columbia, and known as 77 Randolph Place,
N. W ., from conveying the aforesaid premises to the
defendants Newton and Peterson, who are o f the Negro
race, or to any other Negroes or persons o f the Negro
race, to declare a conveyance executed by the defen
dants Russell to the defendants Newton and Peterson
as a nullity, and to compel the defendants Newton and
Peterson to leave and vacate the premises and remove
their effects, furniture, and other personal property
therefrom .
The action is based upon the contention that on F eb
ruary 6, 1925, a number o f the then owners o f real
estate situated on Randolph Place, N. W ., between
F irst Street and North Capitol Street, on both sides
o f the street, the property being part o f Squares 3102
and 3105, entered into the follow ing covenant:
“ Now, therefore, in consideration o f the pre
mises and the mutual benefits to arise to the par
ties hereto from the execution and taking effect o f
this indenture, as above recited and otherwise,
and o f the sum of five dollars by each o f said par
ties to the other in hand paid, the receipt whereof
is acknowledged, said parties do hereby mutually
agree, prom ise, and covenant, each with the other,
and for their respective heirs, assigns, and suc
cessors in interest, that no part o f the land now
owned by the parties hereto in said square (a
m ore definite description o f said land being given
by lot and square numbers after the respective
signatures hereto) shall be, during the life o f this
indenture, used, or occupied by, or sold, conveyed,
leased, rented, or given to Negroes or any person
or persons o f the N egro blood or m ixed N egro
blood, or to any other person or persons o f any
race other than the white or Caucasian race;
3
provided, that this indenture shall not become
effective or binding upon any o f the parties hereto
until all the signatures hereto affixed are duly
acknowledged before a N otary Public or other
officer empowered to administer oaths in such
cases, and further until this indenture is recorded
in the office o f the R ecorder o f Deeds o f the Dis-j
trict o f Columbia. W hen so acknowledged and
recorded this covenant and indenture shall run
with the land, and, unless sooner revoked as p ro
vided below, shall bind the respective parties
hereto, their heirs, assigns, and successors in in
terest, fo r the period o f twenty-one years from
and after the date hereof.
It is further covenanted and agreed by, between
and among the said parties that inasmuch as con
ditions now im possible to foresee may in the fu
ture make a revocation o f this indenture desirable
and necessary fo r the best interests o f all parties
concerned, the same may be revoked and annulled,
and the land affected by it freed from the opera
tion thereof as com pletely as though it had never
been executed, upon the recording in the office o f
said R ecorder o f Deeds o f an agreement to that
effect signed and duly acknowledged before a
N otary Public or other officer authorized to ad
minister oaths in such cases, by all the then own
ers o f the above described land now owned by the
parties hereto.”
W e refer to the brief o f the appellants Russell fo r
a statement o f the facts relating to the circumstances
and conditions under which they executed this cove
nant. W e also refer to that B rie f fo r the facts affect
ing the signature o f Catherine C. Beale, the life-tenant
of premises No. 58 Randolph Place, and o f John J.
McCue as Executor o f the Estate o f M ary M. McCue,
with respect to premises No. 25 Randolph Place.
4
W e unite in the contentions o f the appellants Rus
sell with respect to the non-effectiveness o f such sig
natures, and that the defendants Russell were entitled
to convey the premises owned by them to the appel
lants Newton and Peterson, and that the latter are not
bound by the covenant but that their rights are supe
rior to the rights o f the appellees.
W e shall confine this B rie f to a discussion o f the
validity o f the covenant, even were it assumed that
the contentions set forth in the B rie f o f the appel
lants Russell were not tenable.
THE DECREE
In the final decree (Rec. pp. 44-47) it was adjudged
that the covenant set forth in the original and amended
bills o f com plaint was duly signed, executed and ac
knowledged by all the parties whose names were ap
pended thereto, including the defendants Russell, and
was duly filed fo r record in the office o f the R ecorder
o f Deeds fo r the D istrict o f Columbia on the 28th day
o f May, 1926, and that such covenant is valid and was
and is binding upon all o f the parties thereto and upon
all the subsequent owners o f the land therein de
scribed, including all o f the defendants herein.
It was further adjudged that the deed from the de
fendants Russell to the defendants Newton and Peter
son is void and o f no effect, and that the defendants
Russell be perpetually enjoined during a period of
twenty-one years from and after February 6, 1925,
from directly or indirectly selling or conveying, or
leasing or renting or giving the premises described
in the com plaint to the defendants Newton and Peter
son or to any o f them or to any N egro or to any person
or persons o f the N egro blood or mixed N egro blood,
or o f any other race than the white or Caucasian race.
It was further adjudged that the defendants New
ton and Peterson remove forthw ith themselves and all
o f their personal property from the said premises, and
that they and their heirs, assigns, and successors in
interest be enjoined permanently fo r a period o f
twenty-one years from and after February 6, 1925,
from holding or attempting to hold title to or posses
sion o f such premises, or from renting, leasing, sell
ing, transferring and conveying to any N egro or to
any person or persons o f N egro blood or o f mixed
Negro blood, or o f any race other than the white or
Caucasian race, the premises and property aforesaid
and from using or occupying the same.
ASSIGNMENTS OF ERROR
The defendants in connection with the appeal taken
by them from the aforesaid judgment, claim that the
Court erred in rendering its decree and in making its
several findings, as follow s (Rec. pp. 48, 49 ) :
1. In not dism issing the p la in tiffs ’ amended bill o f
complaint.
2. In finding in favor o f the plaintiffs.
3. In rendering a final decree in this cause.
4. In finding that the defendants Russell were
bound by a covenant or indenture, dated February 6,
1925, called the “ W hite Covenant.”
5. In finding that all o f the owners o f property on
Randolph Place between North Capitol and F irst
Street, N. W ., had signed and acknowledged the cove
nant or indenture o f February 6, 1925, called the
“ W hite Covenant.”
6
6. In finding that the defendants Russell did not
withdraw from the said covenant or indenture, dated
February 6, 1925.
7. In decreeing that the defendants should be en
joined, in manner and form as in said decree enjoined,
fo r the reason that said covenant aforesaid is void as
being contrary to the Constitution of the United States
and the public policy thereof.
8. In refusing to dismiss the p la intiffs ’ amended bill
o f complaint fo r the reason that the covenant entered
into by the various property owners in the block in
which the premises in question are located is void as
against public policy because the covenant is not an
cillary to the main purpose o f a valid contract, and
therefore is an unlawful restraint.
9. In refusing to dismiss the p la intiffs ’ amended
bill o f complaint fo r the reason that said covenant is
so unreasonable and discrim inatory that a Court o f
E quity will not enforce the same.
10. In refusing to dismiss the p la in tiffs ’ amended
bill o f complaint fo r the reason that at the time when
the covenant was entered into the various parties who
executed it severally owned the respective parcels o f
land described therein, on which at the time there had
been erected separate dwelling houses; that none o f
the parties at the time o f the execution o f the covenant
and in connection therewith acquired from any o f the
others title to the land which they respectively own,
and that none o f them had entered into a contract
with the others to which the covenant was an incident
or ancillary, and, therefore the covenant constitutes
an unlawful restraint upon the alienation o f property
and is repugnant to trade and commerce.
7
POINTS
I.
Even If the Covenant Were Properly Signed and
Executed and Seasonably Recorded, Still By
Its Very Nature It Is Void and Ineffective
A. The covenant is contrary to the public policy of
the United States.
The covenant is purely discrim inatory being aimed
exclusively against renting, leasing, selling, transfer
ring or conveying unto any N egro the land and prem
ises in question. F or a period o f twenty-one (21)
years, under the terms o f this covenant the owners o f
this Randolph Street property will be precluded from
selling or otherwise disposing o f it to at least one-
fourth o f the population o f the D istrict o f Columbia
and the latter are prevented from purchasing it if this
covenant is valid.
W e are not unmindful o f the fact that this Court
has had before it in the case o f Corrigan vs. Buckley,
299 Fed. Rep. 89 a similar covenant, which it held to
be valid and that the point as here urged was then
called to the attention o f this H onorable Court and
in turn to the attention o f the Supreme Court o f the
United States. That Court held that it had no ju ris
diction to review the questions presented, the case
having been taken to the Supreme Court by an appeal
from this H onorable Court, and there being no appli
cation fo r a writ o f certiorari. H owever, in the last
paragraph o f the Opinion o f Mr. Justice Sanford
(271 U. S. 332), we find the follow ing expression in
dicating that the question here involved was regarded
as open for serious consideration had it been prop
erly brought before the C ourt;
8
“ It results that, in the absence o f any substan
tial constitutional or statutory question giving us
jurisdicion o f this appeal under the provisions
o f Section 250 o f the Judicial Code, we cannot
determine upon the merits the contentions earn
estly pressed by the defendants in this court that
the indenture is not only void because contrary to
public policy, but is also o f such a discrim inatory
character that a court o f equity will not lend its
aid by enforcing the specific perform ance o f the
covenant. These are questions involving a consid
eration o f rules not expressed in any constitu
tional or statutory provision, but claimed to be a
part o f the common or general law in force in the
D istrict o f Colum bia; and, plainly, they m ay not
be reviewed under this appeal unless jurisdiction
o f the case is otherwise acquired. Hence, without
a consideration o f these questions, the appeal
must be, and is dismissed fo r want o f jurisd ic
tion .”
W e are thus constrained again to bring to the atten
tion o f this H onorable Court the contentions here
advanced, reminded as we are o f the far-reaching
effect o f the problem s involved and o f the persons and
property to be affected by the precedent created. T o
hold as valid a covenant such as that now under re
view would render it possible by the execution o f addi
tional similar covenants to exclude any N egro from
becom ing the owner o f any part o f the territory com
posing the D istrict o f Columbia. Is such a condition
in conform ity with sound public policy?
“ Public p o licy ” has been defined to be “ that prin
ciple o f law which holds that no subject can law fully do
that which has a tendency to be injurious to the public,
and against the public good .” 3 B ou v ier ’s Law D ic
tionary, 2765. The definition which the courts have
9
frequently approved is the one given by Lord
Brougham, 6 R. C. L. 707:
“ Public policy is the principle which declares
that no one can lawfully do that which has a ten
dency to he injurious to the public w elfare.”
A g a in :
“ In substance, public policy may be generally
said to be the community common sense and com
mon conscience, extended and applied throughout
the States to matters o f public m orals, public
health, public safety, public welfare, and the like.
It is that general and well settled public opinion
relating to a m an ’s plain palpable duty to his fel-
lowman that has due regard to all circumstances
o f each particular situation. ’ ’
Our public policy m ay be deduced from our consti
tutions and statutes, from judicial decisions and from
fundamental principles o f right and wrong. M ani
festly, when the constitution declares and defines cer
tain public policies, such public policies must be para
mount though a score o f statutes conflict and a multi
tude o f judicial decisions be to the contrary. Kintz
v. H arrigar, 99 Ohio St. 240.
The sources from which public policy m ay be gath
ered are m anifested “ by public acts, legislative and
judicial, and not by private opinion, however em inent”
(Giant Powder Co. v. R. R. Co., 42 Fed. 470), fo r “ no
general assembly is above the plain potential p rov i
sions o f the Constitution, and no court, however sacred
or powerful, has the right to declare any public policy
that clearly contravenes or nullifies the rights declared
in the Constitution.”
10
In Hartford F ire Ins. Co. v. Chicago, etc. R. R. Co.,
70 Fed. 201, the Court said :
‘ ‘ The public policy o f a State or nation must be
determined by its constitution, law and judicial
decisions, not by varying opinions o f laymen,
lawyers or judges as to the demands o f the inn
terests o f the public.”
W hat the public policy therefore o f a particular
jurisdiction may be, “ Must be determined by the con
stitutions, the laws, the courts o f administration, and
decisions o f the courts o f last resort” (Langdon v.
Congdon, 93 N. W .-------; Picket Publishing Co. v. Car
bon Co., 13 L. R. A . N. S. 115,) or as Judge Cardozo
said, speaking o f the public policy o f the State o f New
Y ork : “ The public policy o f this State, when the
legislature acts, is what the legislature says that it
shall b e .” Smith v. American Fidelity Co., 232 N. Y.
161, 163.
W here would one be m ore likely to arrive, then, at
the sources from which our public policy is derived
than by exploring the constitution and statutes o f the
United States and the adjudications o f the court? It
would appear to be obvious that where a legislature
is prohibited from sanctioning a particular policy, in
dividuals m ay not enter into contracts in direct de
rogation o f the same policy. Therefore, that which
the legislature cannot sanction should not be possible
to be done by a decree o f a court o f equity enforcing
the specific perform ance o f an agreement between
other parties, which is the equivalent o f such legisla
tion, and is productive o f identical results. I f such a
contract as that involved in the present case were valid
as affecting a limited area, it would be equally effec
11
tive if it included an entire city, or a county, or a state.
I f the spirit o f the Constitution may be evaded, as it
is attempted to be by the device here employed, it
would not be difficult to create a situation, barring the
limits o f the contract, that would prevent a colored
person from owning real estate or from taking up his
habitation in any state or in any part o f a state. Seg
regation ordinances, based on color, similar in essence
with the covenant here involved have come before the
Supreme Court o f the United States and the courts o f
last resort in the several states. The attempt was
made at race segregation by municipal ordinance, and
the right to do so was denied by the highest appellate
tribunals in M aryland, Georgia and North Carolina,
where a provision so contrary to the spirit and genius
of our institutions had been passed.
State v. Gurry, 121 Md. 534, 47 L. R. A . N. S.
1087
Gary v. City of Atlanta, 143 Ga. 192, L. R. A .
1915 D. 684.
State v. Darnell, 166 N. C. 300, 57 L. R. A . N S
332.
In Buchanan v. Warley, 165 K y. 559, the State
Court had pronounced as valid an ordinance similar in
character to the discrim inatory provision o f the cov
enant under discussion herein. On appeal to the Su
preme Court o f the United States that decision was
unanimously reversed in 245 U. S. 60, L. R. A . 1918,
C. 210. So utterly contrary to the policy o f p rotec
tion and encouragement prescribed by our constitution
and the laws enacted in pursuance thereof o f the col
ored race has such legislation been regarded that in
the most recent attempt upon the part o f a state
12
through its agencies to enact such legislation the Su
preme Court o f the United States did not even dignify
the attempt so to do by a form al opinion but it con
tented itself by simply reversing the Supreme Court
o f Louisiana in a Per Curiam opinion which merely
cited Buchanan v. Warley (supra), (Harmon vs. Tyler,
273 U. S. 668).
In these cases it was unsuccessfully attempted by
legislation in the form o f a city ordinance to forb id
colored persons from occupying houses as residences
or places o f abode or public assembly in blocks where
the m ajority o f the houses were occupied by white per
sons, and in like manner prohibiting white persons
when the conditions o f occupancy were reversed, bas
ing the intradiction on color, and nothing more. Here,
by the decree o f the Supreme Court o f the D istrict of
Columbia, a white person is forbidden to sell to a
colored person and a colored person to buy from a
white person a house in a residential district o f W ash
ington, solely because the colored person is a Negro.
Only because o f his race and blood that purchaser is
denied the right to take title to property, and from
selling, conveying, leasing, renting, or giv ing it to, or
perm itting it to be used or occupied by, any person of
the N egro race or blood. In Buchanan v. Warley, Mr.
Justice Day thus stated the question :
“ The concrete question here is, m ay the occu
pancy and necessarily the purchase and sale o f
property o f which occupancy is an incident, be
inhibited by a state, or by one o f its municipalities,
solely because o f the color o f the proposed occu
pancy o f the prem ises?”
13
In the course o f his discussion o f this proposition
he sa id :
“ P roperty is more than the mere thing which
the person owns. It is elementary that it includes
the right to acquire, use, and dispose of it. The
Constitution protects these essential attributes of
property. H olden v. H ardy, 169 U. S. 366, 391.
P roperty consists o f the free use, enjoyment, and
disposal o f the premises acquired without control
or diminution save by the law o f the land. 1.
B lackstone’s Commentaries, Collidge Edition, 1,
127.”
A fter considering the history o f the 13th and 14th
Amendments, and quoting from the Slaughter Rouse
cases, 16 W all., 36; Strauder v. W. Va., 100 U. S. 303,
and Exparte Virginia, 100 U. S. 339, 347, the Court
asked:
“ In the face o f these constitutional and statu
tory provisions, can a white man be denied con
sistently with due process o f law the right to dis
pose o f his property to a purchaser by prohibiting
the occupation o f it fo r the sole reason that the
purchaser is a person o f color intended to occupy
the premises as a place o f residence?”
Mr. Justice D ay answered (page 7 8 ):
“ The Statute o f 1866, originally passed under
sanction o f the 13th amendment, 14 Stat. 27, and
practically re-enacted after the adoption o f the 14th
Amendment, 16 Stat. 144, expressly provided that
all citizens o f the United States in any state shall
have the same right to purchase property as is
enjoyed by white citizens. Colored persons are
citizens o f the United States and have the right to
14
purchase property and en joy the use o f same.
Hall v. DeCuir, 95 U. S. 485, 508. These enact
ments did not deal with the social rights o f men
but with those fundamental rights in property
which it was intended to secure. Civil Rights
Cases, 109 U. S. 322. The 14th Amendment and
those statutes enacted in furtherance o f its p ro
visions operate to give the colored man the right
to acquire property without state legislation dis
crim inating him, solely because o f co lo r .”
The opinion then referred to and distinguished
Plessy v. Ferguson, 163 U. S. 537, and other cases of
like classification, and finally concluded with the de-
liber aTPjudgment o f the court:
“ W e think this attempt to prevent alienation
o f the property in question to a person o f color
was not a legitimate exercise o f the police power
o f the State and is in direct violation o f the funda
mental law enacted in the 14th Amendment to the
Constitution, preventing State interference with
property rights except by due process o f law.
That being the case, the ordinance cannot be sus
tained.”
In Strauder v. West Virginia, 100 U. S. 303, the Su
preme Court o f the United States said :
“ W hat is this (the 14th Am endm ent) but de
claring that the law in the state shall be the same
fo r the black as fo r the w hite; that all persons
whether colored or white shall stand equally be
fore the laws o f the states, and in regard to the
colored race, fo r whose protection the amendment
was prim arily designed, that no discrim ination
shall be made against them by the law because o f
their color, * * * * A n y state action which denies
15
this immunity to the colored man is in conflict
with the Constitution.”
In E x Parte Virginia, 100 U. S. 339, that Court said:
“ W hoever by virtue o f public position under
the State government deprives another o f p rop
erty, life or liberty without due process o f law or
denies or takes away equal protection o f the laws,
violates the constitutional inhibition, and as he
acts in the name and fo r the state, and is clothed
with the state ’s power, his act is that o f the state.”
Again, in Virginia v. Rives, 100 U. S. 313 Mr. Justice
Strong, speaking the opinion of the Court, said :
“ It is doubtless true that a States m ay act
through different agencies— either by its legisla
tive, its executive, or its judicial authority, and
the prohibitions o f the amendment extend to all
action o f the State denying equal protection o f the
law, whether it be action by one o f those agencies,
or by any other course by virtue of the 5th Section
o f the 14th Amendment whenever they are dis
regarded by either the legislative or executive or
judicial department o f the State.”
To the same effect is E x Parte Virginia, supra (p.
347):
“ W e have said that the prohibition o f the 14th
Amendment was addressed to the states * * * *.
They have reference to the actions o f the political
body denominated the state by whatever instru
ment or in whatever modes that action m ay be
taken. A state acts fo r its legislative, its execu
tive, or its judicial authority. It can act in no
other w ay.”
16
“ The prohibitions o f the 14th Amendment ex
tend to ‘ A ll acts o f the State, whether through its
legislative, its executive, or its judicial authori
ties.’ ” Scott v. McNeal, 154 U. S. 34.
The prohibitions o f that amendment “ refer to all the
instrumentalities o f the state, to its legislative, its
executive, and judicial authorities, and therefore who
ever by virtue o f public position under the State gov
ernment deprives another o f any right * * * * violates
the constitutional inhibition, and as he acts in the name
and fo r the state, and is clothed with the S tate ’s power,
his act is that o f the State.” Chicago, Burlington &
Quincy R. R. Co. v. Chicago, 166 U. S. 226, 233. See
further Telephone & Telegraph Co. v. Los Angeles,
227 U. S. 278; M urray’s Lessee vs. Hoboken Land &
Improvement Co., 18 H ow ard 276; Hovey v. Elliott,
167 U. S. 409.
Congress by enacting sections 1977 and 1978 o f the
United States Revised Statutes (T itle V III , Sec. 41,
and Title V II , Sec. 42), has given definite expression to
the policy which the legislative department o f our
governm ent has required to he enforced in furtherance
o f the recognition o f the constitutional provisions en
acted in protection o f the colored race. Section 1977
rea d s :
‘ ‘ A ll persons within the jurisdiction o f the
United States shall have the same right in every
state and territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full
and equal benefit o f all laws and proceedings for
the security o f persons and property as is enjoyed
by white citizens, and shall be subject to like pun
ishment, pain, taxes, licenses, and exactions of
every kind, and no other.”
17
Section 1978 declares:
“ A ll citizens o f the United States shall have the
same right in every state and territory as is en
joyed by the white citizens thereof to inherit, pur
chase, sell, hold, and convey real and personal
property. ”
W e are not unmindful that this H onorable Court
in Corrigan v. Bucldey, supra, said:
“ It is unnecessary to consider the contention
that the restriction amounts to a denial o f equal
protection o f the laws under the 14th Amendment
since the Supreme Court has held in numerous
instances that the inhibition is upon the power of
the State and not to action by individuals in re
spect to their property. * * * * It follow s that
the segregation o f the races, whether by state or
private agreement, where the method adopted does
not amount to denial o f fundamental constitu
tional rights cannot be held to be against the pub
lic policy. N or can the social equality o f the races
be attained either by legislation or by the force
ful assertion o f assumed rights.”
Attention is respectfully called to the terms o f the
Final Decree in the instant cause providing that the
Newtons and Peterson are ordered and enjoined per
em ptorily to rem ove forthw ith themselves and all their
personal property and that o f each o f them from the
said premises and further permanently enjoining them
during a period o f twenty-one (21) years from holding
or attempting to hold title to an d /or possession o f
said premises or from renting, leasing, selling, trans
ferring or conveying to any N egro or person o f the
Negro blood. To whom would application be made
IB
were these appellants not to remove under the terms
o f the D ecree? W e take it that the answer will be— to
the United States M arshal in and for the D istrict o f
Columbia. Is the Goverinment then acting? Is the
Judicial Department functioning any the less than
would the Legislative Branch if it were to make an
enactment covering such a situation? But, says Bu
chanan v. Warley, supra, the Legislative Branch o f
the Government can do no such thing. W h y then the
Judicial? W e respectfully contend that this partic
ular covenant, and those o f similar character which
deny to individuals the right to sell, transfer, and
convey their property to individuals o f the colored
race, solely because they are colored, amount by in
direction to a denial o f fundamental rights expressly
conferred upon the colored race and protected by our
Constitution and statutes enacted in pursuance there
of.
B. The covenant is void as against public policy be
cause the covenant is not ancillary to the main purpose
of a valid contract, and, therefore is an unlawful re
straint.
The covenant is an unlawful restraint upon aliena
tion and is repugnant to trade and commerce in that at
the time the covenant was entered into the various
parties who owned the respective parcels of land de
scribed therein and the dwellings thereon and executed
the said covenant, in no instance acquired from any
of the others title to the land which they respectively
owned and none of them had entered into a contract
with the others to which this covenant was an incident
or ancillary.
19
W hile it m ay be claimed that this covenant was not
one relating to trade or commerce, in the strict sense
of the term, nevertheless, in these later days, the ten
dency o f the law has been to encourage the transfera
bility o f real estate with the same facility as has long
existed in the case o f personality. The public policy
o f today favors the ready transfer o f realty from one
person to another. In Manierre v. Welling, 32 R. I.
104, 78 Atl. Rep. 519, Mr. Justice Parkhurst, quoting
the opinion o f Mr. Justice Christiancy in Mandlebaum
v. McDonnell, 29 Mich. 79, expressed the prevailing
policy when he said:
“ and certainly, in a country like ours, where
lands are as much an article o f sale and traffic as
personal property, and the policy o f the State ha3
been to encourage both the acquisition and easy
and free alienation o f lands, such restrictions
ought not be encouraged by the C ourts.”
The same idea was expressed by Mr. Justice Garber
in Test Oil Co. v. LaTourrette, 19 Okla. 214, 91 Pac.
Rep. 1025, 1028:
“ In this country land is one o f the chief objects
o f trade and investment^—‘ mud and civilization go
together.’ A s the latter advances the transfer
o f the form er becomes m ore frequent. Just in
the degree that the tem porary owner o f a tract
o f land is permitted to impress his notions or
caprices upon the fee restricting its future alien
ation, just in that degree does it hamper the
terms and facility o f its exchange in trade and
destroy that continuance which has given it the
reputation o f being the subject o f safe and sound
investment. Hence restrictions upon the aliena
tion of the fee in land are repugnant to trade
20
and commerce, and are looked upon with d isfavor
by the law .”
Hence it is our contention that the covenant now
under consideration, which limits the sale o f land or
its occupancy to a certain class o f human beings and
excludes other o f G od ’s children from the right to
occupy or purchase it, in the aspect o f public policy
comes at least within the rules applicable to the re
straint o f trade in personality.
In United States v. Addyston Pipe Go., 85 Fed. Eep.
271, affd. 175 U. S. 211, Mr. Chief Justice Taft, then
writing fo r the Circuit Court o f Appeals fo r the Sixth
Circuit, classified the decisions in which covenants in
partial restraint o f trade had been upheld. They in
volved agreements (1) by the seller o f property or
business not to compete with the buyer in such a way
as to derogate from the value o f the property or busi
ness sold ; (2 ) by a retiring partner not to compete
with the firm ; (3) by a partner pending the partner
ship not to do anything to interfere by competition
or otherwise with the business o f the firm ; (4) by the
buyer o f property not to use the same in com petition
with the business retained by the seller; and (5) by
an assistant, servant, or agent not to com pete with
his master or em ployer after the expiration o f his time
o f service.
R eferring to this classification, it was added (p.
281 ):
“ B efore such agreements are upheld, however,
the Court must find that the restraints attempted
thereby are reasonably necessary (1, 2 and 3) to
the enjoym ent by the buyer o f the property, good
will or interest in the partnership bought; or (4)
to the legitim ate needs o f the existing partner-
21
ship; or (5) to the prevention o f possible injury to
the business o f the seller from the use by "the
buyer o f the thing sold ; or (6) to protection"from
the danger o f loss to the em ployer ’ § business
caused by the unjust use on the part o f the em
ployee o f the confidential knowledge acquired in
such business. * * * It would be stating it
too strongly to say that these five classes o f cove
nants in restraint o f trade include all o f those up
held as valid at the common law ; but it would
certainly seem to follow from the tests laid down
for determining the validity o f such an agree
ment that no conventional restraint o f trade can
be enforced unless the covenant embodying it is
merely ancillary to the main purpose of a lawful
contract, and necessary to protect the covencmtee
in the enjoyment of the legitimate fruits of the
contract, or to protect him from the dangers of
an unjust use of those fruits by the other party.
In H orner v. Graves, 7 Bing., 735, Chief Justice
Tindal, who seems to be regarded as the highest
English judicial authority on this branch o f the
law (see L ord Macnaughten judgment in Nor-
denfeldt v. Maxim N ordengeldt Co. (1894 App.
Cas. 535, 567) used the follow ing language:
‘ W e do not see how a better test can be ap
plied to the question whether this is or is not
a reasonable restraint o f trade than by con
sidering the restraint is such only as to afford
a fa ir protection to the interests of the party
in favor of whom it is given, and not so large as
to interfere with the interests of the public.
W hatever restraint is larger than the necessary
protection o f the party requires can be o f no
benefit to either. It can only be oppressive. It
is, in the eye o f the law, unreasonable. What
ever is injurious to the interests of the public
is void on the ground of public policy.’
This very statement of the rule implies that the
contract must be one in which there is a main
purpose, to which the covenant in restraint of
22
trade is merely ancillary. The covenant is in
serted only to protect one of the parties from the
in ju ry which in the execution of the contract or
the enjoyment of its fruits, he may suffer from
the unrestrained competition of the other. The
main purpose o f the contracts suggests the meas
ure o f protection needed, and furnishes a suf
ficiently uniform standard by which the validity
o f such restraints m ay be judicially determ ined.”
See also 13 Corpus Juris, title “ C ontract” , Section
420, 477, and cases cited.
In the present case there is an utter absence of
those elements which in the case cited were deemed
to ju stify covenants in partial restraint o f trade.
That this principle is applicable to restrictive cove
nants affecting real estate appears from the decisions
collated in 3 W illiston on Contracts, Sec. 1642.
This doctrine does not owe its existence to the Sher
man A ct, or any other similar legislation. It is a prin
ciple enforced by the courts both at common law and
in equity, long prior to such legislation.
A s applicable to this discussion, we take the liberty
o f quoting extensively from the opinion o f Mr. Jus
tice Hughes in Dr. Miles Medical Co. v. Park & Sons
Co., 220 U. S. 373. The question there involved was
as to whether a m anufacturer, in connection with the
sale o f his product, m ay affix conditions as to the use
o f the article sold or as to the prices at which pur
chasers m ay dispose o f it. There the condition was
ancillary to a sale. Y et it was held, fo r reasons about
to be pointed out, that such conditions were contrary
to public policy, and, therefore, void. Mr. Justice
Hughes said:
23
“ But because a m anufacturer is not bound to
make or sell, it does not follow that in case of
sales actually made he m ay impose upon purchas
ers every sort o f restriction. Thus a general re
straint upon alienation is ordinarily invalid. ‘ The
right o f alienation is one o f the essential incidents
o f a right o f general property in movables, and
restraints upon alienation have been generally
regarded as obnoxious to public policy, which is
best subserved by great freedom of traffic in such
things as pass from hand to hand. General re
straint in the alienation o f articles, things, chat
ties, except when a very special kind o f property
is involved, such as a slave or an heirloom , have
been generally held void. ‘ I f a m an ’, says Lord
Coke, in Coke on Littleton, section 360, ‘ be pos
sessed o f a horse or any other chattel, real or per
sonal, and give his whole interest or property
therein, upon condition that the donee or vendee
shall not alien the same, the same_ is void, be
cause his whole interest or property is out o f him,
so he hath no possibility o f reverter ; and it is
against trades and traffic and barganing and con
tracting between man and m an.’ Park v. H art
man, 153 Fed. Rep. 24. See also Gray on R e
straints, on Alienation, Sections 27, 28 .’ ’
A t page 406 the opinion continues:
“ W ith respect to contracts in restraint o f trade
the earlier doctrine o f the common law has been
substantially modified in adaptation to m odern
conditions. But the public interest is still the
first consideration. T o sustain the restraint, it
must be found to be reasonable both with respect
to the public and to the parties and that it is lim
ited to what is fa irly necessary, in the circum
stances o f the particular case, fo r the protection
o f the covenantee. Otherwise restraints o f trade
are void as against public policy. * * * * ‘ The
24
true view at the present tim e’, said Lord Mac-
naghten in N ordenfeldt v. M axim N ordenfeldt &
Co., 1904, A . C. page 565, ‘ I think, is th is: The
public have an interest in every p erson ’s carrying
on his trade free ly : so has the individual. A ll
interference with individual liberty of action in
trading and all restraints of trade of themselves,
if there is nothing more, are contrary to public
I policy, and therefore void. That is the general\
rule. But there are exceptions; restraints o f trade
and interference with individual liberty o f action
m ay be justified by the special circumstances o f a
particular case. It is a sufficient justification, and
indeed it is the only justification, i f the restriction
is reasonable— reasonable, that is in reference to
the interests o f the parties concerned and reason
able in reference to the interests o f the public,
so fram ed and so guarded as to afford adequate
protection to the party in whose favor it is im
posed, while at the same time it is in no w ay in
jurious to the public.’ ”
The covenant here involved happened to exclude
from the list o f possible purchasers or occupants of
the land in question Negroes or persons o f the Negro
race or blood. That excluded upwards o f twelve mil
lion citizens o f the United States, or ten per cent of
the entire population. I f Catholics and Jews had been
added to the number o f those blacklisted it would have
have limited the possible purchasers to the extent of
upwards o f twenty millions m ore o f our citizens, or
practically an additional twenty per cent o f the popu
lation.
I f a covenant like that here involved, made by white
persons, is valid, then a corresponding covenant by
colored landowners restricting the sale o f their prop
erty so as to exclude all white persons or those o f the
25
Caucasian race or blood as possible purchasers, would
be equally permissible. That would affect at least
100,000,000 o f our population. Is that not a reductio
ad absurdum o f the contention that covenants o f this
character are not opposed to public policy?
I f the various dealers in woolen cloth or shoes or
prepared articles o f food carrying on business in
W ashington had covenanted with each other not to
sell or give any o f their products to these several
classes o f human beings com ing within the ban o f their
displeasure, it is believed that our courts would not
long hesitate to declare such a covenant as contrary
to public policy. H ow does the illustration differ in
principle from the covenant now under discussion?
The fact that in the one case the covenant relates to
the acquisition o f a habitation and in the other to
articles o f clothing or o f food , does not constitute a
valid ground fo r differentiation. A s was said by Mr.
Justice Holmes in Bloch vs. Hirsh, 256 U. S. 156,
“ housing is a necessary o f l i fe .” It is as much a
necessity fo r those o f the N egro race or blood as it is
for those o f the white race.
I f covenants o f this character are valid in relation
to the property on one city block, they would be
equally applicable to a hundred, or, i f there were so
many, a thousand city blocks in the City o f W ashing
ton, and since, as was said in the opinion in the case
just cited, “ the space in W ashington is necessarily
monopolized in com paratively few hands,” the cum u
lative effect o f such covenants would be to drive out
o f the City o f W ashington, and fo r that matter out o f
the D istrict o f Columbia, all or most o f the persons o f
the N egro race or blood whose business or occupation
or interest it is to pursue their respective vocations
26
in that City or D istrict as it is a matter o f public
interest that they should pursue their vocations there.
Such a scheme is not an unheard o f conception. It
was attempted in In re Lee Sing, 43 Fed. Rep. 359.
A ccord ing to the census o f 1920 the white population
o f the D istrict numbered 326,860 and the N egro popu
lation 109,966, or nearly a quarter o f the entire popu
lation. It is also interesting to note parenthetically
that the covenant would pracically preclude the white
owner o f any o f the houses affected by it, to permit
dom estic servants o f the N egro race or blood to live
upon his premises.
It surely cannot be said that our courts are more
tender in their consideration fo r those affected by
trade and commerce in personal property than they
are fo r the w elfare o f those human beings who desire
to establish homes and to acquire the ownership or
the right o f occupancy o f a place which they m ay call
their own.
These defendants are certainly entitled to as much
freedom from restraint upon their right to acquire a
habitation where they m ay lay their heads, as were
the vendees o f the patent medicine o f Dr. Miles M edi
cal Com pany to be free from the restrictions as to
price im posed by the vendor o f the panacea. These
human beings, our fellow-citizens, should not fo r a
moment be lost sight o f in this controversy. Their
liberty to acquire property is as much involved as is
the liberty o f the owner o f property to sell. The right
o f both o f them to contract with respect to the prem
ises here in question, is to be determined, that is, the
right o f disposition by the one, and the right o f ac
quisition by the other.
The agreement which the respondents are seeking
27
to effectuate by means o f a decree in equity and to
which the Court below has given its sanction, is avow
edly one which is aimed at persons o f the N egro blood
or mixed N egro blood, or any other person or per
sons o f any race other than the white or Caucasian
race. It seeks to deprive them o f home and shelter,
without any fault on their part save the accidental
fact o f race and color. It might with equal right
have been directed against persons o f different speech
or religion or politics than that o f the covenators.
It might have been directed against persons o f d if
ferent com plexion or whose hair might have been o f
a different shade from that o f the covenantors. Noth
ing is m ore conducive to a disturbance of the public
peace than to give way to bias, prejudice and intoler
ance o f this character.
Apparently the covenantors were unwilling to rest
their agreement on the theory that proxim ity o f habi
tation to persons of the N egro race or blood was per se
objectionable. This is disclosed by the final para
graph wherein it is covenanted and expressly recog
nized that “ conditions now im possible to foresee m ay
in the future make a revocation o f the indenture de
sirable and necessary fo r the interests o f all parties
concerned.” Consequently it was provided that the
agreement might be revoked and annulled and the
land affected by the covenant freed from its operation
as com pletely as though it had never been executed
upon the recording o f an agreemnt to that effect exe
cuted “ by all the then owners o f the above described
land now owned by the parties hereto.”
This agreement bears 101 signatures. One hundred
of these covenantors or their successors m ight have
concluded that it was desirable and necessary that the
28
covenant should be revoked, and yet a single one of
the covenantors or his successor might, under the
terms o f this instrument, have stood in the w ay o f such
revocation and annulment, even though it had become
apparent one year thereafter or five years thereafter
that it was dsirable and necessary fo r the interests of
all concerned that the indenture should be revoked.
Can any agreement be imagined which conflicts more
with the public w elfare than one containing such a
p rov is ion ! It stands in the way o f the free and un
hampered disposition o f property. It constitutes what
is practically an absolute and unchangeable restraint
upon the alienation o f real property. The property
m ay not be rentable to persons o f the white race, and
yet the owners would be precluded from leasing or
disposing o f it. I f the covenant, instead o f running
fo r twenty-one years, were to run fo r fifty years or
a hundred years, or in perpetuity, the same conse
quences would result. A single objector would have
it in his pow er arbitrarily or from m ercenary motives,
or because o f insane hatred o f the N egro, to adopt a
dog in the manger policy and virtually keep this ex
tensive tract o f land out o f the market, preventing
development, and interfering with the proper housing
o f those who constitute twenty-five per cent o f the
entire population o f the City o f W ashington.
C. The covenant is so unreasonable and discrimina
tory that a court of equity will not enforce it.
The covenant is so contrary to the public policy and
discrim inatory without reasonable foundation fo r the
classification o f those excluded from the right to buy
that a court o f equity ought not to enforce it.
29
It seems inconceivable that so long as the legisla
ture refrains from passing such an enactment, a court
of equity may by its command compel the specific per-
fromance o f such a covenant and thus give the sanc
tion o f the judicial department o f the government to
enact what was not in the com petency o f its legisla
tive branch to authorize. W e cannot emphasize too
strongly that the immediate consequence o f the de
cree now under review is to bring about that which the
legislative and executive departments o f the govern
ment are powerless to accomplish. This decree has
all o f the force o f a statute; it has behind it the sov
ereign power o f the United States; it was not the
appellees but the sovereign power o f the national gov
ernment, speaking through the court below whence
emanated the mandate com pelling the appellants to
vacate the property they had purchased and to remove
therefrom their personal property and which has
permanently fo r a. period o f twenty-one years en
joined them from occupying their property and from
selling it to any N egro. In rendering this decree, the
court which pronounced it functioned with the same
authority to enforce its mandate as the executive and
legislative departments possess. It effectuates a pol
icy condemned by the Supreme Court o f the United
States in every case in which it has been attempted
by State legislative ^ction to bring about race segre
gation based solely on color. It is pronounced legal
fo r individuals acting collectively to accom plish by
indirection what those same individuals acting by
their representatives in state legislatures assembled
have been denied the right to do.
There can be no perm issible distinction between cit
izens based on race, creed or color i f we are to remain
30
a free and harmonious nation. To have it appear in
the judicial annals o f our courts that one part o f our
citizenry m ay enter into contracts which are derog
atory to another part is intolerable unless we are to
abandon our most cherished institution. I f the d iffer
ent elements constituting the body o f Am erican citi
zens can live together and serve under the same flag,
perform the same civic duties, pay the same taxes,
and cooperate in the development o f our national re
sources, to say that a part o f them shall not breathe the
same air or live in the same neighborhood or pursue
the same business as the other part because they are
colored, is to sow the seeds o f discord and tends to
destroy that unity and harm ony which should prevail
in a free country.
The restrictive covenant in the present case relates
to the ownership and occupation o f p roperty in a res
idential district. I f such a covenant is valid, then
what would prevent similar covenants in districts de
voted to industry and com m erce? W hat would there
be to prevent a similar covenant concerning the sale or
holding o f store property on B roadw ay in the City of
New York, on Pennsylvania Avenue in the C ity of
W ashington, on Chestnut Street in the City o f Phila
delphia, or on State Street in the City o f Chicago?
W hat would prevent such a contract in regard to land
devoted to mining, or to agriculture, or to forestation,
or any other human activity?
Follow ing the precedent created by the decision now
under review similar covenants may be made in all
parts o f the country restricting the sales and leases
o f land to N egroes or members o f the colored race.
B y means o f like covenants, differences might be made
between the rich and the poor, between members o f d if
31
ferent churches, between native and naturalized citi
zens, between those who have come from the north
and those from the south, or from the east and
the west.
The decision has within it the potentiality o f p ro
ducing such a chaotic condition as would tend to posi
tive public m isfortune and give rise to untold evils.
By what method is this covenant to be enforced? U n
der what test is the color line to be drawn? W here
does the N egro end and the Caucasion begin? Does it
mean that any person who has flowing in his veins a
single corpuscle o f N egro blood comes within the p ro
hibitions o f the covenant? W ould Alexander Dumas
and thousands o f others have been included in the
term “ N egro” because one o f their ancestors may
have been o f the colored race? H ow is the pretended
blood-taint to be ascertained? W ho shall determine
when colored blood changes its color? B y what m icro
scopic or biological test shall the courts determine
whether an intending purchaser o f premises comes
within the scope o f this covenant.
The appellees are seeking to enforce specific per
formance o f a negative covenant and in such an in
stance a court o f equity must look to it that the equita
ble interests o f all concerned are being conserved. In
the instant case can the follow ing facts be lost sight o f?
These appellants, the Newtons and Peterson, made
diligent inquiry to ascertain the condition o f the real
estate before signing the contract to purchase same
and found at that time that there was no covenant
of record against their purchase o f the property.
True it is that thereafter the covenant was placed
o f record and appeared in their deed but that
was not until the vendees had rendered themselves!
32
liable under the terms o f the contract o f purchase and
with the fact also to be emphasized that they had
knowledge o f the steps taken by the Bussells o f with
drawal concerning as it which they had every assur
ance that it was effective and operated to nullify the
effect o f the covenant referred to. In equity and good
conscience do not these appellants deserve to be freed
from the penalty o f this discrim inatory covenant
when they have exercised every diligence in avoiding
this situation, not only created by this unjust and in
equitable covenant, but rendered possible by the neg
ligent acts o f the appellees as well as their laches, if
such a term m ay be applied to their failure to do or
carry out the incidents o f this im proper plan, but
which, if it were to be carried out, should have been so
conducted as not to prejudice persons not parties
thereto an dnot by subsequent steps to affect persons
by enmeshing them in the terms o f a covenant, void
we say, but if binding not properly chargeable against
these appellants.
In the case o f Edgecomb v. Edmonston, 153 N. E.
99, Mr. Justice Pierce, o f the Supreme Judicial Court
o f Massachusetts, speaking on the proposition o f the
enforcem ent o f specific perform ance o f a negative
covenant, said :
“ * * * A suit in equity to enforce a negative
covenant is actually one fo r specific performance
while not so in form . Taylor Iron & Steel Co. v.
Nichols, 70 N. J. Equity, 541, 61 A . 736.
* * * * It has long been settled that equity will
not interfere to decree specific perform ance, ex
cept in cases where it would be strictly equitable
to make such a decree * *
33
II.
CASES INVOLVING PROPOSITIONS SIMILAR TO
THE PRESENT
This question o f residential segregation and espec
ially where it takes the form of a covenant in restraint
o f alienation, is not a new one. A discussion o f some
of the precedents established will be appropriate.
The subject o f such restraints is learnedly discussed
in DePeyster v. Michael, 6 N. Y . 497, by Chief Judge
Ruggles. He points out that they were o f feudal or
igin ; creative o f a violent and unnatural state o f
things, contrary to the nature and value o f property
and the inherent and universal love o f independence;
that they arose partly from favor to the heir and
partly from favor to the lord, “ and the genius o f the
feudal system was originally so strong in fa vor o f
restraints upon alienation, that by a general ord i
nance, mentioned in the B ook o f F iefs, the hand o f
him who wrote a deed o f alienation was directed to be
struck o f f ” (p. 498). To deal with this tyranny the
statute o f Quia Em ptores was enacted in 18 Edw ard
1, which provided “ that from henceforth it shall be
lawful fo r any freem an to sell, at his own pleasure,
his lands and tenements, or part o f them, so that the
feoffee shall hold the same lands and tenements o f the
chief lord o f the same fee, by such service and customs
as the feoffee held b e fore .”
In Potter v. Couch, 141 U. S. 296, 313, Mr. Justice
Gray sa id :
“ But the right o f alienation is an inherent and
inseparable quality o f an estate in fee simple.
In a devise o f land in fee simple, therefore, a con
dition against all alienation is void, because re
pugnant to the estate devised. Lit., Sec. 360; Co.
34
Lit., 206b, 223a; 4 K ent Com., 131; M cDonogh
v. Murdock, 15 How., 367, 373, 412. F or the same
reason, a limitation over, in case the first devisee
shall alien, is equally void, whether the estate he
legal or equitable. H ow ard v. Carusi, 109 U. S.
725; W are v. Cann, 10 B. & C., 433; Shaw & Ford,
7 Ch. D., 669; In re Dugdale, 38 Ch. D., 176; Cor
bett v. Corbett, 13 P. D., 136; Steib v. Whithead,
111 Illinois, 247, 251; K elley v. Meins, 135 Mass.,
231, and cases there cited. A nd on principle,
and according to the weight o f authority (notwith
standing opposing dicta in Cowell v. Springs Co.,
100 U. S. 55, 57, and in other books), a restriction,
whether by way o f condition or o f devise over, on
any and all alienation, although for a limited time,
o f an estate in fee, is likewise void, as repugnant
to the estate devised to the first taker, by de
priving him during that time o f the inherent
power o f alienation. R oosevelt v. Thurman, 1
Johns., Ch. 220; Mandlebaum v. M cDonnell, 29
Mich., 77; Anderson v. Cary, 36 Ohio St., 506,
Tw itty v. Camp, Phil. Eq. (No. Car.) 61; In re
Rosher, 26 Ch. D. 801.”
Especial attention is called to the exhaustive opin
ion in Manniere v. Welling, 32 R. I., 104, where many
cases are cited and ably reviewed, and where one of
the im portant conclusions reached in the case next
to be cited was adopted:
“ W e are entirely satisfied there has never been
a time since the statute quia em ptores when a
restriction in a conveyance o f a vested estate in
fee simple, in possession or remainder, against
selling fo r a particular period o f time, wTas valid
by the common law. A nd we think it would be
unwise and injurious to admit into the law the
principle contended fo r by the defendant’s counsel,
that such restrictions should be held valid, if
35
imposed only fo r a reasonable time. It is safe to
say that every estate depending upon such a ques
tion would, by the very fact o f such question ex
isting, lose a large share o f its market value. W ho
can say whether the time is reasonable, until the
question has been settled in the Court o f last re
sort ; and upon what standard o f certainty can the
Court decide it? Or, depending as it must upon
all the peculiar facts and circumstances o f each
particular case, is the question to be submitted
to a ju ry? The only safe rule o f decision is to
hold, as I understand the common law fo r ages
to have been, that a condition or restriction which
would suspend all power o f alienation fo r a single
day, is inconsistent with the estate granted, un
reasonable and v o id .”
Equally im portant is the classic opinion o f Mr. Jus
tice Christiancy in Mandlebaum v. McDonell, 29 Mich.,
79, from which the foregoing excerpt is taken. That
decision was approved not only by the Supreme Court
of the United States in Potter v. Couch, 141 U. S., 315,
316, but also by the English Couart o f Chancery, in
Re Rosher, L. R. 26 Ch. Div., 801, an unusual com pli
ment, especially since it resulted in the rejection o f
an earlier decision by Sir George Jessel in Re Mac-
leay, L. R. 20 Eq., 186.
In Rennett v. Chapin, 77 Mich., 527, it was held that
when a restriction in a conveyance o f a vested estate
in fee simple, in possession or remainder, is against
selling fo r a particular time, such restriction is invalid.
Mr. Justice Long said:
“ Such restraints are not favored in the law. It
is true that many restrictions or qualifications
upon the rights o f the devisee or grantee m ay
be made effectual by making the estate itself de
36
pendent upon such con d ition ; but where the estate
granted is absolute, such restriction can impose no
legal obligation upon the devisees, or limit their
power over the estate, when the observance or
violation o f the restriction can neither promote
nor prejudice any interest but their own. This
rule was very fu lly discussed by the Court in
Mandlebaum v. M cDonell, 29 Mich., 87, and in
support o f this principle the Court cited Hall v.
Tufts, 18 Pick. 459; Bank v. Davis, 21 Id., 42;
Brandon v. Robinson, 18 Ves. 429; D oebler’s A p
peal, 64 Pa. St., 9 ; Craig v. W ells, 11 N. Y . 315.
Aside from these reasons, however, we think
the restrictions upon the sale cannot be upheld.
No such restrictions are valid. W hen a restric
tion in a conveyance o f a vested estate in fee sim
ple, in possession or remainder, is against selling
fo r a particular time, such a restriction is in
valid. W hen a person is entitled absolutely to
property, any provision postponing its transfer
or payment to him is v o id .”
In Gondolfo v. Hartman, 49 Fed. Rep. 181, a coven
ant in a deed not to convey or lease land to a Chinaman
was held to be void as contrary to the public policy of
the Government and as not enforceable in equity.
In Title Guarantee & Trust Co. v. Garott, 42 Cal
A pp. 150, 152, the Court refused to enforce a condi
tion in a ded providing fo r forfeiture in case o f the
sale or lease o f property to any person o f African,
Chinese or Japanese descent, the Court said (p. 157):
“ The rule that conditions restraining aliena
tion, when repugnant to the estate conveyed, are
void, is founded on the postulate that the convey
ance o f a fee is a conveyance o f the whole estate,
that the right o f alienation is an inherent and
inseparable quality o f an estate in fee simple, and
37
that, therefore, a condition against alienation is
repugnant to and inconsistent with, the estate con
veyed. To transfer a fee and at the same time
reastrain the free alienation o f it is to say that
a party can grant and not grant, in the same
breath. But the rule is not founded exclusively
on this principle o f natural law. It rests also
on grounds o f clear public policy and convenience
in facilitating the exchange o f property, in sim
plifying its ownership, and in freeing it from em
barrassments which are injurious not only to the
possessor, but to the public at la rge .”
A t page 160:
“ I f the continuation o f the estate in the grantee
may be made to depend upon his not selling or
leasing to persons o f A frican , Chinese, or Jap
anese descent, it m ay be made to depend upon
his not selling or leasing to persons o f Caucasian
descent, or to any but A lbinos from the heart of
A frica , or blond E skim os.”
“ It is im possible on any known principle to
say that a condition not to sell to any o f a very
large class o f persons, such as those embraced
within the category o f descendants from A frican ,
Chinese, or Japanese ancestors, shall not be
deemed an unreasonable restraint upon aliena
tion, but that the proscribed class m ay be so en
larged that finally the restriction becomes un
reasonable and void. W here shall the dividing
line be placed? W hat omniscience shall tell us
when the restraint passes from reasonableness to
unreasonableness? W ho can know whether he
has title to land until the question o f reasonable
ness has been passed upon by the court o f last
resort? No matter how large or how partial and
infinitesimal the restraint m ay be ; the principles
o f natural right, the reasons o f public policy, and
that principle o f the common law which forbids
38
restraints upon the disposition o f on e ’s own prop
erty, are as effectually overthrown by the one as
by the other.”
A petition to have the case heard in the California
Suprem e Court was unanimously denied September
8, 1919.
In the opinion subsequently rendered in Los Angeles
Investment Co. v. Gary, 181 Cal., 680, the Court re
ferred in terms o f praise and approval to the opinion
o f Judge Finlayson in Title Guarantee & Trust Co.
v. Garrott, adding:
“ The decision in that case was presented to us
fo r consideration by a petition fo r rehearing, and
the petition was denied because o f our conclusion
that the decision was correct, a conclusion from
which we see no reason fo r departing.”
Consequently the Supreme Court o f California like
wise decided that a condition or covenant that prop
erty conveyed “ shall not be sold, leased or rented
to one not o f the Caucasian race until after January
1, 1930” , was void at com mon law as against public
policy, irrespective o f the fact that the restraint on
alienation was but partial and was lim ited to persons
o f a particular class or to a com paratively brief
period.
In State v. Darnell, 166 N. C. 300, 302, 303, 81 S. E.
Eep. 338, an ordinance was adopted by the B oard of
A lderm an o f W inston, N. C., pursuant to a provision
o f the city charter authorizing them to pass any or
dinance which they deemed proper fo r the good order
and general w elfare o f the city i f it does not contra
vene the laws and the Constitution o f the State, which
39
made it unlawful fo r any colored person to occupy
as a residence any house upon any street on which a
greater number o f houses are occupied by white people
than are occupied by colored people, and containing
a similar provision as to whites. This ordinance was
declared void in an interesting opinion by Chief Jus
tice Clark, who pointed out that such legislation was
similar in its character and tendency to that which
years ago prescribed in Ireland limits beyond which
the native Irish or Celtic population could not reside,
thus creating what was called the “ Irish P a le ” , and
similar more recent legislation in Czaristic Russia,
where the Jews were restricted in the right o f residence
in a limited territory known as the so called Jewish
Pale o f Settlement. In each instance the consequences
were tragic and resulted in infinite harm, and con
stituted powerful incentives to disorder and revolu
tion. The follow ing passage in his opinion calls at
tention to the underlying vice o f the ordinance then
under consideration, in terms which we regard as
equally applicable to the covenant involved in the
present case:
“ W e do not think that the authority conferred
by Section 44 o f the Charter to enact ordinances
fo r the ‘ general w elfare o f the c ity ’ can justly he
construed as intended by the Legislature to au
thorize an ordinance o f this kind which establishes
a public policy which has hitherto been unknown
in the legislation o f our State. To do so would
give the words ‘ general w elfa re ’ an extended and
wholly unrestricted scope which we do not think
the Legislature could have contem plated in using
those words. I f the B oard o f Alderm en is thereby
authorized to make this restriction a bare m ajor
ity o f the board could, i f they m ay ‘ deem it wise
40
and p rop er ’ , require Republicans to live on cer
tain streets, and Democrats on others, or that
Protestants shall reside only in certain parts of
the town, and Catholics in another, or that Ger
mans or people o f German descent should reside
only where they were in the m ajority, and that
Irish and those o f Irish descent should dwell only
in certain localities, designated fo r them by the
arbitrary judgm ent and perm ission o f a m ajority
o f the aldermen. They could apply the restriction
as well to business occupations as to residences,
and could prescribe the localities allotted to each
class o f people without reference to whether the
m ajority already therein is o fthe proscribed race,
nationality, or political or religious faith.
“ Besides, an ordinance o f this kind forb ids the
owner o f property to sell or to lease it to whom
soever he sees fit, as well as forb ids those who may
be desirous o f buying or renting property from
doing so where they can make the best bargain.
Y et this right o f disposing o f property, the jus
disponendi, has always been held one o f the in
alienable rights incident to the ownership o f prop
erty which no statute will be construed as having
power to take aw ay.”
It has been frequently laid down that even a re
striction as to the manner o f using land, in order to
be valid, must not be contrary to public policy.
Whitney v. Union Railway Co., 11 Gray, 359;
DeGray v. Monmouth Beach Club House Co.,
50 N. J. Eq. 329, 24 Atl. Rep. 388;
Brewer v. Marshall, 19 N. J. Eq. 537.
In the recent case o f Porter v. Barrett, 233 Mich.
373, 206 N. W . Rep. 532, a contract fo r the sale of
lots contained the follow ing covenant:
41
“ This land is sold upon express condition that
the business o f m anufacturing or selling intox
icating liquors shall never be conducted thereon,
or on any part th ereo f; that no slaughter house
or nuisance o f any kind, or any other thing ob
noxious to a good residence neighborhood shall
ever be allowed on such land, and the same shall
never he sold or rented to a colored person.”
The vendors subsequently sought to recover pos
session o f the lots because o f forfeiture fo r the v io
lation by assignees o f the contract o f the provision not
to sell to a colored person. It was held that this p ro
vision was invalid. W e are not unmindful that the
covenant above referred to made the restriction
against sale and rental to colored persons perpetual,
using the word “ never” and that the instant case has
to do with a covenant mentioned as running fo r a
period o f twenty-one years, but we respectfully sub
mit that the opinion o f the learned Court covers the
type o f case which we are here considering. The Opin
ion of Mr. Justice Fellow s is most instructive and com
prehensive. He sa y s :
“ Restraints on alienation are o f feudal origin.
But as early as the reign o f Edw ard I there was
a marked change in England brought about by
the enactment o f the statute quia em ptores (18
Edward I, 235) which in part provided : ‘ That
from henceforth it shall be lawful to every free
man to sell at his own pleasure his lands or tene
ments or parts th ereof: So nevertheless that
the feoffee shall hold the same lands or tenements
o f the same chief Lord o f the Fee, and by the
same services and customs as his feoffer held
them b e fo re ’ . Littleton said (2 Coke upon L ittle
ton, 223 ): ‘ A lso, i f a feoffm ent be made upon this
42
condition, that the feoffee shall not alien the land
to ayn, this condition is void, because when a man
is enfeoffed o f land or tenements (pur ceo que
quant home est enfeoffee de terres on tenements),
he hath power to alien them to any person by the
law. F or if such a condition should be good, then
the condition should oust him o f all the power
which the law gives him, which should be against
reason, and therefore such a condition is vo id .’
The spirit o f the statute quia emptores, to re
lieve the landlord from fetters placed on him and
his lands by restraint upon alienation, has been in
the main accepted and enforced by the courts of
England from an early day. Out o f line, however,
with this spirit is the case o f Doe d. Grill v. Pear
son, 6 East. 173, where a restraint upon aliena
tion except to the devisee ’s sister was sustained.
This case has been referred to as leading one by
those courts which have sustained the right to par
tially restrain alienation, but the court in Att-
water v. Attw ater, 18 Beav. 330, where the re
striction was quite similar, expressly declined to
follow it, and held the restrictions void on the
authority o f Littleton, above mentioned.
In this country some o f the courts have recog
nized the validity o f restraints on alienation for
a limited time or to particular persons. No doubt
a statement o f Littleton, to which we shall later
refer, prom pts such holding, and the statement
o f Justice F ield in Cowell v. Springs Co., 100
U. S. 55, is frequently cited to the same effect.
H e there said : ‘ Conditions which prohibit its al
ienation to particular persons or fo r a limited
period, or its subjection to particular uses, are
not subversive o f the estate. They do not destroy
or limit its alienable or inheritable character.’
But an examination o f the case then before the
court shows that the question involved was a re
striction o f the use o f the prem ises fo r the manu
facture and sale o f intoxicating liquors and that
43
the statement o f the learned justice was but d ic
tum .”
The decisions in Anderson v. Cary, supra, Manierre
v. Welling, supra, Gray on Restrictions on Alienation,
Second Edition, p. 41, and DePeyster v. Michael,
supra, are then referred to, and the opinion p roceed s:
“ Now if a restraint on alienation fo r a single
day is bad, how can it be said that a restraint on
alienation to a large class o f citizens or to a small
one, or even to one, is good? I f it is not fo r the
courts to determine what would be a reasonable
time to restrain alienation, how can it be left to
the courts to say whether a restraint on aliena
tion to a class is reasonable or not? W e must bear
in mind that we are not dealing with a restraint on
the use o f the premises. Such restraints unless
unreasonable have quite uniform ly been upheld.
B efore the sale o f intoxicating liquor was prohib
ited this court and practically every court o f last
resort in the Union upheld restraints o f the use
o f the premises fo r its m anufacture or sale. Such
a restraint upon the use was uniform ly upheld;
but would a restraint on sale o f premises to one
who was engaged in the sale o f intoxicating liq
uors elsewhere be valid? I think not. Restraints
upon the erection o f m anufacturing plants in res
idential districts have uniform ly been upheld, but
would a restraint o f sale to one engaged in the
manufacturing business be valid? I think not.
Restraint on the occupancy o f prem ises in resi
dential districts by colored people has been up
held by this court. Parm alee v. M orris, 218 Mich.
625,188 N. W . 330. Does it fo llow that a restraint
upon the right to sell property to a colored man
is valid ? I think not. I think the holding and the
reasons fo r the holding in M andlebaum v. M c-
Donell, 29 Mich 79, precludes us from sustaining
as valid the restrictions before u s .”
44
In Johnson vs. Preston, 226 111. 447, which was also
cited in Porter v. Barrett, supra, it is said:
“ The general rule is that where a devise is
made in fee, either o f a legal or equitable interest,
all limitations tending to deprive the estate o f any
o f the incidents appertaining to the interest cre
ated are held to be repugnant to the devise, and
void. T o transfer a fee and at the same time to
restrict the free alienation o f it is to say that a
party can give and not give in the same breath.”
In M iller v. Jersey Coast Resorts Corporation, 98
N. J. Eq. 289, 130, Alt. Eep. 824, a similar question
was considered indicating to what length it m ay be
attempted to carry restrictions. There, too, the effort
was unsuccessful.
It m ay be claimed that the covenant in this case not
only prohibits the parties to it from selling, conveying,
leasing, renting or giving the land belonging to them
respectively to N egroes or any person or persons of
the N egro blood or race, but that it also forb ids the
use or occupancy o f the land by any person o f that
description. The inherent vice o f this covenant, that
o f restraint on alienation, taints the covenant in its
entirety. In essence the scheme which is sought to be
effectuated offends a sound public policy, and the com
bination, or, as one m ay properly say, the conspiracy,
in which the several covenantors are engaged invali
dates every part o f the instrument. That that which
is void or illegal in part is void or illegal in toto is a
well-established principle sustained by a wealth of
authority.
W e finally urge, in the instant case, that the appel
lants were not parties to the covenant. They are the
45
victims o f its prohibitions. It is an impairment of
their right to acquire real property as conferred by
Section 1978 o f the Revised Statutes, and, conse
quently, it is believed that a court o f equity should
not make itself a party to effectuate the scheme where
by it is sought to deprive them o f the rights secured
to them by the Constitution and the statutes o f the
United States and its public policy.
4 P om eroy ’s Equity Jurisprudence, 3d ed., Secs.
1404, 1405
Cathcart v. Robinson, 5 Pet. 263.
Hennessy v. Woolworth, 128 U. S. 438, 442
Pope Mfg. Co. v. Gormully, 144 U. S. 236, 237
Curran v. Holyoke Water Co., 116 Mass. 90.
III.
I. NO EFFECTIVE COVENANT HAS EVER
BEEN EXECUTED
W hile the fundamental propositions involved above
discussed by us are o f the most vital im portance, we
none the less likewise rely upon the propositions re
ferred to in the brief o f the appellants, Russell. The
emphasis placed by them upon the testimony adduced,
and set forth at length in their argument is likewise
here invoked by us, without indulging in repetition.
The evidence clearly shows that the Russells legally
withdrew from the covenant. W e believe with them
that the covenant at the time o f its recordation had
not been signed and acknowledged by all the property
owners on Randolph Place between North Capitol and
First Streets, Northwest, a condition precedent under
its own terms to its effectiveness, and has never been
properly signed and acknowledged.
46
W e endorse their argument that the appellants New
ton and Peterson should not be bound by the covenant,
even if one m ay be taken as being validly executed,
but that their rights are superior to the rights o f the
appellees. A reference to the B ecord page will
show that the appellants Newton and Peterson did
everything possible to guard against the very situation
in which they now find themselves. Begardless o f the
illegality o f the covenant, they did not desire to buy a
law suit, and so the representations made to them by
the Bussells and upon which they relied were veri
fied by them to their own satisfaction and to an extent,
we submit, which evidenced their bona fide desires to
secure a home which they rightfully might call their
own, in keeping with their means and o f such a char
acter as would ju stify their efforts. The Bussells
owned such a home and were w illing to sell to them
at a figure which was agreeable.
But the Bussells with the apparent desire to be open
and above board in their dealings acquainted the New
tons and Peterson with the connection which they, the
Bussells, had had with a so called “ W hite Covenant”
covering their property, advising that they had signed
but had withdrawn from same. That they did so
withdraw our co-appellants have ably called to the
attention o f this H onorable Court in their brief which
upon this subject we adopt. A s there argued, not
only they, but the appellees acted on the theory that
they had so withdrawn, fo r i f this were not so why
the visit o f M elling to the Bussells after receipt of
the notice o f w ithdrawal from the covenant, with the
offer to rent, sell, or procure loans on the B ussells ’
property.
There can be no question but that at the time that
47
the Newtons and Peterson contracted to buy the prop
erty that they were convinced that the Russells had
successfully withdrawn from the covenant. They were
shown the statement required by the Russells as to
the conditions under which the covenant would become
effective with its emphasis upon the fact that record
ation o f the covenant after all the property owners on
Randolph Place between North Capitol and F irst
Streets, Northwest, had signed and acknowledged
same, would be the condition precedent. They were
inform ed o f the letter o f withdrawal sent in by the
Russells and for their benefit a search was instituted
which revealed that no covenant had been recorded
prior to the time o f their contract o f purchase. Then
it was that the contract o f sale was executed and, as
this Honorable Court has said in no unmistakable
terms in numerous decisions referred to by our co-
appellants, the equitable title to the property passed
to the Newtons and Peterson.
Not until after this was done, and in spite o f the
steps of withdrawal by the Russells, did the appellees
busy themselves and, with wholesale acknowledgments,
i f they may be so termed, and the obtaining o f sig
natures o f persons who, we submit, did not properly
qualify under the terms o f the covenant as “ property
owners on Randolph Place between North Capitol and
First Streets, N orthwest,” record the covenant prior
to the time o f the filing o f the deed from the Russells
to the Newtons and Peterson. Could there have been
a more significant m ove? Did it not betray all o f the
fallacies o f the position o f the appellees? I f there
were nothing else in the case other than the question
of the time which had elapsed between the signing by
48
the Russells and the time o f their written withdrawal
and the fact that subsequent to this withdrawal and
before the alleged covenant was recorded that the
contract o f sale was entered into between the Russells
and the Newtons and Peterson, would it not sufficiently
show that there was no covenant upon which the ap
pellees could base their contention?
I l l
IT IS R E S P E C T F U L L Y S U B M IT T E D TH AT
T H E D E C R E E A P P E A L E D PR O M SH OU LD IN
A L L R E S P E C T S B E R E V E R S E D A N D THE
C O M P L A IN T D IS M IS S E D , W IT H CO STS.
W illiam E. L eahy
George E. L. H ayes
E rnest J. Davis
E dmund M. T oland
(Local Counsel)
Louis Marshall
A rthur B. Spingarm,
O f Counsel.
NEW YORK CITY
Supreme (Hourt of % Mtttlpfc States
October Term, 15)28.
No.
EDGAR T. NEW TON, SARAH P. NEW TON and
RO BERT W. PETERSON,
Petitioners,
against
FR AN K S. W A LLA CE and others,
Respondents.
Ox Petition for a W rit of Certiorari to the Court of
Appeals of the District of Columbia.
NOTICE, PETITION FOR W RIT OF CERTIORARI
AND BRIEF IN SUPPORT OF PETITION.
LOUIS M ARSH ALL,
W IL L IA M E. LE AH Y,
GEORGE E. C. H AYES,
Petitioners’ Counsel.
- ~~ ' —
The Hecla Press, 225 Varick St., N. Y. Tel. W alker 1480.
SUBJECT INDEX.
PAGE
Notice o f Application for W rit of Certiorari........... 1
Petition for W rit of Certiorari.................................... 3
Certificate of Counsel........................................................... 8
Petitioners’ B rie f................................................................... 0
POINTS
1. The covenant sought to he enforced by the de
cree herein is (a ) an unlawful restraint of
alienation and (b) an unlawful restraint of
trade, and, therefore, contrary to public policy
and v o id ......................................................................... 11
II. The so-called “ neighborhood covenant” here
sought to be enforced is so contrary to public
policy as evidenced by the spirit of the Con
stitution, the Acts of Congress and court de
cisions, and is so unreasonable and discrimina
tory, that a court o f equity could not enforce it
without doing violence to fundamental concep
tions o f justice................................................. ............ 16
III. The petitioners respectfully pray that their ap
plication for a writ of certiorari be gran ted .. 17
' PAGE
Anderson v. Carey (36 (). St. 5 0 6 )................................ 12
Attwater v. Attwater (18 Beaven 3 3 0 )........................ 11
Barnard v. Bailey (2 Harrington [Del.] 5 6 ) ............... 12
Bennett v. Chapin (77 Mich. 5 7 7 )................................ 11
Billing v. W elch (I. R. 6 Common Law 8 8 ) ............. 11
Brothers v. McCurdy (36 Pa. St. 4 0 7 )........................ 12
Buchanan v. W arley (245 IT. S. 6 0 ) ............................ 12
Carey v. City o f Atlanta (143 Ga. 1 9 2 )...................... 12
Corrigan v. Buckley (271 U. S. 3 2 3 )............................ 6
De Peyster v. Michaels (0 X. Y. 4 9 7 )........................ 11
l)r. Miles Medical Co. v. Park & Sons Co. (220 U. S.
373 ).......................................................................................... 13
Edgeeomb v. Edmonston (257 Mass. 1 2 ) .................... 17
Gondolfo v. Hartman (49 Fed. Rep. 1 8 1 ).................... 12
Harmon v. Tyler (273 U. S. 6 6 8 )................................. 12
Horner v. Graves (7 Bing. 7 3 5 )..................................... 13
Horwood v. Millars Timber & Trading Co., Ltd.
(1917) ( I K . B. Div. 3 0 5 ) ........................................... 15
Johnson v. Preston (226 111. 447, 4 6 2 )........................ 12
Mandlebaum v. M cDonell (29 Mich. 7 7 ) ................... 11,13
Manierre v. W elling (32 R. I. 1 0 4 )............................. 11,13
Mason v. Provident Clothing Supply Co. (1913)
(App. Cas. 724, 7 4 5 )......................................................... lb
Miller v. Jersey Coast Resorts Corporation (98 X. J.
Eq. 2 8 9 )................................................................................ 12
McCullough's Heirs v. Gilmore (11 Pa. St. 3 7 0 ) . . . 11
Xordenfeldt v. Maxim Nordenfeldt & Co. (1904)
(A. C. 565)
CASES CITED.
13
PAGE
Pardue v. Givens (54 X. C. 3 0 6 )..................................... 12
Porter v. Barrett (233 Mich. 3 7 3 )................................. 12
Potter v. Couch (141 U. S. 296, 3 1 3 ).............................. 11
Kenaud v. Tourangeau (L. R. 2 P. C. App. 4 ) ......... 12
Kosher, Re (L. R. 26 Ch. Div. 8 0 1 ).............................. 11
Schermerhorn v. Negus (1 Denio 1 4 8 ).......................... 11
Smith v. Clark (10 Md. 1 8 6 )........................................... 11
State v. Darnell (196 N. C. 3 0 0 )..................................... 12
State v. Gurry (121 Md. 5 3 4 )........................................... 12
Test Oil Co. v. La Tourette (19 Okla. 2 1 4 )................. 13
Title Guarantee & Trust Co. v. Garott (42 Cal. App.
150, 152)................................................................................ 12
United States v. Addyston Pipe Co. (85 Fed. Rep.
271, ail’d 175 U. S. 2 1 1 )................................................ 13
W illiams v. Jones (2 Swan [Tenn.] 6 2 0 ).................... 12
STATUTES AND TEXTBOOKS.
Corpus Juris 13, Title “ Contract,” Secs. 400, 4 7 7 ... 14
United States Code, Title 8, Secs. 41 and 42 ............... 8
United States Revised Statutes, Secs. 1977 and 1978. 8
i v
^atpremp (Eaurt nf tlj? States
Please take notice that upon the petition of Edgar T.
Newton, Sarah P. Newton and Robert W . Peterson, and
a certified copy of the entire transcript of the record in
this cause herewith submitted, and also the brief of the
petitioners hereto annexed and also to be submitted on the
presentation of the petition, an application will be made
to the Supreme Court of the United States for a writ of
certiorari to be directed to the Court of Appeals of the Dis
trict of Columbia, wherein the record is now lodged, to
review the determination of said Court rendered on Feb
ruary 4, 1929, which affirmed the judgment of the Supreme
Court of the District of Columbia rendered on March lit,
1928, whereby it was adjudged that the covenant set forth
in the original and amended bills of complaint tiled for
record in the office of the Recorder of Deeds of the District
October Term, 1928.
Edgar T. Newton, Sarah P. Newton
and Robert W . Peterson,
Petitioners,
against
Frank S. W allace et al.,
Respondents.
Sirs:
Of Columbia on May 28, 192G, is a valid covenant, and
granting other relief.
Dated, Washington, 1). C., April 30, 1929.
Yours, &c.,
LOUIS M ARSHALL,
W IL L IA M E. LE AH Y,
GEORGE E. C. H AYES,
Attorneys and Counsel
for Petitioners.
T o:
Jesse C. Adkins, Esq.,
Frank F. Nesbitt, Esq.,
Respondents’ Attorneys,
Washington, D. C.
Supreme Qlnurt of tlje Mnit?b States
To the Honorable Chief Justice and Associate Justices of
the Supreme Court of the United States:
The above-named petitioners, Edgar T. Newton, Sarah
P. Newton and Robert W. Peterson, pray for a writ of
certiorari to review the determination of the Court of
Appeals of the District o f Columbia rendered on February
4, 1929, affirming the judgment of the Supreme Court of
the District of Columbia rendered on March 13, 1928,
whereby it was adjudged that the covenant set forth in
the original and amended bills o f complaint filed for record
in the office of the Recorder of Deeds of the District of
Columbia on May 28, 1926, hereinafter referred to, is a
valid covenant; that the deed from Edward G. Russell
and Susie R. Russell to the petitioners was vo id ; that
the petitioners be ordered and enjoined to remove them
selves and all their personal property from the premises
described in such deed, and that they be perpetually en-
October Term, 1928.
E dgar T. Newton, Sarah P. Newton
and Robert IV. Peterson,
against
F rank S. W allace et. al.,
Respondents.
Petitioners,
4
joined for a period of twenty-one years from February G,
1925, from holding or attempting to hold title to or posses
sion of the premises by any transfer or conveyance or
attempted transfer or conveyance of either the title to or
possession of the premises to them or either of them, and
that they be perpetually enjoined from renting, leasing,
selling, transferring or conveying to any Negro or colored
person such premises, and from occupying the same. And
your petitioners respectfully show :
First: The action is based upon the contention that on
February G, 1925, one hundred and one of the then owners
o f real estate situated on Randolph Place, N. W ., between
First Street and North Capitol Street, on both sides o f
the street, the property being part of Squares 3102 and
3105, entered into the following covenant:
“ Now, therefore, in consideration of the premises
and the mutual benefits to arise to the parties here
to from the execution and taking effect of this in
denture, as above recited and otherwise, and of the
sum of five dollars by each of said parties to the
other in hand paid, the receipt whereof is acknowl
edged, said parties do hereby mutually agree,
promise, and covenant, each with the other, and
for their respective heirs, assigns, and successors
in interest, that no part of the land now owned by
the parties hereto in said square (a more definite
description o f said land being given by lot and
square numbers after the respective signatures
hereto) shall be, during the life of this indenture,
used, or occupied by, or sold, conveyed, leased,
rented, or given to Negroes or any person or persons
of the Negro blood or mixed Negro blood, or to any
other person or persons of any race other than the
■white or Caucasian race; * * * When so acknowl
edged and recorded this covenant and. indenture
shall run with the land, and, unless sooner revoked
as provided, below, shall bind the respective parties
hereto, their heirs, assigns, and. successors in inter
est, for the period of twenty-one years from and
after the date hereof.
It is further covenanted and agreed by, between
and among the said parties that inasmuch as con
ditions now impossible to foresee may in the future
make a revocation of this indenture desirable and
necessary for the best interests o f all parties con
cerned, the same may be revoked and annulled, and
the land affected by it freed from the operation
thereof as completely as though it had never been
executed, upon the recording in the office o f said
Recorder of Deeds o f an agreement to that effect
signed and duly acknowledged before a Notary
Public or other officer authorized to administer
oaths in such cases, by all the then owners of the
above described land now owned by the parties
hereto.”
The Russells, who were parties to the covenant, con
veyed the premises owned by them and described opposite
their signatures, as covenantors, to the petitioners, who
are persons o f Negro blood and not of the white or Cau
casian race, who entered into possession of the property.
The respondents, who are likewise parties to the covenant
and are owners of other lands to which it applies, brought
this action for the relief granted them by the decision of
the Supreme Court of the District o f Columbia on March
13, 1928, and which was affirmed by the Court of Appeals
o f the District o f Columbia on February 4, 1929, wherein
the record is now lodged.
Second : A certified copy o f the transcript of record in
the Court below, including the opinion rendered by the
Court of Appeals, accompanies this petition.
Third : In the Courts below the petitioners contended
unsuccessfully (1 ) that the covenant sought to be enforced
constituted (a ) an unlawful restraint upon alienation,
and (b ) an unlawful restraint of trade and commerce and
is therefore contrary to public policy and void ; (2 ) that
the covenant is so opposed to public policy as evidenced
by the spirit o f the Constitution o f the United States, the
Acts of Congress and the weight o f judicial authority, and
is so unreasonable and discriminatory that a court of
0
equity by enforcing it would do violence to fundamental
conceptions of justice; (3 ) that the respondents have re
sorted to a court of equity to enforce a covenant which is
oppressive and unreasonable and lacking in equity, are not
entitled to the relief prayed for.
Fourth : In overruling the contentions of the peti
tioners in this cause the Court of Appeals of the District
o f Columbia decided questions o f general importance
which have not been, but should be, settled by this Court.
Fifth : In Corrigan v. Buckley, 371 U. S. 323, these
questions were sought to be presented to this Court, but
the case was brought up by appeal from the decree ren
dered in that action, and no application for a writ of
certiorari having been made, this Court, holding that the
constitutional questions presented were not o f such a
nature as to confer jurisdiction of the appeal, declined to
pass on the questions now sought to be reviewed by writ of
certiorari in the present case.
In the concluding paragraph of the opinion of the Court
in Corrigan v. Buckley, rendered by Mr. Justice Sanford,
it is sa id :
“ i t results that, in the absence o f any substantial
constitutional or statutory question giving us juris
diction of this appeal under the provisions o f Sec
tion 250 of the Judicial Code, we cannot determine
upon the merits the contentions earnestly pressed
by the defendants in this court that the indenture
is not only void because contrary to public policy,
but is also of such a. discriminatory character that
a court o f equity will not lend its aid by enforcing
specific performance of the covenant. These are
questions involving a consideration o f rules not ex
pressed in any constitutional or statutory provision,
but claimed to be a part o f the common or general
law in force in the D istrict o f Columbia; and, plain
ly, they may not be reviewed under this appeal un
less jurisdiction of the case is otherwise acquired.
Hence, without a consideration o f these questions,
the appeal must l>e, and is dismissed for want of
jurisdiction.”
7
Concurrently with this petition there is submitted a
petition by Henry A. Cornish et al. v. Patrick O'Donogh u-e
ct al. to review another decision o f the Court of Appeals
o f the District o f Columbia which relates to a covenant
contained in a conveyance which provided that the prem
ises “ shall never be rented, leased, sold, transferred or con
veyed unto any negro or colored person.” The brief in
that case discusses the questions presented in this petition.
To avoid repetition the Court is respectfully referred to
that document.
The questions sought to be reviewed in both cases involve
a consideration of the statute of quia emptores and numer
ous decisions in various Courts relevant to the doctrine
derived therefrom. Among these are decisions, which pe
titioners believe sustain their contentions, rendered in this
Court, in the highest courts o f the States of New York,
Rhode Island, Michigan, Maryland, Pennsylvania, Ohio,
Delaware, Tennessee, Massachusetts, North Carolina, W is
consin and Illinois and in various o f the courts of England.
Decisions specifically relating to covenants forbidding
the sale, conveyance or lease of property to those of Negro,
Chinese or Japanese descent, and which declare such cove
nants void, have been rendered in the United States Dis
tinct Courts and in the courts of California, Michigan,
Illinois and New Jersey. Decisions holding that statutes
or ordinances seeking to segregate as to habitation persons
o f different race and color are illegal have also been ren
dered in this Court and in the Supreme Courts o f North
Carolina, Maryland and Georgia. There have also been
decisions claimed to be opposed to the authorities referred
to, which the petitioners believe to be either unsound or
distinguishable, in the Court of Appeals of the D istrict
of Columbia and in the Supreme Courts of California,
Louisiana, Missouri and Michigan.
The question is one which affects directly or indirectly
not only thousands of Negroes in all parts of the country,
but also those of various other races, and citizens of
diverse national origins, and of different religious creeds.
s
The subject is one presenting- serious considerations of
public policy and as to the exercise of equity jurisdiction.
The interpretation of Sections 1977 and 197S of the
United States Revised Statutes, now Sections 41 and 42
of Title 8 of the United States Code, also becomes perti
nent.
In support of petitioners' contentions reference is made
to the annexed brief, which is made a part hereof.
W herefore, petitioners pray that a writ of certiorari
may issue out of and under the seal of this Honorable
Court directed to the Court of Appeals of the District of
Columbia, commanding said Court to certify to this Court
for review and determination, as provided by law, a full
and complete transcript of the record o f all proceedings
below, and that the petitioners may have such further
relief in the premises as to the Court may seem appro
priate and in conform ity with the statute. And your peti
tioners will ever pray.
Dated, Washington, D. C., April 30, 1929.
ED G AR T. NEW TON,
SAR AH P. NEW TON,
RO BERT W. PETERSON ,
Petitioners,
By Louis Marshall,
Their Attorney.
Louis Marshall,
W illiam E. Leahy,
George E. C. Hayes,
Attorneys and Counsel for Petitioners.
Certificate of Counsel.
I hereby certify that in my opinion the foregoing peti
tion for writ of certiorari is well founded in law.
LOUIS M ARSH ALL,
Counsel for Petitioners.
(four! of tli? llttitpfo States
Edgar T. Newton, Sarah P. Newton
and Robert H. Peterson,
Petitioners,
against
Frank S. W allace and others,
Respondents.
October Term,
1928.
No.
PETITIONERS’ BRIEF.
As stated in the petition, this is a. companion case of
Cornish v. O’Donoghue, in which a petition for allowance
of a writ o f certiorari is submitted concurrently. In the
latter case the covenant was contained in a series of deeds
executed by the original owners of a tract of land, which
provided that the property conveyed “ shall never be rented,
leased, sold, transferred or conveyed unto any negro or
colored person, under penalty of f 2,000, which shall be a
lien against said property.”
In the present case the covenant was entered into by
the owners of various lots located in the same neighbor
hood, whereby the several parties agreed that no part of
the land “ shall, during the life of this indenture, be used
or occupied by or sold, conveyed, leased, rented or given
to negroes or any person or persons o f the negro blood or
mixed negro blood, or to any other person or persons of
any race other than the white or Caucasian race.” All of
the parties to the agreement had previously acquired the
property owned by them free from any such covenant.
1 0
Apparently the covenantors were unwilling to rest their
agreement on the theory that proximity of habitation to
persons o f the Negro race or blood was per se objection
able. This is disclosed by the final paragraph wherein it
is covenanted and expressly recognized that “ conditions
now impossible to foresee may in the future make a revoca
tion of the indenture desirable and necessary for the in
terests of all parties concerned.” Consequently it was pro
vided that the agreement might be revoked and annulled
and the land affected by the covenant freed from its op
eration as completely as though it had never been executed
upon the recording of an agreement to that effect executed
“ by all the then owners of the above described land now
owned by the parties hereto.”
This agreement bears 101 signatures. One hundred of
these covenantors or their successors might conclude that
it was desirable and necessary that the covenant should
be revoked, and yet a single one of the covenantors or
his successor might, under the terms of this instrument,
stand in the way of such revocation and annulment, even
though it had become apparent one year or five years after
entering into the agreement that it was desirable and nec
essary for the interests of all concerned that the indenture
should be revoked.
Can any agreement be imagined which conflicts more
with the public welfare than one containing such a pro
vision ! It stands in the way of the free and unhampered
disposition of property. It constitutes what is practically
an absolute and unchangeable restraint upon the aliena
tion of real property. The property may not be rentable
to persons of the white race, and yet the owners would be
precluded from leasing or disposing of it. I f the covenant,
instead of running for twenty-one years were to run for
fifty years or a hundred years, or in perpetuity, the same
consequences would result. A single objector would have
it in his power arbitrarily or from mercenary motives or
because of insane hatred of the Negro, to adopt a (log
in the manger policy and virtually keep this extensive
11
tract o f land out of the market, preventing development,
and interfering with the proper housing o f those who con
stitute 25 per cent, of the entire population of the City of
Washington.
Because of the similarity of the controlling legal propo
sitions we shall in this brief refer to their discussion in
the brief submitted in Cornish v. O’Donoghue.
P O I N T S .
I.
The covenant sought to be enforced by the decree
herein is (a) an unlawful restraint of alienation and
(b) an unlawful restraint of trade, and, therefore,
contrary to public policy and void.
(a ) The covenant constitutes an unlawful restraint of
alienation.
For a period of twenty-one years, “ unless sooner revoked
as provided by law” (what law is not stated), the 101 par
cels of land to which the covenant relates are not to be used
or occupied by or sold, conveyed, leased, rented or given to
Negros, etc. Such a covenant, as is pointed out in the ac
companying brief in Cornish v. O’Donoghue, violates the
principle embodied in the statute o f quia emptores.
DePeyster v. Michaels, (i N. Y. 497.
Potter v. Couch, 141 U. S. 296, 313.
Mandlebaum v. McDonell, 29 Mich. 77.
Manierre v. Welling, 32 R. I. 104.
Re Rosher, L. R. 26 Ch. Div. 801.
Smith v. Clark, 10 Md. 186.
McCullough’s Heirs v. Gilmore, 11 Pa. St. 370.
Bennett v. Chapin, 77 Mich. 577.
Attwater v. Attwater, 18 Beavan 330.
Billing v. Welch, I. R. 6 Common Law 88.
Schcrmerhorn v. Negus, 1 Denio 148.
1 2
Johnson v. Preston, 226 111. 447, 462.
Pardue v. Givens, 54 N. C. 306.
Anderson v. Carey, 36 O. St. 506.
Barnard v. Bailey, 2 Harrington (D el.) 56.
Williams V. Jones, 2 Swan (Tenn.) 620.
Brothers v. McCurdy, 36 Pa. St. 407.
Renaud V. Tourangeau, L. R. 2 P. C. App. 4.
These decisions include a number in which the aliena
tion is restricted to specified individuals or to members
o f a fam ily ; and also decisions in which the restraint is for
a prescribed number of years.
In the follow ing decisions the Courts declared void
covenants and conditions which forbade a conveyance to
Negroes and other persons against whom prejudice exists:
Gondolfo v. Hartman, 49 Fed. Rep. 181.
Title Guarantee A Trust Co. v. Garott, 42 Cal.
App. 150, 152.
Porter v. Barrett, 233 Mich. 373.
Johnson v. Preston, 226 111. 447.
See also:
Miller v. Jersey Coast Resorts Corporation, 98
N. J. Eq. 2S9.
Statutes and ordinances which undertook to segregate
colored persons from white persons into residential dis
tricts specially set apart for them were declared void in
Buchanan v. Warley, 245 U. S. 60;
Harmon v. Tyler, 273 U. S. 668;
State v. Gurry, 121 Md. 534;
Carey v. City of Atlanta, 143 Ga. 192;
State v. Darnell, 196 N. C. 300.
(b ) The covenant constitutes an unlawful restraint
upon trade and, commerce.
Lands are to-day as much an article o f sale and traffic
as personal property, and consequently a contract which
13
contains a restraint upon a sale to Negroes, who consti
tute 10 per cent, of the population of the United States
and one-quarter o f the population of the City of W ash
ington, comes within the same rule as applies to restraint
upon trade and commerce.
Mandlebaum v. McDonell, 29 Mich. 79.
Manierre v. Welling, 32 R. I. 104.
Test Oil Co. v. La Tonrrette, 19 Okla. 214.
Here it is to l>e observed that the covenant was entered
into by 101 different individuals who had previously ac
quired the premises concerning which they covenanted and
which were free from such a covenant. The sole purpose
o f the instrument was to restrain the conveyance of this
property to Negroes and other persons of color. The cove
nant was not ancillary to the main purpose of a valid con
tract, and, therefore, regardless o f any other consideration,
is an unlawful restriction of trade and commerce.
This brings the case within the rule laid down in the
opinion o f Mr. Chief Justice Taft, then writing for the
Circuit Court o f Appeals for the Sixth Circuit, in United
States v. Addyston Pipe Co., 85 Fed. Rep. 271, affd. 175
U. S. 211. There it was said:
“ But it would certainly seem to follow from the
test laid down for determining the validity of such
an agreement that no conventional restraint of
trade can be enforced unless the covenant embody
ing it is merely ancillary to the main purpose of a
lawful contract, and necessary to protect the cove
nantee in the enjoyment of the legitimate fruits of
the contract, or to protect him from the dangers of
an unjust use of those fruits by the other party.7’
To the same effect a re :
Horner v. Graves, 7 Bing. 735.
Dr. Miles Medical Co. v. Park & Sons Co., 220
U. S. 373.
Nordenfeldt v. Maxim Nordenfeldt cG Co. (1904),
A. C. 565.
14
In the case last cited, Lord Macnaghten sa id :
“ The true view at the present time I think is th is :
The public have an interest in every person’s carry
ing on his trade free ly ; so has the individual. A ll
interference with individual liberty o f action in
trading, and all restraints of trade of themselves, if
there is nothing more, are contrary to public policy
and therefore void. That is the general rule.”
See also 13 Carpus Ju ris , title “ Contract,” Sections 400,
477, and cases cited.
W e again quote from the opinion of Mr. Chief Justice
Taft in the case referred to :
“ This very statement o f the rule implies that the
contract must be one in which there is a main pur
pose, to which the covenant in restraint of trade is
merely ancillary. The covenant is inserted only to
protect one of the parties from the injury which, in
the execution of the contract or the enjoyment of
its fruits, he may suffer from the unrestrained com
petition of the other.”
F or further discussion of this subject we refer to Points
I and II of petitioners’ brief in Cornish v. O'Don ophite.
Supplementing what was there said we deem it proper to
refer to some decisions on which the respondents rely
which suggest a differentiation between a covenant against
alienation of land to Negroes and its occupancy by
Negroes. The covenant in the present case is against use
and occupancy by or sale, conveyance, leasing, renting or
giving to Negroes of any o f the land included within the
covenant. W e contend that the covenant must be con
sidered in its entirety. W hat was sought to be accom
plished was to prevent Negroes from acquiring ownership
or the incidents of ownership o f real property and from
occupying and enjoying its use. The breach of covenant
alleged consisted in the sale by a former owner to Negroes
and the acquisition by the latter of the lands in question.
The covenant in its essential nature being thus aimed at
the accomplishment o f a restraint upon the alienation of
the lands and a restraint on trade and commerce in respect
to these lands, it must be regarded as single and indivisible
and void in toto because of the invalidity of the underlying
scheme.
In Mason X. Provident Clothing Supply Co. (1913), App.
Cas. 724, 745, Lord Moulton said:
“ My Lords, I do not doubt that the Court may,
and in some cases will, enforce a part of a covenant
in restraint o f trade, even though taken as a whole
the covenant exceeds what is reasonable. But, in
my opinion, that ought to be done only in cases
ivliere the excess is of trivial importance, or merely
technical, and not a part of the main purport and
substance of the clause. It would, in my opinion,
be pesimi exempli if, when an employer had exacted
a covenant deliberately framed in unreasonably
wide terms, the courts were to come to his assistance
and by applying their ingenuity and knowledge of
the law, carve out o f this void covenant the maxi
mum of wliat he might validly have required."
This principle was applied in Horwood v. M illars Tim
ber d Trading Co., Ld. (1917), 1 K. B. Div. 305, where a
clerk who secured a loan from plaintiff, a money-lender,
assigned all his claims for wages against his employers,
the defendants, with covenants which tied him hand and
foot and which were regarded as against public policy. In
an action for an accounting against the employer it was
held that the void covenant precluded the recovery o f the
amount of wages owing by the employer to its employee
which had been assigned to the plaintiff. The opinions of
Lord Justices Cozens-Hardy, W arrington and Scrutton are
illuminating.
1G
I I .
The so-called “ neighborhood covenant” here sought
to be enforced is so contrary to public policy as evi
denced by the spirit of the Constitution, the Acts of
Congress and court decisions, and is so unreasonable
and discriminatory, that a court of equity could not
enforce it without doing violence to fundamental
conceptions of justice.
W e refer to the discussion o f this subject and to the
authorities cited under Point i l o f petitioners’ brief in
Cornish v. O’Donoghue.
The covenant is contrary to public policy. It is dis-
criminatory as between citizens as without reasonable
foundation for the classification of those excluded from
the right to acquire a home. The general aspects of the
subject have been sufficiently discussed in the brief in
Cornish v. O'Donoghue.
It seems inconceivable that so long as the legislature,
in obedience to the Constitution and the adjudications of
this Court, refrains from passing an enactment embodying
the prohibitions contained in the covenant under dismis
sion, a court of equity may by its command compel the
specific performance of such a covenant and thus give the
sanction o f the judicial department of the government to
the accomplishment of what was not in the competency of
its legislative branch to authorize.
There can be no permissible distinction between citizens
based on race, creed or color if we are to remain a free
and harmonious nation. To have it appear in the judicial
annals of our courts that one part of our citizenry may
enter into contracts which are derogatory to another part
is intolerable unless we are to abandon our most cherished
institutions. If the different elements constituting the body
of American citizens can live together and serve under the
same flag, perform the same civic duties, pay the same
taxes, and co-operate in the development of our national
resources, to say that a part o f them shall not breathe the
17
same air or live in the same neighborhood or pursue the
same business as the other part because they are colored,
is to sow the seeds of discord and tends to destroy that
unity and harmony which should prevail in a free country.
The respondents are seeking to enforce specific perform
ance of a negative covenant and in such an instance a court
o f equity must look to it that the equitable interests o f all
concerned, and especially those of the public, are being
conserved.
In Edgecomb v. Edmonston, 257 Mass. 12, the Court
sa id :
.< * * * A suit in equity to enforce a negative
covenant is actually one for specific performance
while not so in form. Taylor Iron & Steel Co. v.
Nichols, 70 N. J. Equity 541, 01 A. 730.
* * * It has long been settled that equity will
not interfere to decree specific performance, except
in cases where it would be strictly equitable to make
such a decree * * *.”
III.
The petitioners respectfully pray that their appli
cation for a writ of certiorari be granted.
LOUIS M ARSHALL,
W ILLIA M E. LEAH Y,
GEORGE E. C. H AYES,
Petitioners’ Counsel.
(Court of Appealo, Sietrirt of (Columbia
October Term, 1927.
No. 4666.
H enry A . Cornish, et al., Appellants,
vs.
Patrick O ’Donoghue, et al., Appellees.
BRIEF FOR APPELLANTS.
Louis Marshall,
A rthur B. Spingarn,
O f Counsel.
W illiam E. Leahy,
George E. C. H ayes,
E rnest J. Davis,
E dmund M. Tot,a n d ,
{Local Counsel)
Press of Byron S. Adams, Washington, D. C.
INDEX.
Page
Statement o f C a s e ........................................................... 1
The P le a d in g s .................................................................... 2
Stipulation o f Facts ...................................................... 5
Assignment o f E rrors ........................................... 6
A rg u m en t............................................................................. 7
Point I. The Covenant sought to he E nforced
by the Decree H erein is V oid as an Unlawful
Restraint U pon Alienation o f the Fee and,
Therefore, Contrary to Public P o licy ............... 8
Cases Involving Covenants Similar to the Present 19
Cases Relied by the A p p e lle e s ..................................... 27
The Sim ilarity Between this Covenant and Those
Restrictive o f Trade or Com m erce........................ 35
II. The Covenant is so Contrary to the Spirit o f
the Constitution o f the United States and its
Laws and the Public P olicy to be Deduced there
from and is so Unreasonable and Discrimina
tory that a Court o f Equity cannot E nforce it
without D oing Violence to Our Fundamental
Conceptions o f Justice .............................................. 43
III. The Middaugli and Shannon Covenant H aving
Expressly Specified the Penalty Resulting from
a Breach o f the Covenant as to Renting, Leas
ing, Selling, Transferring or Conveying the
P roperty to any Negro or Colored Person, the
Right to an Injunction Restraining a N egro or
Colored Person A cquiring the P roperty from
Occupying or Selling it, is N eg a tiv ed .................... 56
IV . Here the Appellees Have Resorted to a Court
o f Equity to E nforce a Covenant W hich so fa r
as the Appellants are Concerned, W ho W ere
Strangers to the Covenant, is Oppressive and
Unreasonable and Lacking in E q u ity .................... 58
T A B L E OF C A S E S C ITE D .
Page
Anderson vs. Carey, 36 Ohio St. 506........................16, 25
Attwater vs. Attwater, 18 Beavan 330 .................... 15
Barnard vs. Bailey, 2 H arrington (Del.) 56 ........... 17
Bennett vs. Chapin, 77 Mich. 527............................... 14
Berea College Case, 211 U. S. 45 ................................. 27
Brewer vs. Marshall, 18 N. J. Eq. 537..................... 23
Block vs. Hirsh, 256 U. S. 1 5 6 ..................................... 41
Brothers vs. M cCurdy, 36 Pa. St. 407........................ 17
B ou vier ’s Law Dictionary, 3, 2765 ............................ 44
Buchanan vs. W arley, 245 U. S. 60....................27, 47, 48
Buchanan vs. W arley, 165 K y. 559 ............................ 47
Carey vs. City o f Atlanta, 143 Ga. 1 9 2 .................... 27
Cathart vs. Robinson, 5 Pet. 263 ............................... 58
Carrigan vs. Dudley, 271 U. S. 323............................ 27
Chevy Chase Land Co. vs. Pool, 48 App. D. L. 400. 34
Chicago, Burlington & Quincy R. R. Co. vs. Chica
go, 166 U. S. 226, 233 ................................................ 51
Clark vs. Clark, 99 Md. 356, 58 Atl. Rep. 24 ........... 18
Corrigan vs. Buckley, 299 Fed. 899 ........................33, 52
Cowell vs. Springs Co. 100 U. S. 57 ........................27, 30
Corpus Juris, “ 13,” Section 420, page 477........... 38
Curran vs. H olyoke W ater Co., 116 Mass. 9 0 . . . . 58
De Gray vs. M onmouth Beach Club House Co., 50
N. J. Eq. 329, 24 Atl. Rep. 388................................. 23
De Peyster vs. Michael, 6 N. Y. 497 ........................ 10, 25
Dr. Miles M edical Co. vs. Park & Sons Co., 220
U S 373 ......................................................................39 40
E x Parte V irginia,' 100 U. S. 339, 347 .V .V.V.’ . 48,5o’ 51
Gary vs. City o f Atlanta, 143 Ga. 192 L. R. A.,
1915 D 684 ...................................................................... 47
Giant Pow der Co. vs. R. R. Co., 42 Fed. 470......... 45
G ondolfo vs. Hartman, 49 Fed. Rep. 181................. 19
Gray, Restrictions on Alienation, Second Edition,
p. 4 1 ........................................... 25,30
Gray, Rules against Perpetuities ........................... 14
H arm on vs. Tyler, 273 U. S. 668 ............................... 47
H artford F ire Ins. Co. vs. Chicago, etc., R. R. Co.,
70 Fed. 201 45
Cases Cited Continued. m
H ovey vs. Elliott, 167 U. S. 409 ................................. 51
In re Lee Sing, 43 Fed. Rep. 359 ................................. 42
Johnson vs. Preston, 226 111. 447, 462....................16,26
Jones vs. P ort Huron Engine & Thresher Co., 171
111. 502, 49 N. E. Rep. 700 ......................................... 19
K en t’s Commentaries, 131 ......................................... 17
Kintz vs. Harrigan, 99 Ohio St. 240 ........................ 45
Koehler vs. Rowland, 275 Mo. 573..........................27, 29
Langdon vs. Congdon, 93 N. W .................................... ’45
Latimer vs. W addell, 119 N. S. 370, 26 S . E. Rep.
122 ................................................................................. . 19
Page
Los Angeles Investment Co. vs. Gary, 181 Cal.
680 .............................................................................21,27, 31
M cCullough’s H eirs vs. Gilmore, 11 Pa. St. 3 7 0 .. . 13
McNeil vs. Gary, 40 App. D. C. 397 .................... 27, 34
Manierre vs. W elling, 32 R. I. 104............... 12,17, 25, 35
Mandlebaum vs. McDonell, 29 Mich., 79 ............... 13,35
Miller vs. Jersey Coast Resorts Corporation, 98
N. J. Eq. 289, 130 Atl. Rep. 824............................... 26
M urray’s Lessee vs. Hoboken Land & Im prove
ment Co., 18 H oward 276 ......................................... 51
Pardue vs. Givens, 54 N. C. 306 ................................... 16
Parmalee vs. M orris, 218 Mich. 625.................. 27,31,32
P orter vs. Barrett, 233 Mieh. 373, 206 N. W . Rep.
532 ..............................................................................23,26,35
Potter vs. Couch, 141 U. S. 296, 313........................11,13
Pickett Publishing Co. vs. Carbon Co., 13 L. R. A.
N. S. 1 1 5 .................................................. 45
Plessy vs. Ferguson, 163 U. S. 537 ........................ 27, 49
P om eroy ’s Equity Jurisprudence, 3d ed. Secs.
1404, 1405 ........................................................................ 58
Pope M fg. Co. vs. Gormully, 144 U. S. 236, 237 .. 58
Queensboro Land Co. vs. Cazeaux, 136 La. 724,
27 29 31
Re Dugdale, L. R., 38 Ch. Div. 176, 179............... ’. . ’ 17
Re Rosher, L. R., 26 Ch. Div. 8 0 1 ............................ 13,17
Re Macleay, L. R., 20 Eq. 1 8 6 ...................................13,17
Re Schilling, 102 Mich. 6 1 2 ........................................ 19
IV Cases Cited Continued.
Renaud vs. Tourangeau, L. R., 2 P rivy Counsel
Page
A pp. 4 ............................................................................... 17
Ruling Case Law, 6, 707 ................................................ 44
Schermerhorn vs. Negus, 1 Denio 148........................ 15
Smith vs. Am erican F idelity Co., 232 N. Y. 161,
1 6 3 ...................................................................................... 46
Smith vs. Clark, 10 Md. 1 8 6 ................................... ' . . . 13
State vs. Darnell, 166 N. C. 300, 302, 303, 81 S. E.
Rep. 338 .......................................................................... 21,47
Statute o f Quia Em ptores, 18 Edward I ............... 10
State vs. Gurry, 121 Md. 534, 47 L. R. A . N. S.1087 47
Sections 1977 and 1978, Revised Statutes............. 27, 52
Slaughter House Cases, 16 W all. 3 6 ........................ 48
Strauder vs. W . Va., 100 U. S. 303............................ 48,50
Telephone & Telegraph Co. vs. Los Angeles, 227
U. S. 278 ........................................................................ 51
Test Oil Co. vs. La Tourrette, 19 Okla. 214, 91 Pac.
Rep. 1025, 1028 .............................................................. 35
Title Guarantee & Trust Co. vs. Garott, 42 Cal.
App., 150, 152 ..................................................19, 21, 27, 29
T orrey vs. W olfes, 6 Fed. (2d) 702 ....................27, 34, 35
United States vs. Addyston P ipe Co., 85 Fed.
Rep., 271, A ffd . 175 U. S. 2 1 1 .................................36, 37
V irginia vs. Rives, 100 U. S. 313.......................... ...... 50
“Whitney vs. Union Railway Co., 11 Gray 359........... 23
W illiam s vs. Jones, 2 Swan (Tenn.) 620 ............... 17
W illiston on Contracts, 3, Section 1642.................... 38
W insor vs. Mills, 157 Mass. 362, 32 N. E. Rep. 352 18
Zillmer vs. Landguth, 94 W is. 607, 69 N. W . Rep.
568 ...................................................................................... 19
m the
(to r t nf Appeals, iistriri of Colombia
October Term, 1927.
No. 4666.
H enry A. Cornish, et al., Appellants,
vs.
Patrick O ’Donoghue, et al., Appellees.
BRIEF FOR APPELLANTS.
STATEMENT OF CASE.
The appellants, H enry A . Cornish and A lyce N. C or
nish, have appealed to this Gourt from a decree o f the
Supreme Court o f the D istrict o f Columbia rendered
by Honorable W endell P. Stafford, Justice, on April
11, 1927, whereby it was adjudged that the covenant in
the deed from R ay E. Middaugh and W illiam E. Shan
non to Samuel E. Browne, dated September 22, 1902, is
a valid covenant binding on all subsequent owners o f
the property therein described ; that the deed from the
defendant Thomas A . Grier to the defendants H enry A.
2
Cornish and A lyce N. Cornish, dated March 5, 1927,
o f the land thereby conveyed was void and o f no effect,
and that the defendants Cornish be ordered and en
joined to remove themselves and all their personal
property from the premises described in such deed
and be perpetually enjoined from ever holding or at
tempting to hold title to or possession o f the premises
by any transfer or conveyance or attempted transfer
or conveyance o f either the title to or possession o f
the premises to them or either o f them or to any one
acting fo r or on behalf o f them or either o f them, and
that they be perpetually enjoined from renting, leas
ing, selling, transferring or conveying to any negro or
colored person such premises and from occupying the
same. (Eec. pp. 46-48.)
THE PLEADINGS.
The bill o f complaint alleges, in substance, that the
appellees are the owners o f various designated lots in
Square 3125 in the City o f W ashington, im proved by
dwelling houses known respectively as 2300, 2302, 2304,
2306, 2309, 2310 and 2326 F irst Street, Northwest, and
occupied by the appellees as their residences; that
prior to June 26, 1927, one D orie C. Graver was the
record owner in fee simple o f lot 63 in Square 31a5, the
house being one o f a row o f seventeen houses, which
com prised all o f the houses on the west side o f First
Street between Adam s and Bryant S treets ; that these
houses were built in about the year 1904 by Middaugh
and Shannon, and that in 1905 they built seventeen
more houses, which com prised all o f the houses on the
east side o f F irst Street Northwest in the same block
between Adams and Bryant Streets; that Middaugh
3
and Shannon sold all o f these houses and in the deeds
to their grantees, including the parcels owned by the
appellees and Gruver, all o f which deeds were recorded
in the Land Records o f the D istrict o f Columbia, there
appeared the follow ing covenant running with the
land:
“ that said lot shall never be rented, leased, sold,
transferred or conveyed unto any negro or colored
person under penalty o f $2,000, which shall be a
lien against said property .”
The bill o f complaint further alleges that all o f the
dwellings on F irst Street on both sides o f the street
between Adams and Bryant Streets, were occupied and
used exclusively as residences by persons o f the Cau
casian race, with the exception o f the property occu
pied by the appellants; that on January 26, 1927, Gru
ver entered into an agreement to sell lot 63 in Square
3125 to one Thomas A . Grier, and in the contract o f
sale it was provided :
“ It is understood and agreed by both parties
that the purchaser, Mr. Thomas A. Grier, is white,
and o f the Caucasian race, and that he has pur
chased this property fo r his own home, and that
he will occupy said property him self fo r his home,
and that it is sold subject to the covenants o f rec
ord ; otherwise this contract and sale to become
null and v o id .”
It may be here added parenthetically that on Feb
ruary 1, 1927, Gruver and his w ife conveyed lot 63 to
Thomas A . Grier, the deed being recorded on Febru-
ary 2, 1927, and, after the description o f the property
conveyed, containing the follow ing:
4
“ Subject to the covenant that said lot shall never
be rented, leased, sold, transferred or conveyed
unto any negro or colored person under a penalty
o f $2,000, which shall be a lien against said lo t .”
The complaint then alleges that by deed dated March
5, 1927, Grier conveyed lot 63 in Square 3125 to the
appellants Cornish, the deed containing the statement
that the property was transferred to the appellants
“ subject to the covenants o f record .”
It is further alleged that the appellants Cornish are
citizens o f the United States and residents o f the D is
trict o f Columbia and are negroes or colored p erson s;
that they entered into possession o f lot 63 in Square
3125 and the dwelling house thereon known as No. 2328
F irst Street Northwest, that their possession was in
open violation o f the restrictive covenant, that the deed
and conveyance to them was a nullity, totally void, and
conveyed no property rights to them, because the con
veyance was accepted in violation o f the aforesaid
covenant, and that if they were permitted to remain in
possession it would occasion irreparable in jury to the
appellees.
Judgment was accordingly prayed that the appel
lants be required to vacate the premises and to remove
therefrom their personal property ; that they be en
joined from selling, renting, leasing, transferring or
conveying the premises to negroes or colored persons
and from perm itting them to be occupied by negroes
or colored persons; that the deed from Grier to the
appellants be cancelled and declared void, and that the
penalty o f $2,000 provided in the covenant be assessed
against the appellants fo r the benefit o f the appellees
and be declared a lien on 2328 F irst Street Northwest
in favor o f the appellees.
5
The appellants answered taking issue with various
allegations contained in the bill o f complaint, and after
various other allegations alleged :
“ 15. The said covenant is in its essential nature
a contract in unlawful restraint o f alienation, not
only as attempted to be enforced by the imme
diate parties hereto but as to all persons similarly
situated; and it is opposed to the public policy o f
the United States as m anifested in and by the
Constitution thereof and the amendments thereto,
especially the Thirteenth and Fourteenth Am end
ments, the statutes o f the United States in aid o f
the enforcem ent o f its said Constitution and
Amendments, especially Sections 1977 and 1978 o f
the Revised Statutes o f the United States, and the
decisions o f the courts o f the United States; the
rendition by this Court o f a decree requiring the
said H enry A . Cornish and A lyce N. Cornish to
give up possession o f the premises which they are
now occupying because they are Negroes, would
constitute a violation o f the F ifth Amendment to
the Constitution o f the United States, in that it
would deprive the said defendants and each o f
them o f their liberty and property without due
process o f law ; wherefore, compliance with said
covenant is not lawfully enforceable; and the de
fendants now answering pray the same benefit
hereof as though fo r the reasons and upon the
ground stated they had form ally demurred to the
said bill or m oved to dismiss the same.” (Rec. pp.
21, 22. )
STIPULATION OF FACTS.
The parties entered into a stipulation as to the sal
ient facts on which they respectively relied, in which
is set forth the history o f the property developed by
Middaugh and Shannon and the various conveyances
6
made o f the property (Rec. pp. 23-31). To this stipula
tion are attached the follow ing deeds referred to in the
bill o f com plaint:
Middaugh and Shannon to Samuel E. Browne (Rec.
pp. 32-34).
D orie C. Gruver and w ife to Thomas A . Grier (Rec.
pp. 35, 36).
Thomas A . Grier to H enry A . Cornish and w ife (Rec.
pp. 15, 16).
On the taking o f the appeal there was filed the fo l
low ing
ASSIGNMENT OF ERRORS.
(1) The Court erred in refusing to dismiss the peti
tion of plaintiffs fo r the reason that the covenant in
the deed as set out in said petition w7as void as an un
lawful restraint upon alienation o f the fee o f said p rop
erty in said petition described.
(2) The Court erred in decreeing that the defendants
should he enjoined, in manner and form as in said de
cree enjoined, fo r the reason that said covenant a fore
said is void as being contrary to the Constitution o f
the United States and the public policy thereof.
(3) The Court erred in entering its decree herein for
the reason that said covenant is so unreasonable and
discrim inatory that a court o f equity will not enforce
the same.
(4) The Court erred in granting to petitioners relief,
as in said decree granted, fo r the reason that said
covenant is such an unreasonable restraint upon alien
ation generally as to be void and contrary to public
policy (Rec. pp. 48, 49.)
7
ARGUMENT.
The errors assigned raise fo r the decision o f this
Court upon the record submitted to it, questions involv
ing the validity o f the covenant on groun ds:
1. The covenant is void as an unlawful restraint
upon alienation of the fee to the property involved.
2. The covenant is void fo r the reason that it is con
trary to public policy generally.
3. The covenant is so unreasonable and discrim ina
tory that a Court o f Equity will not enfox-ce the same.
4. The covenant is void because it is contrary to the
Constitution o f the United States and the public policy
thereof.
In this discussion o f the law applicable to the ques
tions raised upon these errors assigned, the covenant
will be considered :
F ir s t : W ith relation to its invalidity as an unlawful
restraint upon alienation o f the fee and, therefore, con
trary to public policy generally, and,
S econ d : W ith regard to its invalidity as being con
trary to the Constitution o f the United States and the
public policy thereof, and that it is so unreasonable
and discrim inatory that a Court o f Equity will not en
force the same.
8
POINTS.
I.
The Covenant Sought to be Enforced by the Decree
Herein is Void as an Unlawful Restraint Upon
Alienation of the Fee and, Therefore, Contrary to
Public Policy.
W hat we shall hereafter refer to as the Middaugh
and Shannon covenant, which was also contained in the
conveyance from Gruver to Grier and subject to which
the appellees claim the appellants acquired the land
which is the basis o f this litigation, is sweeping in its
terms. It i s :
(1) that the lot shall never be rented, leased, sold,
transferred or conveyed unto any N egro or colored
person.
(2) that a penalty o f $2,000 is im posed upon a
breach o f the covenant and is to be a lien against the
lot.
It is to be noted that this is not a condition with
right o f re-entry by the grantor upon breach thereof.
The covenant prescribes a penalty the amount o f which
is secured by making it a lien upon the premises.
The Court below has decreed that the conveyance to
the appellants is a nullity because they are Negroes or
colored persons. It has ousted them from the prem
ises acquired. It has perpetually restrained them from
entering upon the premises or conveying them to any
N egro or colored person. It has not im posed a penalty.
This covenant does not by its terms run with the
land. This is clear from the fact that, after the haben
9
dum clause, and nine printed lines after the covenant
in question, there follow s an additional provision (Rec.
p. 3 3 ):
“ And the said party o f the second part in ac
cepting this conveyance hereby covenants and
agrees fo r himself, his heirs and assigns, with the
parties o f the first part, their heirs and assigns,
that no building or structure other than bay win
dows or porches shall be erected or constructed
beyond a line drawn eight (8 ) feet line (9) inches
west o f and parallel with the west building line o f
F irst Street as now established, and that said bay
windows and porches shall in all things conform
to the regulations governing, projecting beyond
building lines within the City o f W ashington, and
that this covenant shall run with the land. ’ ’
It is thus evident that while the covenant just re
ferred to, which is in express terms a covenant on the
part o f the grantees, runs with the land, the “ subject
clause” first referred to does not run with the land,
but creates a mere penalty which is made a lien against
the lot. A nd it is also to be noted that there is no ex
press covenant on the part o f the grantee.
The terms o f the deed from Gruver to Grier are in
legal effect the same as those o f the Middaugh and
Shannon deed.
W ithout now enlarging upon this phase o f the case,
and assuming fo r the argument that lot 63 was subject
to the covenant as interpreted by the Court below, we
contend that it is void because contrary to public policy
under the principle which has obtained ever since the
enactment in 18 Edw ard I. o f the Statute o f Quia
Emptores. This is especially true because by its terms
it is to operate fo r all time as has been declared by the
decree appealed from .
10
The subject o f such restraints is learnedly discussed
in DePeyster v. Michael, 6 N. Y., 497, by Chief Judge
Ruggles. He points out that they were o f feudal or
igin ; creative o f a violent and unnatural state o f things,
contrary to the nature and value o f property and the
inherent and universal love o f independence; that they
arose partly from favor to the heir and partly from
favor to the lord, “ and the genius o f the feudal system
was originally so strong in favor o f restraints upon
alienation, that by a general ordinance, mentioned
in the Book o f F iefs, the hand of him who wrote a
deed of alienation was directed to be struck o f f ” (p.
498). To deal with this tyranny the statute o f Quia
Emptores was enacted in 18 Edward I, w'hich provided
“ that from henceforth it shall be lawful fo r any fre e
man to sell, at his own pleasure, his lands and tene
ments, or part o f them, so that the feoffee shall hold
the same lands and tenements o f the chief lord o f the
same fee, by such service and customs as the feoffee
held b e fore .”
A s Chief Judge Ruggles says (p. 500):
“ The effect o f this statute is obvious. B y de
claring that every freem an might sell his land, at
his own pleasure, it rem oved the feudal restraint
which prevented the tenant from selling his land,
without the license o f his grantor, who was his
feudal lord. This was a restraint im posed by the
feudal law, and was not created by express con
tract in the deed o f conveyance; it was abolished
by this clause in the statute. By changing the
tenure from the immediate to the superior lord, it
took away the reversion from the immediate lo r d ;
in other words, from the grantor, and thus de
prived him of the power of imposing the same re
11
straint, by contract or condition expressed in the
deed of conveyance. The gran tor ’s right to re
strain alienation immediately ceased, when the
statute put an end to the feudal relation between
him and his gran tee; and no instance o f the exer
cise o f that right, in England, since the statute
was passed, has been shown, or can be found, ex
cept in the case of the king, whose tenure was not
affected by the statute, and to whom, therefore,
it did not apply.
The reason given by L ord Coke, why a condition
that the grantee shall not alien, is void, is as fo l
low s: ‘ F or it is absurd and repugnant to reason,
that he that hath no possibility to have the land
revert to him, should restrain his feoffee of all his
power to alien. And so it is, i f a man be possessed
o f a term fo r years, or o f a horse, or any other
chattel, real or personal, and give or sell his whole
interest or property therein, upon condition that
the donee or vendee shall not alienate the same,
the condition is void, because his whole interest
and property is out o f him, so that he hath no pos
sibility o f reverter; and it is against trade and
traffic, and bargaining between man and m an.’ ”
In Potter v. Couch, 141 U. S., 296, 313, Mr. Justice
Gray Said:
“ But the right o f alienation is an inherent and
inseparable quality o f an estate in fee simple. In a
devise o f land in fee simple, therefore, a condition
against all alienation is void, because repugnant
to the estate devised. Lit., Sec. 360; Co. Lit., 206b,
223a; 4 K ent Com., 131; McDonogh v. Murdock, 15
How., 367, 373, 412. F or the same reason, a limita
tion over, in case the first devisee shall alien, is
equally void,whether the estate be legal or equitable.
Howard v. Carusi, 109 U. S., 725; Ware v. Cann,
10 B. & C., 433; Shaw v. Ford, 7 Ch. D., 669; In re
Dugdale, 38 Ch. D., 176; Corbett v. Corbett, 13 P.
12
D., 136; Steib v. Whitehead, 111 Illinois, 247, 251;
Kelley v. Meins, 135 Mass., 231, and cases there
cited. A nd on principle, and according to the
weight o f authority (notwithstanding opposing
dicta in Cowell v. Springs Co., 100 U. S., 55, 57,
and in other books), a restriction, whether by way
o f condition or o f devise over, on any and all alien
ation, although for a limited time, o f an estate in
fee, is likewise void, as repugnant to the estate de
vised to the first taker, by depriving him during
that time o f the inherent power o f alienation.
Roosevelt v. Thurman, 1 Johns., Ch. 220; Mandle-
haum v. McDonell, 29 Mich., 77; Anderson v.
Cary, 36 Ohio St., 506; Tw itty v. Camp, Phil. Eq.
(No. Car.) 61; In re Rosher, 26 Ch. D., 801.”
Especial attention is called to the exhaustive opin
ion in Manierre v. Welling, 32 R. I., 104, where many
cases are cited and ably reviewed, and where one o f the
im portant conclusions reached in the case next to be
cited was adopted:
“ W e are entirely satisfied there has never been
a time since the statute quia emptores when a re
striction in a conveyance o f a vested estate in fee
simple, in possession or remainder, against selling
fo r a particular period o f time, was valid by the
common law. And we think it would be unwise
and injurious to admit into the law the principle
contended for by the defendant’s counsel, that
such restrictions should be held valid, i f imposed
only fo r a reasonable time. It is safe to say that
every estate depending upon such a _ question
would, by the very fact o f such a question exist
ing, lose a large share of its market value. W ho
can say whether the time is reasonable, until the
question has been settled in the Court o f last re
sort ; and upon what standard o f certainty can the
Court decide it? Or, depending as it must upon
13
all the peculiar facts and circumstances o f each
particular case, is the question to be submitted to
a ju ry? The only safe rule o f decision is to hold,
as I understand the common law for ages to have
been, that a condition or restriction which would
suspend all power o f alienation fo r a single day,
is inconsistent with the estate granted, unreason
able and vo id .”
Equally im portant is the classic opinion o f Mr. Jus
tice Christiancy in Mandlebaum v. McDonell, 29 Mich.,
79, from which the foregoing excerpt is taken. That
decision was approved not only by this Court in Potter
v. Couch, 141 U. S., 315, 316, but also by the English
Court o f Chancery in Re Rosher, L. R. 26 Ch. Div.,
801, an unusual compliment, especially since it resulted
in the rejection o f the decision o f Sir George Jessel in
Re Macleay, L. R. 20 Eq., 186.
The significance o f this proposition is regarded as a
justification fo r the citation o f the follow ing pertinent
decisions.
In Smith v. Clark, 10 Md., 186, a devise o f a w oodlot
to the testator’s w ife and daughters “ on the express
condition that the same is not at any time to be cleared
or converted into arrable land,” and a further condi
tion that the land “ shall be at all times held together
by those who may be entitled to the same by virtue of
the will, ’ ’ was held to be void.
In McCullough’s Heirs v. Gilmore, 11 Pa. St., 370,
the testator declared it to be his will and desire that
a certain farm “ fall into the possession o f W , laying
this injunction and prohibition not to leave the same
to any but the legitimate heirs o f W ’s fa th er ’s fam ily
at his W ’s decease.” This restraint on the power of
alienation was held to be void.
14
In Bennett v. Chapin, 77 Mich., 527, it was held that
when a restriction in a conveyance o f a vested estate
in fee simple, in possession or remainder, is against
selling for a particular time, such restriction is invalid.
Mr. Justice Long said:
“ Such restraints are not favored in the law. It
is true that many restrictions or qualifications
upon the rights o f the devisee or grantee may be
made effectual by making the estate itself depen
dent upon such condition; but where the estate
granted is absolute, such restriction can impose
no legal obligation upon the devisees, or limit their
power over the estate, when the observance or v io
lation o f the restriction can neither prom ote nor
prejudice any interest but their own. This rule
was very fu lly discussed by this Court in Mandle-
haum v. McDonell, 29 Mich., 87, and in support
o f this principle the Court cited Rail v. Tufts, 18
Pick., 459; Bank v. Davis, 21 Id., 42; Brandon v.
Robinson, 18 Yes., 429; Doebler’s Appeal, 64 Pa.
St., 9 ; Craig v. Wells, 11 N. Y., 315.
Aside from these reasons, however, we think the
restrictions upon the sale cannot be upheld. No
such restrictions are valid. W hen a restriction in
a conveyance o f a vested estate in fee simple, in
possession or remainder, is against selling fo r a
particular time, such a restriction is invalid. W hen
a person is entitled absolutely to property, any
provision postponing its transfer or payment to
him is v o id .”
Gray, in his rules against Perpetuities, thus states
the ru le :
“ Suppose property is given to trustees in trust
to pay the principal to A when he reaches thirty.
W hen any other person than A is interested in
the property, when, fo r instance, there is a gift
15
over to B if A dies under thirty, the trustee will
retain the property fo r the benefit o f B ; but when
no one but A is interested in the property, when,
should he die before thirty, his heirs or represen
tatives would be entitled to it, when, in short, the
direction fo r postponement has been made for A ’s
supposed benefit, such direction is void, in pur
suance o f the general doctrine that it is against
public policy to restrain a man in the use or dis
position o f the property in which no one but him
self has any interest.
The principle is generally held to be that all
rights o f property are alienable, and that a con
dition or restriction which would suspend all
power o f alienation fo r any length o f time is in
consistent with the estate granted, and vo id .”
In Athvater v. Attwater, 18 Beavan, 330, a devise of
certain real estate to A “ to become his property on
attaining the age o f twenty-five years, with the in
junction never to sell it out o f the fam ily, but if sold
at all it must be to one o f his brothers hereinafter
nam ed,” was held to be in restraint o f alienation, and
void.
In Billing v. Welch, Irish Rep., 6 Common Law, 88,
a covenant by the grantee o f land that he, his heirs and
assigns would not alien, sell or assign to any one ex
cept his or their child or children without the license
o f the grantor, was declared void on the authority of
the opinion o f Lord Rom illy in Attwater v. Attwater,
supra.
In Schermerhorn v. Negus, 1 Denio, 148, a provision
in a devise to children that no part o f the land should
be aliened by any o f the children or their descendants
except to each other or their descendants, was held
bad.
To the same effect are the decisions in Johnson v.
16
Preston, 226 111., 447, 462, and Pardue v. Givens, 54 N.
C., 306.
In Anderson v. Carey, 36 Ohio St., 506, the testator
devised a farm to his two sons, Thomas and Lincoln,
upon condition that they should not be allowed to sell
and dispose o f it until the expiration o f ten years from
the time his son Lincoln arrived at full age, except to
one another, nor to m ortgage or encumber it in any
manner whatsoever except in the sale to one another.
It was held that the restraint attempted to be imposed
was void as repugnant to the devise and contrary to
public policy. Mr. Justice M cllvaine sa id :
“ Instead o f giv ing to his sons an estate in the
land less than a fee simple the intent and purpose
was to give them the fee simple but to eliminate
therefrom this inherent element o f alienability fo r
a limited period or to incapacitate his devisees,
although sui juris, from disposing o f their p rop
erty fo r the same limited period, to wit, until the
younger should arrive at thirty-one years o f age
— each and both of which purposes was repugnant
to the nature o f the estate devised. By the policy
o f our laws it is o f the very essence o f an estate
in fee simple absolute, that the owner, who is not
under any personal disability im posed by law, may
alien it or subject it to the payment o f his debts at
any and at all tim es; and any attempt to evade or
eliminate this element from the fee simple estate,
either by deed or by will, must be declared void
and o f no force. * * * In holding that such restraint
is repugnant to the nature o f the estate devised
and is void as against public policy, which, in this
State, in the interests o f trade and commerce,
gives to every absolute owner o f property who is
sui juris the power to control and dispose o f such
property and subject the same to the payment of
his debts, we are fu lly aware o f the fact that many
17
other authorities m ay and have been cited to the
contrary.
In Barnard v. Bailey, 2 H arrington (D el.), 56, a con
dition in a devise that the devisee should not dispose
o f the property to the blood kin o f either the testator
or the devisee, was held to be bad.
In Williams v. Jones, 2 Swan (Tenn.), 620, there was
a bequest to A on condition that she should not dispose
o f the property so as to allow either o f four persons
to get it. The condition was declared to be void.
In Brothers v. McCurdy, 36 Pa. St., 407, a testator d i
rected that land devised to his son should not be sold
to any person for the purpose o f making brick or
carrying on a brickmaking business, and more espe
cially that he should not sell it to Lotz and Beasley,
and declared that the devise o f the lot was to be void
in case o f a sale contrary to his will, in which event the
lot was to be held in common by the testator’s other
heirs. The g ift over was adjudged to be void.
See also Be Rosher, L. R. 26 Ch. Div., 801, 816, and
Re Dugdale, L. R. 38 Ch. Div., 176, 179, in both of
which cases In re Macleay, L. R. 20 Eq., 186, was dis
approved, as it likewise was in Manierre v. Welling,
32 R. I., 104.
In Renaud v. Tourangeau, L. R., 2 P rivy Counsel
App., 4, where a testator in Low er Canada devised real
estate to her children, providing that they should in no
way alienate the property until twenty years after
his death, the Judicial Counsellor, per Lord Romilly,
held that the restriction “ was not valid either by the
old law of France, or the general principle o f ju ris
prudence. ’ ’
In 4 K en t ’s Commentaries, 131, Chancellor Kent,
discussing this general subject, sa id :
18
‘ ‘ Conditions are not sustained when they are re
pugnant to the nature o f the estate granted or in
fringe upon the essential enjoyment and indepen
dent rights o f property and tend m anifestly to
public inconvenience. A condition annexed to a
conveyance in fee or by devise that the purchaser
and devisee should not alien, is unlawful and void.
I f the grant be upon condition that the grantee
shall not permit waste or not take the profits, or
his w ife not have her dower or the husband his
curtesy, the condition is repugnant and void, for
those rights are inseparable from the estate in fee.
N or could a tenant in tail, though his estate was
originally intended as a perpetuity, be restrained
by any proviso in the deed creating the estate
from suffering a common recovery. Such re
straints were held by Lord Coke to be absurd and
repugnant to reason and to “ the freedom and lib
erty o f freem en.” The maxim which he cites con
tains a just and intelligent principle worthy of
the spirit o f the English law in the best ages o f
English freed om : iniquum est ingenuis hominibus
non esse liberam rerum suarum alienationem. I f,
however, a restraint upon alienation be confined
to an individual named to whom the grant is not
to be made, it is said by very high authority to be
a valid condition. But this case falls within the
general principle and it may be very questionable
whether such a condition would be good at this
day. In Newkirk v. Newkirk (2 Caines, 345), the
Court looked with a hostile eye upon all restraints
upon the free exercise o f the inherent right o f
alienation belonging to estates in f e e ; and a devise
o f lands to a testator’s children in case they con
tinued to inhabit the town o f Hurley, otherwise
not, was considered to be unreasonable and repug
nant to the nature o f the estate. ’ ’
To the same effect are the follow ing decisions:
Clark v. Clark, 99 Md., 356; 58 Atl. Rep., 24;
Winsor v. Mills, 157 Mass., 362; 32 N. E. Rep.,
352;
19
Latimer v. Waddell, 119 N. C., 370; 26 S. E.
Rep., 122;
Re Schilling, 102 Mich., 612;
Zillmer v. Landgath, 94 W is., 607; 69 N. W .
Rep., 568;
Jones v. Port Huron Engine & Thresher Co.,
171 111., 502; 49 N. E. Rep., 700.
CASES INVOLVING COVENANTS SIMILAR TO
THE PRESENT.
W e will now consider the cases in which covenants
similar to that o f Middaugh and Shannon have been
passed upon.
In Gondolfo v. Hartman, 49 Fed. Rep. 181, a cov
enant in a deed not to convey or lease land to a China
man was held to be void as contrary to the public pol
icy o f the Government and as not enforceable in equity.
In Title Guarantee <£ Trust Co. vs. Garott, 42 Cal.
App. 150, 152, the Court refused to enforce a condition
in a deed providing fo r forfeiture in case o f the sale
or lease o f property to any person o f A frican, Chinese
or Japanese descent, the Court said (p. 157):
“ The rule that conditions restraining aliena
tion, when repugnant to the estate conveyed, are
void, is founded on the postulate that the convey
ance o f a fee is a conveyance of the whole estate,
that the right o f alienation is an inherent and in
separable quality o f an estate in fee simple, and
that, therefore, a condition against alienation is
repugnant to and inconsistent with, the estate con
veyed. T o transfer a fee and at the same time re
strain the free alienation o f it is to say that a
party can grant and not grant, in the same breath.
20
But the rule is not founded exclusively on this
principle o f natural law. It rests also on grounds
of clear public policy and convenience in facilita
ting the exchange of property, in simplifying its
ownership and in freeing it from embarrassments
which cure injurious not only to the possessor, but
to the public at large.”
A t page 160:
‘ ‘ I f the continuation o f the estate in the grantee
may be made to depend upon his not selling or leas
ing to persons o f A frican , Chinese, or Japanese
descent, it may be made to depend upon his not
selling or leasing to persons o f Caucasian descent,
or to any but Albinos from the heart o f A frica , or
blond Eskim os.”
“ It is impossible on any known principle to say
that a condition not to sell to any o f a very large
class o f persons, such as those embraced within the
category o f descendants from A frican, Chinese, or
Japanese ancestors, shall not be deemed an unrea
sonable restraint upon alienation, but that the p ro
scribed class m ay be so enlarged that finally the
restriction becomes unreasonable and void.
W here shall the dividing line be placed? W hat
omniscience shall tell us when the restraint passes
from reasonableness to unreasonableness? W ho
can know whether he has title to land until the
question o f reasonableness has been passed upon
by the court o f last resort? No matter how large
or how partial and infinitesimal the restraint m ay
b e ; the principles o f natural right, the reasons of
public policy, and that principle o f the common
law which forbids restraints upon the disposition
o f one’s own property, are as effectually over
thrown by the one as by the other. ’ ’
A petition to have the case heard in the California
Supreme Court was unanimously denied September 8,
1919.
21
In the opinion subsequently rendered in Los Angeles
Investment Co. v. Gary, 181 Cal., 680, which will be
presently discussed, the Court referred in terms of
praise and approval to the opinion o f Judge Finlay-
son in Title Guarantee & Trust Co. v. Garrott, adding:
“ The decision in that case was presented to us
for consideration by a petition for rehearing, and
the petition was denied because o f our conclusion
that the decision was correct, a conclusion from
which we see no reason for departing.”
Consequently the Supreme Court o f California like
wise decided that a condition or covenant that property
conveyed “ shall not be sold, leased or rented to one
not o f the Caucasian race until after January 1, 1930,”
was void at common law as against public policy, irre
spective o f the fact that the restraint on alienation
was but partial and was limited to persons o f a par
ticular class or to a com paratively brief period.
In State v. Darnell, 166 N. C., 300, 302, 303, 81 S. E.
Rep., 338, an ordinance was adopted by the Board of
Alderm en o f W inston, N. C., pursuant to a provision of
the city charter authorizing them to pass any ord i
nance which they deemed proper fo r the good order
and general welfare o f the city if it does not con
travene the laws and Constitution o f the State,
which made it unlawful fo r any colored person to
occupy as a residence any house upon any street on
which a greater number o f houses are occupied
by white people than are occupied by colored
people, and containing a similar provision as to whites.
This ordinance was declared void in an interesting
opinion by Chief Justice Clark, who pointed out that
such legislation was similar in its character and tend
ency to that which years ago prescribed in Ireland
22
limits beyond which the native Irish or Celtic popula
tion could not reside, thus creating what was called the
“ Irish Pale,” and similar more recent legislation in
Czaristic Russia, where the Jews were restricted in the
right o f residence in a limited territory known as the
so-called Jewish Pale o f Settlement. In each instance
the consequences were tragic and resulted in infinite
harm, and constituted powerful incentives to disorder
and revolution. The follow ing passage in his opinion
calls attention to the underlying vice o f the ordinance
then under consideration, in terms which we regard
as equally applicable to the covenant involved in the
present case:
“ W e do not think that the authority conferred
by Section 44 o f the Charter to enact ordinances
for the ‘ general welfare o f the c ity ’ can justly be
construed as intended by the Legislature to author
ize an ordinance o f this kind which establishes a
public policy which has hitherto been unknown
in the legislation o f our State. To do so would
give the words ‘ general w elfare ’ an extended and
wholly unrestricted scope which we do not think
the Legislature could have contemplated in using
those words. I f the Board of Aldermen is thereby
authorized to make this restriction a bare m ajority
o f the board could, i f they m ay ‘ deem it wise and
p roper ,’ require Republicans to live on certain
streets, and Democrats on others, or that P rot
estants shall reside only in certain parts o f the
town, and Catholics in another, or that Germans or
people o f German descent should reside only where
they were in the m ajority, and that Irish and those
of Irish descent should dwell only in certain lo
calities, designated for them by the arbitrary ju d g
ment and permission o f a m ajority o f the aider-
men. They could apply the restriction as well to
business occupations as to residences, and could
23
prescribe the localities allotted to each class of
people without reference to whether the m ajority
already therein is o f the proscribed race, nation
ality, or political or religious faith.
“ Besides, an ordinance o f this kind forbids the
owner o f property to sell or to lease it to whom
soever he sees fit, as well as forbids those who may
be desirous o f buying or renting property from do
ing so where they can make the best bargain. Yet
this right o f disposing o f property, the jus dis-
ponendi, has always been held one o f the inalien
able rights incident to the ownership o f property
which no statute will be construed as having power
to take aw ay.”
It has been frequently laid down that even a restric
tion as to the manner o f using land, in order to be
valid, must not be contrary to public policy.
Whitney v. Union Railway Co., 11 Gray, 359;
DeGray v. Monmouth Beach Club House Co., 50
N. J. Eq. 329, 24 Atl. Rep. 388;
Brewer v. Marshall, 19 N. J. Eq. 537.
In the recent case o f Porter v. Barrett, 233 Mich.
373, 206 N. W . Rep. 532, a contract fo r the sale o f lots
contained the follow ing covenant:
“ This land is sold upon express condition that
the business o f m anufacturing or selling intoxi
cating liquors shall never be conducted thereon, or
on any part thereof; that no slaughter house or
nuisance o f any kind, or any other thing obnoxious
to a good residence neighborhood shall ever be al
lowed on such land, and the same shall never be
sold or rented to a colored person.”
The vendors subsequently sought to recover posses
sion o f the lots because o f forfeiture fo r the violation
24
by assignees o f the contract o f the provision not to sell
to a colored person. It was held that this provision
was invalid. The opinion o f Mr. Justice Fellows is
most instructive and comprehensive. He sa y s :
“ Restraints on alienation are o f feudal origin.
But as early as the reign o f Edward I there was
a marked change in England brought about by the
enactment o f the statute quia emptores (18 E d
ward I, 235), which in part provided : ‘ That from
henceforth it shall be lawful to every freem an to
sell at his own pleasure his lands or tenements,
or part th ereo f: So nevertheless that the feoffee
shall hold the same lands o f tenements o f the same
chief Lord o f the Fee, and by the same services and
customs as his feoffer held them before .’ L ittle
ton said (2 Coke upon Littleton, 223 ): ‘ A lso, i f a
feoffm ent be made upon this condition, that the
feoffee shall not alien the land to any, this condi
tion is void, because when a man is enfeoffed o f
lands or tenements (pur ceo que quant home est
enfeoffe de terres ou tenements), he hath power to
alien them to any person by the law. F or if such
a condition should be good, then the condition
should oust him o f all the power which the law
gives him, which should be against reason, and
therefore such a condition is v o id .’
The spirit o f the statute quia emptores, to re
lieve the landlord from fetters placed on him and
his lands by restraints upon alienation, has been
in the main accepted and enforced by the courts o f
England from an early day. Out o f line, however,
with this spirit is the case o f Doe d. Gill v. Pear
son, 6 East. 173, where a restraint upon alienation
except to the devisee’ s sisters was sustained. This
case has been referred to as a leading one by those
courts which have sustained the right to partially
restrain alienation, but the court in Attwater v.
Attwater, 18 Beav. 330, where the restriction was
quite similar, expressly declined to follow it, and
25
held the restrictions void on the authority o f L it
tleton, above quoted.
In this country some o f the courts have recog
nized the validity o f restraints on alienation fo r a
limited time or to particular persons. No doubt
a statement o f Littleton, to which we shall later
refer, prom pts such holding, and the statement of
Justice Field in Cowell v. Springs Co., 100 U. S.
55, is frequently cited to the same effect. He there
said : ‘ Conditions which prohibit its alienation to
particular persons or fo r a limited period, or its
subjection to particular uses, are not subversive
o f the estate. They do not destroy or limit its
alienable or inheritable character. ’ But an exam
ination o f the case then before the court shows
that the question involved was a restriction of
the use o f the premises fo r the manufacture and
sale o f intoxicating liquors and that the statement
o f the learned justice was but dictum .”
The decisions in Anderson v. Cary, supra, Manierre
v. Welling, supra, Gray on Restrictions on Alienaiton,
Second Edition, p. 41, and DePeyster v. Michael, supra,
are then referred to, and the opinion proceeds:
“ Now if a restraint on alienation fo r a single
day is bad, how can it be said that a restraint on
alienation to a large class o f citizens or a small
one, or even to one, is good? I f it is not fo r the
courts to determine what would be a reasonable
time to restrain alienation, how can it be left to
the courts to say whether a restraint on aliena
tion to a class is reasonable or not? W e must
bear in mind that we are are not dealing with a
restraint on the use o f the premises. Such re
straints unless unreasonable have quite uniform ly
been upheld. B efore the sale o f intoxicating liquor
was prohibited this court and practically every
court o f last resort in the Union upheld restraints
o f the use o f premises fo r its manufacture or sale.
26
Such a restraint upon the use was uniform ly up
held ; but would a restraint on sale o f premises to
one who was engaged in the sale o f intoxicating
liquors elsewhere be valid? I think not. R e
straints upon the erection o f manufacturing plants
in residential districts have uniform ly been upheld,
but would a restraint o f sale to one engaged in the
m anufacturing business be valid? I think not. R e
straint on the occupancy o f premises in residential
districts by colored people has been upheld by this
court. Parmalee v. M orris, 218 Mich. 625, 188
N. W . 330, 38 A . L. R. 1180. Does it follow that a
restraint upon the right to sell property to a
colored man is valid? I think not. I think the
holding and the reasons fo r the holding in Mandle-
baum v. McDonell, 29 Mich. 79, precludes us from
sustaining as valid the restrictions before u s .”
In Johnson v. Preston, 226 111. 447, which was also
cited in Porter v. Barrett, supra, it is said:
‘ ‘ The general rule is that where a devise is made
in fee, either o f a legal or equitable interest, all
limitations tending to deprive the estate o f any
o f the incidents appertaining to the interest cre
ated are held to be repugnant to the devise, and
void. To transfer a fee and at the same time to
restrict the free alienation o f it is to say that a
party can give and not give in the same breath.”
In M iller v. Jersey Coast Resorts Corporation, 98
N. J. Eq. 289, 130 Atl. Rep. 824, a similar question was
considered indicating to what length it may be at
tempted to carry restrictions. There, too, the effort
was unsuccessful.
27
CASES RELIED ON BY THE APPELLEES.
They are:
Los Angeles Investment Co. v. Gary, 181 Cal.,
680;
Queensboro Land Co. v. Cazeaux, 136 La., 724;
Koehler v. Rowland, 275 Mo., 573;
Parmalee v. Morris, 218 Mich., 625;
Carrigan vs. Dudley, 271 U. S. 323;
McNeil v. Gary, 40 A pp. D. C. 397;
Torrey v. Wolfes, 6 Fed. (2d) 702.
(а) So far as they undertake to sustain the validity
o f such a covenant as that now under discussion, we
contend that the conclusions reached are erroneous,
since they disregard the legitimate scope and effect o f
the decision in Buchanan v. Warley and o f Sections
1977 and 1978 o f the Revised Statutes and the m ischief
that is inherent in such a covenant. They fa il to d if
ferentiate between restrictions in deeds which p ro
hibit the use o f property fo r certain purposes, such as
that considered in Cowell v. Springs Co., 100 U. S., 57
and a covenant which constitutes a segregation o f
negroes from other citizens. They likewise overlook
the distinction between such a case as the present and
cases like Plessy v. Ferguson, 163 U. S., 537, and the
Berea College Case, 211 U. S., 45, which was fully
pointed out in Buchanan v. Warley and in Carey v.
City of Atlanta, 143 Ga., 192.
(б ) In Los Angeles Investment Co. v. Gary, supra,
the Court as has already been pointed out, approved o f
the decision in Title Guarantee & Trust Co. v. Garrott,
supra, in so far as to hold that a condition or covenant
in partial restraint on alienation, whether limited to a
particular class o f persons or to a com paratively brief
period, was void because contrary to public policy.
28
The Court, however, held that so much o f the covenant
which it then had under consideration as provided “ nor
shall any person or persons other than o f Caucasian
race be permitted to occupy said lot or lots,” was not a
restraint upon alienation, but upon the use o f the prop
erty, and was, therefore, valid.
The decision was by a divided court which consisted
o f five members, two o f whom, Mr. Chief Justice Angel-
lotti and Mr. Justice Lennon, having dissented. It like
wise appears from the opinion o f Mr. Justice Olney,
that the Court had “ not been favored by either brief or
argument on behalf o f the respondents,” that is, the
parties against whom the condition was sought to be
enforced. M oreover, the question o f public policy in
its broad aspects was not discussed.
The prevailing opinion further contains the striking
qualification:
“ In connection with this decision it may be well
to add that what we have said applies only to re
straints upon use imposed by way o f condition,
and not to those sought to he imposed by covenant
merely. The distinction between conditions and
covenants is a decided one and the principles ap
plicable quite different.”
Furtherm ore, it would see that, i f a restriction upon
alienation is opposed to public policy, a covenant which
would seek to prevent the use and occupancy o f p rop
erty by its OAvner Avould be equally contrary to public
policy. It would tend to produce the same evils as
those which brought about the rule with respect to re
straints on alienation. The right to use and occupy
property is an essential incident o f ownership. It was
so recognized in Buchanan v. Warley (see p. 7, supra).
29
O f what avail would be the right to acquire the title
o f property, if the grantee may not take it into his
possession and en joy its use? The distinction sought
to be drawn leads to a palpable absurdity.
(c) In Queensborough Land Co. v. Cazeaux, supra,
and Kohler v. Rowland, supra, the Court had under
consideration conditions in deeds which provided fo r
forfeiture were the premises conveyed to be sold or
leased by the grantee to a negro. In both cases it was
held that the conditions did not constitute unlawful
restraints upon the power o f alienation.
Commenting on these decisions in his opinion in
Title Guarantee & Trust Co. v. Garrott, Mr. Justice
Finlayson said:
“ W ith neither o f them do we agree. The Louisi
ana case was decided in accordance with the prin
ciples o f the civil law, and can throw but little, if
any light upon the construction o f our Code p ro
vision, based, as it is, on the common law of E ng
land— a body o f law that, ever since the statute
quia emptores, has more and more treated land as
an article of sale and traffic, as much so as personal
property. In the M issouri case the Court in one
brief paragraph disposes o f this difficult question
out o f hand, citing but one case, Cowell v. Colorado
Springs Co., 100 U. S., 55, to sustain its statement
that, ‘ it is entirely within the right and power of
the grantor to impose a condition or restraint upon
the power o f alienation in certain cases to certain
persons, or fo r a certain time, or fo r certain pur
poses.’ In short, the M issouri cou rt’s decision is
based upon a dictum o f Mr. Justice Field— a dic
tum by one o f the country ’s most learned jurists,
it is true, but a dictum nevertheless which, so far
as it refers to a time limitation upon alienation, is
contrary to all the well-reasoned cases, such as
30
Mandlebaum v. McDonell, supra, and in so fa r as
it refers to restraints that are partial as to per
sons or classes o f persons, is, we believe, contrary
to logic and contrary to the clear implication of
the Supreme Court o f this State in M urray v.
Green, 64 Cal., 367, 368, that any restraint what
ever upon the pow7er o f alienation, however partial
or tem porary, or o f whatever character, is viola
tive o f Section 711 o f our Civil Code, and, further
more, it is dictum that is pregnant with uncertain
ties that necessarily would produce the greatest in
convenience in the world o f trade and commerce,
fo r no one could say whether any particular re
striction was reasonable until the question had
been litigated to the court o f last resort, and no
judge could know what standard o f certainty
should be employed to determine the question.”
Further referring to Cowell v. Colorado Springs Co.,
Mr. Justice Finlayson pointed out:
“ W hat that learned jurist (Mr. Justice Field)
said about restraint upon alienation was dictum
pure and simple and not in accord wTith the weight
o f authority nor the better reasoned cases. That
that part o f the excerpt from the opinion o f Mr.
Justice Field wherein he animadverts upon re
straints upon alienation, is dictum, the Federal
, Supreme Court itself has declared in the subse
quent case o f Potter v. Couch, 141 U. S., 315.
In this connection it is likewise proper to refer to
the comments o f P rofessor Gray upon Cowell v.
Springs Co., and other similar cases, in Sections 40, 52-
54 o f the second edition o f his scholarly work on “ R e
straints on the Alienation of P roperty .”
31
( d) Parmalee v. Morris, supra, like Los Angeles In
vestment Co. v. Gary, Kohler v. Rowla/nd and Queens-
borough Land Co. v. Cazeaux, was a case arising on a
condition contained in a deed which conveyed prop
erty which was the subject o f the l'estriction. In
neither o f these cases was there a covenant between
independent owners o f land each o f whom had acquired
a title free from condition or restriction o f the char
acter sought to be created. M oreover, Parmalee v.
Morris was decided on the authority o f the other three
cases, and, therefore, depends upon the soundness o f
the reasoning o f those cases, which, we contend, does
not subserve the public welfare.
The opinion o f Mr. Justice M oore in Parmalee v.
Morris seems to proceed on a misunderstanding o f a
legitimate argument presented in opposition to the
validity o f such a condition. The fallacy of the con
clusion reached becomes evident from these excerpts
from the opinion:
“ Suppose the situation was reversed and some
negro who had a tract o f land platted it and stated
in the recorded plat that no lot should be occupied
by a Caucasian, and that the deeds that were
afterwards executed contained a like restriction;
would any one think that dire results to the white
race would follow an enforcement o f the restric
tion ?”
W e answer that such a restriction would be as v i
cious as that o f which we are now complaining. I f the
negroes possessed the wealth o f the Caucasians and
could acquire property just as the Caucasians are now
enabled to acquire it, would it not lead to unfortunate
consequences if such a condition were aimed at a Cau
casian by a negro?
32
Let us continue the argument to its legitimate con
sequences, and suppose that it was a Catholic who had
conveyed lands with the condition that it should not
be occupied by a Protestant, or vice versa, or if one of
German, Irish, French or Italian descent had conveyed
property on the condition that it was not to be occu
pied by an Englishman or a Scotchman or by one who
was a native o f New England, or California, or Iowa,
or Tennessee. W ould it not be said at once that such a
restriction boded m ischief to the public good"?
The opinion continues:
“ The issue involved in the instant case is a
simple one, i. e., shall the law applicable to re
strictions as to occupancy contained in deeds to
real estate be enforced, or shall one be absolved
from the provisions o f the law simply because he
is a n egro?”
Our answer is that the provision is void, not
“ sim ply” because the person against whom it is sought
to be enforced is a negro, but because it is contrary
to the genius o f our Am erican institutions, to the spirit
o f the Constitution, and to the peace, quiet, good order,
unity, harmony and dignity o f the people of the United
States.
The attack is made on this covenant because it is op
posed to the fundamental principles on which our G ov
ernment rests, that all men are created equal and that
they are entitled to the protection o f their lives, their
liberty, and their property. It is believed that our
courts will not, by their decrees, effectuate a purpose
which destroys our cherished traditions and which
would recognize and tend to create a system o f caste.
The moment that there is a differentiation in our courts
33
between white and black, Catholic and Protestant, Jew
and non-Jew, hatreds and passions will inevitably be
aroused, and that which has been most noble and ex
alted and humane in Am erican life will have been
shattered.
(e) Corrigan v. Buckley, supra, merely considered
the question as to whether the F ifth and Fourteenth
Amendments prohibited private lot owners from enter
ing into twenty-one year mutual covenants not to sell
to any person o f Negro blood or race. It was held that
these Amendments were directed not against individ
uals but, in the case o f the Fifth Amendment, against
the action o f the general Government, and, in that o f
the Fourteenth Amendment, against action by the
States. H aving so decided on the basis o f previous
decisions, the Court held that it had no jurisdiction to
pass on any other questions argued as to the validity
o f the covenant as between the parties or their privies.
The case having been brought up by appeal from the
decree, and there having been no application for a writ
o f certiorari, the Court had no jurisdiction to review
those questions.
In the concluding paragraph of the opinion o f Mr.
Justice Sanford this is made clear. He says:
“ It results that, in the absence of any substan
tial constitutional or statutory question giving us
jurisdiction o f this appeal under the provisions of
Section 250 o f the Judicial Code, we cannot deter
mine upon the merits the contentions earnestly
pressed by the defendants in this court that the
indenture is not only void because contrary to pub
lic policy, but is also o f such a discrim inatory
character that a court o f equity will not lend its
aid by enforcing the specific perform ance o f the
covenant. These are questions involving a consid
34
eration of rules not expressed in any constitutional
or statutory provision, but claimed to be a part of
the common or general law in force in the D istrict
o f Columbia; and, plainly, they may not be re
viewed under this appeal unless jurisdiction o f the
case is otherwise acquired. Hence, without a con
sideration o f these questions, the appeal must be,
and is dismissed fo r want o f jurisd iction .”
It is also to be noted that the covenant in that case
was not one which endured fo r all time. It was not
that the property there involved was never to be sold,
conveyed or leased to Negroes. It was limited to a
period o f twenty-one years. W hile we strenuously con
tend that such a covenant is contrary to public policy,
yet the differentiation between it and the M iddaugh
and Shannon covenant is obvious.
( / ) In McNeil v. Gary, supra, the question presented
was not one o f the restriction o f the powers o f aliena
tion, but merely as to the character o f the building
which might be erected on the lot and as to the use o f
the premises. This involves a question o f an entirely
different character.
Chevy Chase Land Co. v. Pool, 48 App. D. C. 400
was similar in character.
(g) In Torrey v. Wolfes, supra, the Middaugh and
Shannon covenant was considered and upheld. W e
believe, however, that the authorities which we have
discussed were not brought to the attention o f the
Court. A t all events none o f them is referred to in the
opinion. The invalidity o f that covenant on the ground
that it was such an unlawful restraint upon the right
o f alienation as to be void and contrary to public policy
generally, was not noticed. In view o f the fact that
in the numerous well-considered cases above cited, ad
35
judicated by important tribunals in various parts of
the country, and especially in Porter v. Barrett, 233
Mich. 373, subsequent to the decision in Torrey v.
Wolfes, a restriction of the character now attempted to
be imposed, whether by covenant, condition or condi
tional limitation, has been declared contrary to public
policy, it is believed that this Court will reconsider
its decision in the light o f these authorities.
THE SIMILARITY BETW EEN THIS COVENANT
AND THOSE RESTRICTIVE OF TRADE OR
COMMERCE.
W hile it may be claimed that this covenant was not
one relating to trade or commerce, in the strict sense
o f the term, nevertheless, in these later days, the ten
dency o f the law has been to encourage the tranfera-
bility o f real estate with the same facility as has long
existed in the case of personalty. The public policy of
today favors the ready transfer o f realty from one per
son to another. In Manierre v. Welling, 32 R. I. 104,
78 Atl. Rep. 519, Mr. Justice Parkhurst, quoting the
opinion o f Mr. Justice Christiancy in Mandlebaum v.
McDonell, 29 Mich. 79, expressed the prevailing policy
when he said:
‘ ‘ and certainly, in a country like ours, where lands
are as much an article o f sale and traffic as per
sonal property, and the policy o f the State has
been to encourage both the acquisition and easy
and free alienation o f lands, such restrictions
ought not be encouraged by the Courts. ’ ’
The same idea was expressed by Mr. Justice Garber
in Test Oil Co. v. LaTourrette, 19 Okla., 214, 91 Pac.
Rep., 1025, 1028:
36
“ In this country land is one o f the chief objects
o f trade and investment— ‘ mud and civilization go
together.’ A s the latter advances the transfer o f
the form er becomes more frequent. Just in the de
gree that the tem porary owner o f a tract o f land
is permitted to impress his notions or caprices up
on the fee restricting its future alienation, just in
that degree does it hamper the terms and facility
o f its exchange in trade and destroy that continu
ance which has given it the reputation o f being
the subject o f safe and sound investment. Hence
restrictions upon the alienation o f the fee in land
are repugnant to trade and commerce, and are
looked upon with d isfavor by the law .”
M oreover, as has been shown under the preceding
subdivision o f this argument, long before the rule o f
public policy which forbade restraint o f trade in m er
chandise or the like, came into being, contracts in re
straint o f the alienation o f realty had been treated as
opposed to public policy. Hence it is our contention
that the covenant now under consideration, which lim
its the sale o f land or its occupany to a certain class o f
human beings and excludes other o f G od ’s children
from the right to occupy or purchase it, in the aspect
o f public policy comes at least within the rules appli
cable to the restraint o f trade in personality.
In United States v. Addyston Pipe Co., 85 Fed. Rep.,
271, affd. 175 U. S., 211, Mr. Chief Justice Taft, then
w riting fo r the Circuit Court o f Appeals fo r the Sixth
Circuit, classified the decisions in which covenants in
partial restraint o f trade had been upheld. They in
volved agreements (1) by the seller o f property or
business not to compete with the buyer in such a way
as to derogate from the value o f the property or busi
ness sold ; (2) by a retiring partner not to compete with
37
the firm ; (3) by a partner pending the partnership
not to do anything to interfere by competition or
otherwise with the business o f the firm ; (4) by the
buyer o f property not to use the same in competition
with the business retained by the seller; and (5) by an
assistant, servant or agent not to compete with his
master or em ployer after the expiration o f his time of
service.
R eferring to this classification, it was added (p. 281):
“ B efore such agreements are upheld, however,
the Court must find that the restraints attempted
thereby are reasonably necessary (1, 2 and 3) to
the enjoyment by the buyer o f the property, good
will or interest in the partnership bought; or (4)
to the legitimate needs o f the existing partnership;
or (5) to the prevention o f possible injury to the
business o f the seller from the use by the buyer of
the thing sold; or (6) to protection from the dan
ger o f loss to the em ployer’s business caused by
the unjust use on the part o f the employee o f the
confidential knowledge acquired in such business.
* * * It would be stating it too strongly to say that
these five classes o f covenants in restraint o f trade
include all o f those upheld as valid at the common
law ; but it would certainly seem to follow from
the tests laid down fo r determining the validity
o f such an agreement that no conventional re
straint o f trade can be enforced unless the cove
nant embodying it is merely ancillary to the main
purpose of a lawful contract, and necessary to pro
tect the covenantee in the enjoyment of the legi
timate fruits of the contract, or to protect him from
the dangers of an unjust use of those fruits by the
other party. In Horner v. Graves, 7 Bing., 735,
Chief Justice Tindal, who seems to be regarded
as the highest English judicial authority on this
branch o f the law (see Lord M acnaghten’s judg
ment in Nordenfeldt v. Maxim Nordenfeldt Co,
38
(1894) A pp. Cas. 535, 567) used the follow ing lan
guage :
‘ W e do not see how a better test can be applied
to the question whether this is or is not a reason
able restraint o f trade than by considering the re
straint is such only as to afford a fair protection to
the interests of the party in favor of whom it is
given, and not so large as to interfere with the in
terests of the public. W hatever restraint is larger
than the necessary protection o f the party re
quires can be o f no benefit to either. It can only
be oppressive. It is, in the eye o f the law, unrea
sonable. Whatever is injurious to the interests of
the public is void on the ground of public policy.’
This very statement of the rule implies that the
contract must be one in which there is a main pur
pose, to which the covenant in restraint of trade is
merely ancillary. The covenant is inserted only to
protect one of the parties from the in jury which,
in the execution of the contract or the enjoyment
of its fruits, he may suffer from the unrestrained
competition of the other. The main purpose o f the
contracts suggests the measure o f protection
needed, and furnishes a sufficiently uniform stand
ard by which the validity o f such restraints may
be judicially determ ined.”
See also 13 Corpus Juris, title “ Contract,” Section
420, page 477, and cases cited.
In the present case there is an utter absence of those
elements which in the case cited were deemed to justify
covenants in partial restraint o f trade.
That this principle is applicable to restrictive cove
nants affecting real estate appears from the decisions
collated in 3 W illiston on Contracts, Sec. 1642.
This doctrine does not owe its existence to the Sher
man Act, or any other similar legislation. It is a prin
ciple enforced by the courts both at common law and
in equity, long prior to such legislation.
39
A s applicable to this discussion, we take the liberty
o f quoting extensively from the opinion o f Mr. Justice
Hughes in Dr. Miles Medical Co. v. Park <£ Sons Co.,
220 U. S., 373. The question there involved was as to
whether a manufacturer, in connection with the sale o f
his product, may affix conditions as to the use o f the ar
ticle sold or as to the prices at which purchasers may
dispose o f it. There the condition was ancillary to a
sale. Yet it was held, fo r reasons about to be pointed
out, that such conditions were contrary to public pol
icy, and, therefore, void. Mr. Justice Hughes said:
“ But because a manufacturer is not bound to
make or sell, it does not follow that in case o f sales
actually made he may impose upon purchasers
every sort o f restriction. Thus a general restraint
upon alienation is ordinarily invalid. ‘ The right
o f alienation is one o f the essential incidents o f a
right o f general property in movables, and re
straints upon alienation have been generally re
garded as obnoxious to public policy, which is best
subserved by great freedom of traffic in such things
as pass from hand to hand. General restraint in
the alienation o f articles, things, chatties, except
when a very special kind o f property is involved,
such as a slave or an heirloom, have been generally
held void. ‘ I f a m an,’ says Lord Coke, in Coke on
Littleton, section 360, ‘ be possessed of a horse or
any other chattel, real or personal, and give his
whole interest or property therein, upon condition
that the donee or vendee shall not alien the same,
the same is void, because his whole interest or
property is out o f him, so as he hath no possibility
o f reverter; and it is against trades and traffic and
bargaining and contracting between man and man. ’
Park v. Hartman, 153 Fed. Rep., 24. See also
Gray on Restraints, on Alienation, Sections 27,
28.”
40
A t page 406 the opinion continues:
“ W ith respect to contracts in restraint o f trade,
the earlier doctrine o f the common law has been
substantially modified in adaptation to modern
conditions. But the public interest is still the first
consideration. To sustain the restraint, it must be
found to be reasonable both with respect to the
public and to the parties and that it is limited to
what is fa irly necessary, in the circumstances of
the particular case, fo r the protection o f the cove
nantee. Otherwise restraints o f trade are void as
against public policy. * * * ‘ The true view at the
present tim e,’ said Lord Macnaghten in Norden-
feldt v. Maxim Nordenfeldt <& Co., 1904, A . C., page
565, ‘ I think, is th is : The public have an interest in
every p erson ’s carrying on his trade free ly : so
has the individual. A ll interference with individ
ual liberty of action in trading, and all restraints
of trade of themselves, if there is nothing more,
are contrary to public policy, and therefore void.
That is the general ride. But there are exceptions:
restraints o f trade and interference with individ
ual liberty o f action may be justified by the special
circumstances o f a particular case. It is a suffi
cient justification, and indeed it is the only justi
fication, if the restriction is reasonable— reason
able, that is, in reference to the interests o f the
parties concerned and reasonable in reference to
the interests o f the public, so fram ed and so
guarded as to afford adequate protection to the
party in whose favor it is imposed, while at the
same time it is in no way injurious to the public.’ ”
The covenant here involved happened to exclude
from the list o f possible purchasers or occupants o f the
land in question Negroes or persons o f the N egro race
or blood. That excluded upwards o f twelve million citi
zens o f the United States, or ten per cent o f the entire
41
population. I f Catholics and Jews had been added to
the number o f those blacklisted it would have limited
the possible purchasers to the extent o f upwards o f
twenty millions more o f our citizens, or practically an
additional twenty per cent o f the population.
I f a covenant like that here involved made by white
persons, is valid, then a corresponding covenant by col
ored land-owners restricting the sale o f their property
so as to exclude all white persons or those of the Cau
casian race or blood as possible purchasers, would be
equally permissible. That would affect at least 100,-
000,000 of our population. Is that not a reductio ad
absurdum o f the contention that covenants o f this char
acter are not opposed to public policy?
I f the various dealers in woolen cloth or shoes or
prepared articles o f food carrying on business in
W ashington had covenanted with each other not to sell
or to give any o f their products to these several classes
o f human beings com ing within the ban o f their d is
pleasure, it is believed that our courts would not long
hesitate to declare such a covenant as contrary to pub
lic policy. H ow does the illustration differ in prin
ciple from the covenant now under discussion? The
fact that in the one case the covenant relates to the
acquisition o f a habitation and in the other o f articles
o f clothing or o f food, does not constitute a valid
ground fo r differentiation. A s was said by Mr. Justice
Holmes in Block v. Hirsh, 256 U. S., 156, “ housing is a
necessary o f l ife .” It is as much a necessity fo r those
o f the negro race or blood as it is fo r those o f the white
race.
I f covenants o f this character are valid in relation to
the property on one city block, they would be equally
applicable to a hundred, or, i f there were so many, a
42
thousand city blocks in the City o f W ashington, and
since, as was said in the opinion in the case just cited,
“ the space in W ashington is necessarily monopolized
in com paratively fewT hands,” the cumulative effect of
such covenants would be to drive out o f the City o f
W ashington, and fo r that matter out o f the District
o f Columbia, all or most o f the persons o f the negro
i ace or blood whose business or occupation or inter
est it is to pursue their respective vocations in that
City or D istrict as it is a matter o f public interest
that they should pursue their vocations there. Such a
scheme is not an unheard o f conception. It wras at
tempted in In re Lee Sing, 43 Fed. Rep., 359. A c
cording to the census o f 1920 the white population of
the D istrict numbered 326,860 and the negro popula
tion 109,966, or nearly a quarter o f the entire popula
tion. It is also interesting to note parenthetically that
the covenant would practically preclude the white
owner o f any one o f the houses affected by it, to per
mit domestic servants o f the negro race or blood to
live upon his premises.
It surely cannot be said that our courts are more
tender in their consideration fo r those affected by trade
and commerce in personal property than they are fo r
the w elfare o f those human beings who desire to es
tablish homes and to acquire the ownership or the right
o f occupancy o f a place which they may call their own.
These defendants are certainly entitled to as much
freedom from restraint upon their right to acquire a
habitation where they m ay lay their heads, as were
the vendees o f the patent medicine o f Dr. Miles M ed
ical Company to be free from the restrictions as to
price im posed by the vendor o f that panacea. They
should not fo r a moment be lost sight o f in this contro
43
versy. Their liberty to acquire property is as much
involved as is the liberty o f plaintiff to sell. The right
o f both o f them to contract with respect to the premises
here in question is to be determined, that is, the right
o f disposition by the one, and the right o f acquisition
by the other.
THE COVENANT IS SO CONTRARY TO THE
SPIRIT OF THE CONSTITUTION OF THE
UNITED STATES AND ITS LAW S AND THE
PUBLIC POLICY TO BE DEDUCED THERE
FROM AND IS SO UNREASONABLE AND DIS
CRIMINATORY THAT A COURT OF EQUITY
CANNOT ENFORCE IT WITHOUT DOING VIO
LENCE TO OUR FUNDAMENTAL CONCEP
TIONS OF JUSTICE.
The purpose o f this covenant is evident from the
terms o f its construction. It is aimed exclusively
against renting, leasing, selling, transferring, or con
veying unto any negro or colored person the land sub
jected to the operation thereof. It is singly and solely
a restriction aimed against the colored race. Its pur
pose and aim is confined within the narrow limits o f
its prejudicial obligation. The colored person alone
is denied his right to negotiate fo r the acquisition of
real estate so restrained. A Chinaman or a Japanese,
Indian, or any other person, regardless o f blood or
color, may enter where the negro alone is denied ad
mission. That it is discrim inatory must be admitted.
The basis and foundation fo r the discrimination is the
unreasonable and indefinite exclusion from owner
ship because o f the race and color o f an intending
purchaser. The owners o f this property will be fo r
ever precluded from selling it to at least one-fourth o f
44
the population o f W ashington, and the latter is pre
vented from purchasing it i f this covenant is valid.
Even if the present white population o f the district
affected by the Middaugh & Shannon covenant may
move away, even if the houses remain unoccupied be
cause none o f the Caucasian race may be willing to live
in the neighborhood, “ never” m ay the property be
conveyed to a negro. A perpetual inhibition is im
posed upon twenty-five per cent o f the present popula
tion o f W ashington to acquire an inch o f this tract. In
deed it logically follow s that covenants m ay he en
tered into which would forb id any person of color to
become the owner o f any part o f the territory com pos
ing the D istrict o f Columbia— Does such a system con
form with sound public policy?
“ Public p o licy ” has been defined to he “ that prin
ciple o f law which holds that no subject can lawfully do
that which has a tendency to be injurious to the public,
and against the public good .” 3 B ou vier ’s Law D ic
tionary, 2765. The definition which the courts have
frequently approved is the one given by Lord B rough
am, 6 R. C. L. 707:
“ Public policy is the principle which declares
that no one can lawfully do that which has a ten
dency to be injurious to the public w elfare.”
A g a in :
“ In substance, public policy m ay be generally
said to be the community common sense and com
mon conscience, extended and applied throughout
the States to matters o f public morals, public
health, public safety, public welfare, and the like.
It is that general and well settled public opinion
relating to a m an ’s plain palpable duty to his
45
fellowman that has due regard to all circumstances
o f each particular situation. ’ ’
Our public policy may be deduced from our consti
tutions and statutes, from judicial decisions and from
fundamental principles o f right and wrong. Mani
festly, when the constitution declares and defines cer
tain public policies, such public policies must be para
mount though a score o f statutes conflict and a multi
tude o f judicial decisions be to the contrary. Kintz v.
H arrigar, 99 Ohio St. 240.
The sources from which public policy may be gath
ered are m anifested “ by public acts, legislative and
judicial, and not by private opinion, however em inent”
(Giant Powder Co. v. R. R. Co., 42 Fed. 470), fo r “ no
general assembly is above the plain potential prov i
sions o f the Constitution, and no court, however sacred
or powerful, has the right to declare any public policy
that clearly contravenes or nullifies the rights declared
in the Constitution.”
In Hartford F ire Ins. Co. v. Chicago, etc. R. R. Co.,
70 Fed. 201, the Court said:
“ The public policy o f a State or nation must be
determined by its constitution, laws, and judicial
decisions, not by varying opinions o f laymen, law
yers, or judges as to the demands o f the interests
o f the public.”
W hat the public policy therefore o f a particular ju r
isdiction m ay be, “ Must be determined by the consti
tutions, the laws, the courts o f administration, and de
cisions o f the courts o f last resort,” (Langdon v. Cong-
don, 93 N. W .......... ; Pickett Publishing Co. v. Carbon
Co., 13 L. E. A . N. S. 115,) or as Judge Cardozo said,
speaking o f the public policy o f the State o f New
Y ork : “ The public policy o f this State, when the
46
legislature acts, is what the legislature says that it shall
be .” Smith v. American Fidelity Co., 232 N. Y. 161,
163.
W here would one be more likely to arrive, then, at
the sources from which our public policy is derived
than by exploring the constitution and statutes o f the
United States and the adjudications o f the cou rt! It
would appear to be obvious that where a legislature is
prohibited from sanctioning a particular policy, indi
viduals may not enter into contracts in direct deroga
tion o f the same policy. Therefore, that which the
legislature cannot sanction should not be possible to
be done by a decree o f a court o f equity enforcing the
specific perform ance o f an agreement between other
parties, which is the equivalent o f such legislation, and
is productive o f such identical results. I f such a con
tract as that involved in the present case were valid
as affecting a limited area, it would be equally effec
tive if it included the entire city, or a county, or a
state. I f the spirit o f the Constitution may be evaded,
as it is attempted to be by the device here employed,
it would not be difficult to create a situation, barring
the limits o f the contract, that would prevent a colored
person from owning real estate or from taking up his
habitation in any state or in any part o f a state. Segre
gation ordinances, based on color, similar in essence
with the covenant here involved have come before the
Supreme Court o f the United States and the courts o f
last resort in the several states. The attempt was made
at race segregation by municipal ordinance, and in
each case the right to do so was denied by the highest
appellate tribunal in the state wherein a provision so
contrary to the spirit and genius o f our institutions
had been passed.
47
State v. Gurry, 121 Md. 534, 47 L. R. A . N. S.
1087.
Gary v. City of Atlanta, 143 Ga. 192, L. R. A . .
1915 D. 684.
State v. Darnell, 166 N. C. 300, 57 L. R. A . N.
S. 332.
In Buchanan v. Worley, 165 K y. 559, the Court had
pronounced as valid an ordinance similar in character
to the discrim inatory provision o f the covenant under
discussion herein. On appeal to the Supreme Court
o f the United States that decision was unanimously
reversed in 245 U. S. 60, L. R. A . 1918, C. 210. So
utterly contrary to the policy o f protection and en
couragement prescribed by our constitution and the
laws enacted in pursuance thereof o f the colored race
that in the most recent attempt upon the part o f a
state through its agencies to enact legislation o f that
character, that the Supreme Court o f the United States
did not even dign ify the attempt so to do by a dis
cussion o f the law applicable thereto, but contended
itself by simply reversing in a Per Curiam opinion the
Supreme Court o f Louisiana (Harmon vs. Tyler, 273
U. S. 668).
In these cases it was unsucessfully attempted by
legislation in the form o f a city ordinance to forb id
colored persons from occupying houses as residences
or places o f abode or public assembly in blocks where
the m ajority o f the houses were occupied by white
persons fo r those persons, and in like manner p ro
hibiting white persons when the conditions o f occu
pancy were reversed, basing the intradiction on color,
and nothing more. Here, by the decree o f the Su
preme Court o f the D istrict o f Columbia, a white per
son is forbidden to sell to a colored person, and a
48
colored person to buy from a white person a house
in a residential district o f W ashington, solely because
the colored person is a negro. Only because o f his
race and blood that purchaser is denied the right to
take title to property, and from selling, conveying,
leasing, renting, or giving it to, or permitting it to
be used or occupied by, any person o f the negro race
or blood. In Buchanan v. W arley, Mr. Justice Day
thus stated the question:
“ The concrete question here is, may the occu
pancy and necessarily the purchase and sale o f
property o f which occupancy is an incident, be
inhibited by a state, or by one o f its municipali
ties, solely because o f the color o f the proposed
occupant o f the p rem ises !”
In the course o f his discussion o f this proposition,
he said :
“ P roperty is m ore than the mere thing which
the person owns. It is elementary that it includes
the right to acquire, use, and dispose o f it. The
Constitution protects these essentials attributes
o f property. Holden v. Hardy, 169 U. S. 366, 391.
Property consists o f the free use, enjoyment, and
disposal o f the premises acquired without con
trol or diminution save by the law o f the land.
1 B lackstone’s Commentaries, Collidge Edition,
1,127.”
A fter considering the history o f the 13th and 14tli
Amendments, and quoting from the Slaughter House
cases, 16 W all., 36; Strauder v. W. Va., 100 U. S.
303, and E x Parte Virginia, 100 U. S. 339, 347, the
Courts a sk :
49
“ In the face o f these constitutional and statu
tory provisions, can a white man be denied con
sistently with due process o f law, the right to dis
pose o f his property to a purchaser hy prohibit
ing the occupation o f it fo r the sole reason that
the purchaser is a person o f color intended to
occupy the premises as a place o f residence?”
Mr. Justice Day answered (page 7 8 ):
“ The Statute o f 1866, originally passed under
sanction o f the 13th amendment, 14 Stat. 27, and
practically re-enacted after the adoption o f the
14th Amendment, 16 Stat., 144, expressly provided
that all citizens o f the United States in any state
shall have the same right to purchase property
as is enjoyed by white citizens. Colored persons
are citizens o f the United States and have the
right to purchase property and enjoy the use of
same. Hall v. DeCuir, 95 U. S. 485, 508. These
enactments did not deal with the social rights o f
men but with those fundamental rights in prop
erty which it was intended to secure. Civil Rights
Cases, 109 U. S. 322. The 14th Amendment and
those statutes enacted in furtherance o f its p ro
visions operate to give the colored man the right
to acquire property without state legislation dis
criminating against him, solely because o f co lo r .”
The opinion then referred to and distinguished
Plessy v. Ferguson, 163 U. S. 537, and other cases o f
like classification, and finally concluded with the delib
erate judgment o f the cou rt :
‘ ‘ W e think this attempt to prevent alienation o f
the property in question to a person o f color was
not a legitimate exercise o f the police power o f
the State and is in direct violation o f the funda
mental law enacted in the 14th Amendment to the
50
Constitution, preventing State interference with
property rights except by due process o f law.
That being the case, the ordinance can not be sus
tained.”
In Strauder v. West Virginia, 100 U. S. 303, the
Supreme Court o f the United States said:
“ W hat is this (the 14th Amendment) but de
claring that the law in the state shall be the same
for the black as fo r the white; that all persons
whether colored or white shall stand equally be
fore the laws o f the states, and in regard to the
colored race, fo r whose protection the amendment
was prim arily designed, that no discrimination
shall be made against them by the law because o f
their color. * * * A ny state action which denies
this immunity to the colored man is in conflict with
the Constitution.”
In E x Parte Virginia, 100 U. S. 339, that Court
said:
“ W hoever by virtue o f public position under
the State government deprives another o f p rop
erty, life or liberty without due process o f law
or denies or takes away equal protection o f the
laws, violates the constitutional inhibition, and as
he acts in the name and for the state, and is
clothed with the state’s power, his act is that o f
the state.”
Again, in Virginia v. Rives, 100 U. S. 313, Mr. Jus
tice Strong, speaking the opinion o f the Court, said:
“ It is doubtless true that a; State m ay act
through different agencies— either by its legisla
tive, its executive, or its judicial authority, and
the prohibitions o f the amendment extend to all
action o f the State denying equal protection o f
51
the law, whether it be action by one o f those agen
cies, or by any other course by virtue o f the 5th
Section o f the 14th Amendment whenever they
are disregarded by either the legislative or ex
ecutive or judicial department o f the State.”
To the same effect is E x Parte Virginia, supra (p.
347) :
“ W e have said that the prohibition o f the 14th
Amendment was addressed to the states * * *.
They have reference to actions o f the political
body denominated the the state by whatever in
strument or in whatever modes that action may
be taken. A state acts fo r its legislative, its ex
ecutive, or its judicial authority. It can act in
no other w ay .”
“ The prohibitions o f the 14th Amendment ex
tend to ‘ A ll acts o f the State, whether through
its legislative, its executive, or its judicial authori
ties.’ ” Scott v. McNeal, 154 U. S. 34.
The prohibitions o f that amendment “ refer to all
the instrumentalities o f the state, to its legislative,
its executive, and judicial authorities, and therefore
whoever by virtue o f public position under the State
government deprives another o f any right- * * *
violates the constitutional inhibition, and as he acts
in the name and fo r the state, and is clothed with
the S tate ’s power, his act is that o f the State.”
Chicago, Burlington d Quincy R. R. Co. v. Chicago,
166 U. S. 226, 233. See further Telephone & Tele
graph Co. v. Los Angeles, 227 U. S. 278; M urray’s
Lessee v. Hoboken Land & Improvement Co., 18 H ow
ard 276; Hovey v. Elliott, 167 U. S. 409.
Congress by enacting sections 1977 and 1978 o f the
United States Revised Statutes (T itle V III , Sec. 41,
52
and Title V II, Sec. 42), has given definite expression to
the policy which the legislative department o f onr gov
ernment has required to be enforced in furtherance
o f the recognition o f the constitutional provisions en
acted in protection o f the colored race. Section 1977
read s:
“ A ll persons within the jurisdiction o f the
United States shall have the same right in every
state and territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full
and equal benefit o f all laws and proceedings fo r
the security o f persons and property as is enjoyed
by white citizens, and shall be subject to like pun
ishment, pain, taxes, licenses, and exactions of
very kind, and no other.”
Section 1978 declares:
“ A ll citizens of the United States shall have the
same right in every state and territory as is en
joyed by the white citizens thereof to inherit, pur
chase, sell, hold, and convey real and personal
property
W e are not unmindful that this Court in Corrigan v.
Buckley, supra, said:
“ It is unnecessary to consider the contention
that the restriction amounts to a denial o f equal
protection o f the laws under the 14th Amendment
since the Supreme Court has held in numerous in
stances that the inhibition is upon the pow er o f the
State and not to action by individuals in respect
o f their property. * * * It follow s that the segre
gation o f the races, whether by state or private
agreement, where the method adopted does not
amount to denial o f fundamental constitutional
rights can not be held to be against the public
53
policy. N or can the social equality o f the races he
attained either by legislation or by the forceful
assertion o f assumed rights.”
Our contention is that this particular covenant, and
those o f similar character which deny to individuals
the right to sell, transfer, and convey their property
to individuals o f the colored race, solely because they
are colored, amount by indirection to a denial o f fun
damental rights expressly confered upon the colored
race and protected by our Constitution and statutes
enacted in pursuance th ereo f; and that such a covenant
is so contrary to the public policy and discrim inatory
without reasonable foundation fo r the classification o f
those excluded from the right to buy, that a court o f
equity ought not to enforce it.
It seems inconceivable that so long as the legisla
ture refrains from passing such an enactment, a court
o f equity may by its command compel the specific per
form ance o f such a covenant and thus give the sanction
o f the judicial department o f the government to enact
what was not in the competency o f its legislative
branch to authorize. W e can not emphasize too strong
ly that the immediate consequence o f the decree now
under review is to bring about that which the legisla
tive and executive departments o f the government are
powerless to accomplish. This decree has all the force
o f a statute; it has behind it the sovereign pow er o f
the United S tates; it was not the appellees but the sov
ereign powTer o f the national government, speaking
through the court below whence emanated the mandate
com pelling the appellants to vacate the property they
had purchased and to remove therefrom their personal
property and which has forever enjoined them from
occupying their property and from selling it to any
54
N egro or colored person. In rendering this decree, the
court which pronounced it functioned with the same
authority to enforce its mandate as the executive and
legislative departments possess. It effectuates a pol
icy condemned by the Supreme Court o f the United
States in every case in which it has been attempted by
State legislative action to bring about race segregation
based solely on color. It is pronounced legal fo r indi
viduals acting collectively to accomplish by indirection
what those same individuals acting by their represen
tatives in state legislatures assembled have been de
nied the right to do.
There can be no permissible distinction between citi
zens based on race, creed or color i f we are to remain
a free and harmonious nation. To have it appear in
the judicial annals o f our courts that one part o f our
citizenry may enter into contracts which are deroga
tory to another part is intolerable unless we are to
abandon our most cherished institution. I f the d iffer
ent elements constituting the body o f Am erican citi
zens can live together and serve under the same flag,
perform the civic duties, pay the same taxes, and co
operate in the development o f our national resources,
to say that a part o f them shall not breathe the same
air or live in the same neighborhood or pursue the same
business as the other part because they are colored, is
to sow the seeds o f discord and tends to destroy that
unity and harm ony which should prevail in a free
country.
The restrictive covenant in the present case relates
to the ownership and occupation o f property in a resi
dential district. I f such a covenant is valid, then what
would prevent similar covenants in districts devoted
to industry and com merce? W hat would there be to
55
prevent a similar covenant concerning tlie sale or hold
ing o f store property on Broadway in the City o f New
York, on Pennsylvania Avenue in the City o f W ash
ington, on Chestnut Street in the City o f Philadelphia,
or on State Sreet in the City o f Chicago? W hat would
prevent such a contract in regard to land devoted to
mining, or to agriculture, or to forestation, or any
other human activity?
Follow ing the precedent created by the decision now
under review, similar covenants may be made in all
parts o f the country restricting the sales and leases
o f land to Negroes or members o f the colored race.
B y means o f like covenants, differences might be made
between the rich and the poor, between members of
different churches, between the adherents o f different
political parties, between the descendants o f those o f
different origin, between native and naturalized cit
izens, between those who have come from the north and
those from the south, or from the east and the west.
The decision has within it a capacity to produce such
a chaotic condition as would tend to positive public
m isfortune and give rise to untold evils. B y what
method is this covenant to be enforced? Under what
test is the color line to be drawn? W here does the
N egro end and the Caucasian begin? Does it mean
that any person who has flowing in his veins a single
corpuscle o f N egro blood comes within the prohibitions
o f the covenant? W ould Alexander Dumas and thou
sands o f others have been included in the term
“ N egro” because one o f their ancestors may have been
o f the colored race? H ow is the pretended blood-taint
to be ascertained? W ho shall determine when colored
blood changes its color? B y what m icroscopic or bio
logical test shall the courts determine whether an in
56
tending purchaser o f premises comes within the scope
o f this covenant so that he is precluded from the own
ership o f land?
III.
THE MIDDAUGH AND SHANNON COVENANT
HAVING EXPRESSLY SPECIFIED THE PEN
ALTY RESULTING FROM A BREACH OF THE
COVENANT AS TO RENTING, LEASING,
SELLING, TRANSFERRING OR CONVEYING
THE PROPERTY TO ANY NEGRO OR
COLORED PERSON, THE RIGHT TO AN IN
JUNCTION RESTRAINING A NEGRO OR
COLORED PERSON ACQUIRING THE PROP
ERTY FROM OCCUPYING IT OR SELLING IT,
IS NEGATIVED.
It is an elementary rule that when a specific remedy
is expressly conferred, that which is not granted is to
be deemed withheld. Assum ing that such a provision
as that under consideration is valid, the grantors might
have form ulated it as a condition or a conditional lim i
tation and coupled it with a right of re-entry on breach.
That was not done. The grantors m ight have imposed
a covenant upon the grantee coupled with the right to
enjoin a violation o f it. That was not done. The cove
nant m ight have been made to run with the land.
That was not done. The only consequence o f a breach
specified in the deed was the incurring o f a penalty
o f $2,000, which was to be a lien against the lot. The
fact that that penalty was not to be imposed upon any
body who by mesne conveyances from Samuel E.
Browne, the original grantor, was to become the owner
of the property, indicates that M iddaugh and Shannon
alone were to have the right to enforce the penalty,
and that, consequently, the appellees have no standing
57
in court either to recover the penalty or to obtain equit
able relief.
A covenant o f this character is in derogation o f com
mon right. Ordinarily the grantee o f property may do
with it what he pleases— sell, convey, lease or transfer
it to any person whom he may choose. When, there
fore, it is attempted in any way to limit that right, it
is incumbent upon him who seeks to do so to formulate
the restriction in terms which are free from am biguity
and which will make it absolutely certain that it is in
tended to make the covenant operative not only as
against the original grantee, but against any person to
whom he may at any time convey the property, and
that if there is a rental, leasing, selling, transfer or
conveyance o f the property to a Negro or colored per
son, the penalty o f $2,000 imposed shall have super-
added to it other remedies o f a much more drastic
character, including banishment from the property and
confiscation if, perchance, at any time after the execu
tion o f the deed, at a period, however remote, the prop
erty should be conveyed to a Negro or colored person.
W e recognize the fact that in Torreyv. Wolfes, 6 Fed.
(2d) 702, it was held that this penalty provision did
not preclude enforcement o f the restrictive feature of
the covenant in a suit in equity. W ith all due respect
we question that decision as applied to the peculiar
language o f the M iddaugh and Shannon covenant as
read in connection with the subsequent covenant,
which was expressly made to run with the land,
whereas the covenant now under discussion is devoid
o f that element.
A ttention is further called to the fact that in the case
cited this Court expressly refrained from passing on
the question as to whether the prohibition contained
58
in the deed could be enforced by a grantee or grantees
o f M iddaugh and Shannon. For, it is sa id :
“ W hether a grantee or grantees o f Middaugh
and Shannon, the original owners, and who origi
nally inserted this restriction in the deeds, could
enforce the penalty, is not important, since no such
attempt is here m ade.”
It is our contention that the penalty clause consti
tutes an inherent part o f the covenant and cannot be
separated or excluded from it, and that no other rem
edy can be substituted for that expressly stipulated.
IV.
HERE THE APPELLEES HAVE RESORTED TO A
COURT OF EQUITY TO ENFORCE A COVE
NANT WHICH SO FAR AS THE APPELLANTS
ARE CONCERNED, WHO WERE STRANGERS
TO THE COVENANT, IS OPPRESSIVE AND
UNREASONABLE AND LACKING IN EQUITY.
The appellants were not parties to the covenant.
They are the victim s o f its prohibitions. It is an im
pairment of their right to acquire real property as con
ferred by Section 1978 o f the Revised Statutes, and,
consequently, it is believed that a court o f equity
should not make itself a party to effectuate the scheme
whereby it is sought to deprive them of the rights se
cured to them by the Constitution and the statutes o f
the United States and its public policy.
4 P om eroy ’s Equity Jurisprudence, 3d ed., Secs.
1404, 1405.
CatJicart v. Robinson, 5 Pet. 263.
Pope Mfg. Co. v. Gormully, 144 U. S. 236, 237.
Curran v. Holyoke Water Co., 116 Mass. 90.
59
V.
IT IS RESPECTFULLY SUBMITTED THAT THE
DECREE APPEALED FROM SHOULD BE RE
VERSED AND THE BILL OF COMPLAINT DIS
MISSED.
Louis Marshall,
A rthur B. Spingarn,
O f Counsel.
W illiam E. L eahy,
George E. C. H ayes,
Ernest J. Davis,
E dmund M. Toland,
(Local Counsel)
>
70 FIFTH AVE*
S u p re m e (E o urt n f % Muttefc yo r k city
October Term, 1928.
No.
H EN RY A. CORNISH, et al.,
Petitioners,
v s .
; \ ;
PA T R IC K O’DONOGHUE, et al.,
Respondents.
On Petition for a W rit of Certiorari to the Court of
Appeals of the District of Columbia.
NOTICE, PETITION FOR WRIT OF CERTIORARI
AND BRIEF IN SUPPORT OF PETITION.
LOUIS M ARSHALL,
W ILLIA M E. LEAH Y,
GEORGE E. O. H AYES,
Petitioners’ Counsel.
The Hecla Press, 225 Varick St., N. Y. Tel. W alker 1480.
SUBJECT INDEX.
PAGE
Notice of Application for W rit of Certiorari............. 1
Petition for W rit of Certiorari......................................... 3
( 'ertifieate of Counsel.......................................................... 8
Petitioners' B rie f................................................................... !)
POINTS
I. The covenant sought to he enforced by the de
cree herein is (a ) an unlawful restraint of
alienation and (b ) an unlawful restraint of
trade, and, therefore, contrary to public policy
and void .......................................................................... 9
(1 ) W e contend that this covenant is void be
cause contrary to public policy under the
principle which has obtained ever since the
enactment in IS Edward I. of the Statute
of Quia Emptores. This is especially true
because by its terms it is to operate for all
time as has been declared by the decree
appealed from ...................................................... 11
(2 ) W e will now consider decisions of various
courts in which covenants similar to that
here involved have been passed upon....... 1(1
(3 ) The similarity between this covenant and
those restrictive of trade or commerce like
wise condemns i t ................................................ 20
II. The covenant is so contrary to public policy as
evidenced by the spirit of the Constitution, the
Acts of Congress and court decisions, and is so
unreasonable and discriminatory, that a court
of equity cannot enforce it without doing vio
lence to fundamental conceptions of justice. . . . 25
11
III. The Middaugh and Shannon covenant having
expressly specified the penalty resulting from a
breach of the covenant as to renting, leasing,
selling, transferring or conveying the property
to any Negro or colored person, the right to an
injunction restraining a Negro or colored per
son acquiring the property from occupying it
or selling it, is negatived......................................... 32
I V. Here the respondents have resorted to a court
of equity to enforce a covenant which, so far as
the petitioners are concerned, who were stran
gers to the covenant, is oppressive and unrea
PAGE
sonable and lacking in equity................................. 34
A'. The petitioners pray that their application for
a writ of certiorari be granted.............................. 35
CASES CITED.
Anderson v. Carey (36 Ohio St. 5 0 6 ).............................. 15
Attwater v. Attwater (18 Beavan 3 3 0 ).......................... 14
Barnard v. Bailey (2 Harrington [Del.] 5 6 ) ............... 15
Bennett v. Chapin (77 Aficli. 5 2 7 )................................... 14
Billing v. Welch ( Irish Rep., (i Common Law 8 8 ) ......... 14
Block v. Hirsh (256 U. S. 1 5 6 )......................................... 24
Brewer v. Marshall (19 X. J. Eq. 537) . ........................ 19
Brothers v. McCurdy (36 Pa. St. 4 0 7 )............................ 15
Buchanan v. Warley (245 V. S. 6 0 ) .............................. 28, 29
Cathtart v. Robinson (5 Pet. 2 6 3 )................................... 34
Clark v. Clark (99 Md. 356, 58 Atl. Rep. 2 4 ) ............. 16
Corrigan v. Buckley (271 U. S. 3 2 3 )............................ 6
Curran v. Holyoke Water Co. (116 Mass. 9 0 ) ............. 34
He Gray v. Monmouth Beach Club House Co. (50 X.
J. Eq. 329, 24 Atl. Rep. 3 S 8 )................................... 19
l)e Peyster v. Michael (6 X. Y. 4 9 7 )................................. 11
Dr. Miles Medical Co. v. Park & Sons Co. (220 U. S.
3 7 3 ) .................................................................................12, 23
Dugdale, Re (L. R. 38 Ch. I )iv. 176, 1 7 9 )...................... 15
PAGE
Gary v. City o f Atlanta (143 Ga. 1 9 2 ).......................... 28
Giant Powder Co. v. R. II. Co. (42 Fed. 4 7 0 )............. 27
Gondolfo v. Hartman (49 Fed. Rep. 1 8 1 ).................... 16
Harmon v. Tyler (273 U. S. 6 6 8 )..................................... 28
Hartford Fire Ins. Co. v. Chicago etc. R. R. Co. (70
Fed. 2 0 1 ) .......................................................................... 27
Johnson v. Preston (226 111. 447, 4 6 2 )........................15, 19
Jones v. Port Huron Engine & Thresher Co. (171
111. 502, 49 X. E. Rep. 7 0 0 )....................................... 16
Kiutz v. Harringar (99 Ohio St. 2 4 0 ).......................... 27
IV
Latimer v. Waddell (119 X. C’ . 370, 26 S. E. Rep.
1 2 2 ) ................................................... ................................ 16
Lee Sing, In re (13 Fed. Rep. 3 5 9 ) ................................. 21
Los Angeles Investment Co. v. Gary (181 Cal. 680) . . 18
Macleay, Re (L. R. 20 Eq. 1 8 6 )..................................... 13, 15
Mandlebaum v. McDonell (29 Mich. 7 7 ) ...................... 20
Manierre v. W elling (32 R. I. 101, 78 A ll. Rep.
5 1 9 ) ...........................................................................12, 15, 20
M iller v. Jersey Coasts Resorts Corporation (98 X.
J. Eq. 289, 130 Atl. Rep. 8 2 1 ) ................................... 20
[McCullough’s Heirs v. Gilmore (11 Pa. St. 370) . . . . 13
Pardue v. Givens (51 X. C. 3 0 6 ) ..................................... 15
Porter v. Barrett (233 Mich. 3 7 3 )................................. 19
Pope Mfg. Co. v. Gormully (111 U. S. 236, 2 3 7 )___ 31
Potter v. Couch (111 U. S. 296, 313, 315, 3 1 6 )...........12, 13
Renaud v- Tourangeau (L. R. 2 Privy Council App.
1 ) ........................................................................................ 15
Rosher, Re (L. R. 26 Ch. Div. 801, 8 1 6 ) ......................13, 15
Schermerliorn v. Xegus (1 Denio 1 1 8 )............................ 15
Schilling, Re (102 Mich. 6 1 2 )............................................ 16
Slaughter House Cases (16 Wall. 3 6 ) ............................ 29
Smith v. American Fidelity Co. (232 X. Y. 161, 163) . 27
Smith v. Clark (10 Md. 1 8 6 )............................................ 13
State v. Daniel] (166 X. C. 300, 302, 303, 81 S. E.
Rep. 3 3 8 ) ....................................................................... 18, 28
State v. Gurry (121 Md. 5 3 1 )............................................ 28
Test Oil Co. v. La Tourrette (19 Okla. 211, 91 Pac.
Rep. 1025, 1028 )............................................................. 20
Title Guarantee & Trust Co. v. Garott (12 Cal. App.
150, 1 5 2 ) .........................................................................16, 18
Torrey v. W olfes (6 Fed. [2nd] 7 0 2 )............................... 33
United States v. Addyston Pipe Co. (85 Fed. Rep. 271,
aff’d 175 U. S. 2 1 1 ) .................................................... 21
PAGE
V
Virginia, Ex parte (100 U. S. 339, 3 1 7 ).......................... 29
W hitney v. Union Railway Co. (11 Gray 3 5 9 )........... 19
W illiam s v. Jones (2 Swan [Tenn.] 0 2 0 )...................... 15
W insor v. Mills (157 Mass. 362, 32 N. E. Rep. 3 5 2 ) . . . 10
Zillmer v. Landguth (91 Wis. 007, 09 N. W. Rep. 508) 10
STATUTES AND TEXTBOOKS.
3 Bouvier’s Law Dictionary 2705................................... 20
Corpus Juris 13, Title, Contract (Sec. 120, p. 1 7 7 ) . . 23
Gray’s Rules Against Perpetuities................................... 11
4 Kent’s Commentaries 131................................................ 10
Pom eroy’s Equity Jurisprudence 1 (3rd Ed., Secs.
1401, 1105)....................................................................... 34
United States Revised Statutes (Secs. 1977 and 1978
[Title V III, Sec. 11, and Title V II, Sec. 4 2 ] ) . . .7, 30
PAGE
Supreme (Eourt of tire Irnlpfo States
October Term, 1928.
No.
H enry A. Cornish and A lyce X.
Cornish,
Petitioners,
against
Patrick O’Donoghue, et al.,
Respondents.
Sirs :
Please take notice that upon the petition of Henry
A. Cornish and Alyce X . Cornish and a certified copy of
the entire transcript o f the record of this cause herewith
submitted, and also the brief o f the petitioners hereto
annexed and also to be submitted on the presentation of
the petition, an application will be made to the Supreme
Court of the United States for a writ of certiorari to be
directed to the Court of Appeals of the District o f Co
lumbia, wherein the record is now lodged, to review the
determination o f said Court rendered on February 4,
1929, which affirmed the judgment of the Supreme Court
of the D istrict of Columbia rendered on A pril 11, 1927,
whereby it was adjudged that the covenant in the deed
ii'orn Ray E. Middaugh and W illiam E. Shannon to Sam
o
uel E. Browne, dated September 22, 1002, was a valid
covenant, and granting other relief.
Dated, Washington, J>. ('., April 30, 1929.
Yours, &c.,
LOUIS M ARSHALL,
W ILLIA M E. LE AH Y,
GEORGE E. O. H AYES,
Attorneys and Counsel
for Petitioners.
To
Jesse O. A dkins, Esq.,
F rank F. Nesbitt, Esq.,
Lucian E. Mercier, Esq.,
Respondents’ Attorneys,
Washington, D. C.
Supreme dmtrt of tlj? $mte& States
October Term, 1928.
No.
H enry A. Cornish and Alyce N.
Cornish,
Petitioners,
against
Patrick O’Donoghue, et al.,
Respondents.
To the Honorable Chief Justice and Associate Justices
of the Supreme Court of the United States:
The above-named petitioners, Henry A. Cornish and
Alyce N. Cornish, pray for a writ o f certiorari to review
the determination of the Court of Appeals of the District
of Columbia rendered on February 4, 1929, affirming the
judgment of the Supreme Court o f the D istrict of Colum
bia rendered on April 11, 1927, whereby it was adjudged
that the covenant in the deed from Ray E. Middaugh and
W illiam E. Shannon to Samuel E. Browne, dated Sep
tember 22, 1902, hereinafter referred to, is a valid cove
nant; that the deed from Thomas A. Grier to the peti
tioners was vo id ; that the petitioners be ordered and
enjoined to remove themselves and all their personal
property from the premises described in such deed; that
they be perpetually enjoined from ever holding or attempt
ing to hold title to or pessession of the premises by any
transfer or conveyance or attempted transfer or convey
ance of either the title to or possession of the premises to
4
them or either o f them, and restrained from renting, leas
ing, selling, transferring or conveying to any Negro or
colored person such premises, and from occupying the
same. And your petitioners respectfully show :
F irst: In the years 1904 and 1905 Middaugh and
Shannon built a number of houses on the east and west
sides o f First Street, in the City of Washington, upon
lands belonging to them. Subsequently they sold all of
these houses and in the deeds to their grantees, including
those o f the parcels acquired by the respondents and one
Gruver, there appeared the follow ing covenant:
“ Subject to the covenant that said lot shall never
be rented, leased, sold, transferred or conveyed
unto any negro or colored person under penalty of
$2,000, which shall be a lien against said prop
erty. * * * To have and to hold the said lands,
premises and appurtenances unto and to the only
use of the party of the second part, his heirs and
assigns forever. And the said party of the second
part in accepting this conveyance hereby covenants
and agrees for himself, his heirs and assigns with
the parties of the first part, their heirs' and assigns,
that no building or structure other than bay win
dows or porches shall be erected or constructed
beyond a line drawn eight (8) feet nine (9) inches
west of and parallel with the west building line of
First Street as now established, and that said bay
windows and porches shall in all things conform
to the regulations governing projections beyond
building lines within the City of Washington, and
that this covenant shall run with the land.”
Subsequently Gruver sold the lot conveyed to him by
Middaugh and Shannon to one Thomas A. Grier, and on
February 2, 1927, Grier conveyed the premises to the
petitioners, who are citizens o f the United States and
residents of the D istrict o f Columbia, and are Negroes
or colored persons. A fter the conveyance to them they
entered into possession of the dwelling house built on the
premises. Whereupon the respondents, who owned other
lands which had been conveyed by Middaugh and Shan
non with similar covenants, brought this action to en
force the covenant against the petitioners and for an
injunction ousting them from the possession of the prem
ises conveyed to them by Grier. A decree in conformity
with the prayer for relief was rendered by the Supreme
Court of the District of Columbia, and was affirmed by
the Court of Appeals of the District of Columbia on Feb
ruary 4, 1929. No opinion was rendered by the Supreme
Court.
Second : A certified copy of the transcript of record
in the Court below, including the opinion rendered by
the Court of Appeals, accompanies this petition.
Third: In the Courts below the petitioners contended
unsuccessfully, (1 ) that the covenant sought to be en
forced constituted (a) an unlawful restraint upon aliena
tion, and (b ) an unlawful restraint upon trade and com
merce, and is therefore contrary to public policy and v o id ;
(2 ) that the covenant was so opposed to public policy
as evidenced by the spirit of the Constitution of the
United States, the Acts of Congress and the weight of
judicial authority, and so unreasonable and discrimina
tory that a court of equity can only enforce it by doing
violence to fundamental conceptions of justice; (3 ) that
the Middaugh and Shannon covenant having expressly
specified the penalty resulting from a breach thereof, the
right to an injunction restraining a Negro or colored per
son who shall have acquired the property from occupying
or selling it, is negatived; (4) that the respondents have
resorted to a court of equity to enforce a covenant which
is oppressive and unreasonable and lacking in equity, and
are not entitled to the relief prayed for.
Fourth : In overruling the contentions of the peti
tioners in this cause the Court of Appeals of the District
o f Columbia decided questions of general importance
which have not been, but should be, settled by this Court.
F ifth : In Corrigan v. Buckley, 271 U. S. 323, these
questions were sought to be presented to this Court, but
the ease was brought up by appeal from the decree ren
dered in that action, and there having been no application
for a writ of certiorari, this Court holding that the con
stitutional questions presented were not o f such a nature
as to confer jurisdiction of the appeal, it declined to pass
on the questions now sought to be reviewed by writ of
certiorari in the present case.
In the concluding paragraph of the opinion of the
Court, rendered by Mr. Justice Sanford, it is said:
“ It results that, in the absence of any substantial
constitutional or statutory question giving us juris
diction of this appeal under the provisions of Sec
tion 250 o f the Judicial Code, we cannot determine
upon the merits the contentions earnestly pressed
by the defendants in this court that the indenture
is not only void because contrary to public policy,
but is also of such a discriminatory character that
a court o f equity will not lend its aid by enforcing
specific performance of the covenant. These are
questions involving a consideration of rules not ex
pressed in any constitutional or statutory provision,
but claimed to be a part of the common or general
law in force in the District of Colum bia; and,
plainly, they may not be reviewed under this ap
peal unless jurisdiction of the case is otherwise
acquired. Hence, without a consideration of these
questions, the appeal must be, and is dismissed
for want of jurisdiction.”
The questions now sought to be reviewed involve a con
sideration of the statute of quia emptores and numerous
decisions in various courts relevant to the doctrine de
rived therefrom. Among these are decisions, which peti
tioners believe sustain their contentions, rendered in this
Court, in the highest courts o f the States o f New York,
Rhode Island, Michigan, Maryland, Pennsylvania, Ohio,
Delaware, Tennessee, Massachusetts, North Carolina,
i
W isconsin and Illinois, and in various of the courts of
England.
Decisions specifically relating to covenants forbidding
the sale, conveyance or lease of property to those of
Negro, Chinese or Japanese descent, and which declare
such covenants void, have been rendered in the United
States District Courts and in the courts of California,
Michigan, Illinois and New Jersey. Decisions holding
that statutes or ordinances seeking to segregate those of
different race and color are illegal have also been ren
dered in this Court and in the Supreme Courts of North
Carolina, Georgia and Maryland. There have also been
decisions claimed to be to the contrary, but the petitioners
are advised that they are distinguishable, in the Court
of Appeals of the District of Columbia and in the Supreme
Courts of California, Louisiana, Missouri and Michigan.
The question is one which affects directly or indirectly
not only many Negroes, but likewise citizens of various
other races, of diverse national origins, and o f different
religious creeds. The subject is one presenting serious
considerations o f public policy and o f the exercise of equity
jurisdiction.
The interpretation of Sections 11)77 and 1978 of the
United States Revised Statutes, now Sections 41 and 42
of Title 8 of the United States Code, also becomes per
tinent.
In support of petitioners’ contentions reference is made
to the annexed brief, which is made a part hereof.
W herefore petitioners pray that a writ of certiorari
may issue out of and under the seal of this Honorable
Court directed to the Court of Appeals of the D istrict of
Columbia, commanding said Court to certify to this Court
for review and determination, as provided by law, a fu ll
and complete transcript of the record of all proceedings
below, and that the petitioners may have such further
relief in the premises as to the Court may seem appro
8
priate and in conform ity with the statute. And your
petitioners will ever pray.
Dated, Washington, I). O., April 30, 192!).
H E N R Y A. CORNISH,
A LY C E N. CORNISH,
Petitioners,
By Louis Marshall,
Their Attorney.
Louis Marshall,
W illiam E. Leahy,
George E. C. H ayes,
Attorneys and Counsel for Petitioners.
Certificate of Counsel.
I hereby certify that in my opinion the foregoing peti
tion for writ o f certiorari is well founded in law.
LOUIS M ARSHALL,
Counsel for Petitioners.
Supreme (Eourt of ttjp States
October Term, 1928.
No.
H enry A. Cornish and Alyce N.
Cornish,
Petitioners,
against
Patrick O’Donoghue, et al.,
Respondents.
POINTS FOR PETITIONERS ON APPLICATION
FOR WRIT OF CERTIORARI.
P O I N T S .
I.
The covenant sought to be enforced by the decree
herein is (a) an unlawful restraint of alienation and
(b ) an unlawful restraint of trade, and, therefore,
contrary to public policy and void.
The Middaugh and Shannon covenant, which is the basis
of this litigation, is sweeping in its terms: It is:
(1 ) That the lot shall never be rented, leased, sold,
transferred or conveyed unto any Negro or colored
person ;
10
(2) That a penalty of $2,000 is imposed upon a
breach of the covenant and is to be a lien against the
lot.
It does not contain a condition with right o f re-entry by
the grantor upon breach thereof. It prescribes a penalty,
the amount of which is secured by making it a lien upon
the premises.
The Court below has decreed that the conveyance to peti
tioners is a nullity because they are Negroes or colored
persons. It has ousted them from the premises acquired.
It has perpetually restrained them from entering upon the
premises or conveying them to any Negro or colored per
son. Tt has not imposed a penalty.
The covenant does not by its terms run with the land.
This is clear from the fact that, after the habendum clause,
and nine printed lines after the covenant in question, there
follows an additional provision (Rec. p. 33) :
“ And the said party of the second part in accept
ing this conveyance hereby covenants and agrees
for himself, his heirs and assigns, with the parties
of the first part, their heirs and assigns, that no
building or structure other than bay windows or
porches shall be erected or constructed beyond a
line drawn eight (8) feet nine (9 ) inches west of
and parallel with the west building line o f First
Street as now established, and that said bay win
dows and porches shall in all things conform to the
regulations governing, projecting beyond building-
lines within the City of Washington, and that this
covenant shall run with the land.”
It is thus evident that while the covenant just referred
to, which is in express terms a covenant on the part of the
grantees, runs with the land, the “subject clause” prst re
ferred to does not run with the land, but creates a mere
penalty which is made a lien against the lot. And it is
also to be noted that there is no express covenant on the
part of the grantee.
11
(1 ) We contend that this covenant is void because con
trary to public policy under the principle which has ob
tained ever since the enactment in 18 Edward I. of the
Statute of Quia Emptores. This is especially true because
by its terms it is to operate for all time as has been de
clared by the decree appealed from.
The subject o f such restraints is learnedly discussed in
DePeyster v. Michael, 6 X. Y. 497, by Chief Judge Ruggles,
who said (p. 500) :
“ The effect of this statute is obvious. By declar
ing that every freeman might sell his land, at his
own pleasure, it removed the feudal restraint which
prevented the tenant from selling his land, without
the license of his grantor, who was his feudal lord.
This was a restraint imposed by the feudal law,
and was not created by express contract in the deed
of conveyance; it was abolished by this clause in the
statute. By changing the tenure from the imme
diate to the superior lord, it took away the reversion
from the immediate lord ; in other words, from the
grantor, and thus deprived him of the power of im
posing the same restraint, by contract or condition
expressed in the deed of conveyance. The grantor’s
right to restrain alienation immediately ceased,
when the statute put an end to the feudal relation
between him and his grantee; and no instance of
the exercise of that right, in England, since the stat
ute was passed, has been shown, or can be found,
except in the case of the king, whose tenure was
not affected by the statute, and to whom, therefore,
it did not apply.
The reason given by Lord Coke, why a condition
that the grantee shall not alien, is void, is as fo l
low s: ‘For it is absurd and repugnant to reason,
that he that hath no possibility to have the land
revert to him, should restrain his feoffee of all his
power to alien. And so it is, if a man be possessed
of a term for years, or of a horse, or any other
chattel, real or personal, and give or sell his whole
interest or property therein, upon condition that
the donee or vendee shall not alienate the same, the
condition is void, because his whole interest and
property is out of him, so that he hath no possi
12
bility o f reverter; and it is against trade and traffic,
and bargaining between man and man.’ ” *
In Potter v. Couch, 141 U. 8. 290, 313, Mr. Justice Gray
sa id :
“ But the right o f alienation is an inherent and
inseparable quality of an estate in fee simple. In a
devise of land in fee simple, therefore, a condition
against all alienation is void, because repugnant to
the estate devised. Lit., 8ec. 3(10; Co. Lit., 206b,
223a; 4 Kent Com. 131; McDonogli v. Murdock, 15
How. 367, 373, 412. For the same reason, a limita
tion over, in case the first devisee shall alien, is
equally void, whether the estate be legal or equi
table. Howard v. Carusi, 109 U. S. 725; Ware v.
Gann, 10 B. & C. 433; Shaw v. Ford, 7 Cli. U. 669;
In re Dugdale, 38 Ch. D. 176: Corbett v. Corbett,
13 P. D. 136; Steib v. Whitehead, 111 Illinois, 247,
251; Kelley v. Meins, 135 Mass. 231, and cases there
cited. And on principle, and according to the
weight of authority (notwithstanding opposing
dicta in Cowell v. Springs Co., 100 U. S. 55, 57,
and in other books), a restriction, whether by way
of condition or o f devise over, on any and all alien
ation, although for a limited time, of an estate in
fee, is likewise void, as repugnant to the estate de
vised to the first taker, by depriving him during
that time o f the inherent power of alienation.
Roosevelt V. Thurman, 1 Johns. Ch. 220; Mandle-
baum v. McDonell, 29 Mich. 77; Anderson v. Cary,
36 Ohio St. 506; Twitty v. Camp, Phil. Eq. (No.
Car.) 61; In re Rosher, 26 Ch. D. 801."
Especial attention is called to the exhaustive discussion
in Mamerre v. Welling, 32 R. I. 104, where, quoting from
the classic opinion of Mr. Justice Christiancy in Mandle-
baum v. McDonell, it is said:
“ W e are entirely satisfied there has never been
a time since the statute quia emptores when a re
striction in a conveyance of a vested estate in fee
simple, in possession or remainder, against selling
for a. particular period of time, was valid by the
*Note:—This language is quoted in the opinion of Mr. Justice Hughes
in D r. M iles M ed ica l C o. v. P ark & S o n s C o.. 220 U. S. 373 ( in fr a ) .
1 3
common law. And we think it would be unwise
and injurious to admit into the law the principle
contended for by the defendant’s counsel, that
such restrictions should be held valid, if imposed
only for a reasonable time. It is safe to say that
every estate depending upon such a question would,
by the very fact of such a question existing, lose a
large share of its market value. W ho can say
whether the time is reasonable, until the question
has been settled in the Court of last resort ; and
upon what standard of certainty can the Court de
cide it? Or, depending as it must upon all the
peculiar facts and circumstances o f each particular
case, is the question to be submitted to a jury? The
only safe rule o f decision is to hold, as I under
stand the common law for ages to have been, that
a condition or restriction which would suspend all
power of alienation for a single day, is inconsistent
with the estate granted, unreasonable and void.”
That decision was approved not only by this Court in
Potter v. Couch, 141 U. S. 315, 316, but also by the English
Court of Chancery in Re Rosher, L. R. 26 Ch. Div. 801, an
unusual compliment, especially since it resulted in the re
jection of the decision of Sir George Jessel in Re Macleay,
L. R. 20 Eq. 186.
The significance o f this proposition is regarded as a
justification for the citation of the following pertinent
decisions:
In Smith v. Clark, 10 Md. 186, a devise of a woodlot
to the testator's wife and daughters “ on the express con
dition that the same is not at any time to be cleared or
converted into arable land,’’ and a further condition that
the land “ shall be at all times held together by those who
may be entitled to the same by virtue of the w ill;’ was
held to be void.
In McCullough’s Heirs v. Gilmore, 11 Pa. St. 370, the
testator declared it to be his will and desire that a certain
farm “ fall into the possession of W , laying this injunc
tion and prohibition not to leave the same to any but the
legitimate heirs of W ’s father’s family at his W ’s decease.”
This restraint on the power of alienation was held to be
void.
u
In Bennett v. Chapin, 77 Mich. 527, it was held that
when a. restriction in a conveyance o f a vested estate in
fee simple, in possession or remainder, is against selling
for a particular time, such restriction is invalid.
Gray, in his Rules against Perpetuities, thus states the
ru le :
“ Suppose property is given to trustees in trust
to pay the principal to A when he reaches thirty.
W hen any other person than A is interested in
the property, when, for instance, there is a gift
over to B if A dies under thirty, the trustee will
retain the property for the benefit of B ; but when
no one but A is interested in the property, when,
should he die before thirty, his heirs or represen
tatives would be entitled to it, when, in short, the
direction for postponement has been made for A ’s
supposed benefit, such direction is void, in pur
suance of the genera] doctrine that it is against
public policy to restrain a man in the use or dis
position of the property in which no one but him
self has any interest.
The principle isi generally held to be that all
rights o f property are alienable, and that a condi-
dition or restriction which would suspend all power
of alienation for any length of time is inconsistent
with the estate granted, and void.”
In Attwater v. Attwater, 18 Beavan 380, a devise of cer
tain real estate to A “ to become his property on attaining
the age o f twenty-five years, with the injunction never to
sell it out of the family, but if sold at all it must be to one
o f his brothers hereinafter named,” was held to be in re
straint o f alienation, and void.
In Billing v. Welch, Irish Rep., 6 Common Law 88, a
covenant by the grantee of land that he, his heirs and
assigns would not alien, sell or assign to any one except
his or their child or children, without the license o f the
grantor, was declared void on the authority of the opinion
o f Lord Rom illy in Attwater v. Attwater, supra.
In Schermerhorn v. Negus, 1 Denio 148, a provision in
a devise to children that no part of the land should be
aliened by any o f the children or their descendants except
to each other or their descendants, was held bad.
To the same effect are the decisions in Johnson v. Pres
ton, 226 111. 447, 402, and Pardue v. Givens, 54 N. C. 300.
In Anderson v. Carey, 30 Ohio St. 500, the testator
devised a farm to his two sons, Thomas and Lincoln,
upon condition that they should not be allowed to sell
and dispose of it until the expiration of ten years from
the time his son Lincoln arrived at full age, except to
one another, nor to mortgage or encumber it in any man
ner whatsoever except in the sale to one another. It was
held that the restraint attempted to be imposed was void
as repugnant to the devise and contrary to public policy.
In Barnard v. Bailey, 2 Harrington (D el.) 56, a con
dition in a devise that the devisee should not dispose
of the property to the blood- kin of either the testator or
the devisee was held to be bad.
In Williams v. Jones, 2 Swan (Tenn.) 626, there was
a bequest to A on condition that she should not dispose
of the property so as to allow either of four persons to get
it. The condition was declared to be void.
In Brothers v. McCurdy, 36 Pa. St. 407, a testator di
rected that land devised to his son should not be sold
to any person for the purpose of making brick or carrying
on a brickmaking business, and more especially that he
should not sell it to Lots and Beasley, and declared that
the devise of the lot was to be void in case of a sale con
trary to his will, in which event the lot was to be held in
common by the testator’s other heirs. The gift over was
adjudged to be void.
See also Re Rosher, L. It. 26 Cli. Div. 801, 816, and Re
Dug dale, L. IL 38 Ch. Div. 176, 179, in both of which cases
In re Macleay, L. R. 20 Eq. 186, was disapproved, as it like
wise was in Manierre v. Welling, 32 R. I. 104.
In Renaud v. Tourangeau, L. R. 2 Privy Counsel App. 4,
where a testator in Lower Canada devised real estate to
10
her children, providing that they should in no way alienate
the property until twenty years after his death, the Judi
cial Council, per Lord Romilly, held that the restriction
“ was not valid either by the old law of France, or the
general principle of jurisprudence.”
See also 4 Kent’s Commentaries 131.
To the same effect are the following decisions:
Clark v. Clark, 99 Md. 35(5, 58 Atl. Rep. 24;
Winsor v. Mills, 157 Mass. 362, 32 X. E. Rep. 352;
Latimer v. Waddell, 119 X. C. 370, 26 S. E. Rep.
122;
Re Schilling, 102 Mich. 612;
Zillmer v. Landguth, 94 Wis. 607, 69 X. W. Rep.
568;
Jones v. Port Huron Engine <t- Thresher Co., 171
111. 502, 49 X. E. Rep. 700.
(2 ) We will now consider decisions of various Courts
in which covenants similar to that here involved have been
passed upon.
in Gondolfo v. Hartman, 49 Fed. Rep. 181 (D istrict
Court, C al.), a covenant in a deed not to convey or lease
land to a Chinaman was held to be void as contrary to the
public policy of the Government and as not enforceable in
equity.
In Title Guarantee tC- Trust Co. v. Garott, 42 Cal. App.
150,152, the Court refused to enforce a condition in a deed
providing for forfeiture in case of the sale or lease of prop
erty to any person of African, Chinese or Japanese descent,
the Court said (p. 157) :
“ The rule that conditions restraining alienation,
when repugnant to the estate conveyed, are void, is
founded on the postulate that the conveyance o f a
fee is a conveyance o f the whole estate, that the
right of alienation is an inherent and inseparable
quality o f an estate in fee simple, and that, there-
17
fore, a condition against alienation is repugnant
to and inconsistent with, the estate conveyed. To
transfer a fee and at the same time restrain the free
alienation of it is to say that a party can grant and
not grant, in the same breath. But the rule is not
founded exclusively on this principle of natural law.
It rests also on grounds of clear public policy and
convenience in facilitatiing the exchange of proper
ty, in simplifying its owner skip and in freeing it
from embarrassments which are injurious not only
to the possessor, but to the public at large ”
At page 160:
“ I f the continuation of the estate in the grantee
may be made to depend upon his not selling or leas
ing to persons of African, Chinese, or Japanese
descent, it may be made to depend upon his not
selling or leasing to persons of Caucasian descent,
or to any but Albinos from the heart of Africa, or
blond Eskimos.
“ It is impossible on any known principle to say
that a condition not to sell to any of a very large
class o f persons, such as those embraced within the
category of descendants from African, Chinese, or
Japanese ancestors, shall not be deemed an unrea
sonable restraint upon alienation, but that the pro
scribed class may be so enlarged that finally the
restriction becomes unreasonable and void. Where
shall the dividing line lie placed? What omnis
cience shall tell us when the restraint passes from
reasonableness to unreasonableness? W ho can
know whether he has title to land until the ques
tion of reasonableness has been passed upon by the
court of last resort? No matter how large or how
partial and infinitesimal the restraint may be; the
principles of natural right, the reasons of public
policy, and that principle of the common law which
forbids restraints upon the disposition of one's own
property, are as effectually overthrown by the one
as by the other.’ ’
The opinion criticizes various of the decisions relied
upon by respondent.
IS
A petition to have the ease heard in the California
Supreme Court was unanimously denied September 8,
1919.
In the opinion subsequently rendered in Los Angeles
Investment Co. v. Gary, 181 Cal. 680, the Court referred
in terms of praise and approval to the opinion o f Judge
Finlayson in Title Guarantee <& Trust Co. v. Garrott, add
ing :
"The decision in that case was presented to us
for consideration by a petition for rehearing, and
the petition was denied because of our conclusion
that the decision was correct, a. conclusion from
which we see no reason for departing.”
Consequently the Supreme Court o f California likewise
decided that a condition or covenant that property con
veyed “ shall not be sold, leased or rented to one not of the
Caucasian race until after January 1, 1930,” was void at
common law as against public policy, irrespective of the
fact that the restraint on alienation was but partial and
was limited to persons of a particular clasts or to a com
paratively brief period.
In State v. Darnell, 166 K. C. 300, 302, 303, 81 S. E.
Rep. 338, an ordinance was adopted by the Board of
Aldermen of Winston, N. C., pursuant to a provision of
the city charter authorizing them to pass any ordinance
which they deemed proper for the good order and general
welfare o f the city if it does not contravene the laws and
Constitution of the state, which made it unlawful for any
colored person to occupy as a residence any house upon
any street on which a greater number of houses are oc
cupied by white people than are occupied by colored peo
ple, and. containing a similar provision as to whites. This
ordinance was declared void in an interesting opinion by
Chief Justice Clark, who pointed out that such legislation
was similar in its character and tendency to that which
years ago prescribed in Ireland limits beyond which the
native Irish or Celtic population could not reside, thus
creating what was called the “ Irish Pale, and similar
1!)
more recent legislation in Czaristic Russia, where the Jews
were restricted in the right o f residence in a limited terri
tory known as the Pale of Jewish Settlement.
It has been frequently laid down that even a restric
tion as to the manner of using land, in order to be valid,
must not be contrary to public policy.
Whitney v. Union Railway Co., 11 Gray 359;
DeCray v. Monmouth Beach Club House Co., 50
N. J. Eq. 329, 24 Atl. Rep. 388;
Brewer v. Marshall, 19 N. J. Eq. 537.
In the recent case of Porter v. Barrett, 233 Mich. 373,
200 N. W. Rep. 532, a contract for the sale o f lots con
tained the following covenant :
“ This land is sold upon express condition that
the business of manufacturing or selling intoxicat
ing liquors shall never be conducted thereon, or on
any part thereof; that no slaughter house or nui
sance of any kind, or any other thing obnoxius to a
good residence neighborhood shall ever be allowed
on such land, and the same shall never be sold or
rented to a colored person.”
The vendors subsequently sought to recover possession
o f the lots because of forfeiture for the violation by as
signees of the contract o f the provision not to sell to a
colored person. It was held that this provision was in
valid. The opinion of Mr. Justice Fellows is instructive
and comprehensive.
In Johnson v. Preston, 22(> 111. 447, which was cited in
Porter v. Barrett, supra, it is sa id :
“ The general rule is that where a devise is made
in fee, either of a legal or equitable interest, all
limitations tending to deprive the estate of any
of the incidents appertaining to the interest cre
ated are held to be repugnant to the devise, and
void. To transfer a fee and at the same time to
restrict the free alienation of it is to say that a
party can give and not give in the same breath.”
20
In Miller v. Jersey Coast Resorts Corporation, 98 X. J.
Eq. 289, 130 At]. Rep. 824, a similar question was con
sidered indicating to wliat length it may be attempted to
carry restrictions. There, too, the effort was unsuccessful.
(3 ) The similarity between this covenant and those re
strictive of trade or commerce likewise condemns it.
W hile it may be claimed that this covenant was not one
relating to trade or commerce, in the olden sense, never
theless, in these times, the tendency o f the law has been to
encourage the transferability o f real estate with the same
facility as has long existed in the case o f personalty. Real
property lias become the subject o f commerce. Transac
tions of phenomenal magnitude are the order of the day.
Titles pass from hand to hand with astonishing frequency.
The public policy o f to-day favors the ready transfer of
realty from one person to another. In Mamerre v. Well-
ing, 32 R. I. 104, 78 Atl. Rep. 519, Mr. Justice Parkhurst,
quoting the opinion of Mr. Justice Christiancy in Handle-
baum v. McDonell, 29 Mich. 79, expressed the prevailing
policy when he sa id :
“ * * * and certainly, in a country like ours,
where lands are as much an article o f sale and
traffic as personal property, and the policy o f the
State has been to encourage both the acquisition and
easy and free alienation of lands, such restrictions
ought not be encouraged by the Courts.”
The same idea was expressed by Mr. Justice Garber
in Test Oil Co. v. LuTourrette, 19 Okla. 214, 91 Pac. Rep.
1025, 1028:
•‘ In this country land is one of the chief objects
o f trade and investment— ‘mud and civilization go
together.' As the latter advances the transfer of
the former becomes more frequent. Just in the de
gree that the temporary owner of a tract of land is
permitted to impress his notions or caprices upon
the fee restricting its future alienation, just in that
degree does it hamper the terms and facility of its
exchange in trade and destroy that continuance
21
which has given it the reputation of being the sub
ject o f safe and sound investment. Hence restric
tions upon the alienation o f the fee in land are re
pugnant to trade and commerce, and are looked
upon with disfavor by the law.”
Moreover, as has been shown under the preceding
subdivision o f this argument, long before the rule of public
policy which forbade restraint o f trade in merchandise
or the like, came into being, contracts in restraint o f the
alienation o f realty had been treated as opposed to public
policy. Hence it is our contention that the covenant now
under consideration, which limits the sale of land or its
occupancy to a certain class of human beings and excludes
other of God’s children from the right to occupy or pur
chase it, in the aspect of public policy comes at least with
in the rules applicable to the restraint of trade in per
sonalty.
In United States v. Addyston Pipe Co., 85 Fed. Rep. 271,
affd. 175 U. S. 211, Mr. Chief Justice Taft, then writing
for the Circuit Court of Appeals for the Sixth Circuit,
classified the decisions in which covenants in partial re
straint of trade had been upheld. They involved agree
ments (1) by the seller of property or business not to com
pete with the buyer in such a way as to derogate from the
value of the property or business sold; (2 ) by a retiring
partner not to compete with the firm; (3 ) by a partner
pending the partnership not to do anything to interfere
by competition or otherwise with the business o f the firm ;
(4) by the buyer of property not to use the same in compe
tition with the business retained by the seller; and (5) by
an assistant, servant or agent not to compete with his
master or employer after the expiration of his time of
service.
Referring to this classification, it was added (p. 281) :
“ Before such agreements are upheld, however, the
Court must find that the restraints attempted there
by are reasonably necessary (1, 2 and 3) to the
9 0
enjoyment by the buyer of the property, goodwill
or interest in the partnership bought; or (4 ) to
the legitimate needs of the existing partnership;
or (5 ) to the prevention o f possible injury to the
business of the seller from the use by the buyer o f
the thing sold; or ((>) to protection from the dan
ger of loss to the employer's business caused by
the unjust use on the part o f the employee of the
confidential knowledge acquired in such business.
* * * It would be stating it too strongly to say
that these five classes of covenants in restraint of
trade include all of those upheld as valid at the
common la w ; but it would certainly seem to follow
from the tests laid down for determining the
validity of such an agreement that no conventional
restraint of trade can be enforced unless the cove
nant embodying it is merely ancillary to the main
purpose of a lawful contract, and necessary to pro
tect the covenantee in the enjoyment of the legi
timate fruits of the contract, or to protect him from
the dangers of an unjust use of those fruits by the
other party. In Horner V. Graves, 7 Bing. 735,
Chief Justice Tindal, who seems to lx* regarded as
the highest English judicial authority on this
branch of the law (see Lord Macnagliten’s judg
ment in Nordenfeldt v. Ma.vim Nordenfeldt Co.
(1894), App. Cas. 535, 5(17) used the following lan
guage :
‘W e do not see how a better test can be applied
to the question whether this is or is not a reason
able restraint of trade than by considering the re
straint is such only as to afford a fair protection to
the interests of the party in favor of whom it is
given, and not so large as to interfere with the in
terests of the public. Whatever restraint is larger
than the necessary protection of the party re
quires can be of no benefit to either. It can only
be oppressive. It is, in the eye o f the law, unrea
sonable. Whatever is injurious to the interests of
the public is void on the ground of public policy.’
This very statement of the rule implies that the
contract must be one in which there is a main pur
pose, to which the covenant in restraint of trade is
merely ancillary. The covenant is inserted only to
protect one of the parties from the injury which,
in the execution of the contract or the enjoyment
of its fruits, he may suffer from the unrestrained
competition of the other. The main purpose o f the
contracts suggests the measure o f protection
needed, and furnishes a sufficiently uniform stand
ard by which the validity of such restraints may
he judicially determined.”
See also 13 Corpus Ju ris , title '‘Contract,” Section 430,
page 477, and cases cited.
In the present case there is an utter absence of those
elements which in the case cited were deemed to justify
covenants in partial restraint of trade.
This doctrine does not owe its existence to the Sher
man Act, or any other similar legislation. It is a prin
ciple enforced by the Courts both at common law and
in equity, long prior to such legislation.
As applicable to this discussion, we take the liberty of
referring to the opinion of Mr. Justice Hughes in Dr.
Miles Medical Co. v. Park d- Sons Co., 220 U. S. 373. The
question there involved was as to whether a manufacturer,
in connection with the sale o f his product, may affix con
ditions as to the use o f the article sold or as to the prices
at which purchasers may dispose of it. There the condi
tion was ancillary to a sale. Yet it was held that such
conditions were contrary to public policy, and, therefore,
void. Mi*. Justice Hughes quoted the passage from Coke
above referred to in the course o f his opinion.
The covenant here involved happened to exclude from
the list of possible purchasers or occupants of the land in
question Negroes or persons of the Negro race or blood.
That excluded upwards of twelve million citizens of the
United States, or 10 per cent, of the entire population.
I f Catholics and Jews had been added to the number of
those blacklisted, it would have limited the possible pur
chasers to the extent of upwards o f twenty millions more
of our citizens, or practically an additional 20 per cent, of
the population.
I f a covenant like that here involved made by white
persons is valid, then a corresponding covenant by colored
24
laud-owners restricting the sale o f their property so as to
exclude all white persons or those of the Caucasian race or
blood as possible purchasers would be equally permissible.
That would affect at least 100,000,000 o f our population.
Is that not a reductio ad absurdum o f the contention that
covenants o f this character are not opposed to public
policy?
If the various dealers in woolen cloth or shoes or pre
pared articles of food carrying on business in Washington
had covenanted with each other not to sell or to give any
o f their products to these several classes o f human beings
coming within the ban o f their displeasure, it is believed
that our Courts would not long hesitate to declare such a
covenant as contrary to public policy. How does the illus
tration differ in principle from the covenant now under
discussion? The fact that in the one case the covenant
relates to the acquisition of a habitation and in the other
o f articles o f clothing or o f food does not constitute a valid
ground for differentiation. As was said by Mr. Justice
Holmes in Block v. Hirsh, 256 U. S. 156, “ housing is a
necessary of life.” It is as much a. necessity for those of
the Negro race or blood as it is for those of the white
race.
If covenants of this character are valid in relation to
the property on one city block, they would be equally
applicable to a hundred, or, if there were so many, a
thousand city blocks in the City o f Washington, and since,
as was said in the opinion in the case just cited, “ the space
in Washington is necessarily monopolized in comparatively
few hands,” the cumulative effect o f such covenants would
be to drive out of the City of Washington, and for that
matter out o f the District o f Columbia, all or most of the
persons o f the Negro race or blood whose business or oc
cupation or interest it is to pursue their respective voca
tions in that City or District as it is a matter of public
interest that they should pursue their vocations there.
Such a scheme is not an unheard of conception. It was at
tempted in In re Lee Sing, 43 Fed. Kep. 359. According
to the census o f 1920 the white population of the District
numbered 320,860 and the Negro population 109,900, or
nearly a quarter o f the entire population. It is also in
teresting to note parenthetically that the covenant would
practically preclude the white owner o f any one o f the
houses affected by it, to permit domestic servants of the
Negro race or blood to live upon his premises.
It surely cannot he said that our Courts are more
tender in their consideration for those affected by trade
and commerce in personal property than they are for the
welfare o f those human beings who desire to establish
homes and to acquire the ownership or the right o f oc
cupancy of a place which they may call their own.
These defendants are certainly entitled to as much free
dom from restraint upon their right to acquire a habita
tion where they may lay their heads, as were the vendees
o f the patent medicine o f Dr. Miles Medical Company to
be free from the restrictions as to price imposed by the
vendor of that panacea. They should not for a moment be
lost sight of in this controversy. Their liberty to acquire
property is as much involved as is the liberty o f plaintiff
to sell. The right of both o f them to contract with respect
to the premises here in question is to be determined, that
is, the right of disposition by the one, and the right of
acquisition by the other.
I I .
The covenant is so contrary to public policy as
evidenced by the spirit of the Constitution, Acts of
Congress and court decisions, and is so unreasonable
and discriminatory, that a court of equity cannot
enforce it without doing violence to fundamental
conceptions of justice.
The purpose of this covenant is evident from the terms
of its construction. It is aimed against renting, leasing,
selling, transferring, or conveying unto any Negro or
colored person the land subjected to its operation. 1 lie
colored person alone is denied his right to negotiate for
the acquisition of real estate so restrained. That it is
discriminatory must be admitted. The basis and founda
tion for the discrimination is the unreasonable and in
definite exclusion from ownership because o f the race and
color of an intending purchaser. The owners of this prop
erty will be forever precluded from selling it to at least
one-fourth of the population of Washington, and the latter
is prevented from purchasing it if this covenant is valid.
Even if the present white population of the district
affected by the Middaugh & Shannon covenant may move
away, even if the houses remain unoccupied because none
of the Caucasian race may be willing to live in the neigh
borhood, “ never’ may the property be conveyed to a
Negro. A perpetual inhibition is imposed upon 25 per
cent, of the present population of Washington to acquire
an inch of this tract. Indeed it logically follows that
covenants may be entered into which would forbid any
person of color to become the owner of any part o f the
territory composing the District of Columbia— Does such
a system conform with sound public policy?
“ Public policy” has been defined to be “ that principle
of law which holds that no subject can lawfully do that
which has a tendency to be injurious to the public, and
against the public good.” 3 Bouvier’s Law Dictionary,
2705. The definition which the Courts have frequently
approved is the one given by Lord Brougham, 0 R. C. L.
707:
“ Public policy is the principle which declares
that no one can lawfully do that which has a tend
ency to be injurious to the public welfare."
2<>
A g a in :
“ In substance, public policy may be generally
said to be the community common sense and com
mon conscience, extended and applied throughout
the States to matters of public morals, public
health, public safety, public welfare, and the like.
It is that general and well settled public opinion
relating to a man’s plain palpable duty to his fel-
lowman that has due regard to all circumstances of
each particular situation.”
Our public policy may lie deduced from our constitu
tions and statutes, from judicial decisions and from funda
mental principles of right and wrong. Manifestly, when
the Constitution declares and defines certain public
policies, such public policies must be paramount though
a score of statutes conflict and a multitude of judicial
decisions be to the contrary (Kintz v. Harrigar, 99 Ohio
St. 240).
The sources from which public policy may be gathered
are manifested “ by public acts, legislative and judicial,
and not by private opinion, however eminent” ( Giant
Powder Co. v. It. R. Co., 42 Fed. 470), for “ no general
assembly is above the plain potential provisions o f the
Constitution, and no Court, however sacred or powerful,
has the right to declare any public policy that clearly con
travenes or nullifies the rights declared in the Constitu
tion.”
In Hartford Fire Ins. Co. v. Chicago etc. R, R. Co., 70
Fed. 201, the Court sa id :
“ The public policy of a State or nation must be
determined by its constitution, laws, and judicial
decisions, not by varying opinions of laymen, law
yers, or judges as to the demands o f the interests
o f the public.”
As Judge Cardozo said, speaking of the public policy of
the State of New Y o rk : “ The public policy of this State,
when the legislature acts, is what the legislature says that
it shall be" (Smith v. American Fidelity Co., 232 N. Y.
101, 103).
Where would one be more likely to arrive, then, at
the sources from which our public policy is derived than
by exploring the Constitution and statutes of the United
States and the adjudications of the courts It would ap
2 8
pear to be obvious that where a legislature is prohibited
from sanctioning a particular policy, individuals may not
enter into contracts in derogation thereof. Therefore,
that which the Legislature cannot sanction should not be
possible o f accomplishment by a decree of a court of equity
enforcing the specific performance of an agreement, which
is the equivalent of such legislation, and is productive of
identical results. If such a contract as that here involved
were declared valid as affecting a limited area, it would
be equally effective if it included an entire city, or a
county, or a state. If the spirit of the Constitution may
be evaded, as it is attempted to be by the device here em
ployed, it would not be difficult to create a situation,
barring the limits o f the contract, that would prevent a
colored person from owning real estate or from taking
up his habitation in any state or in any part o f a state.
Segregation ordinances, based on color, similar in essence
with the covenant here involved have come before this
Court and the courts o f last resort in the several states and
have been declared to be void.
In Buchanan v. Warley, 245 U. S. 00, this Court pro
nounced as void an ordinance similar in character to the
discriminatory provision of the covenant under discus
sion herein. So utterly contrary to the policy of protec
tion o f the colored race is such legislation regarded that
in Harmon V. Tyler, 273 U. S. G68, the most recent attempt
upon the part of a municipality to legalize race segrega
tion of a character similar to that sought to be accom
plished by means of the covenant now under consideration,
that this Court contented itself by simply reversing the
Supreme Court of Louisiana.
State v. Gurry, 121 Md. 534.
Gary v. City of Atlanta, 143 Ga. 1!>2.
State v. Darnell, 166 X. C. 300.
Here, however, by the decrees of the Courts of the Dis
trict o f Columbia, a white person is forbidden to sell to a
colored person, and a colored person to buy from a white
29
person a house in a residential district of Washington,
solely because of race and color.
In Buchanan v. Worley, Mr. Justice Day thus stated
the question to be determined:
“ The concrete question here is, may the occu
pancy and necessarily the purchase and sale of
property of which occupancy is an incident, be
inhibited by a state, or by one of its municipalities,
solely because o f the color of the proposed occupant
of the premises”
In the course of the discussion he laid down the funda
mental concept:
“ Property is more than the mere thing which the
person owns. It is elementary that it includes the
right to acquire, use, and dispose of it. The Con
stitution protects these essentials attributes of
property. Bolden v. Hardy, 169 U. S. 366, 391.
Property consists of the free use, enjoyment, and
disposal of the premises acquired without control
or diminution save by the law of the land.”
A fter considering the history of the Thirteenth and
Fourteenth Amendments, and quoting from the Slaughter
House cases, 16 W all. 36; Strauder v. W. Va., 100 U. is.
303, and E x Parte Virginia, 100 U. S. 339, 347, the opinion
continues:
“ The Statute of 1866, originally passed under
sanction of the 13th amendment, 14 Stat. 27, and
practically re-enacted after the adoption o f the
14th Amendment, 16 Stat. 144, expressly provided
that all citizens of the United States in any state
shall have the same right to purchase property
as is enjoyed by white citizens. Colored persons
are citizens of the United States and have the right
to purchase property and enjoy the use of the same.
H all v. DeCuir, 95 U. S. 485, 508. These enact
ments did not deal with the social rights of men
but with those fundamental rights in property
which it was intended to secure. Civil Rights Cases,
109 U. S. 322. The 14th Amendment and those
•statutes enacted in furtherance of its provisions
operate to give the colored man the right to acquire
property without state legislation discriminating
against him, solely because of color” (p. 78).
Congress by enacting Sections 1077 and 1978 of the
United States Revised Statutes (Title V III, Sec. 41, and
Title V II, Sec. 42), has given definite expression to the
policy which the legislative department of our Government
lias required to be enforced in furtherance of the recogni
tion of the constitutional provisions enacted in protection
of the colored race. Section 1977 reads:
“ All persons within the jurisdiction of the United
States shall have the same right in every state and
territory to make and enforce contracts, to sue, he
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment,
pain, taxes, licenses, and exactions of every kind,
and no other.”
Section 1978 declares:
“All- citizens of the United States shall have the
same right in every state and territory as is en
joyed. by the white citizens thereof to inherit, pur
chase, sell, hold, and convey rent and personal prop
erty.”
It seems inconceivable that a court of equity may by its
command compel the specific performance of such a cove
nant and thus give the sanction o f the judicial department
of the Government to enact what was not in the competency
o f its legislative branch to authorize. In rendering this
decree, the Court which pronounced it functioned with
the same authority to enforce its mandate as the executive
and legislative departments possess. It effectuates a policy
condemned by this Court in every case in which it has
been attempted by State legislative action to bring about
race segregation based solely on color.
31
There can be no permissible distinction between citi
zens based on race, creed or color if we are to remain a
free and harmonious nation. To have it appear in the
judicial annals of our courts that, one part of our citi
zenry may enter into contracts which are derogatory to
another part is intolerable unless we are to abandon our
most cherished institutions. If the different elements con
stituting the body of American citizens can live together
and serve under the same flag, perform the same civic
duties, pay the same faxes, and co-operate in the develop
ment of our national resources, to say that a part of them
shall not breathe the same air or live in the same neighbor
hood or pursue the same business as the other part because
they are colored, is to sow the seeds of discord and tends
to destroy unity and harmony essential to a free country.
The restrictive covenant in the present case relates to
the ownership and occupation of property in a residential
district. I f such a covenant is valid, then what would pre
vent similar covenants in districts devoted to industry
and commerce? W hat would there be to prevent a similar
covenant concerning the sale or holding of store property
on Broadway in the City o f New York, on Pennsylvania
Avenue in the City of Washington, on Chestnut Street in
the City of Philadelphia, or on State Street in the City of
Chicago? What would prevent such a contract in regard
to land devoted to mining, or to agriculture, to forestation,
or to any other human activity?
Follow ing the precedent created by the decision now
under review, similar covenants may be made in all parts
o f the country restricting the sales and leases of land to
Negroes or members of the colored race. By means o f like
covenants, differences might be made between the rich and
the poor, between members o f different churches, between
the adherents of different political parties, between the
descendants o f those of different national origins, between
native and naturalized citizens, between those who have
come from the north and from the south, or from the east
and the west. This is not mere fancy, for in certain com
munities covenants based on such hateful discriminations
have already made their appearance.
The decision has within it a capacity to produce such
a chaotic condition as would tend to positive public mis
fortune and give rise to untold evils. By what method is
this covenant to be enforced? Under what test is the color-
line to be drawn? Where does the Negro end and the
Caucasian begin? Does it mean that any person who has
flowing in his veins a single corpuscle o f Negro blood
comes within the prohibitions of the covenant? W ould
Alexander Dumas and thousands of others have been in
cluded in the term “ Negro” because one o f their ancestors
may have been o f the colored race? How is.the pretended
blood-taint to be ascertained? W ho shall determine when
colored blood changes its color? By what microscopic
or biological test shall the Courts determine whether an
intending purchaser of premises comes within the scope
of this covenant so that he is precluded from the owner
ship of land?
I I I .
The Middaugli and Shannon covenant having ex
pressly specified the penalty resulting from a breach
of the covenant as to renting, leasing, selling, trans
ferring or conveying the property to any Negro or
colored person, the right to an injunction restrain
ing a Negro or colored person acquiring the prop
erty from occupying it or selling it, is negatived.
It is an elementary rule that when a specific remedy
is expressly conferred, that which is not granted is to be
deemed withheld. Assuming that such a provision as that
under consideration is valid, the grantors might have
formulated it as a condition or a conditional limitation
and coupled it with a right of re-entry on breach. That
was not done. The grantors might have imposed a cove
nant upon the grantee coupled with the right to enjoin a
violation o f it. That was not done. The covenant might
have been made to run with the land. That was not done.
The only consequence o f a breach specified in the deed was
the incurring of a penalty of $2,000, which was to be a
lien against the lot. The fact that that penalty was not
to be imposed upon anybody who by mesne conveyances
from the original grantor was to become the owner o f the
property indicates that Middaugh and Shannon alone
were to have the right to enforce the penalty, and that,
consequently, the appellees have no standing in court
either to recover the penalty or to obtain equitable relief.
A covenant of this character is in derogation of com
mon right. Qrdinarily the grantee of property may do
with it what he pleases, sell, convey, lease or transfer it
to any person whom he may choose. When, therefore, it
is attempted in any way to limit that right, it is incumbent
upon him who seeks to do so to formulate the restriction
in terms which are free from ambiguity and which will
make it absolutely certain that it is intended to make the
covenant operative not only as against the original
grantee, but against any person to whom he may at any
time convey the property, and that if there is a rental,
leasing, selling, transfer or conveyance of the property to
a Negro or colored person, the penalty o f $2,000 imposed
shall have superadded to it other remedies of a much more
drastic character, including banishment from the property
and confiscation if, perchance, at any time after the execu
tion of the deed, at a period, however remote, the prop
erty should be conveyed to a Negro or colored person.
W e recognize the fact that in Torrey v. Wolfes, (i Fed.
(2nd) 702, it was held that this penalty provision did not
preclude enforcement of the restrictive feature o f the cove
nant in a suit in equity. With all due respect we ques
tion that decision as applied to the peculiar language of
the Middaugh and Shannon covenant as read in connec
tion with the subsequent covenant, which was expressly
made to run with the land, whereas the covenant noiv
under discussion is devoid of that element.
Attention is further called to the fact that in the case
cited this Court expressly refrained from passing on the
question as to whether the prohibition contained in the
deed could be enforced by a grantee or grantees o f Mid-
daugli and Shannon. For, it is sa id :
“ Whether a grantee or grantees of Middaugli and
Shannon, the original owners, and who originally
inserted this restriction in the deeds, could enforce
the penalty, is not important, since no such attempt
is here made.”
It is our contention that the penalty clause constitutes
an inherent part o f the covenant and cannot be separated
or excluded from it, and that no other remedy can be sub
stituted for that expressly stipulated.
31
IV.
Here the respondents have resorted to a court of
equity to enforce a covenant which, so far as the
petitioners are concerned, who were strangers to the
covenant, is oppressive and unreasonable and lack
ing in equity.
The petitioners were not parties to the covenant. They
are the victims of its prohibitions. It is an impairment
o f their right to acquire real property as conferred by
Section 1978 of the Revised Statutes (now Section 12 of
Title 8 o f the United States Code), and, consequently,
it is believed that a court o f equity should not make itself
a party to effectuate the scheme whereby it is sought to
deprive them of the rights secured to them by the Constitu
tion and the statutes o f the United States and its public
policy.
1 Pomeroy’s Equity Jurisprudence, 3rd Ed., Secs.
1404, 1405;
Cat heart v. Robinson, 5 Pet. 263;
Pope Mfg. Co. v. Gormully, 144 U. S. 236, 237;
Curran v. Holyoke Water Co., 116 Mass. 90.
35
y .
The petitioners pray that their application for a
writ of certiorari be granted.
LOUIS M ARSHALL,
W ILLIA M E. LE AH Y,
GEORGE E. C. H AYES,
Petitioners’ Counsel.
[39054]
I n t h e
î upmttp Glourt of % Bint? of Nrto fork,
County of W estchester.
M ARION A. R ID G W A Y,
vs.
PAU LIN E TE R E SA COCKBURN.
BRIEF OF PAULINE TERESA COCKBURN, IN
OPPOSITION TO MOTION FOR TEMPORARY INJUNCTION.
T H E B A L L O U P R E S S N E W Y O R K
g>upmne (Eourt nf % f?tate of Nrm $nrk,
County of W estchester.
Marion A. Ridgway,
Plaintiff,
against
Pauline Teresa Cockburn,
Defendant.
DEFENDANT’ S BRIEF IN OPPOSITION TO
MOTION FOR A TEMPORARY INJUNC
TION.
Tliis is a motion by the plaintiff for an injunc
tion pendente life, restraining the defendant from
using and occupying certain premises owned by
her, on the ground that such occupancy is in vio
lation of a covenant of record affecting said prem
ises.
The Com plaint.
The complaint alleges, in substance, that in
April, 1928, Max Held Realty Company assem
bled a tract o f land in the Town of Greenburgh,
Westchester County, 'with the intent and purpose
of creating a high-class residential neighborhood;
that in furtherance thereof said company imposed
a uniform scheme of development and a common
set o f covenants and restrictions to run with the
land, for the mutual benefit of all grantees of the
property in said tract. One of such covenants
reads:
2
“ That no part o f the said parcels shall-ever
be used or occupied by or sold, conveyed,
leased, rented or given to negroes or any per
son or persons of the negro race or blood, ex
cept that colored servants may be maintained
on the premises.”
This is the covenant involved in this action.
In 1933, the plaintiff became the owner of lots
in said development, on some of which in 1930
she erected a dwelling for the purpose o f having
the same used and occupied by persons of the negro
race or blood, which persons are not servants
maintained upon said premises.
The complaint further alleges that the plaintiff
had knowledge of the covenant and was requested
not to erect or construct a building for the use and
occupation of persons o f the negro race or blood,
but that she failed and refused to comply with
such requests.
It is claimed that the defendant’s occupancy of
her property will change and alter the character
of the tract and will cause irreparable loss and
damage to the plaintiff and impair the use and
enjoyment of her property.
The Answ er.
The defendant admits the ownership by her of
the property described in the complaint, that
there was a covenant o f record o f which she had
knowledge which purported to restrict the sale,
lease, rental or occupancy of the premises, admits
knowledge of the covenant and denies the other
allegations of the complaint.
Five separate and distinct defenses are set forth
in the answer. First, that the purported covenant
is contrary to the public policy of the State of
3
New York and is therefore illegal and void. Sec
ond, that the said covenant is opposed to the pub
lic policy of the United States as manifested in
and by the Constitution thereof and amendments
thereto, and more particularly is in violation of the
Thirteenth and Fourteenth Amendments of the
Constitution of the United States and the statutes
in aid of the enforcement thereof, especially Sec
tions 1977 and 1978 of the Revised Statutes o f the
United States. Third, that the covenant unlaw
fully restrains alienation o f property. Fourth,
that the aforesaid covenant is vague and indefinite
and therefore void and unenforceable. Fifth, that
said covenant is oppressive, unreasonable, discrim
inatory and lacking in equity.
The Affidavits.
The moving affidavits substantially restate the
allegations o f the complaint. The only new matter
is a statement in the affidavit of the plaintiff that
the defendant's attention was called to the restric
tive covenant in question and that the defendant
stated that she was constructing the dwelling for
use and occupation by persons of the negro race or
blood.
The affidavit o f Carlisle Held sets forth that on
one occasion Joshua Cockburn, the husband of the
defendant, stated to him that he and the defendant
owned the land, that they were going to build
several dwellings thereon for use and occupation
by negroes; and that he, Joshua Cockburn, was as
good as any white man; that on a number of oc
casions the deponent saw the defendant and her
husband with other colored persons inspecting
houses under construction in the said tract and the
surrounding territory.
4
The Answ ering Affidavits.
In the answering affidavits are presented cer
tain facts which the Court is asked to consider in
connection with the good faith of this action. Brief
ly, a Mr. Zabler, a building contractor owning prop
erty in the immediate neighborhood, endeavored to
obtain a contract for the building o f the defend
ant’s home. Failing to obtain such contract Mr.
Zabler offered to go into partnership with the de
fendant’s husband for the erection and selling of
homes in the very neighborhood from which it is
now sought to exclude the defendant. Shortly
after these propositions fell through and after the
defendant’s home was completed, Mr. Zabler called
a.t the defendant’s home and repeated the partner
ship proposal referred to above, and when it was
turned down he served the defendant with the sum
mons and complaint in this action.
According to an affidavit by Dr. Franz Boas, the
well-known anthropologist, no one can properly be
described as a negro unless he is full-blooded.
The answering affidavits also contain the back
ground of the defendant and her husband, which
disclose both to be persons o f refinement.
P O IN T I.
The covenant is unenforceable be
cause it is contrary to the public policy
of the State of New Y orh.
The public policy o f a state is determined by
its constitution, laws, court decisions, and tradi
tions. It would be a bold man who would deny
that the public policy o f New York State opposes
discrimination against citizens based on race,
creed or color. It has only seemed necessary to
express, that public policy in statute law with ref
erence to places o f public accommodation.
The Civil Rights Law (Sections 40 and 41) pro
vides :
“ A ll persons within the jurisdiction of this
state shall be entitled to the full and equal ac
commodations, advantages and privileges of
any place o f public accommodation, resort or
amusement, subject only to the conditions and
limitations established by law and applicable
alike to all persons” ,
and that:
“ No person * * * shall directly or indirectly
refuse, withhold from or deny to any person,
any o f the accommodations, advantages or
privileges thereof * * * on account o f race,
creed or color, or (publish) that the patronage
or custom thereat, of any person belonging to
or purporting to be of any particular race,
creed or color is unwelcome, objectionable or
not acceptable, desired or solicited.”
The Penal Law reads:
“ Section 514. Protecting civil and public
rights. A person w h o :
1. Excludes a citizen of this state, by reason
o f race, color, creed or previous condition of
servitude, from any public employment or
from the equal enjoyment of any accommoda
tion, facility or privilege furnished by innkeep
ers or common carriers, or by owners, man
agers or lessees of theatres or other places of
amusement, or by teachers and officers of com
mon schools and public institutions of learn
ing, or by cemetery associations, or,
2. Denies or aids or incites another to deny
to any other person because of race, creed or
color, public employment or the full enjoy-
0
ment o f any of the accommodations, advan
tages, facilities and privileges of any hotel,
inn, tavern, restaurant, public conveyance on
land or water, theatre or other place o f public
resort or amusement,
Is guilty of a misdemeanor, punishable by
fine of not less than fifty dollars nor more than
five hundred dollars.”
W hile it is true that a place o f “ public accommo
dation” is not involved in this case, yet the provi
sions of the Civil Eights Law furnish a guide to
the attitude which the Court should adopt in a
matter involving the right of law-abiding citizens
o f the State to reside where they wish. Moreover,
the amendments o f 1918 and 1935 indicate that the
policy o f the Legislature has been increasingly to
broaden the scope o f the statute, by adding to the
number of places o f “ public accommodation” cov
ered by its terms.
The only New York case touching on the ques
tion indicates that our Courts have already adopted
the enlightened policy of the Civil Eights Law
where an attempt is made to discriminate against
negroes. There the plaintiffs, tenants in the defend
ant's apartment house, sought to enjoin the defend
ant-landlord from renting vacant apartments in the
same building to colored persons. The Court re
fused the injunction, saying that even:
“ Assuming that the landlord seeks by this
method to force the white tenants to vacate,
equity may not afford relief, because the co l
ored tenants have equal rights before the law to
live in the premises with the other tenants.”
Schoolhause V. Browning, 116 Misc. 338,
339.
Courts of equity are accustomed to enforcing re
strictive covenants on the use of real property. Such
7
covenants, like zoning statutes, are upheld on the
theory that every person’s freedom to use his own
property is limited by his neighbors’ interest in
not having such use interfere too greatly with their
enjoyment o f their own premises. Common exam
ples are covenants and zoning statutes against gar
bage disposal plants, saloons, undertaking estab
lishments and factories. In such cases, however,
the objection is to the use itself.
But here the objection cannot possibly be to the
use, which is merely the occupancy of the premises
as a residence. The objection, rather, is to the color
of the skin of the person who is so using the prem
ises. The restriction, therefore is against the per
son and not against the use. Unless the plaintiff is
willing to go so far as to contend that colored citi
zens of the State of New York are themselves o f
fensive nuisances, she cannot argue that the cases
upholding ordinary covenants against use are anal
ogous.
Lest there be any doubt that the purpose of the
restrictive covenant before the Court is to impose
the badge of inferiority on colored citizens, we re
spectfully call the Court’s attention to the fact
that, despite the prohibition on occupancy by such
citizens, the covenant provides that “ colored serv
ants may be maintained on the premises” . Evi
dently the plaintiff is entirely willing to have col
ored people live nearby so long as it is clear that
they are present in an inferior status. The objec
tion is no longer to the proxim ity of persons of
dark skin, but is to their presence under the sup
posed illusion that they are the equals o f persons
of lighter pigmentation. Insult is thus added to
injury, and the announced equalitarian policy of
the State o f New York is set at naught.
The Supreme Court o f the United States held,
in the case of Buchanan v. Warley (245 U. S. GO),
8
that a municipal ordinance prohibiting colored
persons to occupy certain sections o f the city was
invalid as a violation of the Fourteenth Amend
ment of the Federal Constitution. It is contrary
to reason and sound public policy to permit a pri
vate group of land owners to impose the very dis
criminatory restriction upon a large element of the
population which state or city legislative authori
ties are not permitted to impose. The matter con
cerns the social welfare of a large part, if not all.
o f the community. I f any group of persons should
have the authority to determine policy in this re
spect, it should be the legislature, and not a self-
appointed, collection of prejudiced private indi
viduals. Least o f all should such individuals be
permitted to exercise this authority when, wholly
aside from considerations o f constitutional power,
the New York legislature has indicated that its
policy is precisely the opposite.
The power having been forbidden to the duly
elected representatives of the people, a court of
equity should not assist in the enforcement of a
covenant designed to reach the prohibited result.
I f this covenant against occupancy is upheld, there
will be nothing to prevent all the land owners of
the Township of Greenburgh— or, indeed, of the
entire County of Westchester or State o f New York
— from entering into restrictive covenants of the
same character. Colored citizens of the State and
o f the Ujiited States may thus be prevented from
taking up their habitation at any place within the
State’s borders, and from enjoying the advantages
which our laws and traditions have led them to
believe that they are entitled to share with men
who call themselves white.
The plaintiff claims that occupancy by negroes
as owners, as distinguished from servants, may
affect the value of neighboring property. W hile
9
one may doubt the fact, yet the mere suggestion
that the public policy of the State should approve
— or not disapprove— discrimination for that rea
son, is appalling. In the course of our short his
tory many groups have been subject to prejudice—
Irish, Italians, Jews and what not. Prejudice is
dissipated only when people, through neigliborli-
ness and association, come to know and understand
other people. Striving toward the ideals of democ
racy, the State must refuse to pander to racial
prejudice, however natural or profitable this may
seem to be. The Civil Rights Law has shown the
way. The public policy of New York State bars
discrimination.
The Court should therefore disregard decisions
in jurisdictions having a different and less enlight
ened public policy.
It should, rather, adopt the tolerant philosophy
expressed by the court of a neighboring state in
Miller v. Jersey Coast Resorts Corporation (98
N. J. Equity, 289, 297; 130 Atl. 824, 828), in
which persons enjoying the benefit of a covenant
against uses “ that shall depreciate the value o f the
neighboring property for dwelling purposes” sought
to be relieved of their Jewish neighbors:
“ there is nothing in the covenant nor in the
laws of this state which prohibits members of
the Jewish faith or any other faith from pur
chasing and owning land on this tract and liv
ing thereon. And, even if such prohibition did
exist, I should be obliged to hold it unconsti
tutional and void. Even the expressed inten
tion of leasing the property for a home for
colored people is not, in my judgment, a
ground for injunction.”
The validity of a covenant against negroes has
never before l>een considered by a New York court.
10
Surely this Court will not feel disposed to assume
the responsibility o f telling half a million colored
citizens of the State that they were mistaken in be
lieving that they would enjoy legal equality with
in its borders.
P O IN T II .
The enforcem ent of this covenant w ill
deny to the defendant her rights under
the Federal Constitution and Statutes.
Whatever may be the problems arising from oc
casional race hostility, their “ solution cannot be
promoted by depriving citizens o f their constitu
tional rights and privileges.” Buchanan v. Warley,
245 U. S. 60, 81.
The Fourteenth Amendment of the Federal Con
stitution provides, in part, that:
“ Section 1. * * * No State shall make or en
force any law which shall abridge the privi
leges or immunities o f citizens o f the United
States; nor shall any State deprive any person
of life, liberty, or property, without due
process o f la w ; nor deny to any persons within
its jurisdiction the equal protection o f the
laws.”
Sections 1977 and 1978 o f the United States Re
vised Statutes (8 U. S. C. A. 41, 42) passed pur
suant to the Amendment, read as follow s:
“ A ll persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and
proceedings for the security o f persons and
11
property as is enjoyed by white citizens, and
shall be subject to like punishment, pains, pen
alties, taxes, licenses and exactions of every
kind, and no other.” (§1977).
“ A ll citizens of the United States shall have
the same right, in every State and Territory,
as is enjoyed by white citizens thereof to in
herit, purchase, lease, sell, hold and convey
real and personal property.” (§1978).
The right to occupy property as a residence is
equally protected.
“ Colored persons are citizens of the United
States and have the right to purchase prop
erty and enjoy and use the same without laws
discriminating against them solely on account
of their color” . (Italics ours.)
Buchanan v. Warley, 245 U. S. 00, 78.
The Court had previously pointed out that
“ The Fourteenth Amendment protects life,
liberty, and property from invasion by the
States without due process of law. Property
is more than the mere thing which a person
owns. It. is elementary that it includes the
right to acquire, use, and dispose of it. The
Constitution protects these essential attributes
o f property. Holden v. Hardy, 169 U. S. 366.
391. Property consists of the free use, enjoy
ment, and disposal of a person’s acquisitions
without control or diminution save by the law
of the land.” (245 U. S. 60, 74.)
True, the Constitutional provision and the stat
utes passed pursuant thereto relate only to State
action. However, State action does not only mean
action by the legislative or executive branch of the
State government. The Fourteenth Amendment is
also a restraint upon discriminatory action by the
judiciary. AVere the court to order the defendant
to cease occupying the premises and were it sub-
12
sequently to enforce its order by contempt proceed
ings, it would be denying the defendant’s right
guaranteed by the Fourteenth Amendment.
In E x Parte Virginia, 100 U. S. 339, the question
concerned the criminal responsibility of a Judge
for denying, in his judicial capacity, the equal
protection of the laws to negroes.
The Supreme Court there said (p. 346) :
“ W e have said the prohibitions of the Four
teenth Amendment are addressed to the State.
'* * * They have reference to actions o f the
political body denominated a State, by what
ever instruments or in whatever modes that
action may be taken. A State acts by its
legislative, its executive or its judicial
authorities. It can act in no other way. The
constitutional provision, therefore, must mean
that no agency of the state, or of the officers
or agents by whom its powers are exerted,
shall deny to any person within its jurisdic
tion the equal protection of the laws. Who
ever, by virtue of public position under a State
government, deprives another of property, life
or liberty, without due process of law, or denies
or takes away the equal protection of the laws,
violates the constitutional inhibition; and as
he acts in the name and for the State, and is
clothed with the State’s power, his act is that
of the State.” (Ialics ours.)
There are other decisions in which the Supreme
Court o f the United States has indicated that
the prohibitions of the Amendment extend to
“ all acts of the State, whether through its legisla
tive, its executive or its judicial authorities.”
Scott v. McNeal, 154 U. S. 34;
Chicago, Burlington & Quincy Railroad v.
Chicago 166 U. S. 226, 233;
U. S. v. Harris, 106 U. S. 629, 639.
Mr. Justice W hite said in Honey v. Elliott, where
the identical due process clause o f the Fifth Amend
ment was involved:
“ * * * how can it be said that the judicial
department, the source and fountain of justice
itself, has yet the authority to render lawful
that which if done under express legislative
sanction would be violative of the Constitu
tion? I f such power obtains, then the judicial
department of the government sitting to up
hold and enforce the Constitution is the only
one possessing a power to disregard it. I f such
authority exists, then in consequence o f their
establishment, to compel obedience to law and
to enforce justice courts possess the right to
inflict the very wrongs which they we re
created to prevent.” (167 U. S. 109. 417).
As was pointed out in Gandolfo v. Hartman, (49
Fed. 181, 182), in which a federal court declined to
enforce a covenant not to lease to Chinese per
sons :
“ It would be a very narrow construction of
the constitutional amendment in question and
of the decisions based upon it, and a very re
stricted application of the broad principles
upon which both the amendment and the de
cisions proceed, to hold that, while the State
and municipal legislatures are forbidden to
discriminate against the Chinese in their legis-
laton, a citizen of the State may lawfully do so
by contract, which the Courts may enforce.
Such a view is, I think, entirely inadmissible.
Any result inhibited by the Constitution^ can
no more be accomplished by contract o f indi
vidual citizens than by legislation, and the
Court should no more enforce the one than the
other. This would seem to be very clear.”
Tn view of Buchanan v. Warley, 245 II. S. 60,
and decisions of like import, it can no longer be
14
questioned that municipal or state laws which dis
criminate against residence by negroes in certain
localities, are unconstitutional. It is submitted
that since a private contract requires for its en
forcement State action through the judicial branch
o f the government, it is incapable o f enforcement
if it discriminates against negroes.
In answer, the plaintiff points to Corrigan v.
Buckley, (271 IJ. S. 323), and with calm assurance
assumes that that case, where the Court refused
to declare unconstitutional a private covenant
against purchase and occupancy by negroes in the
District of Columbia, is determinative here.
The Corrigan case is in no way binding on the
Supreme Court o f the State o f New York, as our
question concerns the public policy of this State,
and is clearly to be distinguished on the following
grounds:
1. The public policy o f the District of Colum
bia, on the border between North and South, is
obviously quite different from that o f the State of
New York. (The later cases upholding restrictive
covenants in which the Supreme Court has refused
to grant certiorari have also arisen in the District
of Columbia.)
2. The question of whether enforcement of a
covenant against negroes would be consistent with
the public policy of any particular State was left
wholly unanswered by the Supreme Court in the
Corrigan case. Indeed, the court pointed out in
language quoted below, that the public policy issue
was not before it for decision.
3. The D istrict o f Columbia is not a “ State,”
and therefore the constitutional guarantees pro
vided in the Thirteenth and Fourteenth Amend-
13
meats were not applicable to tbe Corrigan case.
The Supreme Court of the District of Columbia was
not acting as a “ State’ ' agency.
4. Any reference in the Corrigan decision to the
question o f whether or not judicial action in en
forcing such a covenant would be “ State” action
was, as is indicated by the language o f the deci
sion itself, mere dictum. It was wholly unneces
sary to the decision in the case, which was merely
that the matter was dismissed “ for Avant of juris
diction.”
The limited character of the decision in Corrigan
v. Buckley is indicated by its last paragraph, Avhich
reads as folknvs:—
“ It results that, in the absence of any sub
stantial constitutional or statutory question
giving us jurisdiction of this appeal under the
provisions of § 250 of the Judicial Code, Ave
cannot determine upon the merits the conten
tions earnestly pressed by the defendants in
this court that the indenture is not only void
because contrary to public policy, but is also
o f such a discriminatory character that a. court
o f equity will not lend its aid by enforcing the
specific performance of the covenant. These
are questions involving a consideration of rules
not expressed in any constitutional or statu
tory provision, but claimed to be a part of the
common or general law in force in the District
o f Columbia; and, plainly, they may not be
reviewed under this appeal unless jurisdiction
o f the case is othei'Avise acquired .
Hence, Avithout a consideration of these ques
tions, the appeal must be, and is
Dismissed for leant of jurisdiction
271 U. S. 323, 332.
The instant case raises the very issues which the
Supreme Court refused to pass upon in the Cor
rigan case.
16
I I is--submitted'that-no Judge can enforce this
covenant without violating the Federal Constitu
tion and statutes; that the judicial department
cannot do what the legislature is forbidden to do—
to wit, bring about racial discrimination by its
own mandate. W hile it may appear that the Cor
rigan case has decided to the contrary on this
constitutional point, further consideration and a
change in facts may bring a different decision in
the future, particularly since the Corrigan case is
hardly consistent with Buchanan v. Warleg
(supra), taken in connection with E x Parte V ir
ginia (supra), and other cases cited above.
Yet as to the other points in issue here, namely,
the police power of the state (Point I of this brief),
unlawful restraint on alienation (Point I I I ) , in
definiteness o f the covenant (Point IV ) , the posi
tion which should be taken by a court of equity
(Point V ) , the Supreme Court in the Corrigan
case expressly disclaimed consideration, saying,
“ they may not be reviewed under this appeal * * V ’
P O IN T I I I .
The covenant sought to be enforced is
invalid as an u n law fu l restraint upon
alienation.
It has been the unrelenting policy of Anglo-
American law since the statute of Quia Emptores
(18 Ed. I, ch. 1) to frown upon the placing of re
straints on the alienation o f a fee simple. As was
said in the early Yew York case of De Pegster v.
Michael (6 Y. Y. 467, 493), “ a fee simple estate and
a restraint upon its alienation cannot in their na
ture co-exist.” The doctrine is followed by the Yew
York Courts today.
17
Continental Insurance Co. v. New York &
Harlem Railroad 187 N. Y. 225;
Livingston v. New York, Ontario & West
ern Railroad, 193 App. Div. 523, 528.
Partial restraints on the alienation of a fee are
as repugnant to the estate granted as are unlimited
ones.
Potter v. Couch, 111 U. S. 296, 313;
Manierre v. Welling, 32 R. I. 101, 78 A.
507;
Mandlebaum v. McDonnell, 29 Mich. 79.
As was said in Title Guarantee and Trust Com
pany Y. Garrott (12 Cal. App. 150, 157, 160; 183
Pac. 170) where the court refused to enforce a con
dition in a deed forfeiting the land in case of its
sale to a person o f African or Mongolian descent:
“ The rule that conditions restraining aliena
tion, when repugnant to the estate conveyed,
are void, is founded on the postulate that the
conveyance of a fee is a conveyance o f the
whole estate, that the right of alienation is an
inherent and inseparable quality o f an estate
in fee simple, and that, therefore, a condition
against alienation is repugnant to and incon
sistent with the estate conveyed. To transfer
a fee and at the same time restrain the free
alienation of it is to say that a party can grant
and not grant, in the same breath. But the
rule is not founded exclusively on this princi
ple o f natural law. It rests also on grounds of
clear public policy and convenience in facilitat
ing the exchange of property, in simplifying its
ownership and in freeing it from embarrass
ments which are injurious not only to the pos
sessor, but to the public at large.”
The Court went on to say that:
“ I f the continuation of the estate in the
grantee may be made to depend upon his not
18
selling .or leasing to persons o f African, Chi
nese, or Japanese descent, it may be made to
depend upon his not selling or leasing to per
sons o f Caucasian descent, or to any but A l
binos from the heart o f Africa, or blond Eski
mos. It is impossible on any known principle
to say that a condition not to sell to any of
a very large class of persons, such as those em
braced within the category o f descendants from
African, Chinese, or Japanese ancestors, shall
not be deemed an unreasonable restraint upon
alienation, but that the proscribed class may
be so enlarged that finally the restriction be
comes unreasonable and void. Where shall
the dividing line be placed? W hat omniscience
shall tell us when the restraint passes from
reasonableness to unreasonableness? W ho can
know whether he has title to land until the
question of reasonableness has been passed
upon by the court o f last resort? X o matter
how large or how partial and infinitesimal the
restraint may be; the principles o f natural
right, the reasons of public policy, and that
principle of the common law which forbids
restraint upon the disposition o f one’s own
property, are as effectually overthrown by the
one as by the other.” (Italics ours.)
Covenants prohibiting the alienation of real prop
erty to negroes have been held invalid in many
of our sister states.
Los Angeles Investment Co. v. Gary, 181
Cal. 680; 186 Pac. 596;
Porter v. Barrett, 233 Mich. 373 ; 206 X.
W . 532;
White v. White, 108 W . Va. 128; 150 S.
E. 531.
W hile it is true that the courts o f Louisiana,
Missouri and the D istrict o f Columbia have upheld
covenants against alienation to negroes, these deci
sions have all been rendered in jurisdictions in
19
which there is a strong community tradition of
racial discrimination. Happily," the people of
New York do not share in that tradition. Decisions
rendered south of the Mason and Dixon line are
not authorities which the Courts of New York
should follow.
It was pointed out in the case of White v. White,
(108 W . Ya. 128, 147; 150 S. E. 531) that
“A restraint on alienation to an entire race
of people, when appended to a fee-simple es
tate, is wholly incompatible with complete
ownership * * * The market afforded by a
Avhole race of the human family is excluded.”
United States Government statistics indicate
that the negro population of Westchester County
increased from 3.2% to 4.4% of the total, between
1920 and 1930. and that it is still increasing. Dur
ing the same period, the educational qualifications
of the county’s colored inhabitants showed a
marked increase, the percentage of illiteracy of
such persons over ten years o f age declining from
4.7% to 3.4%.
See
Negroes in the United States, 1920 to
1932 (published by United States Bu
reau o f the Census, pp. 261, 780).
The restraint involved in the instant case is thus
becoming greater year by year, since the class
against which it is directed is increasing in size.
The covenant against alienation to negroes be
ing invalid, a court o f equity should be unwilling
to enforce that other part of the covenant, closely
connected therewith in intent and language, against
occupancy by the same persons. The plaintiff, real
izing that it w ill be impossible for her to obtain
relief under the alienation provision, is now seek-
20
ing to prevent the defendant from making use
o f her own property.
It is the exception rather than the rule for an in
dividual o f modest means to purchase a small piece
of property and build a single-family dwelling in a
residential neighborhood for any purpose other
than to reside there himself. As was pointed out
by the United States Supreme Court, “ occupancy
is an incident” of the purchase and sale o f real es
tate. Buchanan v. Worley (245 U. S. 60, 75).
A court of equity should no more lend its aid to
deprive a citizen o f the United States o f the enjoy
ment o f his property merely because o f his color,
than it should deprive him of the ownership there
o f for the same inequitable reason. The Courts of
New York should therefore refuse to adopt the un
real distinction between covenants restraining
alienation to negroes and covenants restraining the
occupancy o f premises by them. Least of all should
they do so where the two restraints are as closely
intertwined as in the single sentenced covenant now
before the Court. I f one part falls, all must fall.
P O IN T IV .
The covenant is vague and indefinite
and therefore void and unenforceable.
The covenant provides against purchase, lease or
occupancy by “ negroes or any person or persons
o f the negro race or blood.”
W ho is a negro? According to Ur. Franz Boas,
than whom there is no greater authority on anthro
pology,
“ a negro is a person of full W est or Central
A frican racial descent from those regions
where no admixture o f foreign blood has oc-
21
• cur m l. No one else can accurately be desig
nated a negro.”
Is this what the covenant means? As a matter
of fact, everyone knows that a half admixture of
white blood means that a person is a m ulatto; a
quarter admixture means that a person is a quad
roon, and an eighth mixture, an octoroon— and we
do not think that language has gone far enough,
even among those who are racially-minded, to give
a noun for those who have a less admixture. Had
the covenant meant that mulattoes, quadroons and
octoroons should be barred from the premises it
should have said so.
The draughtsmen o f the covenant apparently
thought to cure any defect by referring to persons
‘*of the negro blood” as well as race. But that, of
course, adds no certainty. H ow much blood? Prob
ably, in the course of centuries, most of us have
acquired an admixture of various kinds of blood.
In various states there has been an attempt to
define who is a negro, on the basis of blood. In
Michigan, Nebraska and Oregon, no person is re
garded as a person o f color who has less than one-
quarter negro blood. In Florida, Georgia, Indiana,
Missouri and South Carolina, a person is regarded
as of negro blood who has one-eighth or more. In
Arkansas and Virginia, persons of color include all
those who have a visible and distinct admixture of
African blood— whatever that may mean. No ad
mixture o f blood is visible to the eye, and, certain
ly, no layman should be obliged to guess what ad
mixture any one has— even himself. The lack of
uniformity among these definitions is striking.
New York State, characteristically, has not even
endeavored to make a definition.
The natural answer of our opponents would be
that “ everybody knows a negro when he sees one,”
and that the argument is technical. In Germany,
22
where they apply principles of the kind sought to
be enforced here, there is a general assumption that
everyone knows a Jew. These uncertainties are
held only by men who are very ignorant, or very
prejudiced, or both. No scientist shares them. But,
says our opponent, “ W hat does the defendant call
herself? H ow does she designate her husband or
her associates?” From time immemorial, people
descended, even in small part, from those of an
oppressed or minority group, have taken the label
or badge— not in shame but in pride— of the des
pised ancestor. This is a perversity of mankind,
and one to be honored. The label means little—-
and often nothing— from a scientific or racial point
of view.
How is one to determine a negro? By color of
the skin? The defendant is, we venture to say,
whiter than fifty per cent o f those who are gen
erally recognized as Caucasians. She certainly is
much whiter than ordinary Hindus, or persons
from Southern climes. Her husband is dark.
Black? No. Suppose they had children— one
white, one with a soft brown complexion, and an
other o f darker hue? W ill some of them be denied
the home— and which?
Is one to determine a negro by the color of the
hair? Many negroes are blond. By the texture of
the hair? Scientific discoveries have taken kinks
out of the hair o f both whites and “ negroes.”
Some people think they can tell a negro by his
fingernails. On one occasion, W alter White, secre
tary o f the National Association for the Advance
ment o f Colored People,— light in complexion, with
blue eyes and blonde hair— was traveling in the
South when his neighbor on the train said to him,
“ You can always tell a nigger” . Curious, W alter
W hite inquired how, and his neighbor said, “ By
the fingernails” . He thereupon pointed out hoAv
23
W alter W hite’s fingernails differed from those of
a colored m an!
No one but a German Nazi can be certain about
a race. Certainly, in the melting pot o f America
an endeavor to classify people, and, under penalty
of contempt o f court, to compel them to determine
the race o f those with whom they associate, would
be so unjust, so contrary to democratic tradition,
that it is unthinkable that a court would lend its
aid to such an effort.
A covenant that is vague or ambiguous will not
be enforced.
Sailer v. Podolski, 81 N. .T. E. 327; 87
A. 458;
Meaney v. Stork, 80 N. J. E. GO; 83 A. 492.
The enforcement o f this covenant in equity would
necessarily involve the penalty o f a jail sentence
for the defendant’s contempt in the event that the
court’s order were not obeyed. This would im
pose an unfair burden on the defendant as owner,
in requiring her to determine at her peril, every
time that she invited a person to come on the
premises, whether that person was or was not with
in the group excluded by the language of the
covenant.
Any penal statute which is so vague as to re
quire speculation or guess work is unconstitutional
as contrary to the due process clause of the Four
teenth Amendment.
International Harvester Company v. Ken
tucky, 234 U. S. 216.
No citizen can be put in a position where he
might guess himself into jail.
An injunction in the terms o f the covenant would
necessarily be vague. The New York courts, real-
24
izing the unfairness o f ambiguous injunctions,
have said that an order “ should in itself contain
sufficient to apprise the party upon whom it is
served what he is restrained from doing.”
Sullivan v. Judah, 4 Paige, 444, 445.
To use the apt language o f the court in Laurie
v. Laurie, 9 Paige, 233, 234:
“ As the defendant is bound to obey the pro
cess of the court at his peril, the language of
the injunction should in all cases be so clear
and explicit that an unlearned man can under
stand its meaning, without the necessity of
employing counsel to advise him what he has
a right to do to save him from subjecting him
self to punishment for a breach o f the injunc
tion.”
Earl v. Brewer, 248 App. Div. 315;
Little v. Gallus, 39 App. Div. 646;
Lyon V. Botchford, 25 Hun 57.
Moreover, the policy o f the state being against
restraints on alienation, a vague covenant, if en
forced at all, w ill be construed in an unrestrictive
manner. *
* ;f? when so considered, the language
used is reasonably capable o f two construc
tions, the one that limits rather than the one
that extends the restriction should be adopted,
for the reason that the law will always favor
the free and unrestricted use of property, and,
therefore, all doubts and ambiguities must be
resolved in favor o f the natural right to the
free use and enjoyment of property and
against restrictions.”
Schoonmaker v. Hecksclier, 171 App. Div.
148, 151; aff’d 218 jST. Y. 722;
Reformed Protestant Church v. Madison
Avenue Building Co., 163 App. Div. 359;
214 hr. Y. 268.
2 5
The whole idea of trying to distinguish between
races is preposterous to any person who is socially
or scientifically minded. It is conceivable that a
covenant could l>e drawn that would say what it
meant, to w it:
“ that premises are not to be bought or leased
or occupied by negroes, mulattoes, quadroons,
octoroons, or descendants of the above, or any
one who is a descendant of any one who had
negro blood.”
This is not such a covenant. And even if a
covenant were drawn in that fashion we would re
spectfully suggest that an anthropologist be re
tained to assist the court, in order that the court
may assist the land-owner to determine whether or
not he is in contempt of court before he invites a
friend to occupy his dwelling.
W e submit that no injunction can be granted
unless the terms are so clear that one can have no
doubt as to what is meant. The Judge, himself
perhaps doubtful, cannot pass the burden of deci
sion to the party enjoined, to leave it to him to
determine against whom the injunction applies.
The Court cannot enjoin occupancy by “ negroes”
unless it will take the responsibility o f deciding
who is a negro. I f color is to be the decisive fact-
tor, the Court will have to cover all the colors of
the spectrum and then eliminate Spaniards,
Italians and all people of Southern climes. Facial
and other characteristics lead to further perplexi
ties.
The perplexities arise because of the indefiinite-
ness o f the covenant— an indefinite covenant cannot,
in practice, be enforced. These perplexities can only
be avoided, and the decencies preserved, by refus
ing to enforce the covenant against this defendant.
26
P O IN T V .
The covenant is oppressive, unreason
able, discrim inatory, inequitable and
therefore unenforcible.
All argument heretofore made hears directly on
this point. Applying the principle contended for by
our opponents in this case, we find that a number
o f people combined together to restrain one another
and their respective heirs and assigns from selling
property to a large class of the population, thereby
limiting the number of possible purchasers. The
effect is to restrict free competition and free aliena
tion, both favored by Anglo-American policy and
law. The covenant happens to exclude from the list
of possible purchasers or occupants negroes or per
sons o f the negro race and blood— assuming that
any one knows what that means. I f the term means
all those who are descended from negroes, or de
scendants of negroes and whites, this excludes over
12,000,000 citizens o f the United States, or 10%
of the entire population. I f Catholics and Jews were
added to the number of those blacklisted, it would
limit the possible purchasers to the extent of per
haps 25,000,000 more of our citizens, or an addi
tional 20%.
I f a covenant like this is valid, then a correspond
ing covenant by a so-called “ colored” landholders
restricting the sale of their property so as to ex
clude all white persons or those o f the Caucasian
race or blood as possible purchasers, would be
equally permissible. That would effect the balance
of the population— over 100,000,000 people. Does
this not reduce to an absurdity any contention that
covenants of this character are not opposed to pub
lic policy?
27
I f dealers in clothes or food covenanted with one
another not to sell or give away any of their prod
ucts to human beings coming within the ban of their
displeasure, no one would dare contend that such a
covenant would be consistent with public policy—
but this illustration does not differ in principle
from the covenant in question. The fact that in
one case the covenant relates to the acquisition of
a home, and in the other to articles of clothing or
food, does not constitute a valid ground for d if
ferentiation.
As was said by Mr. Justice Holmes in Block v.
Hirsh, 250 U. S. 156: “ Housing is a necessary of
life.”
It is as much a necessary for those o f the negro
race or blood as it is for those of the white race.
I f covenants of this character are valid in connec
tion with this property, they would be valid in con
nection with other property, and the cumulative ef
fect would be to drive out of any neighborhood all
persons of any particular group whose business or
interest might persuade them to live in that par
ticular place.
Liberty to acquire and use property is as im
portant as the right to sell. The covenant is objec
tionable, because it is opposed to the fundamental
principles on which this Government rests.
A court decree denying the plaintiff the right to
use her property would effectuate a purpose de
structive of the best traditions of America, and
would recognize the right of those who would create
a system of caste. Any differentiation between
white and black, Catholic and Protestant, Jew and
non-Jew will arouse hatreds and passions which
would shatter all that is noble and exalted in
American institutions. So long as people are equal
before the law, and those avIio would discriminate
28
are legally barred from effectuating their purpose,
no American minority has reason to fear bigotry
and prejudice. The minority protected against
legal discrimination w ill have to continue to make
its own social fight, but as soon as the law begins
to recognize and sanction methods o f discrimination
— whether they be by nation, state, municipality or
individual— then all minorities w ill be in a defense
less position and all the pretended guaranties of
equal rights Avill prove illusory.
When in State v. Darnell (16G N. C. 300, 302; 81
S. E. 338) an attempt was made to uphold an ordi
nance adopted by the Board o f Aldermen o f W ins
ton, North Carolina, which made it unlawful for
any colored person to occupy as a residence certain
parts of the city, Chief Justice Clarke wrote an
opinion to the effect that such legislation was simi
lar in character and tendency to that which years
ago, prescribed limits beyond Avhich the native
Irish could not reside in Ireland— thus creating
AA’hat is called the Irish Pale, and to similar legis
lation in Czarist Russia, AA’here the JeAvs Avere re
stricted to a Jewish Pale. The more recent and
familiar laws o f Germany are to the same effect.
The North Carolina court said, in part:
“ I f the Board of Aldermen is thereby au
thorized to make this restriction, a bare ma
jority of the Board could, if they may ‘deem it
Arise and proper’, require Republicans to liAre
on certain streets and Democrats on others, or
that Protestants shall reside only in certain
parts of the toA\m and Catholics in another, or
that Germans or people of German descent
should reside only where they Avere in the ma
jority, and that Irish and those o f Irish descent
should dAvell only in certain localities desig
nated for them by the arbitrary judgment and
permission of a m ajority o f the Aldermen. They
could apply the restrictions as Avell to business
29
occupations as to residences, and could pre
scribe the localities allotted to each class of
people without reference to whether the ma
jority already therein is of the prescribed race,
nationality or political or religious faith.”
I f we weigh the equities— the comparative bur
dens and benefits— we see that the Court is asked
to deprive one woman o f her home to satisfy the
prejudice o f another woman who lives some dis
tance away.
I f restaurants, hotels and other public places have
no right to discriminate against a certain class of
people— if the State o f New York has said that one
may be obliged to have any person, no matter what
his race or color, as a near neighbor at a hotel,
theatre or restaurant— can it Ire claimed that the
public policy o f the State, on the other hand, may
permit discrimination against people who live
a quarter of a mile away? As a matter o f fact, the
plaintiff lives on the extreme end of this develop
ment— lot # 1 8 o f Block D. There is no indication
that the adjacent property, not included in this de
velopment, is covered by a similar covenant. Yet
she would restrain the defendants from living in
the house many hundred feet away. In this com
plicated civilization we must all take the chance
that we may not like our neighbors. It would lie
grossly inequitable to grant an injunction against
the defendant in favor of the plaintiff who has
failed to protect herself against undesirable next-
door neighbors. The hardship imposed on the de
fendant would not benefit the plaintiff if negroes
purchased property adjacent to that of the plain
tiff on the other side.
There is no indication that the defendants have
made life unpleasant for the plaintiff. There is
no indication that they are not the best o f neigh-
30
bors. I f the plaintiff’s property is not protected,
against negroes, against whom she seems to have
such aversion, on the other side, there is little rea
son for a court of equity to take away the plaintiff's
home.
There are other considerations which appeal to a
Court of Equity. I f one’s neighbors, in spite of cove
nants of this sort, sit by and wait until a dwelling
house is completed, they can hardly be said to come
into equity with clean hands, or to be guiltless of
laches They must take immediate advantage of
any such covenant before a purchaser has spent
thousands o f dollars in building a home.
In this particular case there is further reason to
believe that the plaintiff is not in equity with clean
hands. Apparently, when a certain real estate op
erator failed to persuade Joshua Cockburn, the
husband of the plaintiff, to purchase considerable
property in this tract, he used this covenant as a
club to persuade Cockburn to engage in real estate
activities which would be profitable to the operator.
This operator served the summons for the p la in tiff!
It is significant that the very man who served the
summons had tried, unsuccessfully, to interest Mr.
Cockburn in other real estate in the precise neigh
borhood from which it is now sought to exclude
him and his wife.
C O N C L U SIO N .
W e should prefer, for reasons of public interest,
that the court base its opinion not on the ground
of the indefiniteness o f the covenant or on technical
rules relating to alienation of property, but on
broad grounds of public policy.
The public policy of New York State is non
discrimination.
Q.*|•oJL
While We recognize that Constitutions may be
regarded primarily as limitations upon the powers
of government, rather than upon the right of pri
vate citizens to make what contracts they choose,
no one can gainsay that the public policy o f this
State is indicated by its Constitution and its laws.
The public policy argument applies as strongly,
if not more strongly, to a covenant by private in
dividuals as to the act of a governmental body.
This covenant should be voided on grounds of
public policy. I f it cannot be voided, the court
should refuse to enforce it. I f the court is not pre
pared to go that far, it might well refuse enforce
ment on the ground that such a covenant is op
pressive and inequitable, and that a court o f equity
will not assist people in pursuing oppressive
measures.
I f the court prefers to base its decision on the
features of this particular covenant, there are num
erous reasons why it should not be enforced. It
provides against purchase or occupancy by negroes.
Whatever may be said of the occupancy feature,
there is no doubt that the covenant against pur
chase is void. Yet, if the main covenant is void,
it would seem to follow, as a matter of logic, that
the incidental right to occupy property which one
has a right to buy must be sustained.
The defendant owned this property for three
years before she built her house, yet no attempt Avas
made to enforce this covenant until after she had
built her house, and until after her husband re
fused to be blackjacked into a real estate deal.
Finally, aau again point out to the court that
a covenant as indefinite as this is incapable o f en
forcement.
A man on the street may claim to know avIi o is
a negro, or person of negro blood, but when a word
32
is used in a covenant it must be strictly applied,
and if there is no basis for determination the cov
enant is too indefinite to be enforced.
However, we should regret the court’s making
its decision on this momentous question on the
ground that the covenant is indefinite. W e hope,
rather, that the court will condemn the covenant
because it is contrary to our American institu
tions, to the spirit of the Constitution, and incom
patible with the traditions and ideals of the people
of the United States, and particularly of the peo
ple o f the State o f New York.
Respectfully submitted,
H ays, St. John, A bramson & Schulman,
Attorneys for Defendant.
Arthur Garfield H ays,
W illiam A bramson,
H utson L. Lovell,
Of Counsel.
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