City of Birmingham v. Monk Brief for Appellees

    FILE-OILY G!FY
1ST T H E

United States Court of Appeals
Fifth Circuit

No. 13,518

CITY OF BIRMINGHAM, ET AL.,
Appellants,

vs.

MARY MEANS MONK, ET AL.,
Appellees.

BRIEF FOR APPELLEES.

A r t h u r  I). S h o res ,
1630 Fourth Avenue, N., 
Birmingham, Ala.,

R obert L. C arter,
T hurgood M arshall ,

20 West 40th Street,
New York 18, N. Y„

Attorneys for Appellees.

J ack  G reenberg , 
C onstance  B. M otley ,

Of Counsel.



TA BLE O F CONTENTS

PAGE

Statement of Case ____________________________  1
Summary of Argument------------------------    5
Argument: __________________________________  7

I. The right to use and occupy real estate as a 
home is a civil right guaranteed and protected 
by the Constitution and laws of the United 
States ________________________________ 7

II. It is well settled that legislation conditioning 
the right to use and occupy property solely 
upon the basis of race, color, religion, or na­
tional origin violates the Fourteenth Amend-

Conclusion ______________________________ _- 17
Appendix _________________________________ 19

T ab le  o f  C ases

Buchanan v. Warley, 245 TJ. S. 60, 74 ---------- 6, 7, 9,10,11,
12,13,14,15,16

City of Richmond v. Deans, C. C. A. 4th, 37 F. (2d)
712, 713, aff. 281 U. S. 704 _________ 7,10,12,13,14,15

Harmon v. Tyler, 273 U. S. 668 _______ 7,10,13,14,15,16
Holden v. Hardy, 169 IT. S. 366, 391, 42 L. ed. 780, 790,

18 Sup. Ct. Rep. 383 _______________ _________  11
Hurd v. Hodge, 334 U. S. 24_____________________ 16
Matthews v. City of Birmingham (Civil Action No. 

6046) _____________________________________
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 —

2,3
5



11

PAGE

Oyama v. California, 332 U. S. 633________________ 7,16
Shelley v. Kraemer, 334 U. S. 1, 12   -_____________7,16
Sipuel v. Board of Regents, 332 IT. S. 631__________  5
Strander v. West Virginia, 100 IT. S. 303, 308 _______  9
Sweatt v. Painter, 94 L. Ed. (Adv. Op.) 767 _______  5

A u th orities C ited

Blackstone’s Commentaries ___________ __________ 7
Congressional Globe, 39th Congress, 1st Session, 

Part 1 _______________ 1.___________________  8
Flack, Adoption of the Fourteenth Amendment (1908)- 8

S tatu tes

8 United States Code 41________________________  1
8 United States Code 42________________________  1, 7
General City Code of Birmingham (1944)

Section 1604 ____________________ ______ 1, 2, 4, 6
Section 1605 ______________________________ 1, 2
(Chapter 57) _____________________________ 4, 6
(Supp. Ord. No. 709-F) ____________________ 1,4,6



IN THE

U n i t e d  S ta t e s  C o u r t  of  A p p e a l s
F if th  C ircu it

No. 13,518

C ity  op B ir m in g h a m , et al.,
Appellants,

vs.

M ary M eans M o n k , et al.,
Appellees.

BRIEF FOR APPELLEES.

Statement of the Case.
This action was commenced on September 28, 1949, by a 

complaint seeking an order declaring Ordinances 709F, 
1604 and 1605 of the General Code of Birmingham to be un­
constitutional because they are in violation of the Four­
teenth Amendment and Sections 41 and 42 of Title 8 of the 
United States Code. The complaint also sought an injunc­
tion against the enforcement of the ordinances (R. 1-9).

Copies of the ordinances were attached to the complaint 
(R. 9-15). In general they required residential segrega­
tion on the basis of race. They exempted servants in the 
employ of occupants. They prohibited “ a member of the 
colored race” from occupying property in an area “ gen­
erally and historically recognized at the time as an area 
for occupancy by members of the white race” (R. 11). The



2

ordinances also prohibited occnpancy by white persons of 
property in so-called colored areas.

The answer did not deny the material allegations of 
fact. Appellants denied that appellee was prevented from 
building her home solely because of her race, and alleged 
that the ordinances were not unconstitutional.

A trial on the merits was held and on December 16, 1949 
a final order was issued enjoining the enforcement of the 
ordinances in question (K. 263-265).

On August 4, 1947, the District Court of the United 
States for the Southern District of Alabama in the case 
of Matthews v. City of Birmingham (Civil Action No. 6046) 
issued a final order which provided in part as follows:

“ 3. That the defendant, the City of Birmingham, 
its officers, agents, servants and employees, be and 
they are hereby enjoined and restrained from di­
rectly or indirectly enforcing or attempting to en­
force or attempting to do any other act under color 
of Sections 1604 and 1605 of the General City Code 
of the City of Birmingham in reference to the right 
of the plaintiffs to use or occupy the property de­
scribed as Lots 11 and 12 in Block 45 in the survey 
of North Smithfield situated in the City of Birming­
ham as a dwelling, or from interfering directly or 
indirectly with the plaintiffs’ right to so use or 
occupy said property or permit other members of 
the Negro race to use or occupy the same; and, the 
defendant, its officers, agents, servants and em­
ployees are further enjoined and restrained from 
refusing to the plaintiffs, or any other person of the 
Negro race, his or their application to occupy and 
reside on said property upon the ground of said 
applicant’s race;” 1

1 A certified copy of the Findings of Fact, Conclusions of Law and 
Decree of the Court in the Matthews case has been deposited with the 
Clerk and is copied in the Appendix to this brief.



3

Despite the decision in the Matthews case the City of 
Birmingham continued to enforce these ordinances. W. 
Cooper Green, President of the Commission of the City of 
Birmingham, testified:

“ Q. Knowing the decision of the Court in that 
particular case, what action did you and the Com­
mission take concerning these zoning ordinances? 
A. We still upheld the ordinances, because I believe 
this matter goes beyond the written law, in the in­
terest of peace and harmony and good will and racial 
happiness. I think that we are doing what we feel 
is right.

Q. And you believe it goes beyond the Consti­
tution of the United States! A. I said beyond the 
written law, whatever it is.

Q. Does that include the Constitution of the 
United States? A. The written law of the land, be­
cause I think this thing creates bloodshed. Under 
the police powers to keep law and order, we have 
that authority. There are some things that law can­
not cover, and I think this is one of them. It was 
created not by the City Commission, not by you nor 
me, it was created by the people, who were created 
by the good Lord.

Q. At the present time what is there that pre­
vents the Plaintiffs in this case from continuing to 
build their home on the land they bought other than 
this ordinance and the enforcement of it by you and 
the Commission, what else is there that prevents 
them from building and living in their own home 
today? A. Nothing except the ordinance, that I 
know of.

Q. And you put the ordinance above the Consti­
tution of the United States? A. No, I didn’t say 
that” (R. 158-159).

The appellee Mary Means Monk purchased a plot of 
land in Birmingham, Alabama for $2,000 (R. 54). The 
warranty deed for the property was introduced in evidence



4

(R. 55-58). The land was purchased for the purpose of 
building a dwelling on it, and was to be occupied by appel­
lee and her family (R. 53, 58). A contract was made with 
a contractor to build a home at a cost of $11,000 exclusive 
of the land (R. 58, 65) with a down payment of $2,000 (R. 
59). It was stipulated that the other appellees had pur­
chased lots in the same area for the purpose of building 
homes for themselves (R. 71, 74).

Appellee Mary Means Monk presented her plans and 
specifications to the building inspector of Birmingham. She 
testified that he approved the plans but refused to issue a 
permit to build. After referring the matter to Commis­
sioner James L. Morgan he finally refused to issue the per­
mit (R. 59-60).

By stipulation of counsel it was agreed that if Building 
Inspector H. E. Hagood, who was ill, were present he would 
have testified in substance:

“ That H. E. Hagood examined the plans and 
specification of Plaintiff, Mary Means Monk, and 
found the said plans and specification were in com­
pliance with the structural requirements of the Build­
ing Code of the City of Birmingham.

“ That Plaintiff, Mary Means Monk, made appli­
cation for a building permit, but that the said issu­
ance of the said building permit was refused, because 
the purpose for which the said property was to be 
used would violate Chapter 57, viz. Section 1604 and 
Ordinance 709F, General City Code of the City of 
Birmingham, 1944, in that the property was zoned 
for whites” (R. 49).

There is no question that the property is in the area set 
aside for “ white” occupancy. However, the area across 
the street and on three sides of the property here involved 
is set aside for and occupied by Negroes (R. 89, 90).



5

The zoning Board of Birmingham is under the direction 
of the Commission of Birmingham (R. 92). The building 
inspector is under the direct supervision of Commissioner 
Morgan (R. 92). The policy of the Commission is to refuse 
to issue permits to Negroes who propose to build and occupy 
homes in areas designated for white occupancy (R. 92, 244). 
This policy is pursuant to enforcement of the ordinances 
(R. 49, 67, 71-74, 92).

United States District Judge Cla ren ce  M u l l in s  decided 
the ease from the bench and filed a formal opinion on 
December 16, 1949 (R. 24a-262). He found that none of 
the appellees would be permitted to build houses on their 
property solely because the provisions of said ordinances 
limited the occupancy of these properties to members of 
the white race (R. 252) ; that it has been the established 
policy of the City to deny building permits to construct 
residences for Negro occupancy in districts that are zoned 
for white occupancy (R. 252). The Court noted the three 
decisions of the United States Supreme Court holding sim­
ilar ordinances invalid and similar decisions of the highest 
courts of several of the Southern states. The Court, there­
fore, declared the ordinances unconstitutional and ordered 
the injunction to issue (R. 263).

Summary of Argument.

The right which appellee, Mary Means Monk, seeks to 
enforce is a personal right. The right which each of the 
other appellees seeks to enforce is personal to each of them. 
The same is true as to each other member of the class they 
represent.

Missouri ax rel. Gaines v. Canada, 305 U. S. 33^;
Sipuel v. Board of Regents, 332 U. S. 631;
Sweatt v. Pa,inter, 94 L. Ed. (Adv. Op.) 767.



6

The right that appellees assert is their civil right to oc­
cupy their property as a home—the same right recognized 
by this Court in Buchanan v. Warley:

“ The Fourteenth Amendment protects life, lib­
erty, and property from invasion by the States with­
out 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 at­
tributes of property * * * ” (245 U. S. 60, 74).

Appellee, Mary Means Monk, purchased a plot of land 
in the City of Birmingham for the purpose of building a 
home for herself and her family. The facts show that there 
was a willing seller and a willing purchaser. She hired a 
contractor to build a $11,000 home, a down payment of 
$2,000.00 was made and plans and specifications were 
drawn. These plans and specifications were, in due course, 
presented to the building inspector, who found them to be 
in proper order. However, a building permit was refused. 
If appellee had not happened to be a Negro she would have 
been given a permit to build her home on her own land.

The only reason appellee was refused a permit was be­
cause the purpose for which “ said property was to be used 
would violate chapter 57, viz. section 1604 and ordinance 
709F, General City Code of the City of Birmingham, 1944, 
in that the property was zoned for whites” (R. 49).

Appellants sought to justify the enforcement of the 
ordinances by offering evidence which, it is alleged, would 
show that there had been violence in areas where other 
Negroes had moved, that there would be a lowering of 
property values and that there would be a lowering of taxes. 
This testimony was excluded by the District Judge because



7

these contentions “ were not considered material to the issue 
of constitutionality of such ordinances” (R. 265-266).

The individual rights which appellees assert are clearly 
protected by our Constitution. Ordinances similar to those 
in this case have uniformly been held to be unconstitutional 
by the United States Supreme Court, and the highest courts 
of many states. The alleged justifications for such ordi­
nances have all been disposed of by other cases. There is 
no longer any legal justification for such ordinances.

Buchanan v. Warley, 245 U. S. 60;
Harmon v. Tyler, 273 U. S. 668;
City of Richmond v. Deans, 281 U. S. 704.

See also:
Oyama v. California, 332 U. S. 633;
Shelley v. Kraemer, 334 U. S. 1.

A R G U M E N T .

I.

The right to use and occupy real estate as a home 
is a civil right guaranteed and protected by the Consti­
tution and law s o f the U nited States.

Blackstone pointed out that the third absolute right “ is 
that of property, which consists in the free use, enjoyment, 
and disposal of all his acquisitions, without any control or 
diminution, save only by the laws of the land ’ ’.2 This right 
is expressly protected by the Fourteenth Amendment and 
the Civil Rights Acts3 against invasion by the states on 
racial grounds.

2 Blackstone’s Commentaries, p. 138.
3 See: 8 U. S. C. 42.



8

The Congressional debates after the adoption of the 
Thirteenth Amendment and preceding the enactment of 
the Civil Eights Act of 1866 show that Congress intended 
to protect the fundamental civil rights of the freedmen. 
High on the list of rights to be protected was the right to 
own property. Some doubts were expressed by the op­
ponents of the measure as to its constitutionality, and par­
ticularly the right of Congress to confer citizenship upon 
the former slaves without an amendment.4 But neither the 
proponents of the Civil Rights Act nor its opponents 
doubted that citizens of the United States had an inherent 
right to acquire, own and occupy property.5 After the 
enactment of the Fourteenth Amendment, Congress reen­
acted the Civils Rights Act with a few modifications, ex­
pressly stipulating therein:

“ 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 prop­
erty.” 0

Throughout the debates on the Amendment and the Civil 
Rights Bill there is a clear perception that freedom for 
the former slave without protection of his fundamental 
right to own real or personal property was meaningless. 
One of the Senators cited as an example of the oppression 
from which the freedmen must be protected the fact that in 
1866 in Georgia, “ if a black man sleeps in a house over­
night, it is only by leave of a white man, ’ ’7 and another

4 Flack, Adoption of the Fourteenth Amendment (John Hopkins 
Press, 1908), p. 21.

8 See: Debate between Senators Cowan and Trumbull, Congres­
sional Globe, 39th Cong., 1st Session, Part 1, pp. 499-500.

0 8 U. S. C. 42.
7 Congressional Globe, 39th Cong., 1st Session, Part 1, p. 589.



9

asked: “ Is a freeman to be deprived of the right of acquir­
ing property, having a family, a wife, children, home ? ” 8

In 1879 this Court construed the Fourteenth Amendment 
as containing a positive immunity for the newly freed 
slaves against “ legal discriminations * * * lessening the 
security of their enjoyment of the rights which others en­
joy’’9 and in 1917 this Court construed the Civil Eights 
Act as dealing “ with those fundamental rights in property 
which it was intended to secure upon the same terms to 
citizens of every race and color.” 10

The right that appelles assert is their civil right to oc­
cupy their property as a home—the same right recognized 
by this Court in Buchanan v. Warley:

“ The Fourteenth Amendment protects life, lib­
erty, and property from invasion by the States with­
out 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 at­
tributes of property # * * ” (245 U. S. 60, 74).

II.

It is w ell settled that legislation  conditioning the 
right to use and occupy property solely upon the basis 
of race, color, religion, or national origin violates the 
Fourteenth Am endm ent.

Racial restrictions by states of the right to acquire, use, 
and dispose of property are in direct conflict with the Con­
stitution of the United States. The first efforts to establish 
racial residential segregation were made by means of

8 Senator Howard, Ibid., p. 504.
9 Strander v. W est Virginia, 100 U. S. 303, 308.
10 Buchanan v. Warley, 245 U. S. 60, 79.



10

municipal ordinances which attempted to establish racial 
zones. The Supreme Court, in three different cases, has 
clearly established the principle that the purchase, occu­
pancy, and sale of property may not be inhibited by the 
states solely because of the race or color of the proposed 
occupant of the premises.11

In Buchanan v. Warley, supra, an ordinance of the City 
of Louisville, Kentucky, prohibited the occupancy of lots by 
colored persons in blocks where a majority of the residences 
were occupied by white persons and contained the same pro­
hibition as to white persons in blocks where the majority 
of houses were occupied by colored persons. Buchanan 
brought an action for specific enforcement of a contract of 
sale against Warley, a Negro, who set up as a defense a 
provision in the contract excusing him from performance 
unless he should have the right under the laws of Kentucky 
and of Louisville to occupy the property as a residence and 
contended that the ordinance prevented him from occupying 
the property. Buchanan replied that the ordinance was in 
violation of the Fourteenth Amendment.

In a unanimous opinion by Mr. Justice D ay, the Supreme 
Court decided the following question:

“ The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the states, or by one of its municipalities, 
solely because of the color of the proposed occupant 
of the premises? That one may dispose of his prop­
erty, subject only to the control of lawful enactments 
curtailing that right in the public interest, must be 
conceded. The question now presented makes it 
pertinent to inquire into the constitutional right of 
the white man to sell his property to a colored man,

11 City of Richmond v. Deans, 281 U. S. 704; Harmon v. Tyler, 
273 U. S. 668; Buchanan v. Warley, 245 U. S. 60.



11

having in view the legal status of the purchaser and 
occupant” (245 U. 8. 60, at p. 75).

The decision in the Buchanan case disposed of all of the 
arguments seeking to establish the right of a state to re­
strict the sale of property by excluding prospective occu­
pants because of race or color:

Use and occupancy is an integral element of ownership 
of property:

“ * * * Property is more than the mere thing 
which a person owns. It is elementary that it in­
cludes the right to acquire, use, and dispose of it. 
The Constitution protects these essential attributes 
of property. Holden v. Hardy, 169 U. S. 366, 391, 
42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property 
consists of the free use, enjoyment, and disposal of 
a person’s acquisitions without control or diminution 
save by the law of the land. 1 Cooley’s Bl. Com. 
127” (245 U. 8. 60, at p. 74).

Racial residential legislation can not be justified as a 
proper exercise of police power:

“ We pass, then, to a consideration of the case 
upon its merits. This ordinance prevents the occu­
pancy of a lot in the city of Louisville by a person 
of color in a block where the greater number of resi­
dences are occupied by white persons; where such a 
majority exists, colored persons are excluded. This 
interdiction is based wholly upon color; simply that, 
and nothing more * # *

“ This drastic measure is sought to be justified 
under the authority of the state in the exercise of 
the police power. It is said such legislation tends 
to promote the public peace by preventing racial con­
flicts; that it tends to maintain racial purity; that 
it prevents the deterioration of property owned and 
occupied by white people, which deterioration, it is



12

contended, is sure to follow the occupancy of ad­
jacent premises by persons of color.

“ It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as is the 
preservation of the public peace, this aim cannot be 
accomplished by laws or ordinances which deny 
rights created or protected by the Federal Consti­
tution” (245 U. S. 60, at p. 81).

Bace is not a measure of depreciation of property:
“ It is said that such acquisitions by colored per­

sons depreciate property owned in the neighborhood 
by white persons. But property may be acquired by 
undersirable white neighbors, or put to disagreeable 
though lawful uses with like results” (245 IT. S. 60, 
at p. 82).

The issue of residential segregation on the basis of race 
was squarely met and disposed of in the Buchanan case. 
Each of the arguments in favor of racial segregation was 
carefully considered and the Supreme Court, in determin­
ing the conflict of these purposes with our Constitution, 
concluded:

“ That there exists a serious and difficult problem 
arising from a feeling of race hostility which the 
law is powerless to control, and which it must give a 
measure of consideration, may be freely admitted. 
But its solution cannot be promoted by depriving 
citizens of their constitutional rights and privileges” 
(245 IT. S. 60, at pp. 80-81).

The determination of the Supreme Court to invalidate 
racial residential segregation by state action regardless of 
the alleged justification for such action is clear from two 
later cases.

In the case of City of Richmond v. Deans, a Negro who 
held a contract to purchase property brought an action in



13

the United States District Court seeking to enjoin the en­
forcement of an ordinance prohibiting persons from using 
as a residence any building on a street where the majority 
of the residences were occupied by those whom they were 
forbidden to marry under Virginia’s miscegenation statute. 
The Circuit Court of Appeals, in affirming the judgment 
of the trial court, pointed out: “ Attempt is made to dis­
tinguish the case at bar from these cases on the ground 
that the zoning ordinance here under consideration bases 
its interdiction on the legal prohibition of intermarriage 
and not on race or color; but, as the legal prohibition of 
intermarriage is itself based on race, the question here, in 
final analysis, is identical with that which the Supreme 
Court has twice decided in the cases cited (Buchanan v. 
Warley and Harmon v. Tyler).” 12 The Supreme Court 
affirmed this judgment by a Per Curiam decision.13

The principles of the Buchanan case have also been ap­
plied in cases involving the action of the legislature coupled 
with the failure of individuals to act. In Harmon v. Tyler, 
a Louisiana statute purported to confer upon all munici­
palities the authority to enact segregation laws, and another 
statute of that state made it unlawful in municipalities hav­
ing a population of more than 25,000 for any white person 
to establish his residence on any property located in a 
Negro community without the written consent of a majority 
of the Negro inhabitants thereof, or for any Negro to estab­
lish his residence on any property located in a white com­
munity without the written consent of a majority of the 
white persons inhabiting the community.

An ordinance of the City of New Orleans made it unlaw­
ful for a Negro to establish his residence in a white com-

12 City of Richmond v. Deans, C. C. A.—4th, 3/ F. (2d) 712, 713.
18 281 U. S. 704.



14

/

munity, or for a white person to establish his residence in 
a Negro community, without the written consent of a major­
ity of the persons of the opposite race inhabiting the com­
munity in question. Plaintiff, alleging that defendant was 
about to rent a portion of his property in a community in­
habited principally by white persons to Negro tenants 
without the consent required by the statute and the ordi­
nance, prayed for a rule to show cause why the same should 
not be restrained.

Defendant contended that the statutes and the ordinance 
were violative of the due process clause of the Fourteenth 
Amendment. The trial court sustained defendant’s posi­
tion. On appeal, the Supreme Court of Louisiana reversed, 
and upheld the legislation. On appeal to the Supreme 
Court, the decision of the Supreme Court of Louisiana was 
reversed on authority of Buchanan v. Warley. A like dis­
position of the same legislation was had in the Circuit 
Court of Appeals for the Fifth Circuit in an independent 
case.

In the instant case, all of the alleged evils claimed to 
flow from mixed residential areas which are relied upon 
for judicial enforcement of racial restrictive covenants 
were advanced in the Buchanan and the other two cases as 
justification for legislative action to enforce residential 
segregation. In the Buchanan case, this Court dealt with 
each of the assumed evils and held that they could not be 
solved by segregated residential areas and did not warrant 
the type of remedy sought to be justified. Efforts to cir­
cumvent this decision have been summarily disposed of by 
the Supreme Court.14

It is, therefore, clear that the District Judge was cor­
rect in excluding certain testimony of the appellants on

14 Harmon v. Tyler and City of Richmond v. Deans, supra.



15

these points. If there could have been any doubt as to the 
correctness of these rulings this doubt is completely dis­
pelled by a reading of the inadmissible, unrealiable and 
scurrilous materials on these points in the brief for ap­
pellants.

The right appellee here asserts is the civil right to 
occupy their property as a home—the same right which 
was recognized and enforced in Buchanan v. Warley.

Appellants seek to distinguish the instant case from 
Buchanan v. Warley on the ground that the Buchanan case 
was limited to the right of a white man to dispose of his 
property and this case involves the right of a Negro to 
occupy his property. If there could have been any doubt 
that the Buchanan case covered both rights, this doubt 
was disposed of in the case of City of Richmond v. Beans 
(supra,) :

“ The precise question before this Court in both 
the Buchanan and Harmon cases, involved the rights 
of white sellers to dispose of their properties free 
from restrictions as to potential purchasers based on 
considerations of race or color. But that such legis­
lation is also offensive to the rights of those desir­
ing to acquire and occupy property and barred on 
grounds of race or color, is clear, not only from the 
language of the opinion in Buchanan v. Warley 
(U. S.) supra, but from this Court’s disposition of 
the case of Richmond v. Deans, 281 U. S. 704, 74 L. ed. 
1128, 50 S. Ct. 407 (1930). There, a Negro, barred 
from the occupancy of certain property by the terms 
of an ordinance similar to that in the Buchanan 
case, sought injunctive relief in the federal courts to 
enjoin the enforcement of the ordinance on the 
grounds that its provisions violated the terms of the 
Fourteenth Amendment. Such relief was granted, 
and this Court affirmed, finding the citation of 
Buchanan v. Warley (IJ. S.) supra and Harmon v.



16

Tyler, 273 U. S. 668, 71 L. ed. 831, 47 S. Ct. 471, 
supra, sufficient to support its judgment” (Shelley 
v. Kraemer, 334 IT. S. 1, 12).

The Supreme Court in the Shelley case (334 IT. S. 1, 
p. 12, fn. 11) and the District Judge in this case (R. 261- 
262) noted that the courts of at least six Southern states 
have invalidated similar ordinances.

In deciding the Shelley case (supra) and Hurd v. 
Hodge,15 the Supreme Court reaffirmed the rationale of 
Buchanan v. Warley and the other ordinance cases and 
pointed out the recent decisions of the Court on this point:

“ * * # Only recently this Court has had occasion 
to declare that a state law which denied equal enjoy­
ment of property rights to a designated class of 
citizens of specified race and ancestry, was not a 
legitimate exercise of the state’s police power but 
violated the guaranty of the equal protection of the 
laws.” Oyama v. California, 332 IT. S. 633, ante, 
249, 68 S. Ct. 269 (1948).w

There is no question in this case that all of the city 
officials are enforcing these ordinances. The commission 
has overall supervision of the City of Birmingham (R. 124). 
The building inspector refused the permit to build pur­
suant to the policy of the commission of the City of Bir­
mingham: “ That is no permits are issued to Negroes who 
propose to build homes and occupy them themselves in 
white residential sections” (R. 92). Appellants only de­
fense is that the ordinances are constitutional.

The rights of appellees herein are personal rights. 
These rights are fully protected by the Constitution and 
laws of the United States. These constitutional rights

15 334 U. S. 24. 
18 Ibid, at p. 21.



17

cannot be conditioned upon the threats of violence by either 
the lawless elements of Birmingham nor by threats of public 
officials of that city.

Our democracy cannot be constricted by lawless ele­
ments from within or without our borders. The City of 
Birmingham has no right to limit constitutional rights 
of law abiding citizens who happen to be Negroes in favor 
of threats from some lawless elements who happen to be 
white.

Conclusion.

The law in this case is clear. There are no eases to 
the contrary. The rulings of the District Judge followed 
the clear mandate of the Supreme Court in the three deci­
sions invalidating racial segregation ordinances. These 
decisions have been reinforced by later decisions on the 
question of racial distinctions by governmental agencies.

W h er efo r e , it is respectfully submitted that the judg­
ment of the United States District Court for the Northern 
District of Alabama should be affirmed.

A r t h u r  D. S h o res ,

R obert L. Carter, 

T hurgood M arshall ,

Attorneys for Appellees.

J ack  G reenberg , 
C onstance  B. M otley ,

Of Counsel.





19

A P P E N D I X .

1ST T H E

DISTRICT COURT OF THE UNITED STATES
F oe t h e  S o u t h e r n  D iv isio n  of t h e  N o r th er n  D istrict  

oe A labama

S a m u el  M a tth ew s  a n d  
E ssie  M ae M a t t h e w s ,

Plaintiffs,
vs.

C ity  o f  B ir m in g h a m , a Municipal 
Corporation of Alabama,

Defendant.

F in d in gs o f F act, C onclusions o f L aw  and  D ecree

This action was tried by the court without a jury on evi­
dence taken orally before the court, and after argument, 
the matter was submitted. The plaintiffs agreed upon the 
trial that they would waive the class action feature of the 
complaint and it was agreed by both parties that the cause 
was finally submitted on the prayer for a permanent in­
junction and declaratory judgment.

The matter now being considered and understood, the 
court makes the following findings of fact, conclusions of 
law and decree.

F in d in g s  of F act

1. This is the second suit brought in this court by the 
plaintiffs seeking to declare Sections 1604 and 1605 of the 
General Code of Birmingham, 1944, unconstitutional on the

C iv il  A ction  
No. 6046



20

Appendix

ground that they are violative of the Fourteenth Amend­
ment to the Constitution of the United States. These sec­
tions constitute provisions of the General Zoning Ordinance 
of the City of Birmingham, Section 1604 providing that no 
building or part thereof in certain residence districts shall 
be occupied or used by a person of the negro race and Sec­
tion 1605 providing that no building or part thereof in cer­
tain residence districts shall be occupied or used by a per­
son of the white race. In the prior suit, No. 5903 in this 
court, after trial, the action was dismissed on the ground 
that the suit was prematurely brought. In that case it ap­
peared that the dwelling of the plaintiffs had not been 
completed, that the plaintiffs had not complied with the 
valid provisions of the Building Code of said City in that 
they had not obtained a framing inspection and a final in­
spection of the dwelling by the building inspector. The 
plaintiffs not having complied with the provisions of the 
Building Code which were admittedly valid, I was of the 
opinion that the plaintiffs could not at that time raise the 
question of the constitutionality of said zoning provisions of 
the City Code. It now appears from the evidence in the 
present case that the plaintiffs have finally completed their 
dwelling, that said building has been finally inspected and 
approved in every detail and manner by the building in­
spector of said City, that the plaintiffs have demanded a cer­
tificate of occupancy, which has been refused, and that the 
plaintiffs are now in a position to question the constitu­
tionality of said zoning provisions.

2. The plaintiffs are negro citizens of the United States, 
State of Alabama, and residents of the City of Birmingham, 
Jefferson County, Alabama, within the Southern Division 
of the Northern District of Alabama. The defendant is a



21

Appendix

municipal corporation in the State of Alabama, located in 
Jefferson County, Alabama, within the Southern Division 
of the Northern District of Alabama.

3. Plaintiffs, on or about December 11, 1945, purchased 
and received a warranty deed to the property described in 
the complaint, paying $500 for the same as vacant lots. 
Subsequently, plaintiffs applied to the City of Birmingham 
for a building permit to erect and occupy a frame dwelling 
on said property and for a certificate of occupancy from the 
defendant. Plaintiffs received a building permit and con­
structed a dwelling on said property. During the course of 
the construction of said building, H. E. Hagood, the build­
ing inspector of the defendant, called Samuel Matthews, 
one of the plaintiffs, to his office and told him that the 
property was zoned for white occupancy and that he could 
not occupy the same without violating the zoning sections 
in question. The construction cost of the dwelling was 
$3750, making a total cost of the property to the plaintiffs 
in the amount of $4250. The reasonable market value of 
the property is $4500. The plaintiffs intend to occupy the 
property as a residence.

4. The plaintiffs finally completed the dwelling in ques­
tion on or before July 12, 1947. It was finally inspected 
by an assistant building inspector of the defendant on that 
date and the construction was by him. fully approved as 
being in accordance with the provisions of the Building 
Code of said City. The assistant building inspector in­
structed the plaintiffs to report to the building inspector’s 
office and pay the additional fees due the City, these fees 
being based upon the cost of the construction. The plain­
tiffs paid these additional fees to the defendant on July 15, 
1947, and at that time they were granted what is referred



22

Appendix

to as a further or supplemental permit. Within a day or 
so thereafter, the plaintiffs, acting through their attorney, 
Arthur Shores, demanded of H. E. Hagood, the building 
inspector and chief enforcement officer of the zoning ordi­
nances of said City, a certificate of occupancy. This certifi­
cate was refused because the issuance thereof would consti­
tute a violation of the zoning sections now in question, 
these sections being based solely upon race or color. Subse­
quently, and two or three days later, a representative of 
the plaintiffs again applied to said building inspector for 
a certificate of occupancy and the same was again refused, 
and thereafter the present suit was filed.

5. Section 1635 and Section 1637 of the Zoning Chapter 
of the General City Code read as follows:

“ Sec. 1635. R equired  for N ew  oe R epaired  B u ild ­
in g s .

“ A certificate of occupancy, either for the whole 
or a part of a new building, or for alteration of an 
existing building, shall be applied for, coincident 
with the application for a building permit, and shall 
be issued within ten days after the erection or altera­
tion of such building or part shall have been com­
pleted in conformity with the provisions of this 
chapter. (Ord. 1101-C, Sec. 39.) ”
“ Sec, 1637. M u st  B e I ssued  B efore U se of P rop­
e r t y .

“ No vacant land shall be occupied or used, and 
no structure hereafter erected, structurally altered 
or changed in use shall be used or changed in use 
until a certificate of occupancy shall have been issued 
by the administrative officer. (Ord. 1101-C, Sec, 
39.)”



23

Appendix

6. The defendant now contends that this suit was pre­
maturely brought because the City had the right to delay 
the issuance of the certificate of occupancy for a period of 
ten days as provided for in Section 1635, above quoted. 
The evidence conclusively shows and I find that said City 
does not issue certificates of occupancy in accordance with 
the provisions of said Section 1635. The evidence, with­
out dispute, shows that the City has never issued certifi­
cates of occupancy under said section, but that customarily, 
when a certificate of occupancy is requested, the building 
permit is stamped on the back “ Approved”, giving the 
date of the final building inspection. The evidence further 
shows that in at least sixty per cent of the cases where a 
certificate of occupancy would be appropriate, the building 
inspector does not even enter “ Approved” on the back of 
the building permit; that it is customary in at least sixty 
per cent of the cases where a building has been completed, 
for the property owner, whether white or negro, to enter 
into the occupancy of the property without the word “ Ap­
proved” being entered by the building inspector on the 
building permit and that this practice has never been ques­
tioned by said City. In the remaining forty per cent of the 
cases, the word “ Approved” is stamped on the back of the 
building permit by the building inspector and this approval 
is, as a general rule, only entered for the purpose of pro­
viding evidence of satisfactory completion of a structure 
in accordance with the requirements of the Building Code 
and where the builder particularly desires and requests 
such approval. The net result of the procedure followed 
by said City is that certificates of occupancy, as required 
by Section 1635, are never issued in any case or transaction; 
that the customary practice, if a certificate of occupancy is 
requested, is merely to stamp “ Approved” on the back of



24

Appendix

the building permit after the final building inspection has 
been made, and this approval is treated by the City as 
obviating the issuance of a certificate of occupancy. The 
City does not enforce the provisions of Section 1637 of the 
zoning chapter of said Code for the reason that they never 
issue certificates of occupancy as is required by Section 
1635. In the present case, the evidence shows and I find 
that the defendant refused to mark “ Approved” on the 
back of the building permit of the plaintiffs as is custo­
marily done where an owner requests a certificate of occu­
pancy, and that said City thereby denied the plaintiffs a 
certificate of occupancy and that this denial was based 
solely upon the ground that Section 1604 of the Zoning 
Chapter of the General City Code of the defendant pro­
hibited negroes from occupying the property in question 
as a dwelling. The approval or certificate of occupancy 
having been refused to the plaintiffs on the ground that they 
were members of the negro race, there was no occasion for 
them to wait for the ten day period provided for in Section 
1635.

7. Said Section 1604 of the said Zoning Chapter pro­
hibits the use and occupancy of the property involved by 
members of the negro race regardless of whether a certi­
ficate of occupancy is issued, and the violation of the pro­
visions of said section would subject them to fine and 
imprisonment and each day that they occupied said prop­
erty would constitute a separate and distinct criminal 
offense under the provisions of Section 1600 of the Zoning 
Chapter of the General City Code of the defendant.

8. The value of the property of the plaintiffs has depre­
ciated and will rapidly depreciate if they are not permitted 
to occupy the property as a residence, and they will suffer 
irreparable damage.



25

Appendix

C onclusion 's of L aw

1. Where a party has complied with all of the valid 
provisions of a municipal building code, a suit attacking 
the constitutionality of an ordinance which prohibits the 
use or occupancy of property solely on the basis of race 
or color is not prematurely brought. Where a statute 
clearly and immediately affects property rights of a citizen, 
he has an immediate and present controversy with reference 
to the validity of such a statute, without first subjecting 
himself to the severe penalties provided by such a statute.

Terrace v. Thompson, 263 U. S, 197;
Pierce v. Society of Sisters, 268 U. S. 510;
Euclid v. Ambler Co., 272 U. 8. 365.

2. Property is more than a mere thing which a person 
owns and includes the right to acquire, freely use, and 
dispose of it.

Buchanan v. Warley, 245 U. S. 60.
3. Since the evidence conclusively shows that Sections 

1635 and 1637, which require a certificate of occupancy, are 
not enforced by the defendant as to either whites or 
negroes, the enforcement of Sections 1635 and 1637 as 
against these particular plaintiffs would be unconstitu­
tional. Tick Wo v. Hopkins, 118 II. S. 373. Therefore, 
Section 1604, which prohibits negro occupancy of plaintiffs ’ 
property, is the only barrier to the occupancy of this prop­
erty by plaintiffs.

4. Although plaintiffs were issued a certificate of occu­
pancy they would still be subject to punishment by fine and 
imprisonment under Sections 1604 and 1600 of the General 
City Code of the defendant if they occupied the property 
as a residence.



26

Appendix

5. Under the facts of this case, said Section 1604 of the 
Zoning Chapter of the General City Code of Birmingham 
prohibiting the use of the property in question by the plain­
tiffs as a dwelling solely on account of the fact that they are 
members of the negro race violates the provisions of the 
Fourteenth Amendment to the Constitution of the United 
States, and is void and of no effect.

Buchanan v. Warley, 254 U. S. 60 ;
Harmon v. Tyler, 273 U. S. 668;
Richmond v. Deans, 37 F. (2d) 712, aff. 281 U. S. 

704.
6. The mere fact that the unconstitutional provision is 

included in a general zoning ordinance does not render it 
valid.

Clinard v. Winston-Salem (N. C.), 6 S. E. (2d) 
867, 126 A. L. R, 634.

7. Under the evidence of this case, the mere existence of 
the zoning provisions attacked deprives the plaintiffs of 
the free use of their property and their right to sell to mem­
bers of the negro race for occupancy and therefore presents 
an actual and presently justiciable controversy.

Euclid v. Ambler Co., supra;
Buchanan v. Warley, supra.

8. Sections 1604 and 1605 of the Zoning Chapter of the 
General City Code of the defendant are unconstitutional and 
void as being in violation of the Fourteenth Amendment to 
the Constitution of the United States.

9. This court takes judicial notice of the ordinances of 
the City of Birmingham.

Title 7, Sec. 429 (1 ) Code of Alabama 1940 as 
amended June 18, 1943.



27

Appendix

10. The value of the property of the plaintiffs has al­
ready depreciated and will depreciate in the future, and 
the plaintiffs will sustain irreparable injury unless they are 
permitted to use and occupy their property and the de­
fendant is enjoined from the enforcement of the provisions 
of said Zoning Chapter of said Code which prohibit the use 
and occupancy of plaintiffs’ property by persons of the 
negro race. The plaintiffs do not have an adequate remedy 
at law.

i

11. The plaintiffs are entitled to a permanent injunc­
tion and declaratory judgment.

D ecree

It, is  therefore, b y  the court, Ordered, A djudged  a n d  D e ­
creed a s  follows:

(1) That the First Defense of the defendant, which is, 
in effect, a motion to dismiss on the ground that relief can­
not be granted, be and the same is hereby overruled and 
denied;

(2) That so much of Sections 1604 and 1605 of the Zon­
ing Chapter of the General City Code of the defendant City 
of Birmingham as zones or attempts to zone the property 
of the plaintiffs for white occupancy or use only, or at­
tempts to prohibit the use or occupancy of said property 
by members of the negro race, is in contravention and vio­
lation of the Constitution and laws of the United States and 
is null and void;

(3) That the defendant, the City of Birmingham, its 
officers, agents, servants and employees, be and they are 
hereby enjoined and restrained from directly or indirectly 
enforcing or attempting to enforce or attempting to do any 
other act under color of Sections 1604 and 1605 of the Gen-



28

Appendix

eral City Code of the City of Birmingham in reference to 
the right of the plaintiffs to nse or occupy the property 
described as Lots 11 and 12 in Block 45 in the survey of 
North Smithfield situated in the City of Birmingham as a 
dwelling, or from interfering directly or indirectly with the 
plaintiffs’ right to so use or occupy said property or per­
mit other members of the negro race to use or occupy the 
same; and, the defendant, its officers, agents, servants and 
employees are further enjoined and restrained from refus­
ing to the plaintiffs, or any other person of the negro race, 
his or their application to occupy and reside on said prop­
erty upon the ground of said applicant’s race;

(4) That the defendant is hereby authorized and di­
rected to grant the application of the plaintiffs for a certifi­
cate of occupancy to use or occupy the property described 
in the bill of complaint as a dwelling;

(5) The costs are taxed against the defendant, the City 
of Birmingham, for which execution may issue.

Done this the 4th day of August, 1947, at Birmingham, 
Alabama.

Clarence  M ijl l ix s  
United States District Judge

Filed in Clerk’s Office 
Northern District of Alabama 
August 4, 1947
C h a s . B. C eow

Clerk, U. S. District Court.
A true copy
C h a s . B. Crow

Clerk, U. S. District Court 
Northern District of Alabama



L awyers P ress, I n c ., 165 William St., N. Y. C.7 ; ’Phone: BEekman 3-2300