City of Hartford v. Town of Glastonbury Supplemental Brief of Plaintiffs-Appellees on Rehearing En Banc
Public Court Documents
January 1, 1976

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Brief Collection, LDF Court Filings. Meade v. Dennistone, Lewis v. Wilmington School District, Harris v St Louis, Simons v. Board of Muskogee, Burkhardt v. Lofton Brief Collection, 1937. ef07c259-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/597b377d-c8ae-4cc1-9390-9b5571e58caa/meade-v-dennistone-lewis-v-wilmington-school-district-harris-v-st-louis-simons-v-board-of-muskogee-burkhardt-v-lofton-brief-collection. Accessed July 01, 2025.
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] ): W I S V. 1 I L M 1 N G T Q M SCHOOL BIST- HARRIS V. ST. LOUIS SIMM O H S V . BOAR D OF M U SKOGEE humharbt y. LOFTON E dward Meade vs. M. E stelle D ennistone and Mary J. B ecker. I n T he Court of Appeals Of M arylan d . October T erm, 1937. General D ocket No. 26. APPELLANT’S BRIEF. W. A. C. HUGHES, JR., Solicitor for Appellant. The Daily Record Co. Print, Baltimore. E dward Meade vs. I n T he Court of Appeals Of Maryland. M. E stelle D ennistone and Mary J. B ecker. October T erm, 1937. General D ocket No. 26. APPELLANT’S BRIEF. STATEMENT OF THE CASE. The record presents an appeal from a final decree passed by the Circuit Court of Baltimore City, granting a permanent injunction, restraining the Appellant Meade, his heirs and assigns, from using or occupying premises No. 2227 Barclay Street and perpetually enjoining and restraining him, or any one on his behalf, from procuring, authorizing or permitting any Negro or persons of Negro or African descent to use or occupy No. 2227 Barclay Street. QUESTIONS IN CONTROVERSY. Question / . Does enforcement of a neighborhood covenant forbid ding the use or occupancy of a house by Negroes or per sons of African descent violate the Fourteenth Amend ment to the Constitution of the United States? The Court below held it does not. The Appellant contends that it does. 2 Question II. Is the covenant contrary to public policy and therefore unenforceable? The Court below held that it is not. The Appellant contends that it is. Question III. Does this covenant run with the land so as to bind the Appellant Meade, or is it merely a personal covenant, binding only upon the contracting parties? The Court below held that the covenant runs with the land. The Appellant contends it is merely a personal cove nant. STATEMENT OF THE FACTS. On November 14, 1927, No. 2227 Barclay Street, a resi dence property in Baltimore City, was owned, as tenants in common, by Anna M. Tighe, Francis L. Tighe, Mary V. Tighe and Anna R. Gugerty, (hereinafter called the Tighes), all of whom signed the covenant hereinafter re ferred to. The Tighes conveyed the property to Florus Barry, who then conveyed it to Mary Y. Tighe and Anna R. Gugerty, from whom Frank Berman purchased the property (R. pp. 10, 14, 15). On October 22, 1936, Frank Berman sold the property in question to the Ap pellant Meade, a Negro, for a consideration of $1,100.00, of which $150.00 was paid in cash, balance to be paid monthly, on conditional sales agreement (R. p. 10). Meade moved into possession and occupied the property prior to the filing of the Bill of Complaint. On January 27, 1928, there was recorded among the land records of Baltimore City, a covenant signed by 3 eighteen (18) property owners in the twenty-two hun dred block of Barclay Street. The Tighes were among these signers. Each of these signers covenanted for himself, his heirs, successors and assigns, “ That neither the said respective properties nor any of them nor any part of them or any of them shall be at any time occupied or used by any Negro or Negroes or person or persons either in whole or in part, of Negro descent or African descent except only that Negro or persons of Negro or African descent either in whole or in part may be em ployed as servants * # * nor shall any sale, lease, dis position or transfer thereof be made or operate otherwise than subject to the aforesaid restrictions as to and upon use or occupancy * * * shall run with and bind the land and each and all of the above mentioned properties and premises and every part thereof * * * but no owners or occupant is to be responsible except for his, her or its acts or defaults while owner or occupant * * *” (R. pp. 11, 12, 13). There are twenty-nine properties in the block in ques tion and the owners of 11 properties refused to sign this restrictive covenant. One colored family owns and lives in 2238 Barclay Street at the present time. The agreement dated on November 14, 1927, was pro posed as a result of a meeting of the property owners in an area of twenty-four square blocks bounded on the north and south by Twenty-fifth Street and North Ave nue and on the east and west by Barclay and Charles Streets. Some time before the meeting, a colored family moved into the 2300 block of Guilford Avenue, and at the time of the meeting there were rumors that a colored family was to occupy one of the vacant houses on Barclay Street. Twenty-third Street from Guilford Avenue and 4 G-reenmount Avenue, Twenty-second and a half Street, and most of Twenty-fourth Street are occupied by col ored people. All of these are cross streets and Twenty- second and a half Street is an alley. Twenty-third Street and Twenty-second and a half Street have been colored since the War. The twenty-three hundred block of Guil ford Aveue is occupied by colored people. Brentwood Avenue, a narrow street, running from North Avenue to Twenty-fifth Street, between Barclay Street and Greenmount Avenue, is also occupied by colored people. There are two (2) colored churches on Twenty-third Street near Barclay (R. p. 15). Mary J. Becker, one of the Complainants, testified that when she signed the restrictive covenant, it was with the understanding that the whole area, comprising twen ty-four blocks, was to be restricted and had she known the whole area would not be restricted, she would not have signed the agreement (R. pp. 16, 19, 20). She further testified she did not own the ground her house was built on and that the owner of the ground did not sign the agreement (R. p. 17). Mrs. Becker testified that none of the signatories to this agreement had any financial or property interest in her house and she had none in theirs (R. p. 18). The house next door to Mrs. Becker, No. 2236, has no restrictions on it. M. Estelle Dennistone, the other Complainant, testified that she understood all of the property owners would sign the agreement and she did not know all had not signed, but that she would have signed the agreement irrespec tive of this (R. p. 20). Mrs. Dennistone owns No. 2221 Barclay Street. The property next door to her is not subject to this agreement (R. p. 21). 5 ARGUMENT QUESTION NO. I. ENFORCEMENT OF A RESTRICTIVE COVENANT IN WHICH PEOPLE IN A NEIGHBORHOOD MUTUALLY AGREE THAT THEIR RESPECTIVE PROPERTIES SHALL NEVER BE USED OR OCCUPIED BY NEGROES OR PERSONS OF AFRICAN DESCENT, EXCEPT AS SERVANTS, AND THAT ANY SALE, LEASE OR DIS POSITION OF THE PROPERTY SHALL BE SUBJECT TO SUCH RESTRICTIONS, VIOLATES THE 14TH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND THE UNITED STATES STATUTES. The decision of the Supreme Court in Buchanan vs. Warley would seem to have settled the question of segre gated housing for all time. In a lengthy opinion, the Court plainly held that the Fourteenth Amendment was intended to guarantee to white and colored persons alike, the right to buy, sell and occupy real property without restriction based exclusively upon color. Buchanan vs. Warley, 245 U. S. 60. But that which was determined impossible of accom plishment by Federal or State action now sought a new method of evasion. Groups of people entered into mu tual covenants not to dispose of their property to Ne groes. A majority of the Courts of this country have held that restraints upon alienation of property to Ne groes are unenforceable because they are against public policy. In the instant case, the restraint is upon occu pancy, not alienation. The right of Negroes to acquire property is assured and no longer subject to question. Section 1978 (8 U. S. C. A. 41, 42) passed pursuant to the Fourteenth Amendment, reads as follows: “ All, citizens of the United States shall have the same right, in every State and Territory, as is en 6 joyed by white citizens thereof, to inherit, purchase, lease, sell, hold and convey real and personal prop erty.” The right to use or occupy property is an inseparable concomitant of ownership and equally protected. “ 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 constitu tion protects these essential attributes of property.” Buchanan vs. Warley, supra. Holden vs. Hardy, 169 U. S. 366, 391. The Court pointed out that: ‘ ‘ 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 on account of color.” (Italics mine.) Buchanan vs. Warley, 245 U. S. 60, 78. Undoubtedly, the Fourteenth Amendment and the stat utes passed subsequent thereto, relate only to action by the State and not to action by individuals. But State action includes judicial as well as legislative and execu tive action. “ They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive or its judi cial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the States, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction, the equal protection of the laws. Whoever, by virtue of public position under a state government; deprives another of prop erty, life or liberty, without due process of law, or 7 denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name for the State, and is clothed with the State’s power, his act is that of the State.” (Italics mine.) Ex parte Virginia, 100 U. S. 34. See also: Scott vs. McNeal, 154 V. S. 34. Chicago, Burlington ancl Quincy R. R. vs. Chi cago, 166 U. S. 226, 233. U. S. vs. Harris, 106 U. S. 629, 639. If the State legislature is powerless to pass-a law re straining occupancy of certain property by Negroes, then the State judiciary is likewise powerless to permit what the Constitution forbids any State department to do. Mr. Justice W h it e said: “ # * * how can it be said that the judicial depart ment, 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 Constitution? If such power obtains, then the judicial department of the government sitting to up hold and enforce the Constitution is the only one pos sessing a power to disregard it. If such authority exists, then in consequence of their establishment, to compel obedience to law and to enforce justice, courts possess the right to inflict the very wrongs which they were created to protect.” Hove.y vs. Elliott, 167 U. 8. 409, 417. In a covenant not to lease to Chinese persons, a case very similar to the instant case, it was said: “ It would be a very narrow construction of the constitutional admendment in question and of the de cisions based upon it, and a very restricted applica tion of the broad principles upon which both the amendment and the decisions proceed, to hold that, 8 while the State and municipal legislatures are for bidden to discriminate against the Chinese, in their legislation,, a citizen of the State may lawfully do so by contract, which the courts may enforce. Such a view is, I think, entirely inadmissible. And result inhibited by the Constitution can no more be accom plished by contract of individual citizens than by legislation, and the Court should no more enforce the one than the other. This would seem to be very clear.” Gandolfo vs. Hartman, 49 Fed. 181,182. It is submitted that to lend judicial recognition to the covenant in this case would violate the Constitutions of the United States and of Maryland in their entirety, in cluding the letter and spirit and the fundamental plan thereof, whereby the legislative, executive and judicial branches of the government, both State and Federal, were made and intended to be co-ordinate and of co-equal dig nity and power, each in its own sphere. The decision in the case of Corrigan vs. Bulkley, 271 U. S. 323, does not preclude a decision'by this Court con sonant with the argument heretofore advanced because the argument that enforcement of the covenant consti tuted State action in violation of the Fourteenth Amend ment, was not raised in the petition for appeal or by as signment of error and hence was not properly before the Court for decision. Therefore, any discussion of this point was merely dictum. The case was “ dismissed” for want of jurisdiction. It might be added that the District of Columbia is not a State and the Supreme Court of the District of Columbia was not acting as a State agency, therefore, the Four teenth Amendment was not applicable to the Corrigan case. 9 QUESTION NO. II. THE COVENANT IS CONTRARY TO PUBLIC POLICY AND THEREFORE UNENFORCEABLE. Housing has until recent years been a private problem. During the past three years there has developed a public conscience that accepts the obligation of attempting to house the poor in conformity with a minimum standard of decency, comfort and convenience. Proper housing has become a City, State and National problem. The Home Owners Loan Corporation, the Wagner-Ellenbo- gen Housing Bill, the housing projects of the Public Works Administration and the Resettlement Administra tion, the Federal Housing Administration are all indica tive of the trend of modern thought upon the question of housing. In addition to adoption of the aforementioned projects, the City of Baltimore has undertaken slum clearance projects and pursuant thereto, razed what was formerly known as the “ lung block” and erected upon that site, a beautiful school. These undertakings illus trate clearly that housing has become a public policy of this State and Nation. The Appellant Meade purchased a home compatible to his means and station in life but after purchasing the home he found himself in the analamous position of own ing a home in which he cannot live, unless this Court re verses the decision of the Circuit Court of Baltimore. Carried to its logical conclusion, this means, under the decision of the lower Court, that if white property owners throughout the City of Baltimore unite in similar cove nants, probably 90 per cent of the homes are close to oc cupancy by Rev. Meade. Since it is a well-known fact that housing conditions among the Negro populations are the poorest in the City 145,000 Negroes could not hope 10 to improve their housing to any appreciable extent with in the limits of Baltimore City. “ It means for them living in one room or even part of a room, the indecencies and the health men aces of inadequate or non-existent sanitary conveni ences, an environment that is depressing and degrad ing, conducive to immorality, stifling to self-respect and incentive to crime. Health Department, Police Department, Fire De partment, Juvenile Court, social agency records es tablish that where housing accommodations are sub standard these conditions are found: Tuberculosis is most prevalent and most deadly. Illegitimate children are most numerous. Syphilis takes its heaviest toll. Crime recruits the greatest number of its practi tioners. Delinquency among children reaches its highest peak. Infant mortality is highest. The death rate for all ages is highest. Residence fires and fatalities from fires are most- numerous. Relief rolls are heaviest.” The Evening Sun, December 16, 1936. The State of Maryland has a corrective agency for each of the above-mentioned ills. It cannot be denied that a cure for these ills is a public policy of Maryland and conversely anything tending to increase these evils is against public policy. Hence, any agreement between citizens of this State which contributes either directly or indirectly, towards a continuation of these ills is against public policy and should not be enforced by a Court of Equity. The matter affects the social welfare of a large part, if not all, of the community. 11 “ * * * the Courts have frequently quoted and often approved of the statement that public policy is that principal of the law which holds that ‘ no one can lawfully do that which has a tendency to be in jurious to the public or against the public good; that rule of law that declares that no one can lawfully do that which tends to injure the public, or is detri mental to the public good; the principles under which freedom of contract or private dealing is restricted by law for the good of the community.” 50 Corpus Juris, Sec. 62, p. 858. Words and Phrases. If it is illegal for the State of Maryland to pass a law specifying in what localities Negroes shall live, then it is at least against public policy for private citizens to com bine to do that which the State is forbidden to do. It is essentially a conspiracy to accomplish indirectly that which is forbidden of accomplishment directly. Chief Justice Chase said: “ * * * there can be no doubt but that all con federacies whatsoever wrongfully to prejudice a third person, are highly criminal at common law; as where divers persons confederate together by divers means to impoverish a third person.” State vs. Buchanan, 5 H. & J. 317, 366. It has been held that a conspiracy between two or more persons to prevent Negro citizens from exercising the right to lease and cultivate land, because they are Ne groes, is a conspiracy to deprive them of a right secured to them by the Constitution and laws of the United States. U. S. vs. Morris, 125 Fed. 322. Shelter is, in America, a necessity of life and any com bination designed to deprive a person of it should be de 12 prived of the protection of a Court of Equity for “ He who comes into Equity must do so with clean hands.” Courts of Equity frequently enforce restrictive cove nants on the use of real property. In such cases, how ever, the objection is to the use itself. But here the ob jection is not to the use but to the occupancy of the prop erty. The restriction is therefore against the person, and easily distinguished from the cases involving party walls, saloons, amusement places, and other offensive nuisances. QUESTION NO. III. THIS IS A PERSONAL COVENANT WHICH DOES NOT RUN WITH THE LAND AND IS NOT BINDING UPON THE APPELLANT MEADE. At the time this covenant was executed, all of the signa tories thereto owned their respective properties. No one had any interest whatsoever in the property of any other and no intention to convey or acquire any such in terest. They entered into an agreement among them selves, that they would not dispose of their property to Negroes and though they stipulated that the covenant was to be binding upon their heirs and assigns and to run with the land, it, in fact, is incapable of binding any but the original parties because there has never been any privity of estate between the Tighes and those seeking to enforce the covenant. The law upon this point is sum marized as follows: “ It is a general rule that a covenant which may run with the land can do so only when there is a sub sisting privity of estate between the covenantor and the covenantee, that is, when the land itself, or some estate, or interest therein, even though less than the entire title, to which the covenant may attach as its 13 vehicle of conveyance is transferred; and if there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of any covenants between the contracting parties not withstanding they relate to the land which he takes by purchase or assignment from one of the parties to the contract.” 15 C. J. 1242, Sec. 55; also p. 1260, Sec. 85. Frank on Real Property, p. 100. Poe, Practice and Pleading (5th Ed.), Vol. 1, Sec. 330, p. 282. Summers vs. Beater, 90 Md. 474, 479, 480. Bartell vs. Senger, 160 Md. 685. As stated in Best on “ Restrictions and Restrictive Covenants,” at p. 3: “ Inasmuch as the covenant must be one that runs with the land, or with an interest or estate in the land, there must be land intended to be benefited by the covenant, and there must be a conveyance or lease of said land, or an assignment of the leasehold interest therein, by one of the parties to the covenant, though not necessarily by the same instrument but in the same transaction, transferring the said inter est or estate in the land with the covenant adhering to it. In other words, there must be privity of estate between the covenantor and covenantee, such privity resulting from the said conveyance, lease or assign ment. ’ ’ Citing: Glen vs. Canby, 24 Md. 127. The authorities uniformly hold that there must be priv ity of estate in order for the covenant to run with the land. The question of what constitutes privity of estate has been debated for hundreds of years and there seems to be no unanimity of opinion. An examination of the 14 better text-books and the cases from which their authors draw their conclusions discloses a well-established opin ion that privity of estate can be created only where there is some actual transfer of a property interest at the time of the creation of the covenant. Sims on Covenants, at page 197, says: “ In modern times it has become settled in Eng land, as we shall see, that not even the grant of an easement is sufficient to allow an accompanying cove nant to run. “ The American law is generally settled that the covenant without some sort of a grant is merely a personal obligation.” It is submitted that there was no conveyance in this case to which the covenant could attach in order to run with the land, and consequently there was no privity of estate between the Tighes and the other signatories to this agreement. Since nothing passed and no possession attended the conveyance, the covenant does not run. “ With a very few exceptions, the uniform current of authorities from the time of Webb vs. Russell, 37 T. R. 393, to the present day, requires a privity of es tate to give one man a right to sue another, upon a covenant where there is no privity of contract be tween them; consequently, that, where one who makes a covenant with another in respect to land neither parts with, nor receives any title or interest in the land at the time with and as a part of making the covenant, it is at best a mere personal one, which neither binds his assignee, nor inures to the benefit of the assignee of the covenantee, so as to enable the latter to maintain an action in his own name for a breach thereof.” (Italics mine.) Washburn on Real Property, 4th Ed., Vol. 2, p. 285. 15 See also: Tiffany on Beal Property, (3rd Ed.), Sec. 391, p. 1407. 7 R. C. L., p. 1103. 66 L. R. A., p. 682, note. Sharp vs. Cheatham, 88 Mo. 498. Poe, in his Practice and Pleading, 5th Edition, Vol. 1, p. 282, says: “ Whether a stranger to the land can enter into a covenant respecting it which will pass to the as signees of the land so as to enable them to maintain an action upon it is very doubtful. Sir Edward Sug- den maintains that there is no direct authority for the proposition.” In arguing that there must be privity of estate in order for this covenant to run, I am not overlooking the deci sion of this Court in Clem vs. Valentine, 155 Md. 19, 26, where it was held that it is not necessary In Equity “ in order to sustain the action that there should be privity of estate or contract.” But in Bartell vs. Senger, 160 Md. 685, p. 691, after quoting from Clem vs. Valentine, supra, the Court remarked, “ nor does it certainly appear that there is any privity either of estate or contract be tween the parties to this proceeding,” and held upon this and other facts “ the appellants have no standing in a Court of Equity to enforce the restrictions.” If, however, this Court holds that the covenant in this case should be binding upon the Appellant Meade irre spective of privity of estate, there are other grave and equitable reasons why it should not be enforced in this case. Mrs. Becker testified that she thought a majority of signers controlled, and had she known that the entire area (24 blocks) would not have been restricted she would 16 never have signed the covenant. At the time she signed, she thought every other owner was going to sign the cove nant. Mrs. Dennistone testified to substantially the same thing, except that she would have signed the cove nant irrespective of whether the other signed, in the hope that they would sign later. These statements show clearly that they did not understand the nature and ex tent of these covenants. The present situation surrounding these properties is such that the original purpose can no longer be effected. Eleven of the 29 properties within the block, including those next door to the Appellees, are not subject to this covenant, and Negroes could occupy them tomorrow. The surrounding streets are largely, if not predominant ly, occupied by Negroes. When faced with these circum stances, ‘ ‘ Courts of Equity have uniformly refused to inter fere for the purpose of enforcing observance of a restrictive covenant where the evidence shows that a state of things has arisen in the march of events which the parties to the agreement did not contem plate when it was made, and which would render its enforcement inequitable and unjust, resulting in in jury to the defendant without permanent benefit to the complainant.” Boston Bapt. Social Union vs. Boston Univer sity, 183 Mass. 202. Jackson vs. Stevenson, 156 Mass. 426. Amerman vs. Deane, 132 N. Y. 355. The Appellant Meade will be irreparably harmed in the premises should this covenant be enforced. He can not live in the property and yet he must continue to buy for if this Court enforces this covenant, Rev. Meade is not relieved from his obligation to purchase the property. 17 He must hope and depend upon rent to help him finance this property and he must in turn, rent elsewhere unless he is one of the few people able to purchase two homes at the same time. On the other hand, the Appellees will not be materially benefited because other Negroes may and can move next door to them. Already, one Negro owns and occupies one property in the block. In still another respect, this covenant is of little prac tical effect. None of these people who signed the cove nant owned the land upon which his home was built. If for any reason the property should become vested in the reversioner, that particular piece of property would be freed of this covenant and the property could then be sold to Negroes for occupancy. In McDowell vs. Biddison, where the facts showed that to close an old road would do no harm to the complain ant, but to keep it open would cause great damage and loss to the defendant, J. Burke held: “ But if it be conceded that the agreement was made and established, the case is not one in which the injunction could have been continued. No real harm has been done the plaintiff by the closing of the old road, and very great harm would be done to the defendant by granting the relief prayed for. It is said in McCutcheon’s Heirs vs. Rawleigh, 76 8. W. 51, that it is not every plain and certain contract that will be specifically enforced, whatever may be the legal rights of the parties in an action of damages for its breach.” * * * “ If to enforce specifically an agreement would do one party great injury and the other but comparatively little good, so that the result would be,' more spiteful than just, the Chancellor will not require its execution.” 120 Md. 118, p. 127. 18 If we weigh the equities—the comparative burdens and benefits—we see that the Court is asked to deprive one man of the right to occupy a house he owns to satisfy the prejudice of two women who live some distance from the house in question. It is now impossible for them to secure what they originally bargained for, i. e., an ex clusively white neighborhood. Respectfully submitted, W. A. C. HITCHES, JR., Solicitor for Appellant. 19 INDEX TO RECORD. PAGE. Agreement as to Record................. ...................... ....... 3 Docket Entries .......... .......................................... ......... 3,4 Statement of Case ........ ......................................... ....... 4 Bill of Complaint ....................... ..... ............................ 4 Answer of Frank Berman.......................................... 7 Answer of Edward Meade............. 8 Covenant .................................... 11 Testimony of Mary J. Becker..................... ................ 16 Testimony of M. Estelle Dennistone.... .......... ........... 20 Final Decree ............................................. 22 Order for Appeal ........................................................ 23 Certification by Clerk .....................„.......................... . 24 E dward Meade vs. I k T he Court of Appeals Of Maryland. > M. E stelle D ennistone and Mary J. B ecker. October T erm, 1937. General D ocket No. 26. BRIEF FOR APPELLEE. J. S. T. WATERS, WILLIAM L. MARBURY, JR., ROBERT R. PORTMESS, Attorneys for Appellee. E dward Meade In The vs. M. E stelle D ennistone and Mary J. B ecker. Court of Appeals Of Maryland. October T erm, 1937. J General D ocket No. 26. BRIEF FOR APPELLEE. STATEMENT OF THE CASE. This is an appeal from an Order of the Circuit Court of Baltimore City (S olter, J.) enjoining the appellant, Edward Meade, a negro, from using or occupying the premises known as 2227 Barclay street in the City of Baltimore, and further enjoining and restraining Frank Berman, his heirs, etc., from permitting the appellant to use or occupy the premises aforesaid. The injunction was issued to enforce a neighborhood restrictive agree ment entered into by the appellees and the predecessors in title of the appellant. The questions involved in the appeal depend upon the validity of this agreement, and its enforceability in equity. THE QUESTIONS IN CONTROVERSY. I. Is the Restrictive Agreement Valid? The trial court answered this question in the affirma tive by issuing an injunction. The appellee contends that the ruling of the trial court is correct for the following reasons: 2 A. The agreement is not contrary to public policy. B. The agreement does not place an unreasonable restraint upon alienation. C. The agreement is not repugnant to the grant. D. Enforcement of the agreement does not deprive the appellant of property without due process of law. II. Has Equity Jurisdiction to Enforce the Agreement? The trial court answered this question in the affirma tive by issuing the injunction. The appellant contends this is correct for the following reasons: A. Equity has jurisdiction to enforce a restrictive covenant, although it does not run with the land. B. There need be no privity of estate and contract be tween the covenantor and the covenantees. C. There is no adequate remedy at law. III. Has the Covenant Failed In Its Purpose? The trial court answered this question in the negative. The appellant contends that this ruling is correct for the following reasons: A. The record shows no material changes in condi tions since the execution of the agreement. B. The record does not show that enforcement of the agreement will depreciate the value of the property. 3 STATEMENT OF FACTS. Sometime prior to November 14, 1927 a colored family moved into the 2300 block of Guilford avenue in the City of Baltimore. Shortly thereafter it was rumored that a colored family was to occupy a vacant house nearby on Barclay street. A meeting was then called of the prop erty owners in the area of twenty-four square blocks, bounded on the north and south by Twenty-fifth street and North avenue, and on the east and west by Barclay street and Charles street. Following this meeting an agreement was signed by a number of the property owners of houses on Barclay street (R. 15). The agreement is dated the 14th day of November, 1927, and was recorded among the Land Records of Baltimore City on January 27, 1928. It was signed by the owners of eighteen properties in the 2200 block of Barclay street and provided that the parties thereto—“ jointly and sev erally for themselves and each of themselves, their and each of their personal representatives successors and as signs grant warrant covenant promise and agree amongst themselves and each and all of them with all and each one of the others their heirs and each of their heirs personal representatives successors and assigns that they and each of them their heirs and each of their heirs personal repre sentatives successors and assigns shall and will have hold stand seized and possessed of the said respective prop erties interest and estate subject to the following restric tions limitations conditions covenants agreements stipu lations and provisions to wit THAT neither the said re spective properties nor any of them nor any part of them or any of them shall be at any time occupied or used by any negro or negroes or person or persons either in whole or in part of negro or African descent except only 4 that negro or persons of negro or African descent either in whole or in part may be employed as servants by any of the owners or occupants of said respective properties and as and whilst so employed may reside on the prem ises occupied by their respective employers nor shall any sale lease disposition or transfer thereof be made or oper ate otherwise than subject to the aforesaid restrictions as to and upon use or occupancy that neither the said parties nor any of them their or any of their heirs per sonal representatives successors and assigns will do or permit to be done any of the matters or things above- mentioned excepting only as aforesaid” (R. 12-13). It further provided that the restrictions set forth should run with the land and bind the properties and any suc cessors of all the parties to the agreement and should inure to the benefit of any successor at any time owning or occupying any of said properties. The appellees, M. Estelle Dennistone and Mary J. Becker, who were respectively the owners of Nos. 2221 and 2234 Barclay street, signed the agreement as did Annie M. Tighe, Mary Y. Tighe, Francis L. Tighe and Anna R. G-ugerty, who were then the owners of 2227 Bar clay street. Thereafter, on May 27, 1935, the aforesaid owners of 2227 Barclay street conveyed the property to Florus Barry, who on the same day conveyed it to Mary V. Tighe and Anna R. Gugerty, who on November 4, 1936 (Mary V. Tighe) conveyed the property to Frank Ber man (R. 14). On October 22, 1936 Frank Berman, through his agent, contracted to sell 2227 Barclay street to the appellant, Edward Meade, a negro, for the sum of $1,100, of which $150 was paid in cash, the balance to be paid on conditional contract of sale. Thereafter, and prior to the 24th day of November, 1936, Edward Meade 5 entered into possession of the premises and with his family occupied the same as a residence (B . 10). On November 24, 1936 the appellees filed their bill of complaint against the appellant and Frank Berman re citing the aforesaid facts and praying that the appellant be enjoined and restrained from using or occupying No. 2227 Barclay street, and that the defendant, Frank Ber man, be enjoined and restrained from procuring and au thorizing or permitting any negro or negroes or person or persons either in whole or in part of negro or African descent to use or occupy the property contrary to the provisions of the agreement set forth in the bill of com plaint. On the same date Judge F e a u k signed an order requiring the defendant to show cause on or before De cember 1, 1936, why the injunction should not issue as prayed (B. 6). The defendant, Frank Berman, filed his answer in which he asserted that the agreement was null and void for the reason that it had been executed upon the under standing that the owners of all the properties in the block would sign, whereas the owners of eleven of such prop erties never did sign the agreement; and for the further reason that the agreement had failed to accomplish its purpose. Berman also alleged that by reason of the occu pation of nearby properties by negroes, the value of the property in question would be greatly increased by recog nition of the invalidity of the agreement. Thereafter, the appellant, Edward Meade, answered the bill alleging that the agreement was invalid and unen forceable because: (a) it was a personal covenant and did not run with the land; (b) it was contrary to public pol icy ; (c) there was no privity of estate or contract between the covenantor and the covenantee; (d) it was an unrea 6 sonable restraint placed upon the free alienation of the property in question; (e) the reason for its execution no longer obtained; (f) enforcement of the agreement would deprive the appellant of his property without due process of law. To the answer was appended a demurrer on gen eral grounds, and on the ground that the appellee had an adequate remedy at law. The case came on for hearing and testimony was taken. It was conclusively shown by the testimony of the appel lees that they had executed the agreement with full knowl edge that other owners either failed or refused to sign (R. 19). No testimony to the contrary was produced on behalf of the appellant or the defendant, Frank Berman. The testimony further showed that, at the time the agreement was entered into, Twenty-third street was in habited by colored people and there were two colored churches on that street, an alley known as Twenty-second and a half street was occupied by colored people, and one colored family had moved into the 2300 block of Guilford avenue. It was shown that with the exception of the Guilford avenue block the streets in question had been colored for many years (R. 15, 20). The testimony fur ther showed that, at the time of the trial, Brentwood ave nue, a narrow street running from North avenue to Twenty-fifth street between Barclay and Guilford ave nue, was inhabited by colored people and that a part of Twenty-fourth street was also inhabited by colored peo ple, but the record failed to show whether this condition existed at the time when the agreement was entered into. The testimony also showed that since the signing and recording of the agreement there had been no occupancy of Barclay street by colored people with the single excep 7 tion of 2238 Barclay street, which stands at the southwest corner of Barclay and Twenty-third street. This prop erty was a dressmaking shop on the first floor catering exclusively to white trade, which was entered from Bar clay street; it had an apartment on the upper floor which was entered from Twenty-third street and was occupied by a colored man and his wife who used the Twenty-third street entrance exclusively. This property had never been covered by the agreement, and the use made thereof was not objectionable to the white residents on Barclay street (R. 15). The appellees offered in evidence an agreement duly executed and recorded on December 14, 1936 signed by a number of property owners in the 2200 block of Barclay street who were not signatories to the original agree ment. This agreement was in substance identical with the agreement signed by the complainants and the prede cessor in title of the appellant and the defendant Berman. It was shown that the agreement had been signed and originally recorded on July 21, 1936, but that by reason of defective acknowledgment it had been necessary to record the agreement again subsequent to the institution of the present suit. The trial court ruled that the agree ment could not be admitted into evidence, and an excep tion was duly noted (R. 21). On January 18, 1937 the trial court entered a decree in accordance with the prayer of the bill. The appellant, Edward Meade, duly appealed, but the defendant Frank Berman took no appeal from the order. 8 ARGUMENT The undisputed facts in the case and the pleadings themselves somewhat narrow the issues on this appeal. There is no dispute as to the signing of the agreement, as to its recordation, as to appellee’s title or as to the fact that the appellant derived his right of possession directly from a signatory to the agreement. The only questions presented are as to the validity of the agreement, and its enforceability by a court of equity. I. T H E A G R E E M E N T IS V A L ID . A . The Agreement Is Not Contrary to Public Policy. It is hardly necessary to argue that an agreement re stricting the occupancy of land against negroes or per sons of African descent is consistent with the public pol icy of this State. That policy was authoritatively ex pressed by this Court in the case of State v. Gurry, 121 Md. 534, where, an ordinance of Baltimore City requir ing the segregation of the negro and white races was considered and the general policy of segregation ap proved although the ordinance was held invalid on other grounds. A new ordinance obviating the defects pointed out in that decision was enacted and went unchallenged until a similar ordinance of the City of Louisville was held invalid in the case of Buchanan v. Warley, 245 U. S. 60, but we do not perceive how that decision can affect the public policy of the State of Maryland, nor indeed can Buchanan v. Warley be taken to indicate disapproval of the policy, the decision turning on the power of the City to pass the ordinance. 9 In any event, cases arising in other jurisdictions have unanimously held that a covenant against use or occu pancy by negroes is valid and enforceable. Some cases draw a distinction between covenants against occupancy by negroes and covenants against sale to negroes, holding the latter invalid as contrary to public policy. Other cases reject the distinction and hold such contracts equally valid, but no case has been found holding that a covenant against occupancy is invalid as against public policy or for any other reason. A summary of the decisions follows: (1) Cases holding covenants againt sale to negroes to be valid: Corrigan v. Buckley, 299 F. 899 (Ct. of App. D. C. 1924) appeal dismissed, 271 U. S. 323 Torrey v. Wolfes, 6 F. (2d) 702 (Ct. of App. D. C. 1925) Russell v. Wallace, 30 F. (2d) 981 (Ct. of App. D. C. 1929) certiorari denied, 279 U. S. 871 Cornish v. O’Donoghue, 30 F. (2d) 983 (Ct. of App. D. C. 1929) certiorari denied, 279 IT. S. 871 Koehler v. Rowland, 275 Mo. 573, 205 S. W. 217, 9 A. L. E. 107 (1918) Queensborough Land Co. v. Caseaux, 136 La. 724, 67 So. 641, L. E. A. 1916 B, 1201 (1915) (2) Cases holding covenants against sale to negroes to be void: Title Guarantee & Tr. Co. v. Garrott, 42 Cal. App. 152, 183 P. 470, (1919) , Los Angeles Inv. Co. v. Gary, 181 Cal. 680, 186 P. 596, 9 A. L. E. 115, (1919) 10 Janss Inv. Go. v. Walden, 196 Cal. 753, 239 P. 34, (1925) Wayt v. Patee, 205 Cal. 46, 269 P. 660 (1928) Mandlebaum v. McDonnell, 29 Mich. 78, 18 Am. Rep. 61, (1874) Porter v. Barrett, 233 Mich. 373, 206 N. W. 532, 42 A. L. R. 1267 (1925) White v. White, 108 W. Ya. 128, 150 S. E. 531, 66 A. L. R. 518 (1929) (3) Cases, such as the one at bar, involving the validity of a covenant against occupancy by, as distin guished from sale to negroes. Every case decided on the question has held such a covenant to be valid and it has been so held even by jurisdictions which hold covenants against the sale to negroes to be void. Los Angeles Inv. Co. v. Gary, supra White vs. White, supra Parmalee v. Morris, 218 Mich. 625, 188 N. W. 330, 38 A. L. R. 1180 (1922) Porter v. Barrett, supra Janss Inv. Go. v. Walden, supra Wayt v. Patee, supra Schulte v. Starks, 238 Mich. 102, 213 N. W. 102, (1927) Covenants against occupancy by negroes are not con trary to public policy: In Parmalee v. Morris, supra, the deed to the property in question provided that “ No building shall be built within 20 feet of the front line of the lot. Said lot shall not be occupied by a colored person, nor for the purpose of doing a liquor business thereon.” The defendants, colored people, contracted to buy the property and the plaintiffs, owners of similarly restricted properties in 11 the same subdivision, sought to have the defendants en joined from violating the restriction. One of the grounds for the defendants’ contention that the covenant was void was that it was contrary to public policy. In upholding the validity of the covenant the court said (218 Mich. 628): “ Is the restriction contrary to public policy? “ It has been said that certain acts are contrary to public policy so that the law will refuse to recog nize them when they have a mischievous tendency so as to be injurious to the interests of the state. This brings up the question as to what interests of the state are likely to be injured if an owner of prop erty, for reasons which are satisfactory to himself, refuses to sell himself, or permit his assignors to sell, to certain persons who may be distasteful to him as neighbors. Are there any interests of the state which will be promoted or advanced compelling the creation of such a condition in the community! The law is powerless to eradicate racial instincts or to abolish distinctions which some citizens do draw on account of racial differences in relation to their matter of purely private concern. For the law to at tempt to abolish these distinctions in the private dealings between individuals would only serve to accentuate the difficulties which the situation pre sents. “ One of the purposes of the restriction in the in stant case was apparently to preserve the subdivi sion as a district unoccupied by negroes. Whether this action on the part of the owner was taken to make the neighborhood more desirable in his estima tion, or to promote the better welfare of himself and his grantees, is a consideration which I do not be lieve enters into a decision of the case. So far as 12 I am able to discover, there is no policy of the state which this action contravenes. Were defendants’ claim of rights based upon any action taken by the authority of the state, an entirely different ques tion would be presented.” In Corrigan v. Buckley, 299 F. 899, 902, (Ct. App. D. C., 1924), appeal dismissed 271 U. S. 323, the covenant in question forbade the sale or leasing to, or occupancy by, negroes. It was contended that the covenant vio lated the 14th Amendment of the Constitution and was contrary to public policy. After holding that the cove nant did not violate the 14th Amendment the court said (p. 902): “ It follows that the segregation of the races, whether by statute or private agreement, where the method adopted does not amount to the denial of fundamental constitutional rights, cannot be held to be against public policy. Nor can the social equal ity of the races be attained, either by legislation or by the forcible assertion of assumed rights. * * *” Nor have any of the cases involving the validity of covenants against occupancy by negroes, cited supra, held such covenants to be contrary to public policy. B. The Agreement Does Not Place an Unreasonable Restraint Upon Alienation. The cases cited in the preceding section of this brief are unanimous in holding that a covenant against occu pancy by negroes is not a restraint upon alienation, but is merely a restraint against the use of real property. Some cases hold that a covenant against sale to negroes is invalid as being an unreasonable restraint on aliena tion, although there are many decisions to the contrary. 13 Not a single case, however, holds that a covenant merely forbidding occupancy by negroes is invalid as a restraint on alienation. See especially: Los Angeles Inv. Co. v. Gary, supra White v. White, supra Parmalee v. Morris, supra Porter v. Barrett, supra Janss Inv. Co. v. Walden, supra Wayt v. Patee, supra. Schulte v. Starks, supra. C . The Covenant Forbidding Occupancy by Negroes Is Not Void As Being Repugnant to the Grant. Although all courts agree that conditions or restric tions completely destroying the right to alienate prop erty, even for a limited time, are void, as inconsistent with complete ownership, and many courts hold even partial restraints on alienation void as repugnant to the interest created, the question of the restriction of the right to alienate, either complete or partial, is not in volved in this case. The covenant in question is not a restriction on the right to alienate but on the use of the property, and such covenants against occupancy by ne groes have been held to be valid restraints on the use of the property in every case in which their validity has been questioned and in no instance to be repugnant to the grant: Los Angeles Inv. Co. v. Gary, supra Wayt v. Patee, supra White v. White, supra Parmalee v. Morris, supra Schulte v. Starks, supra. 14 D . Enforcement of the Agreement Does Not Deprive the Appellant of His Property Without Due Process of Law. The question of the validity of restrictive agreements of this type under the Fourteenth Amendment of the Con stitution of the United States was closed by the decision of the Supreme Court in Corrigan v. Buckley, 271 U. S. 323, 331 (1926) where the Court dismissed as without merit an appeal from a decision of the Court of Appeals of the District of Columbia affirming an injunction ■ en forcing an agreement among private individuals forbid ding the sale of the property to negroes. It will be noted that this injunction upheld an agreement not to sell, which is far more drastic than an agreement against oc cupancy. The ground of the decision was that enforce ment of a covenant against occupancy or sale of property is not a violation of the Fourteenth Amendment, but merely tolerates discrimination by individuals and in no wise sanctions such discrimination by the State either through its legislative or judicial departments. As it is elementary that the first,Section of the Four teenth Amendment has exclusive reference to the inva sion of individual rights by the States and has no appli cation to the invasion of individual rights by individuals, it follows that the Fourteenth Amendment is not applic able. The Civil Rights Cases, 109 U. S. 3 Corrigan v. Buckley, 299 F. 899, 901 (Ct. of App. D. C. 1924), 271 U. S. 323, 330, 331 (1926) Los Angeles Inv. Co. v. Gary, supra Parmalee v. Morris, supra. 15 II. EQUITY HAS JURISDICTION TO ENFORCE THE AGREEMENT. A , A Restrictive Covenant May Be Enforced in Equity Against an Assignee of a Covenantor, Although It Does Not Run With the Land. In order to be enforced in equity a restrictive cove nant as to the use of land need not be one “ running with the land” in the technical sense of the term: “ Even in jurisdictions where, as in England, the burden of a covenant does not run with the land, an agreement as to the use of land may, under certain circumstances, affect a subsequent purchaser of the land who takes with notice of the agreement. As stated in the leading case on the subject, ‘ the ques tion is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract en tered into by his vendor, and with notice of which he purchased’. # * Such an agreement may occur in connection with a conveyance of land, restricting the grantor, * * * or restricting the grantee. * * # Or it may be independent of any conveyance of land, be ing merely an agreement between adjoining owners as regards the use of their land.” 2 Tiffany on Real Property (2nd ed.) 1425, 1426 Sec. 394 In Pomeroy’s Equity Jurisprudence (4th ed.) Sects. 688 and 689, the rule is stated as follows: “ A purchaser with notice of a prior contract to sell or to lease takes subject to such contract, and is bound in the same manner as his vendor to carry it into execution. # # # On the same principle, if the owner of land enters into a covenant concerning the land, concerning its uses, subjecting it to easements or personal servitudes and the like, and the land is 16 afterwards conveyed or sold to one who has notice of the covenant, the grantee or purchaser will take the premises bound by the covenant, and will be com pelled in equity either to specifically execute it, or will be restrained from violating it ; and it makes no difference whatever, with respect to this liability in equity, whether the covenant is or is not one which in law ‘ runs with the land ’, ’ ’ In Clem v. Valentine, 155 Md. 19, 26, the court quoted the following from Columbia College v. Lynch, 70 N. Y. 440, 449: “ Whether it was a covenant running with the land, or a collateral covenant, or a covenant in gross, or whether an action at law could be sustained upon it, is not material as affecting the jurisdiction of a court of Equity, or the right of the owners of the dominant tenement to relief upon a disturbance of the easements.” After quoting this language, the Court in Clem v. Val entine, said: “ It seems to be well settled by the weight of au thority that any grantee of the land to which such a right is appurtenant acquires by his grant a right to have the servitude, or easement, or right of amenity, protected in equity, notwithstanding that his right may not rest on the covenant, which simply runs with the title to his land, and notwithstanding that it may also be true that he may not be able to maintain an action at law for the vindication of his right. ’ ’ In Schmidt v. Hersey, 154 Md. 302, 306, the Court said that the “ right is one enforced ‘ by virtue of the equit able doctrine applicable, and does not depend upon the existence of a covenant running with the land, or 17 upon the existence of any right to relief under the com mon law. ’ ’ ’ In Newbold v. Peabody Heights Co., 70 Md. 493, 500, the court said: “ It may be very true that the covenant is not of a character to run with the land, in the strict legal technical sense of those terms; but if it be of a char acter to create a right and an equity in favor of the vendor or lessor, and those claiming in his right, as against those holding and occupying the land, a Court of Equity will assume jurisdiction and admin ister relief. This is a well settled principle. * * *” In order for a covenant, restricting the use of land, to be enforceable in equity against a subsequent holder of the land, it must appear that the intention of the cove nanting parties was that the restriction was to bind not only the promisor, but subsequent owners of the land as well. In Wood v. Stehrer, 119 Md. 143, 149, Chief Judge Boyd, in speaking of whether a certain restrictive cove nant was binding on the heirs and assigns of the cove nantors, said: “ * * # if it is intended to bind heirs and assigns by such restrictions, it must be so stated, or at least there must be enough in the instrument to show that such was the intention. ’ ’ And, because the covenant involved did not refer to the heirs and assigns of the covenantors, or provide that they should “ use or hold the remainder of the property subject to the same restrictions imposed on the lot con veyed” , it was held to be a mere personal agreement of the grantors which was not enforceable against other proprietors. 18 In Baft ell v. Senger, 160 Md. 685, 690, the Court said that “ It is apparent,” that in proceedings in equity in volving restrictions or restrictive covenants, “ all techni cal considerations, whatever may be their nature, are sub ordinate to the intention of the parties” to the covenant. The presumption is that the parties to the covenant in tended that the restriction was to bind all subsequent holders of the land and not merely the promisor. “ What the intention was in this regard is a ques tion of construction, but since it is ordinarily imma terial to the promisee who may make any particular use of the property, the presumption would seem to be, in the absence of a clear showing to the contrary, that such a use by any person whomsoever is intend ed, and an intention to this effect would appear to be clearly indicated by the fact that the agreement in terms binds the promisor’s assigns, or that the agreement is an impersonal form, that the land shall not be used in a particular way.” 2 Tiffany on Beal Property (2nd ed.) p. 1438, Sect. 397. There can be little doubt, upon examining the language of the agreement between the covenanting parties, that their intention was that the restriction against oc cupancy of any of their properties by negroes was to ap ply to subsequent holders of their properties as well as to themselves. The language of the instrument is abso lutely unequivocal to that effect, providing that “ they and each of them their heirs and each of their heir’s per sonal representatives successors and assigns shall and will have hold stand seized and possessed of the said re spective properties interest and estate subject to the fol lowing restrictions limitations conditions covenants agreements stipulations and provisions to wit, That “ etc. 19 After reciting the restrictions the agreement further provides “ that all and singular the restrictions limita tions conditions covenants agreements stipulations pro visions matters and things whatsoever herein contained or mentioned shall run with and bind the land and each and all of the above mentioned properties and premises and every part thereof and the heirs personal representa tives successors or assigns of each and all of the parties hereto and shall be kept and performed by and inure to the benefit of and be enforceable by all and every per son and persons body and bodies politic or corporate at any time owning or occupying said land. * * * ” It would be difficult to imagine a more specific statement by the covenanting parties that they intended all subsequent holders of the land, as well as themselves, to be bound by the covenant and the restriction therein contained. In order for a covenant, restricting the use of land, to be enforceable in equity against a subsequent pur chaser of the land, it must also appear that the subse quent purchaser took with notice of the restriction— “ * * * a restrictive agreement is enforced in equity against a subsequent purchaser only when he takes with notice thereof. Such notice may be either ac tual or constructive, and the purchaser is, in accord ance with the general rule as to notice, charged with notice of anything showing or imposing such a re striction which may be contained in a conveyance in the chain of the title under which he claims. * * *” 2 Tiffany on Real Property (2nd ed.) p. 1439, Sect. 398. “ The notice may be actual, as where a convey ance was made ‘ subject to the restrictions and con ditions in said deed recited’, referring to an earlier deed. Ringgold vs. Denhardt, 136 Md. 136, 140. Or, 20 it may be constructive. Thus, the constructive no tice furnished by the record of an instrument con taining the restrictions properly recorded among the land records is sufficient to satisfy the rule requir ing notice of the restrictions.” Best on Restrictions and Restrictive Cove nants, p. 39. In Lowes v. Carter, 124 Md. 678, the question was whether the recording of a 'certain restrictive covenant gave sufficient notice to a purchaser of land subject there to to warrant the enforcement of the covenant against him in equity. The Court held that actual notice by the purchaser of the existence of the restrictive covenant was not neces sary to enforce its provisions against him in equity but that the recording of the instrument, giving the pur chaser constructive notice thereby, was sufficient. In the present case, therefore, the appellant, the sub sequent purchaser of No. 2227 Barclay Street, one of the lots bound by the covenant against occupancy by negroes, had sufficient notice of the existence and provisions of the covenant to warrant his being bound thereby in a court of equity. The instrument, embodying the cove nant in question, was recorded among the land records of Baltimore City in Liber S. C. L. 4841, folio 354, on January 27, 1928, some time prior to the appellant’s en tering into the contract to purchase No. 2227 Barclay street. Being on record at the time of contracting to purchase said lot, the appellant cannot contend that he had no notice of the covenant’s existence as the prior re cording of the covenant served to notify him construc tively thereof. 21 B. A Restrictive Covenant Is Enforceable in Equity, Although There Was No Privity of Contract and Estate Between the Parties Thereto. Although it may be true that, in order for a covenant to “ run with the land” in the technical sense of the term, so as to sustain an action at law, there must be privity of both estate and contract between the covenantors and covenantees, such privity is not necessary for the enforce ment of a restrictive covenant in equity and hence the presence or absence of such privity in this case is entirely academic. In Clem v. Valentine, 155 Md. 19, 26, the court, after holding that a covenant need not be one running with the land, in the legal sense, in order to be enforceable in equity, said: “ Nor is it necessary, in order to sustain the action, that there should be privity of estate or contract, but there must be found somewhere the clear intent to establish the restriction for the benefit of the party attempting to restrain its infringement.” Furthermore, the necessity for privity of estate and contract in order for a covenant to run with the land at law is a purely technical requirement and need not neces sarily be present for the enforcement of a restrictive covenant in equity: “ . . . it is apparent that in such a proceeding as this all technical considerations, whatever may be their nature, are subordinate to the intention of the parties. ’ ’ Bartell v. Senger, 160 Md. 685, 690. Covenants similar to the one in question have been fre quently enforced in equity even though the parties there to were adjoining owners and there was no privity of es tate between them. 22 In 2 Tiffany on Real Property (2nd ed.) p. 1426, Sect. 394, discussing the types of restrictive covenants en forceable in equity, it is said: ‘ ‘ Such an agreement may occur in connection with a conveyance of land, restricting the grantor, or the subsequent transferees of the grantor, as regards the use of the land retained by him, or restricting the grantee as regards the use of the land conveyed. Or it may be independent of any conveyance of land, being merely an agreement between adjoining own ers as regards the use of their land.” In Wayt v. Patee, 205 Cal. 46, 269 P. 660 (1928), the various lot owners in a sub-division entered into a covenant restricting the use of their land by for bidding occupancy “ by any persons other than of the Caucasian race. ’ ’ One of the owners subsequently nego tiated the sale of his lot to negroes. Certain of the other lot owners brought an action in equity to enjoin the con veyance to the negroes and to enjoin the negroes from occupying the premises. The court enforced the covenant and granted the in junction even though it that case, as in the case at bar, there was no privity of estate between the covenanting parties. In Corrigan v. Buckley, 299 F. 899, (Ct. of App. D. C. 1924), certain adjoining and neighboring property own ers entered into a covenant against sale or rental to, or occupancy by, negroes. Although there was no privity of estate between the covenanting parties the court, nev ertheless, at the instance of certain of the covenanting parties, restrained another of the parties to the covenant from selling to a negro. In Russell v. Wallace, 30 F. (2d) 981, (Ct. of App. D. C., 1929), the owners of the lots in Randolph Place, Wash 23 ington, D. C., together bound themselves by a covenant against a transfer of any of the properties, in any man ner, to negroes. Although, as here, there was no privity of estate between the several parties to the covenant, the court of equity nevertheless enforced the covenant at the behest of certain of the lot owners and restrained a sale, by one of the parties to the instrument, to negroes. C. There Is No Adequate Remedy at Law. The absence of adequate remedy at law is clear. A suf ficient ground is that there is no privity of estate, it being well-settled that “ by the common law no stranger to any covenant, action or condition had any advantage or bene fit of the same by any ways in the law, except such as were parties or privies thereto.” Moale v. Tyson, 2 H. & McH. 387, 388. It may also be suggested that the rem edy at law would necessarily depend upon whether the covenant is one which runs with the land. Glenn v. Can- by, 24 Md. 127, 130; Whalen v. B. & 0. R. Co., 108 Md. 11, 20. III. T H E C O V E N A N T H A S N O T F A IL E D IN IT S P U R P O S E . A . The Record Shows No Material Change in Conditions Since the Execution of the Agreement. The record utterly fails to show a material change in conditions since the execution of the agreement. It is true that the record would indicate that negroes live in the 2300 block of Guilford avenue; that Brentwood ave nue, a narrow street running from North avenue to Twen ty-fifth street, between Barclay street and Greenmount avenue, is inhabited by colored people; that an alley known as Twenty-second and a half street, and Twenty- third and part of Twenty-fourth streets are inhabited by colored people; that there are two negro churches on 24 Twenty-third street; and that 2238 Barclay street is oc cupied by colored people. However, the instrument, containing the restrictive covenant in question, is dated November 14, 1927, and was recorded January 27,1928. At the time of the agree ment there was a negro church on Twenty-third street, Twenty-second and a half was colored and had been so since the Great War, as also had Twenty-third street. One colored family had already moved into the 2300 block of Guilford avenue, which was, in fact, one of the reasons for the neighborhood meeting out of which grew the cove nant under consideration. The record fails to show whether Brentwood avenue, or Twenty-fourth street were colored when the agreement was signed. On this record there is no evidence of substantial change in the character of the neighborhood since the restrictive agreement was signed. The surrounding neighborhood was partially colored and was becoming in creasingly so. Alarmed by a colored family moving into the 2300 block of Guilford avenue, certain residents of the nearby 2200 block of Barclay street banded together and, by virtue of a restrictive covenant, sought to stem the advancing tide of colored people. The one block in Guilford avenue has become entirely colored, but the signers of the covenant foresaw that that would probably happen and for that very reason entered into the cove nant in an effort to protect their own homes. Indeed the only material change, in regard to negroes occupying property in the entire restricted area of twen ty-four square blocks was the occupancy of 2238 Barclay street by colored persons. This has been the sole occu pancy of Barclay street by a negro family since the sign ing and recording of the covenant. This single occu 25 pancy by negroes has not so altered things, however, that the original purpose of the signers in so restricting their properties can no longer be accomplished. They are still substantially removed and protected from undesir able proximity with colored people as 2238 is on a corner, at the end of the block. Furthermore the dressmaking establishment on the first floor of 2238 draws no colored people as it caters exclusively to white patrons, nor are the upper floors objectionable as the entrance thereto is on a side street which has always been colored. The 2200 block of Barclay street still is, to all intents and purposes a white block, and the purpose of the covenant was to preserve it as such. This occupancy of 2238 Barclay street by colored peo ple did not in itself amount to a breach of the covenant as the owner of the property did not sign it. The lot was, therefore, not subject to the restriction but was out side of the restrictive tract both geographically and fig uratively, and the change may be said to have taken place outside of the restricted tract. No colored family had ever occupied a house within the restricted area before the appellant, Meade, moved into 2227. B. There Is No Evidence That the Value of the Property Will Be Diminished by Enforcing the Agreement. It has also been contended that by reason of the large number of colored families now occupying properties close to the 2200 block of Barclay street, the said block has already depreciated in value for occupancy by white people, and the value of said properties would be greatly increased by recognition of the invalidity of the agree ment referred to and the right of occupancy by negroes. Even if this were true (and the record fails to disclose any testimony to support the contention), it would not 26 warrant a refusal by a court of equity to enforce the cove nant. The mere fact that a property would be more valu able if used for the purpose forbidden by a restrictive covenant does not justify the refusal of a court of equity to enforce the same. In Allen v. Massachusetts Bonding & Ins. Co., 248 Mass. 378, 143 N. E. 499, 502 (1924), action was brought in equity to enforce a restriction against digging a cellar beyond a certain depth. One of the defendant’s reasons for contending that the restrictions should not be en forced was that greater value would attach to the prop erty if free from the restriction. In holding that the covenant should be enforced, the court said: 4 4 The great increment in the value of the land of the defendant which will arise from refusal to en force this restriction is of slight if any consequence. The restriction was a matter of record in the chain of the defendant’s title and the defendant was bound by notice thereof.” In Reeves v. Comfort, 172 Gfa. 331, 157 S. E. 629 (Ga. 1931), it was held that restrictive covenants run ning with the land will not be set aside at the suit of an owner of a restricted lot against other owners of restrict ed lots on the ground that the property would be en hanced in value by annulment of restrictions. In Noel v. Hill, 158 Mo. A. 426, 138 S. W. 364, 370, (1911), in a similar case, the court said: 44We have heretofore held in Spahr v. Cape, 143 Mo. App. 114, 122 S. W. 379, that the mere fact that lots subject to building restrictions created by cove nants in the deed by which they were limited to use for residence purposes only, became more valuable or suitable for business than for residence purposes, is not in itself any ground justifying a court of equity in overturning and annulling such covenants.” 27 In Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132, 135 (1931), the court said, in quoting from an earlier case: 44 ‘ The fact that apart from and surrounding the tract some business has grown up, and that the land has become more valuable in consequence, in no man ner entitles defendants to be relieved of the restric tions they have created. This condition is but the natural result of the improvement of the various tracts, and the fact that the property may have be come more valuable thereby for business purposes is immaterial. ’ ’ ’ To this effect also, see: Evans v. Foss, 194 Mass. 513, 80 N. E. 587, (1907) Reed v. Hazard, 187 Mo. A. 547,174 S. W. I ll, (1915) Spahr v. Cape, 143 Mo. A. 114, 122 S. W. 379, (1909), Drexel State Bank of Chicago v. O’Donnall, 344 111. 173, 176 N. E. 348 (1931). It is therefore submitted that even if the restricted properties would be more valuable if relieved of the re striction—which fact is in no wise admitted by the ap pellees, a court of equity would not be justified in refus ing to enforce the covenant on that ground. CONCLUSION. For the foregoing reasons it is respectfully submitted that the decree of the trial court should be affirmed. J. S. T. WATERS, WILLIAM L. MARBITRY, JR., ROBERT R. PORTMESS, Attorneys for Appellee. No. 28051 SUPREME COURT OF OHIO STATE OF OHIO, E X REL. THEODORE LEW IS and M ARY ELIZABETH LEW IS, parents and next friends of CHARLES ED W A R D and THEALOU LEW IS, minors, Relators-Appellants, vs. THE BOARD OF EDUCATION of the W ILM IN G TO N SCHOOL DISTRICT and HARRY W . HODSON, Superintendent of Schools, et al. Respondents-Appellees. BRIEF FOR APPELLANTS Theodore M . Berry, William A. McClain, Of Lawson, Berry & McClain, Attorneys for Appellants. Hubert T. Delany, Belford V . Lawson, Jr., Thurgood P. Marshall, Of Counsel. Court Index Press, In c . - Law Printers - Cincinnati, Ohio INDEX Page Assignments of Error ................................................. 1 Questions of Law Involved............................... .......... 3 Statement of Facts ........................ '....... .................... 4 Argument ---- .----- ------- --- ------ -................................ 6 Judgment of Trial Court Contrary to Law ...... ....... 6 No Power to Assign Colored Children in Absence of Express Authority ............................. 8 Weaver Case Not Applicable in This Case ............... 14 Action of Board Contrary to Law and Constitution of Ohio .................. ....................... ......... ........ . 15 Assignment by Race Violates Fourteenth Amend ment of United States Constitution .................. . 23 Error in Holding Mandamus Not Issuable ............. 27 Error in Excluding Relevant Testimony ................... 28 Judgment in Prior Case Not Res Judicata ............... 30 Conclusion ........................ 34 Appendix ......... 39 CASES CITED Berea College v. Kentucky, 211 U. S. 45 .................... 35 Bibb v. Alton, 179 111. 615 .................... ........................ 29 Bibb v. Alton, 193 111. 309, 312 ............................19, 28, 29 Board of Education v. State, 45 O. S. 555 .........3, 9, 27 Board of Education v. State, 114 O. S. 188 ____ 3, 9, 28 Board of Education v. Tinnon, 26 Kans. 1; 39 L.R.A. 1020 .................................................................. . 9 Board of Education v. Wickman, 80 O. S. 133; 88 N. E. 412 ................................................ ............. 27 Buchanan v. Warley, 245 U. S. 60 ............................... 23 Cartwright v. Board of Education, 73 Kans. 32.......... 10 II. Clark v. Board of Directors, 24 la. 266 .... .............— 12 Clark v. Maryland Institute, 87 Md. 643 .................... 22 Crawford v. District School Board, 68 Ore. 388; 137 Pac. 217 ........................................................ ....... 11 Dred Scott v. Sandford, 19 Howard (U. S.) 393 (1856) 15 Eastern School District v. Cincinnati, 19 Ohio 176, 191 ....................................-................................. 9 Ex Parte Virginia, 100 U. S. 339, 346 ........ ............ 23 Gaines v. Canada, 305 U. S. 337, 350 ..........20, 23, 24, 28 Games v. McCann, 21 O. S. 198 .................. ...............15, 18 Gibson v. Board of Education, 2 O. C. C. 557 ...... —. 8 Gong Lum v. Rice, 275 U. S. 78 ........ ........................ 18 Harlingen v. Board of Education, 104 O. S. 360; 136 N. E. 19 ................................................... -........... 27 Jones v. Newlon, 81 Colo. 25; 253 Pac. 386 ............. . 13 Knox v. Board of Education, 45 Kans. 152................ . 10 Milhoof v. Board of Education, 76 0. S. 297; 81 N. E. Page 568 ..................................................................... . 27 Nixon v. Condon, 286 U. S. 73 ... ................ ............... 27 Patterson v. Board of Education, 11 N. J. Misc. 179 .... 13 Pearson v. Murray, 169 Md. 478; 182 Atl. 590 .................. ...................13, 22, 24, 28 People v. School Board, 161 N. Y. 598; 56 N. E. 81...... 19 Pierre v. Louisiana, 306 U. S. 354, 358 ..................... 17 Plessy v. Ferguson, 163 U. S. 537 .................... 18, 25, 26 Roberts v. New York, 295 U. S. 264 ............................. 24 Schwing v. McClure, 120 O. S. 335; 166 N. E. 230 ...... 8, 24 Smith v. Independent School District, 40 la. 518........ 12 State v. Duffy, 7 Nev. 34............................................. 19 Steele Company v. Miller, 92 O. S. 115........................ 25 Tape v. Hurley, 66 Calif. 473; 6 Pac. 129.................... 11 Truax v. Corrigan, 257 U. S. 312 ............................... 26 United Heating v. State Building Commission, 124 O. S. 413; 179 N. E. 138 ...................................... 27 Ward v. Flood, 48 Calif. 36 ............................... ........ 19 Weaver v. Board of Trustees of Ohio State Univer sity, 126 O. S. 290 .............................................. 1, 3, 6 Woolridge v. Board of Education, Kans. 157 Pac. 1184 10 III. Workman v. Board of Education of Detroit, 18 Mich. 400 ............. -........................................................... 11 Wright v. Board of Education, 295 Mo. 466; 246 S. W. 43 .................... -.......... -...................................... 21, 23 Wysinger v. Crookshank, 82 Calif. 588 .................11, 26 Yick Wo v. Hopkins, 118 U. S. 356 - ..... .................... 25 Page CONSTITUTIONAL PROVISIONS AND STATUTES 29 Ohio Laws 422 - .......................................... 7 51 ” ” 429 ... ......... ....... ................................ 7 75 ” ” 513 ........................... .......................... 7 84 ” ” 34 ........... ..................................... . 7 Ohio Revised Statutes—Section 4008 .................... 7 Ohio Constitution—Article I Sections 1, 2, 7, 19__ 3, 20, 21 Article II—Section 1; Article VI Section 2 .............. .................. 20, 21 Ohio General Code—Sections 7644; 7681; 7684; 7690; 7942 ; 7948; 12940 ......................................3, 7, 8, 14 United States Constitution—Fourteenth Amendment, Section I ............................................................... 4 TEXTBOOKS AND MISCELLANEOUS Cardozo, Benjamin—“The Nature of the Judicial Process” , pp. 21, 23, 151, 163 ........ ............15, 25, 37 10 American Jurisprudence 904 ............................... 8 12 American Jurisprudence 129, 271 .................... 23, 25 2 Freeman on Judgments (5th ed.) 1433, 1434, 1447, 1453, 1455, 1530, 1534, 1582, 1592,1594.... 31, 32, 33, 34 1 Jones On Evidence (4th ed.) 251 ........................... 29 IV. Page 23 Ohio Jurisprudence 973, 974, 1003, 1008, 1015 ..................................... 31, 32, 34 25 Ohio Jurisprudence 1006 ................. -................... 27 36 Ohio Jurisprudence 188, 189, 313, 316-318 ..........7, 8 President’s Advisory Committee on Education 1939— “Special Problems of Negro Education” , p. 34, 152-153 ............................................................. 36, 37 Quillin, Frank U.—“The Color Line in Ohio,” Chap ter II .................................................................. 6 15 Ruling Case Law 955, 964, 982, 984, 1015, 1016 ......... .................................. 31, 32. 34 24 Ruling Case Law, 562, 565, 569, 575 ............. 8, 23, 27 SUPREME COURT OF OHIO No. 28051. State of Ohio, ex rel. T heodore L ew is and Mary E liza beth Lew is , parents and next friends o f Charles Edward and T healou L ew is , m inors, Relators-Appellants, vs. T he Board of Education of the W ilmington School D is trict and H arry W . H odson, Superintendent of Schools, et al. Respondents-Appellees. ASSIGNMENTS OF ERROR First : The Court of Appeals erred in holding that a writ of mandamus was not the proper and available remedy under the circumstances of this case. Second: The Court of Appeals erred in its construc tion of Ohio General Code Sections 7684 and 7690 to include the power to make assignment of students ac cording to race. T hird : The Court of Appeals erred in following and interpreting the decision of the Supreme Court in the Case of State ex rel Weaver v. Board of Trustees of Ohio State University, 126 O.S. 290 as granting authority to Boards of Education to classify students by race. Fourth : The decision of the Court of Appeals is er roneous in that it is contrary to the Constitution, estab lished law and public policy of the State of Ohio. 2 F if t h : The decision of the Court of Appeals is er roneous in that it is in conflict with and violative of the Fourteenth Amendment (Section I) of the Constitution of the United States. Six t h : The Court of Appeals erred in excluding rele vant and admissible testimony to the prejudice of Ap pellants. Seventh : The Court of Appeals erred by hastening and obstructing the trial to the prejudice of appellants. 3 BRIEF FOR APPELLANTS QUESTIONS OF LAW INVOLVED This cause is appealed on question of law to the Su preme Court from an original proceeding and decision in the Court of Appeals for the First Appellate District of Ohio and involves the following legal questions: 1. In the absence of express legislative enactment by the State of Ohio providing for separate schools accord ing to race, does not the action of a board of education in assigning Colored students to a separate school resulting in segregation by race constitute a violation of general law and the Constitution of the State of Ohio, Article I Section 1, 2, 7, 16, 19 and Artcle II Section 1? 2. Does the statutory authority given to boards of edu cation under Ohio General Code 7684 to assign pupils include the power to make such special assignments as result in the segregation of Colored children in a sepa rate school? 3. Does the decision of the Supreme Court in the case of State ex ret Weaver v. Board of Trustees of Ohio State University, 126 O.S. 290 overrule the cases of Board of Education v. State, 45 O.S. 555 and Board of Education v. State, 114 O.S. 188 and establish the power of a board of education to consider race as a basis in making assign ments of students? 4. Is not the special assignment of Colored pupils by a board of education under circumstances not applicable alike to all pupils irrespective of their race or color such an abuse of the discretionary power to make assignments of pupils and a violation of law as to entitle appellants to the remedy of mandamus? 4 5. In the absence of express legislative enactment by the State of Ohio to provide for separate schools accord ing to race, does not the action of a board of education in assigning Colored students to a separate school re sulting in segregation by race constitute a violation of Section I of the Fourteenth Amendment of the United States Constitution? STATEMENT OF FACTS The facts in this case are presented by stipulation of counsel and oral testimony of witnesses during the trial. The Board of Education of the Wilmington School District, a corporate body, maintains and operates four elementary schools within the district. One of these schools, Midland School, has a teaching staff and student body composed entirely of Colored persons, and the re maining three schools are composed entirely and only of White teachers and pupils. The Relator-Appellants, Theodore Lewis and Mary Elizabeth Lewis are citizens of Ohio and the United States and residents of the Wilmington School District and have two minor children, Charles Edward, age 9 years and Thealou Lewis, age 6 years, eligible for enroll ment to an elementary school; both appellants and their children are Colored persons. At the beginning of the school term September 5th, 1939 appellants presented their two children for enrollment and admission at the Smith Place School, the one nearest their home and attended by the White children in the immediate neigh borhood; the appellants’ children were refused admis sion and were told they would have to attend the Mid land School. Appellants continued to present their chil dren to Smith Place School and the Main School, the 5 next nearest school to their home and were at all times refused admission. All Colored children, except those of appellants, attend Midland School, and prior to October 11th, 1939 all those living in the section near appellants home were obliged to walk a distance of one and a quarter miles past Smith Place School and Main School through the business sec tion of the City and across two railroads to attend the Midland School. On October 7th, 1939, pursuant to an affidavit issued by a school attendance officer Theodore Lewis was ar rested and placed in jail for failure to send his children to school, notwithstanding that the children had been re peatedly presented to Smith Place School and Main School and were refused admission. On October 11th, 1939, after appellants continued to present their children for admission to the two schools nearest their home, the Board of Education at a special called meeting adopted a motion that “Thealou Lewis and Charles Edward Lewis be assigned to the Midland School”. And on the same date the Board of Education adopted a resolution to provide bus transportation for pupils residing more than a mile from the school they attended. On October 18th, 1939 appellants filed their petition in the Court of Appeals for the First Appellate District for a peremptory writ of mandamus to compel the Board of Education, Superintendent and Principal to admit and enroll Charles Edward and Thealou Lewis to the Smith Place School or other school of the district under conditions applicable to all youth regardless of race or color. The Court of Appeals after trial denied the writ of mandamus from which this appeal on ques tions of law is taken. 6 ARGUMENT I. The Judgment and Order of the Trial Court are Contrary to the Law Applicable to the Case. The Court of Appeals of the First Appellate District in the instant case based its opinion and judgment on the doctrine of the case of State ex ret Weaver v. Board of Trustees of Ohio State University, 126 O.S. 290 (1933), and concluded that by reason of that decision a board of education under its general powers to assign pupils is also delegated the authority to consider racial differences in making assignments. We submit the lower Court was in grave judicial error and expressed a reactionary social view. A. T he Legislative P olicy of Ohio R epudiates the D octrine of R ace Classification. It cannot be said that the State of Ohio has at all times followed a liberal policy in treatment of its Colored citizens. The infamous “Rlack Laws” in varied forms were in force from 1804 to 1849 and imposed humilia tions and civil disabilities upon all persons of color in the State.1 In reference to education the State of Ohio has ex perienced three stages as it applied to Colored children. At first no provision was made for their education, not withstanding the Constitution of the State imposed a duty upon the General Assembly to provide “a thorough Quillin, Frank U. “ The Color Line in Ohio” — Univ. of Michigan Studies (1913) Chap. II. 7 and efficient system of common schools throughout the State” (Article VI Section 2) (See 29 0. L. 422) The second stage was the period when the General Assembly by statute required the establishment of sepa rate schools for Colored children (51 O. L. 429 March 14, 1853). Later the Act of 1878 (75 0. L. 513; Rev. Stat. Sec. 4008) provided: “When in the judgment of the board (of edu cation), it will be for the advantage of the dis trict to do so, it may organize separate schools for Colored children; * * *.” Even this “separation law” was discretionary and not mandatory. See: 36 O. Jur. 316, 317, 318. The third stage began when the law granting the power to establish separate schools (Rev. Stat. Sec. 4008 supra) was repealed by the General Assembly on Feb ruary 22, 1887 (84 O. L. 34). Thereby separate schools for Colored children were abolished and the legislative policy clearly established by the State of Ohio. Moreover, the positive aspect of the new legislative and public policy of the State was expressed by the enact ment of the Civil Rights Law (Ohio General Code Section 12940) on February 7, 1884 (81 O. L. 15). This law was intended to assure the Colored citizen every civil right in places of public accomodation as all other citizens irrespective of his color. We call upon this Court to take judicial cognizance of the fact that by constitutional provisions and statu tory law of this State public schools are institutions of public accommodation, and within the meaning of Ohio General Code Section 12940 the judgment of the trial court is erroneous. 8 B. I n the Absence of Express A uthority the Board of Education of W ilmington Has N o P ower to A ssign A nd Separate Colored Children in Only One Ele mentary School and Exclude T hem From A ll Other Schools. The authority of a board of education is derived solely from statute, both duties and authority being clearly defined by legislation and is limited strictly to such pow ers as are expressly granted or clearly implied. 36 0. Jur. 188, 189 24 R. C. L. 562, 565, 569 Schwing v. McClure, 120 0. S. 335; 166 N. E. 230 By Ohio General Code Sec. 7690 it is provided: “Each city * * * board of education shall have the management and control of all the public schools * * * in the district.” And by O. G. C. 7684 it is provided: “Boards of education may make such an as signment of the youth of their respective dis tricts to the schools established by them as in their opinion best will promote the interests of education in their districts.” Nothing in either of these sections gives express authori ty to make assignments by race. On the contrary it has been held that unless there is some statute explicitly giv ing the right to make a distinction of this kind, it would be contrary to the spirit of the law and unauthorized. 36 0. Jur. 313 10 Amer. Jur. 904 State ex ret Gibson v. Board of Education, 2 O.C.C. 557 9 In the absence of statutory authority, White and Colored children are equally entitled to, and must be admitted to the same schools upon the same terms without distinction on account of color. State ex ret Eastern School District v. Cin cinnati, 19 Ohio 178, 191 The leading, and we submit controlling case in this State is Board of Education of Oxford v. State, 45 O. S. 555 (1888). That case was a proceeding in mandamus to compel the board of education to admit relators’ chil dren to a common school from which they had been excluded by the board under a resolution requiring all Colored children to attend a separate school. The Court in awarding a peremptory writ, per curiam, said: “Whilst under the later section (Rev. Stat. 4013 and same as 0. G. C. 7684) power is con ferred on boards of education to make such as signments of the youth in their respective dis tricts, such power cannot be exercised with ref erence to the color or race of the youth; and Section 4008 having been repealed * * * February 22, 1887 (84 O. L. 34) separate schools for Colored children have been abolished and no regulation can be made under Section 4013 (O.G.C. 7684), that does not apply to all chil dren irrespective of race or color.” (Italics ours) And this case was followed unanimously in Board of Education of Dayton v. State ex rel Reese 114 O. S. 188 (1926) We may well consider the weight of authority on this issue outside of Ohio. One of the most important cases on this point is the case of Board of Education v. Tinnon, 26 Kans. 1, 39 1 0 L.R.A, 1020 (1881). In this case the pleadings were so framed and admissions were so made that the only question pi-esented to the Supreme Court of Kansas was “whether the board of education of a city of the second class has the power to establish separate schools for White and Colored children, and to exclude Colored chil dren from the schools established for White children for no other reason than that they are Colored children”. The board of education sought to justify its ruling con cerning the establishment of separate schools under a Kansas statute providing that: “The board of education shall have power to elect their own officers, except the treasurer; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to estab lish a high school whenever in their opinion the educational interests of the city demand the same; and to exercise the sole control over the schools and school property of the city.” (26 Kans. at p. 16) After a careful consideration of the entire question in its opinion the Supreme Court of Kansas followed the precedent that: “It must be remembered that unless some stat ute can be found authorizing the establishment of separate schools for Colored children, that no such authority exists; and we have been unable to find any such statute, and none has been pointed out to us.” (26 Kans. at p. 23) See also: Knox v. Board, 45 Kans. 152 (1891) Cartwright v. Board of Education, 73 Kans. 32 (1906) Woolridge v. Board, 157 P. 1184, 98 Kans. 397 (1916) 11 The question as to what the legislature might have done is beside the point; the administrative authority cannot take unto itself legislative functions. Tape v. Hurley, 68 Calif. 473, 6 P. 129 (1885) See also: Wysinger v. Crookshank, 82 Calif. 588 (1890) In the case of Crawford v. District School Board, 68 Ore. 388, 137 P. 217, (1913), the Supreme Court of Oregon granted mandamus to an Indian child for admission to the “White” school stating in its opinion that: “When the state legislature has not passed an act expressly authorizing them to do so, school boards, created for carrying on the public schools of the state, have no lawful power to pro vide separate schools for the education of White and Colored children.” (137 P. at p. 220) The same rule was applied in Michigan in 1869 in the case of Workman v. Board of Education of Detroit, 18 Mich. 400 (1869). The statutes of Michigan provided that: “All residents of any district shall have an equal right to attend any school therein; Pro vided that this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when deemed expedient.” The Supreme Court of Michigan granted a writ of man damus to a Negro on the following grounds: “It cannot be seriously urged that with this provision in force, the school board of any dis trict which is subject to it may make regula tions which would exclude any resident of the 12 district from any of its schools, because of race or color, or religious belief, or personal peculiari ties. It is too plain for argument, that an equal right to all the schools, irrespective of all such distinctions, was meant to be established.” (18 Mich, at p. 409) The ruling was established in Iowa in 1888 by the case of Clark v. Board of Directors, 24 Iowa 266, where the Supreme Court of Iowa granted a peremptory writ of mandamus, the court in its opinion stating that: “Our statute has expressed the sovereign will, that all the youths of the State between the ages of five and twenty-one years shall be entitled to the privileges and benefits of our common schools, and it is not competent for the board of directors to resist the sovereign will and declare, that, since ‘public sentiment in their district is opposed to the school’ they will deny equal privi leges to some of the youths.” (24 Iowa at p. 276) “In other words, all the youths are equal be fore the law, and there is no discretion vested in the board of directors or elsewhere to interfere with or disturb that equality. The board of di rectors may exercise a uniform discretion equal ly operative upon all, as to the residence, or qualifications, or freedom from contagious dis ease, or the like, of children, to entitle them to admission to each particular school, but the board cannot, in their discretion, or otherwise, deny a youth admission to any particular school because of his or her nationality, religion, coloi', clothing, or the like.” (24 Iowa at p. 277) See also: Smith v. Independent School District, 40 Iowa 518 (1875) 13 Local school officials are not only prohibited from es tablishing separate schools without express statutory au thority but are also prohibited from setting up separate classes in the same school. The establishment of sepa rate swimming classes in a public school of Trenton, New Jersey, was declared unlawful by the New Jersey Supreme Court in 1933. The opinion in this case stated that: “It appears that the Trenton board of educa tion provides a course in swimming in the new central high school. Although there is no dis crimination between races in the class room or the gymnasium, the Colored youth are not per mitted to take swimming lessons, except with those of their own race. Such action is discrimi nation. Boys or girls enrolled in a class in the public schools of this state are entitled to receive instructions, without any discrimination, predi cated upon race. To say to a lad you may study with your classmates, you may attend the gym nasium with them, but you may not have swim ming with them because of your color, is unlaw ful discrimination.” Patterson v. Board of Edu cation, 11 N. J. Mise. 179 (1933) See also: Jones v. Newton, 81 Colo. 25, 253 Pac. 386, 50 A.L.R. 1263 as to social functions. In the case of Pearson v. Murray, 169 Md. 478, 182 A. 590 (1936), the Court of Appeals of Maryland affirmed the ruling of the lower court granting mandamus to a qualified Negro applicant for admission to the Law School of the University of Maryland. Statutory pro vision was made in Maryland for the establishment of separate elementary and high schools but there was no provision authorizing separate universities. In granting 14 the writ of mandamus the Court of Appeals of Maryland held that: “But in Maryland no officers or body of officers are authorized to establish a separate law school, there is no legislative declaration of a purpose to establish one, and the Courts could not make the decision for the State and order its officers to establish one. Therefore the erection of a sepa rate school is not here an available alternative remedy.” (182 A. at p. 594) C. T he W eaver Case is Not A pplicable Nor D ecisive of the Question Involved in T his Case. 1. The reasoning and interpretation made by the Court of Appeals in the instant case in attempting to construe the Weaver Case as authority to boards of education to make racial assignments stretches the doctrine of j udicial precedent to the breaking point. The facts, issues, and rationale of the Weaver Case are entirely different. The case was primarily decided on the “social status theory” and construed Sections 7942 and 7948 of the Ohio General Code, while we are concerned here with the rights, privileges, duties and powers of the parties under Sections 7644, 7681 and 7684 of the General Code. 2. To avoid future confusion and errors the decision in the Weaver Case should be repudiated and overruled by this Court. The opinion in that case appears to be based more on social expediency than sound reasoning and prevailing judicial precedent. The Court in the Weaver Case chose to disregard the clearly established legislative policy of the State by repeal of the separation statute and all other Black Laws and its positive action in enacting the Civil Bights Law. Moreover, the Court 15 based its decision upon Games v. McCann, 21 O. S. 198 (1871) which was decided at a time when the law of the State provided for separate schools according to race, but had been overruled and repudiated by repeal and two Supreme Court decisions in 1888 and 1926. We submit that the Games Case had no more merit or valid basis for use in deciding the Weaver Case than the Dred Scott Decision. The latter might have been better used to serve the end desired, if expediency rather than jus tice was the end sought. The majesty of justice commands that prior decisions be overruled when manifestly erroneous. “That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another genera tion badly.” Cardozo—“The Nature of the Judicial Pro cess” p. 151. \ II The Action of the Board of Education and Superintend ent of Schools in Assigning Appellants’ Children to a Separate School and Excluding Them From all Other Schools is Contrary to the Laws and Consti tution of Ohio. A. T he Board of Education has no A uthority to A ssign P upils to Separate Schools A ccording to R ace in the A bsence of E xpress Statutory A uthority. The argument on this aspect of the case has been set forth in full with adequate supporting authority cited in Section I B of this brief. To repeat it at this point would 16 be to risk redundancy, however we call the Court’s at tention to this section of the brief for purposes of em phasizing this phase of the case. In view of the established legislative policy of the State of Ohio as expressed in the enactment of the Civil Rights Law (1884) and the repeal of the separate school law (1887) together with the prevailing weight of judicial authority, we submit this Court cannot hold otherwise than that the policy and practice of assigning the children of appellants and all other Colored children similarly situated to a separate school and x-efusing them admis sion to all other schools was unlawful. This Court must with clarity and finality repudiate the meaning and ex tension of authority given to the Weaver Case by the Court of Appeals and reaffirm the well established princi ple that the power of a school board to assign pupils does not imply or confer the authority to consider race as a basis for making assignments. If the Court omits to decide this question unequivocally it will condone the arrogation of legislative powers by administrative bodies and throw wide the door to racial discrimination and segregation and all forms of undemo cratic abuses. The social progress and racial good will developed in the past half century in Ohio will be lost. We are constrained to caution the Court against sophis ticated contentions. 1. The school authorities insist that the assignment made of appellants’ children was not based on color, but in line with an effort to equalize the per room attendance in the various schools. This contention must be measured by its reasonable ness and its result; in both it fails. It is within the prov- 17 ince of the Court to search and look behind the record to determine truth. Pierre v. Louisiana 306 U. S. 354, 358 (1938) (a) Every grant of discretionary power implies a reasonable exercise of that discretion and any arbitrary or unreasonable use thereof is an abuse and should be corrected by the Courts. Thus, in order to attain the so- called per room attendance equalization, the Board of Education assigns White pupils living on Grant Street in the immediate vicinity of Midland School to other schools, and insists that all Colored children residing on Grove Street and Thorne Street, more than a mile and a quarter from Midland School, to travel through the con gested section of the City and across two railroads to at tend Midland School. We submit this violates all rules of reasonableness. Moreover, it ignores the guiding principles of safety, health and welfare of the pupils sub jected to such a rule. (See Bill of Exceptions pp. 17, 18, 25 and map exhibit). (b) The so-called effort to “equalize per room attend ance” is in fact a pretext and lip excuse to cloak an ac tual unlawful practice of racial segregation. The records prove this is not being attempted or accomplished in fact. In the first grade at Main School there are 25 pupils, at Smith Place School 27 pupils, and at Midland School only 11 pupils (all Colored). At the Main, Smith Place and East End Schools the total enrollment in each is approximately 200 pupils (all White) and at the Midland School 71 pupils (all Colored). Will this Court permit such sophistry to confuse the issue? Does this not establish clearly an intent and prac- 18 tice to segregate according to color? In the final analysis the gravamen of this cause is the result and effect of the Board of Education’s action and practice, not its motive, rationale, or alleged good faith. This Court must pierce the veil of sophisticated pretext in order for truth and justice to prevail. It is significant that at no place in the minutes of the Board of Education from 1937 to date of trial is there any reference made to a policy or program of equalizing at tendance or correcting over-crowded conditions. The only reference to assignment of any pupils in the entire School District specifically names appellants’ children. A professed good intention cannot remedy a harmful re sult. 2. The school authorities insist that the accomodations and facilities at Midland School are equal and thereby the question is settled. On the contrary we contend that such contention is an admission of all we contend, namely that Midland School is maintained solely as a separate and segregated school and is unlawful. We submit that “equality of accomodation” is not a relevant issue in this cause for the reason that there is no law in Ohio providing for separate schools. The ques tion of equal and separate facilities arises only where there is a specific statutory authority for the establish ment of separate schools. Plessy v. Ferguson 163 U. S. 537 Gong Lum v. Rice 275 U. S. 78 The case of Games v. McCann 21 O. S. 198 with its “classification” theory cannot be followed because it was based upon an existing law providing for separate schools which has since been repealed. 19 A leading and controlling case on this question is People ex rel Bibb v. Alton, 193 111. 309, 312, (1901) in which the Supreme Court of Illinois held: “The complaint of the relator is that his chil dren have been excluded on account of their color, from the public school of said City located near his residence and been required to attend a school located a mile and a half distant from his residence, established exclusively for Colored children. Such complaint is not met by showing that the schools established for Colored children in said City equal or surpass in educational fa cilities the schools established in said City for White children. Under the law the Common Council of said City had no right to establish different schools for White children and Colored children of said City and to exclude the Colored children from the schools established for White children, even though the schools established for Colored children furnished educational facili ties equal or superior to those of the schools es tablished for White children.” (Italics ours) The same Court adds further at page 313: “No reason appears in this record for the ex clusion of said children or their assignment to the Lovejoy School, other than their color. Such exclusion in law amounted to discrimination against the children of relator on account of their color” . See also: Ward v. Flood 48 Cal. 36 State v. Duffy 7 Nev. 342 People v. School Board 161 N. Y. 598; 36 N. E. 81 3. The Board of Education contends that since bus transportation has been made available there is no reason to complain. 2 0 It is to be noted by the Court that this bus transporta tion was provided on October 11,1939 only after Theodore Lewis had been jailed for not sending his children to Midland School and the issue was made a public scandal. We submit that providing bus transportation is a further admission of all that appellants contend. Since, in fact, the bus serves only Colored children to carry them to Midland School it is a conclusive admission that Midland School is a segregated school for Colored. Providing bus transportation may mitigate the dis crimination and segregation, but does not cure or re move its unlawful nature. Missouri ex rel Gaines v. Canada 305 U. S. 337, 350 (1938) B. T he A ction of the Board of Education in A ssigning Appellants’ Children to a Separate School and Befusing A dmission to all Other Schools is in V iolation of the Constitution of Ohio. 1. It violates Sections 1, 2, 7, 19 of Article I, Section 1 of Article II and Section 2 of Article VI of the Ohio Con stitution. These sections provide: Article I—Section 1: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life, liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety” . Article I—Section 2: “All political power is inherent in the people. Government is instituted for their equal pro tection and benefit, * * *” 2 1 Article I—Section 7: “ * * * , it shall be the duty of the General As sembly to pass suitable laws * * * to encourage schools and means of instruction.” Article I—Section 19: “Private property shall ever be held inviol ate, * * *” Article II—Section 1: “The legislative power of the State shall be vested in a general assembly * * * ” Article VI—Section 2: “The General Assembly shall make such pro visions * * * as * * * will secure a thorough and efficient system of common schools through out the state * * *” 2. The rule of the Board of Education and Superin tendent imposed upon appellants’ children which does not apply to all others equally irrespective of color or race: (a) Constitutes an infringement upon his consti tutional right of freedom and independence. (b) Constitutes an unwarranted limitation upon his property right since the right to share and participate in the public school system is a property right. In Wright v. Board of Education, 295 Mo. 466; 246 S.W. 43 (1922) the Court said: “ * * * the public school system owes its exis tence and perpetuity to taxes drawn from the 2 2 people; in a sense therefore the citizen may be said to have a proprietary interest in the system. This is true not only in a pecuniary sense in that he contributes annually to its support but on account of the advantages extended to his children, who, within the contemplation of the law, are entitled without stint or distinction, to whatever rights and benefits the system affords” . (Italics ours). (c) Deprives him of equal protection and benefits of the law. (d) Usurps and arrogates legislative power which exclusively is vested in the General Assembly. In the case of Clark v. Maryland Institute, 87 Md. 643 (1898) the Court was called upon to construe a consti tutional provision similar to Article VI Section 2 of the Ohio Constitution, and at page 662 said: “The Constitution of this state requires the General Assembly to establish and maintain a thorough and efficient system of free public schools. This means that the schools must be open to all without expense. The right is given to the whole body of the people. It is justly held by the authorities that to single out a cer tain portion of the people by the arbitrary stan dard of color, and say that these shall not have rights possessed by others, denies them equal protection of the laws”. See also: Pearson v. Murray, 169 Md. 487, A.L.R. 706 (1936). 103 23 III. The Assignment of Appellant’s Children to Midland School on Conditions not Applicable to all Pupils Alike Irrespective of Race or Color Violates Section I of the Fourteenth Amendment of the United States Constitution. A. It D eprives A ppellants of P roperty W ithout D ue P rocess of L a w . 1. The action of the Board of Education is State ac tion within the meaning of the Fourteenth Amendment. School districts and boards of education are agents of the State for the sole purpose of administering the state sys tem of public education. 24 R.C.L. 562, 565 Ex Parte Virginia—100 U.S. 339, 346 (1879) Pearson v. Murray, 169 Md. 478; 103 A.L.R. 706 (1936) Gaines v. Canada, 305 U.S. 337. 2. The property interests protected by the due process clause include not only physical possession but all rights of use and enjoyment. Buchanan v. Warley, 245 U.S. 60 (1917) Wright v. Board of Education, 295 Mo. 466; 246 S.W. 43 (1922). 3. The due process clause is intended to protect the citizen against arbitrary deprivation of his rights or prop erty. It is a limitation upon arbitrary power and a guar anty against arbitrary legislation. .12 Amer. Jur. 271. 24 4. To the extent that the Board of Education and Su perintendent have arbitrarily, and without legislative authority, assigned appellants’ children to a separate and segregated school and denied their admission in any other school thereby appellants have been deprived of a proprietary right without due process of law. 5. And the refusal of the trial court to issue a writ of mandamus in effect ratified, confirmed, and endorsed the deprivation of appellants property by the arbitrary, un lawful, and unconstitutional acts of appellees, and there by amounted to depriving appellants of their property without due process of law. 12 Amer. Jur. 274 Roberts v. New York, 295 U.S. 264. B. T he Arbitrary A ction of the B oard of Education and Superintendent A gainst A ppellants’ Children A mounts to a Denial of Equal P rotection of th e Law s . The acts of a board of education, being a creature of the State is state action within the meaning of the Four teenth Amendment. Pearson v. Murray, 169 Md. 478; 182 At. 590 (1936) Gaines v. Canada, 305 U.S. 337. This Court is called upon to consider and apply the constitutional guaranty of equal protection of the laws from a fresher and broader point of view than hereto fore given in the majority of cases dealing with questions of race. The Court is challenged to break with the nar row social concept that shaped judicial thought in past decisions. It becomes a test as to whether a modem Court will with discernment break with the rigid tradi tion of judicial precedent and pronounce a new and more 25 liberal doctrine to meet the advanced social thought of our times. “We have to distinguish between the prece dents which are merely static, and those which are dynamic—and subordinate precedent to jus tice”. Cardozo, The Nature of the Judicial Pro cess. p. 163. In general it has been held that the guaranty of the equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances. 12 Amer. Jur. 129 (cases cited) “Equal protection of the laws is a pledge of the protection of equal laws”. Yick Wo v. Hopkins, 118 U.S. 356. The guiding principle is that this constitutional guar anty requires that all persons shall be treated alike, under like circumstances and conditions, both in privileges con ferred and in liabilities imposed. 12 Amer. Jur. 129 Steele Co. v. Miller, 92 O.S. 115. However, when this broad principle has been applied to the question of race and equal protection of the laws earlier decisions have drawn a distinction. Thus it was held that the 14th Amendment guarantees equality and not identity of rights. Plessy v. Ferguson, 163 U.S. 537. And race and color have been recognized as a proper basis for classification under laws providing for separate accomodations. 26 But in every instance wherein that distinction has been made the State law made a racial classification and pro vided for separate accomodations. But see Justice Harlan’s dissent in Plessy v. Ferguson, supra pp. 554-564. Thus the question posed by the instant cause is whether in the absence of a State law providing for racial clas sifications and separation in public schools, a board of education, being an administrative agency of the State, which adopts a rule classifying and assigning pupils to separate schools according to color does not by such acts deny the equal protection of the laws to those thus dis criminated against? We submit that it is a denial of equal protection of the laws. Granting that it is within the power of the state of Ohio to enact a law providing for separate schools by race (which once it did), we contend that until it does so, it does not lie within the power or authority of any agency of the State to impose a rule or practice which in any way limits or denies the benefits of the present law unless that limitation applies equally to all similarly situated regardless of race, color or condition. 10 Amer. Jur. 902, 903. Wysinger v. Crookshank, 82 Calif. 588 (1890) Class legislation discriminating against some and fav oring others is what is prohibited by the equal protection clause of the Fourteenth Amendment to the Constitution. 12 Amer. Jur. 140 Truax v. Corrigan, 257 U.S. 312 Yick Wo v. Hopkins, 118 U.S. 356 27 “The 14th Amendment, adopted as it was with special solicitude for the equal protection of members of the Negro race, lays a duty upon the Court to level by its judgment these barriers of color” . Cardozo, J. Nixon v. Condon, 286 U. S. 73, 89 (1932) IV The Court of Appeals Erred in Holding That a Writ of Mandamus was not Issuable in this Case. It is recognized that the lawful discretion vested in an individual or board cannot be controlled by the writ of mandamus. But the lower court overlooked an equally settled ex ception to this rule, namely, that a writ of mandamus may issue to correct an abuse of discretion or violation of law. 25 O. Jur. 1006 24 R.C.L. 575 State ex rel. Harlingen v. Board of Education, 104 O.S. 360; 136 N.E. 196 State ex rel. United D. Heating v. State Bldg. Com’ii., 124 O.S. 413; 179 N.E. 138 State ex rel. Milhoff v. Board of Education, 76 O.S. 297; 81 N.E. 568 Board of Education v. Wickman, 80 O. S. 133, 88 N. E. 412. It is settled law in Ohio and other jurisdictions that mandamus is the proper and available remedy to correct an abuse of discretion by a board of education to obtain admission to a school on equal terms with other children regardless of color. Board of Education v. State, 45 O.S. 555; 16 N.E. 373 28 Board of Education v. State, 114 O.S. 188; 151 N.E. 39 Bibb v. Alton, 193 111. 309 Pearson v. Murray, 169 Md. 478 Gaines v. Canada, 305 U.S. 337. We submit that it has been sufficiently shown earlier in this brief wherein the action of the Board of Education in this cause was both unlawful and an abuse of its dis cretionary power. For these reasons a writ of man damus was properly issuable and should have been grant ed under the circumstances of this case. V The Court of Appeals Committed Prejudicial Error in Excluding Revelant Testimony Offered by Appellants. Error was made in sustaining appellee’s objections and refusing to permit answers to the following questions over appellants’ exceptions: 1. “What school would the Lewis children have been sent to or assigned to if they had been White children?” p. 16. 2. “That is immediately in the vicinity of the Midland School?” p. 18. 3. “As a matter of fact the Board of Education could very well dispense with Midland School and save con siderable money, couldn’t it?” p. 24. 4. In this plan of equalization, Mr. Hodson, have you or the Board of Education ever sent White students to Midland School to accomplish this equalization?” p. 25. 5. I will ask you if you had any conversation with Mr. Hodson with reference to admission of your children to the Smith Place School?” p. 29. 29 It is submitted that each of the above questions were relevant, proper and the testimony in response thereto was admissible. Questions 1, 2 and 4 above were proper in every respect to determine the principal question at issue, namely, whether assignments were based on color. “Where knowledge or intention of a person is in issue proof of matters which are apparently collateral is admissible. Obviously it happens that motive or intent can be shown in no other way since while a single act may leave the secret motives in doubt, such act in connection with others of same character may afford decisive proof and remove all uncertainty” . 1 Jones on Evidence (4th ed.) p. 251. By refusing to permit the witness to answer the Court denied appellants of testimony which clearly would tend to establish the essence of the case—all to the appellants prejudice. Further, by refusing to permit the witness Edna John son to testify as to her conversation with Mr. Hodson with reference to admission of her children to Smith Place (question 5 above and p. 29 Bill of Exceptions) the Court erred. Remoteness in point of time does not necessarily ren der evidence irrelevant. And it is well settled that evi dence of prior acts and events are admissible to prove a general scheme, common plan, intent or motive. In the case of Bibb v. Alton, 179 111. 615 (1899) an action in mandamus to compel admission of relator’s children to a public school from which it was alleged that they were excluded on account of color, it was held that the relator was not confined to proof of the motive for ex- 30 eluding his children alone, but might show that all Col ored children were likewise excluded from White schools. It was held further that where the board made no pub lic record for their action in carrying out their design to keep Colored children out of White schools, the existence of such illegal motives might be established by other competent evidence. We submit the Court improperly excluded competent evidence which would establish the true motives and facts in this case. VI The Judgment of the Court of Common Pleas of Clinton County in Case Number 14714 does not Constitute Res Adjudicata of the Instant Cause. The concurring opinion of Presiding Judge Hamilton in. the trial Court sustains a plea of res adjudicata. In an ticipation of appellees argument on this question we sub mit the followng discussion. A. T here I s No Identity of P arties or P rivies. The right to an education in public schools is a personal right. In the former case an action was brought on behalf of Charles Edward Lewis; in the instant case action is brought in behalf of Charles Edward Lewis and Thealou Lewis by both parents and while it is a joint action; it is to assert their several personal rights to attend school. None can gainsay that a separate action could have been prosecuted for each child. At the time of the prior action Thealou Lewis was not of school age and had no rights that were violated and the rules of privity cannot be applied to include her and bar her rights by the doctrine of res adjudicata. 31 “Privity is not established from the mere fact that per sons may be interested in the same question or in proving the same state of facts.” 15 R. C. L. 1016. Privity denotes mutual or successive relationship to the same right of property, and is classified as privity in estate, privity in blood, and privity in law. The right of Thealou Lewis to attend school is one created and given by the State and comes not by suc cession of estate or blood through either her brother or parents. The right exists regardless of her relations. Hence, the doctrine of privity contended for my Defend ants is inapplicable. 23 0. Jur. 1008, 1015. 15 R. C. L. 1015. B. T here I s No Identity of Causes of A ction. The defendants urge that because there appears to be an identity of subject matter that this constitutes res judicata. Such is not the rule. Identity of subject matter is not essential to estoppel by judgment. The test for such estoppel is identity of causes of action and adjudication thereof. There must be a distinction made between subject matter and cause of action, since the subject matter of two actions may be the same and yet the causes of action may be entirely different. New rights in the same sub ject matter may intervene between the two actions. “The facts which establish the existence of a right and its vio lation constitute the cause of action” . (See Freeman on Judgments (Vol. II) p.p. 1433, 1434, 1447. 32 The test of identity of causes of action, even when the matter in dispute may be the same in both actions (i. e. the same subject matter) is whether the same evidence would sustain both. 23 0. Jur. 973, 974. 15 R. C. L. 964. Freeman on Judgments (Vol. II) p. 1447. In the instant cause of action (i. e. the facts constitut ing a violation of plaintiffs’ rights) arose at the begin ning of the school year of 1939 in September and have continued by various acts of the School Board, Superin tendent and Principals in denying admission of plaintiffs’ children for reasons not applicable to all other children similarly situated regardless of their race or color. More over, the singular and remarkably different evidence existing in this cause of action not existent in the prior case is the formal action by motion of the Board of Education making a special classification and assign ment of plaintiffs’ children by name different from and not applicable to other children similarly situated. This we submit constitutes separate and different causes of action wherein res judicata has no application. Counsel for defendants insists that the same question or matter was in issue in the former case as in the present cause. But similarity of issues is not enough, it must clearly appear to have been adjudicated in the prior case. We submit that there was no such adjudication. Freeman on Judgments (Vol. II) p. 4453 (Sec. 689), 1455. 33 C. T hat Case N umber 14714 W as Not A Judgment On T he Merits. We call the Court’s attention to the decision of the Court of Common Pleas in Case No. 14714. The final language of the Court therein after reviewing the evi dence is “the petition will be dismised at his (plaintiff’s) cost.” This raises the important question as to whether a dis missal of a petition for mandamus is a judgment on the merits within the meaning of the doctrine of res j udicata. Freeman on Judgments (Vol. II - 5th ed.) p. 1582 says: “Judgments merely of dismissal, whether vol untary or involuntary, in actions at law are not on the merits and do not operate as a bar or estoppel in subsequent proceedings involving the same matters. Even though they may under some circumstances be on the merits when they are not of such character, very clearly they do not bar a new action * * * Though the code sections governing dismissals * * * pr0_ vides that in all cases other than those men tioned, the judgment must be on the merits, a judgment merely of dismissal, though not one of these particularly specified will not be treated as a judgment on the merits.” (Italics ours) We submit that the language of the Courts decision in substance was a nonsuit for lack of sufficient evidence presented by plaintiffs. And Freeman on Judgments (Vol. II) p. 1592 says: “The granting of a non-suit is merely a ruling of law that plaintiff has not made a case * * * and deter mines no issues of fact. While it terminates the action it does not adjudicate its merits” * * * (p. 1594). “A dismissal or non-suit not determining the rights of the parties cannot support the plea of 34 res adjudicata. Nor will the reasoning and opinion of the Court upon the subject, on the evidence adduced before it, have the force and effect of a thing adjudged, unless the subject matter be definitely disposed of by the judg ment.” It is submitted that the Court in the former case ren dered no j udgment on the real issue in the cause, namely whether the Board of Education has abused its discre tionary powers and made a classification according to color, but instead dismissed the action for failure of proof by plaintiff which was not a judgment on the merits to constitute res judicata. Freeman on Judgments (Vol. II) pp. 1530, 1534. 15 R. C. L. 955, 982, 984. 23 0. Jur. 1003. CONCLUSION. lhe record in this case shows clearly and conclusively that there has been an attempt on the part of the de fendants to assign all Negro students including the plain tiffs to Midland School irrespective of distance. We ad mit that this might be in keeping with traditions, cus toms and even with the prejudices of the citizens of Wil mington, Ohio; but this does not make such assignment lawful or just. Justice is found not in the strict adher ence to customs and traditions but in an honest attempt on the part of Courts to decide any given case in the terms of our democratic ideals. In interpreting statutes Courts ought to adopt a con- stiuction, a limitation, or a definition not in accordance with undemocratic traditions and oppressive race preju dices but in accord with the ideals of our democracy. This thought was expressed by Justice Harlan’s dissent 35 in Berea College v. Commonowealth of Kentucky, 211 U. S. 45 (1908) when he said: “Have we become so inoculated with preju dice of race that an American government, pro fessedly based on the principles of freedom, and charged with the protection of all citizens alike, can make distinction between such citi zens in the matter of their voluntary meeting for innocent purposes simply because of their respective races? Further, if the lower Court be right, then a State may make it a crime for White and Colored persons to frequent the same market place at the same time, or appear in an assemblage of citizens convened to consider questions of a public or political nature in which all citizens, without regard to race, are equally interested. Many other illustrations might be given to show the mischievous, not to say cruel character of the statute in question, and how inconsistent such legislation is with the great principle of the equality of citizens before the law.” A study of the present status of the separate school systems in eighteen states by the Advisory Committee on Education appointed by President Roosevelt reveals that separate schools do not provide equal opportunities. A survey of elementary and secondary schools in states maintaining separate schools is summarized as follows: “The indexes presented in this chapter point to extreme differences in the educational oppor tunities of White and Negro children in the Southern States. In the numbers of children out of school; in the length of school terms; in the progress of pupils through the grades; in facilities for transporting pupils to school; in the pupil-loads of teachers, their educational qualifications, and their salaries; and finally, 36 in the adequacy of school plants and equip ment—“in all these respects there is reflected a program of public elementary and secondary education for Negroes which is far less exten sive than, and markedly inferior to, that af forded for the White population. “Special Prob lems of Negro Education”, prepared for the Ad visory Committee, Published by Government Printing (Mice, Washington, D. G., 1939, page 34. A survey of the entire problem of Negro Education as compared with education in general leads to the follow ing conclusions: “The significance of these educational in equalities lies in what they entail for the social effectiveness of the Negro citizens, and hence, for the general welfare of the Nation. Several considerations are pertinent in this regard. “The most immediate effect of racial inequali ties in public elementary and secondary edu cation is reflected in the relative scholastic achievement of Negro children. There have been numerous studies of racial differences in scholastic achievement and their relationship to corresponding differences in school environment. They have demonstrated such facts as these: (1) That the extent of racial differences in scholastic achievement varies markedly among different school systems; (2) that such dif ferences are greater in segregated than in non- segregated schools; (3) that there is close cor respondence between the extent of racial dif ferences in scholastic achievement and racial differences in school environment; (4) that dif ferences between the achievement of White and Negro pupils in Northern school systems are attributable almost entirely to scholastic defic iencies on the part of Negro migrants from im poverished school systems in the South; and (5) 37 that Negro graduates of Northern high schools maintain better scholastic records in South ern Negro colleges than do graduates of South ern Negro high schools. Such facts as these afford one basis for appraising the effective ness of traditional programs of education for Negroes in separate schools.” Ibid, pages 152- 153. True democracy in education can only be realized by guaranteeing to every United States citizen the right to have his child educated on the same basis as all other citizens. This can not be realized by establishing separate schools. “Every new case is an experiment, and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is re considered * * * The sentence of today will make the right and wrong of tomorrow.” Cardozo, J.—The Nature of the Judicial Process, p. 21, 23. It is respectfully submitted that the order of the Court of Appeals dismissing the petition for a peremptory writ of mandamus should be set aside and that the lower Court be ordered to issue said writ as prayed for in the petition for writ of mandamus. Respectfully submitted, T heodore M. B erry, W illiam A. McClain , Of Lawson, Berry & McClain, Attorneys for Appellants. Hubert T. D elany, Belford V. L awson , Jr ., Thurgood P. Marshall, Of Counsel. APPENDIX A. COURT OF APPEALS First Appellate District of Ohio. Clinton County, No. 126. State of Ohio, ex rel. T heodore L ew is a n d Mary Eliza beth L ew is , as parents and next friend o f Charles Edward L ew is and T hea L ou L ew is , m inors, Relators, vs. The B oard of E ducation of T he W ilmington School D istrict, a Body Corporate of Wilmington, Ohio, et al., Respondents. OPINION January 5th, 1940. Messrs. Lawson, Berry & McClain, for Relators. Messrs. Smith, Rogers & Kirk, for Respondents. By T he Court: This is a proceeding in mandamus in which the rela tors aver that the respondents have discriminated against their children on account of their race, in excluding them from Smith Street Public School of the School Dis trict of the City of Wilmington. They pray that the court award a peremptory writ, commanding the respondent school board to admit and enroll his children as students in the Smith Street School. 40 There are three school buildings in this school district. There is no claim that any one of these buildings was located or built with reference to or for the purpose of maintaining a separation of the races in the schools. Presumptively the determination to build and the loca tion of the sites were in the exercise of a sound discretion to promote the education of the youths of the district. However, in the course of time, circumstances changed, so that most of the children of school age are now in close proximity to the Smith Street School, and, if mere convenience in getting to the school were allowed to con trol, the Smith Street School would be overcrowded, and the other schools would not be attended to anything like their capacity. This condition caused the respondent to require some students living near the Smith Street School to attend the Midland School. The relator’s children refused to attend that school. The hoard refused to allow them to attend the Smith Street School. As the Midland School is about one and one-fourth miles from relator’s resi dence, the respondent has furnished transportation by automobile from the relator’s residence to the school, and has proferred to continue to supply such transporta tion. One of the relators has refused to allow his children to attend the Midland School, which is a school attended largely, if not exclusively, by Negro children. There is no claim, however, that it is overcrowded, or that the educational facilities and opportunities furnished there are in any way inferior to those at the Smith Street School. It clearly appears from this record that the respondent was entirely justified in requiring some students living 41 near the Smith Street school to attend some other school in the district. They chose the relator’s children as the ones to be educated elsewhere and chose the Midland School as the place where they should attend. One of the questions presented is whether this court can control that discretion or substitute its discretion for that of the school board. We have reached the con clusion that the law has vested this discretion in the school board, and that it is beyond the power of the court to control that discretion by writ of mandamus. The writ of mandamus should only be awarded to compel the performance of a duty specifically enjoined by law, such as a duty resulting from an office, station, or trust. 25 Ohio Jur. 974. The duty thus enforced must be mandatory—a nondiscretionary ministerial duty. Id., 991, et seq. And the xfight must be clear. Id., 997. Assuming, without deciding, that the respondents may have been influenced by considerations of x’ace in the choice of relator’s children to attend the Midland School, rather than some other children living near the Smith Street School, it is clear that this court cannot say that the occasion did not exist for a choice to be made. Choice implies the exercise of discretion. This court has no power to make that choice or to direct the respondents as to how they shall make it. To require the respondents to admit and enx’oll the relators’ children in the Smith Street School would be to nullify the choice which the respondents had made to send these children to the Mid land School, which choice the court cannot say did not rest upon adequate legal grounds. The order would be tantamount to a direction to the Board of Education to transfer two other children from the Smith Sti’eet School to the Midland School. If the court did that it should 42 lay down the rule or standard by which the Board should be guided in making the selection. We know of no rule to be applied in making such a selection. 2. While it is conceded that the state has the power to establish separate schools, it is urged that it has not conferred any such power upon the board of education. The main sources of power of the board are found in Section 7684 and 7690, General Code. By Section 7690, it is enacted that “Each city......board of education shall have the management and control of all the public schools, of whatever class or character in the district.” By Section 7684, it is provided that “Boards of educa tion may make such an assignment of the youth of their respective districts to the schools established by them as in their opinion best will promote the interests of edu cation in their dstricts.” Now assuming that the board of education was in fluenced in whole or in part by considerations of dif ference in race in assigning the relators’ children to Mid land School, do these sections delegate to it the authority of the State to take that fact into consideration? Coun sel for relators cite Board of Education v. State, 45 Ohio St., 555, and Board of Education v. State, 114 Ohio St., 188, as authority requiring an answer in the negative. And had the Supreme Court not spoken later to the con trary, we would regard those cases as requiring a nega tive answer to the question. We believe the Supreme Court has so spoken in the case of State ex ret. Weaver v. Board of Trustees of Ohio State University, 126 Ohio St., 290. In that case the court was required to determine the power of the board of trustees to consider race in the assignment of students taking the course of Home Eco nomics at the Ohio State University. The authority of the Board was found in Sections 7942 and 7948, General 43 Code. By Section 7942, it was enacted that: “The gov ernment of the Ohio State University shall be vested in a board of trustees”, and by Section 7948, that: “The board of trustees may adopt by-laws, imles, and regula tions for the government of the University.” The Su preme Court held that the board of trustees had such power. The court cited the earlier case of Games v. McCann, 21 Ohio St., 198, which holds that a board of education has such authority, and at page 297 quoted, with approval, the following passage: “Any classifica tion, which preserves substantially equal school advan tages is not prohibited by either the state or federal con stitution, nor would it contravene the provisions of either.” In our judgment, the scope of the power conferred by “management” and “control” , and “assignment of youth” in the section relating to boards of education is as broad as the power conferred by “government” with right to “Adopt by-laws, rules, and regulations” , in the section relating to the Board of Trustees of Ohio State University. It is our opinion that the Supreme Court has so decided in State, ex ret. Weaver v. Board of Trustees of Ohio State University, supra, and that we are bound by that interpretation. For these reasons, the writ of mandamus prayed for is denied, and the action dismissed at the cost of the relators. Matthew s, & Ross, JJ., concur. Hamilton, P. J., concurring: I concur in the conclusion reached by the majority of the Court, for the reason that the plea of res adjudicata, 44 set up by the respondents in the third defense, is a good defense. In 34 Corpus Juris, Section 1282, the law is stated as follows: “A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is con clusively settled by the judgment therein, so far as concerns the parties to that action and per sons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court or in any other court of concurrent jurisdiction, upon either the same or a different cause of action.” There are no new or changed facts in the case under consideration which would warrant a different judgment from the judgment entered by Judge Clevenger. As stated by Judge Clevenger on page 2 of his opinion: “These allegations and denials boil down to the issues to the simple question whether the as signment of said child was wholly because of his rase. Relator says it was, and the Board by answer, says it was not.” And Judge Clevenger held that judgment should be ren dered for the respondent, Board of Education. lhat seems to me to be the only issue in the instant case. There is another child, of the same family, living at the same place, the parties to the action are the same, and all the conditions and circumstances of the case are the same. Iherefore, the judgment of Judge Clevenger must be held to be conclusive of all the rights here sought to be litigated. IN THE Supreme Court of Missouri DIVISION NO. 2, JANUARY CALL, 1937 JOSEPH P. HARRIS, Appellant, VS. CITY OP ST. LOUIS, A Municipal Corporation, et al.. Respondents. APPEAL FROM T H E CIRCUIT COURT, C ITY OF ST . L O U IS, M ISSOURI. H ONORABLE O 'N E IL L R Y A N , JUDGE. ABSTRACT OF THE RECORD FOR APPELLANT S. R. Redmond, H enry D. E spy, Esq., A ttorneys fo r Appellant (P la in tiff). •PE N C R It D . S O V A R D , L A W P R IN T E R . Q U H B S L »L D < * . K . C . . U P . V I . « » « • No. 34,587 IN THE Supreme Court of Missouri DIVISION NO. 2. JANUARY CALL, 1937 JOSEPH P. HARRIS, Appellant, VS. CITY OF ST. LOUIS, A Municipal Corporation, et al., Respondents. APPEAL PROM T H E CIRCUIT COURT, C ITY OF ST. LOU IS, M ISSOURI. HONORABLE o ’ N E ILL R Y A N , JUDGE. ABSTRACT OF THE RECORD FOR APPELLANT This is an action for an injunction instituted August 27, 1934, by the appellant, plaintiff below, against respondents, defendants below, by filing his suit in the Circuit Court of the City of St. Louis. The amended petition, omitting caption, is as fol lows : 2 AMENDED PETITION (Caption omitted) By leave of Court had and obtained, comes now, Joseph P. Harris and for his cause of complaint states that he is a citizen and resident of the City of St. Louis, State of Missouri and has resided in said City and State for 40 years; that he is a tax-payer and owner of real estate in said city and state, and that he brings this action on behalf of himself and other such citizens of the City of St. Louis, State of Missouri, as care to join in same. Complainant further states that the City of St. Louis, is a Municipal Corporation, duly incor porated; that H. C. Menne, is the treasurer of the City of St. Louis, a municipal corporation; that Joseph P. Darst, is the Director of Public Service of the said City of St. Louis; that James Darst is the manager of the Municipal Auditorium and Community Center, located at 14th and Market Streets, St. Louis, Missouri; that the other de fendants are members of the Municipal Auditorium Commission, a commission created by Ordinance No. 40145 of the City of St. Louis, State of Mis souri. Complainant further states that in pursuance to Sections 3 and 11 of Article 10, of the Constitu tion of the State of Missouri, and Section 1, of Article 1, and Section 1 of Article 18 of the 3 Charter of the City of St. Louis, State of Missouri, an ordinance No....................... was duly passed by the Board of Aldermen of the City of St. Louis, State of Missouri, on the ............................ day of ....................................... , 1922 and signed by the Mayor of the City of St. Louis, State of Missouri, containing the following proposition: “ For the acquisition of a site, and the erection thereon of a civil building to be known as the “ Municipal Auditorium and Community Center Building,” to be used for the holding of public meetings, gatherings, and conventions for the discussion of public ques tions, including matters submitted to the peo ple under the referendum or initiative, and to provide suitable meeting places for educa tional, moral, musical, industrial, labor, and other purposes, five million dollars ($5,000,000.00).” That said proposition was on the..................... day of February, 1923, voted on by the people of the City of St, Louis, State of Missouri, and the said proposition carried by the necessary vote. The purpose of said money voted by the people in the said proposition was for the acquisition of a site and erection thereon of a civil building to be used for the holding of public meetings, gather ings, and conventions for the discussion of public questions and to provide suitable meeting places for educational, moral, musical, industrial, labor and other purposes. 4 Complainant further states that said building is now and has been for some time completed or partially completed and is being used for and by some of the citizens and tax-payers of the City of St. Louis, State of Missouri, to the exclusion of others; that on or about the 27th day of June, 1933, an ordinance was passed No. 40145, and same was duly signed by the Mayor and became one of the regularly constituted ordinances of the City of St. Louis, State of Missouri, a copy of said ordinance is attached hereto and marked “ Plain tiff’s Exhibit ‘A ’, ’ ’ and asked to he considered as much a part hereof as if copied herein. Plaintiff further states that he is a Negro and that said Commission, the City of St. Louis, a Municipal Corporation, the Mayor of the City of St. Louis, and the other defendants herein who have full and complete control of the maintenance, operation and leasing of said building, in violation of the Constitution of the United States of America and of the State of Missouri and the ordinances heretofore mentioned that were passed in pursuance thereto, have deprived him and all members of the Negro race the full and same right of admission to, and the opportunity of at tending public attractions given in said Auditorium for educational, moral, musical, labor, and other worthwhile purposes and still deprive him and other members of the Negro race of the advantages, conditions, and benefits to be derived from said building. 5 Complainant states that as a tax-payer, he has been taxed for the erection, up-keep, maintenance and completion of the said Auditorium and Com munity Center; that his money and that of thous ands of other Negroes, as a part of the general revenue of the City, is being used to maintain and keep up said public building that is operated in an illegal manner in that the defendants, who are in charge of said building, discriminate against Negroes and deny them admission to public per formances in said building, even though it was erected by all the people, for all the people, and at the expense of all taxpayers; that thousands of Negroes are taxpayers in the City of St. Louis and pay taxes to said City. Complainant would further show that the ex penditure of the revenue of the City of St. Louis, for the maintenance of said building is illegal and will remain illegal as long as the aforementioned discriminating practice prevails. Complainant would further show that defend ants, as a subterfuge for performing their duty and treating all citizens alike, have concocted and formulated a plot and plan whereby the large auditorium in said building is rented to individuals who connive with defendants and are permitted, encouraged, and allowed to and in violation of the law refuse to sell tickets of admission to public performances to Negroes for the sole reason they are Negroes. Complainant states further that he has no com- 6 plete and adequate remedy at law, and therefore he brings this suit in equity. WHEREFORE, plaintiff prays that this court permanently enjoin the defendants, all or any of them, their agents, successors in office, and/or assigns from leasing, letting, renting, hiring or in any wise permitting the said civic building known as the “ Community Center and Municipal Audi torium,” or parts thereof, to be leased, hired, rented, let, or in any wise used for educational, moral, musical industrial labor and other perform ances that promote the common weal, at which plaintiff or members of the Negro race are ex cluded or denied the same rights of admission as any other race, solely because of their race or color; that the defendants, all or any of them deemed necessary by the court, their agents, suc cessors in office and/or assigns be permanently enjoined from paying out of the funds of the treasury of the City of St. Louis, State of Mis souri, any money whatsoever for the maintenance, upkeep, and completion of said auditorium and community center until said building is operated in such manner that no tax-payer is segregated , because of his race and color, and until all citizens and tax-payers of the City of St. Louis are given the same right of admission to said building with out any restrictions whatsoever because of race or color; that pending final judgment in this cause the Court shall order that a temporary injunction be issued restraining and enjoining the defendants from doing any and all the aforesaid acts; and if 7 plaintiff has not prayed for the proper relief then he prays for such other and further relief as to the court seems meet and just. Further praying, plaintiff prays that the City of St. Louis, a Municipal Corporation, he made a party-defendant and that summons be issued, Attorneys for Plaintiff, State of Missouri, City of St. Louis, ss. Joseph P. Harris, first being duly sworn on his oath states, that the matters and things set- forth in the above and foregoing petition are true and correct according to the best of his knowledge, information and belief. Jos. P. Harris, Plaintiff. Sworn to and subscribed before me this 22 day of September, 1934. My commission expires 3/6/36. Silas E. Garner, Notary Public. RETURN TO ORDER TO SHOW CAUSE. (ANSWER) Thereafter, the respondents filed their return as an answer, which return, omitting caption, is as follows: 8 Come now the defendants and admit that the City of St. Louis is a municipal corporation; admit that defendants occupy, respectively, the official positions in the petition alleged; admit that on the ................................... day of February, 1923, the proposition set out in the petition was adopted by a vote of the people of St. Louis; admit that the building referred to in said proposition is now par tially completed and in use, but deny that the same is being used for and by some of the citizens and taxpayers of the City of St. Louis to the exclu sion of others; admit that Ordinance 40145 was duly enacted and approved by the Mayor of the City of St. Louis on the 27th day of June, 1923; admit that the defendants have control of the maintenance, operation and leasing of said build ing, but deny that they have deprived the plaintiff and all members of the negro race of the same right of admission to and the opportunity of attending public attractions given in said Auditorium, and deny that the defendants are depriving the plain tiff and other members of the negro race of the advantage, conditions and benefits which may be derived from said building. The defendants deny that said building is operated in an illegal manner by discriminating against negroes in denying them admission to pub lic performances in said building; deny that they have concocted and formulated a plot whereby the large auditorium of said building is rented to indi viduals who connive with defendants and are per mitted, encouraged and allowed to, in violation of 9 the law, refuse to sell tickets of admission to public performances to negroes for the sole reason that they are negroes; and the defendants deny each and every other allegation in the petition contained. WHEREFORE, having made full return to the order to show cause, the defendants pray that plaintiff’s application for a temporary injunction be denied. Chas. M. Hay, Oliver Sexti, Attorneys for Defendants. REPLY Thereafter, the plaintiff filed his reply in said cause which reply, omitting caption, is as follows: Comes now the plaintiff and for a reply to- defendants’ return to order to show cause denies that the Municipal Auditorium is not being used by some citizens of the City of St. Louis to the exclusion of others; denies that the plaintiff and other members of the Negro race are given the same right of admission to and the opportunity of attending public attractions given in said audi torium; denies that the defendants are not de priving plaintiff and other members of the Negro race of the advantages and benefits that are being derived and are to be derived from said building; denies that said building is operated in a legal manner and denies that defendants are not discrim 10 mating against Negroes in not admitting them to public performances in said building; denies that defendants have not concocted and formulated a plot and plan to exclude Negroes from said build ing and to deprive them of the right of buying tickets to performances in said building. Attorneys for Plaintiff. PLAINTIFF’S MOTION FOR A RE-HEARING (Caption omitted) Comes now the plaintiff and moves the Court to set aside its verdict and grant it a rehearing in the above-styled cause for the following reasons: 1. The judgment of the Court is for the wrong party. 2. The judgment of the Court is against the weight of the evidence and contrary to the law. 3. The Court erred in refusing the finding of facts and conclusions of law submitted by plain tiff. 4. The judgment of the Court is contrary to and in violation of Section 30 of Article 2 of the Constitution of the State of Missouri in that it deprives plaintiff of his liberty and property with out due process of law. 5. The judgment of the Court is contrary to and in violation of the Fifth and Fourteenth Amendments to the Constitution of the United 11 States in that it deprives plaintiff of his property and liberty -without due process of law. 6. The finding of facts made by the Court is erroneous and contains many immaterial matters and matters not in evidence and omits many perti nent and vital matters. 7. The Court erred in putting the Municipal Auditorium on the same basis as a private enter prise. 8. The Court erred in its conclusions of law. 9. The Court erred in basing its conclusions of law on facts not in the record. 10. The judgment of the Court is contrary to Section 3 of Article 10 of the Constitution of the State of Missouri which provides that taxes may be levied and collected for public purposes only. Attorneys for Plaintiff. FINDINGS OF FACT AND LAW (Caption omitted) This case filed August 27, 1934, was heard October 1.1 last on a return to an order to show cause issued September 24, was later fully briefed and argued, and on April 8, the return was re-filed as an answer and reply filed and cause submitted on the merits on the evidence heard in October. 12 The petition alleges plaintiff is a citizen and resident of St. Louis for forty years, a tax payer and owner of real estate, and that he brings the action for himself and such other citizens as care to join therein. Makes suitable allegations iden tifying the defendants, the City of St. Louis, the City Treasurer, H. C. Menne, Director of Public Service Joseph M. Darst, Manager of the Audi torium James Darst, and states the other defend ants are Members of the Municipal Auditorium Commission, a body created by City Ordinance No. 40145. Alleges that pursuant to the Constitution of the State, the Charter of the City, and a City Ordinance a bond issue of $5,000,000 was proposed and adopted by a vote of the people to acquire a site and a civil building, to be known as the “ Mu nicipal Auditorium and Community Center Build ing” to be used holding public meetings, gather ings, conventions to discuss public questions * * # and to provide suitable meeting places for edu cational, moral, musical, industrial, labor, and other purposes. That the building is now wholly or partly completed and is being used for and by some citizens and tax payers to the exclusion of others. Ordinance No. 40145, approved June 27, 1933, is pleaded whereby the Commission was authorized and its power and duties defined. The Commission consisting of the Mayor, the Comp troller, the President of the Board of Aldermen, the City Counselor, the Director of Streets and Sewers, the Director of Public Safety, five Mem bers of the Board of Aldermen, selected by that 13 body, and seven others to be appointed by the Mayor, to hold office during his pleasure, to repre sent certain bodies, convention bureau, etc. etc., all serving without compensation. The Commission to act in an advisory capacity in the management, control and use of the building, with power to make rules and regulations, cooperating with civic bodies that work to the same end to secure events appropriate for the Auditorium and Community Center, and which would benefit the City. The Commission to establish a schedule of charges for the use of the building, and with the right to ex empt in whole or in part from any charges for use by the convention of an organization which might draw an attendance that would result in a con siderable return to the City. All monies collected for the use of the Auditorium and Center to be deposited with the City Treasurer. The Conven tion, etc. Bureau to be afforded sufficient office space to aid its civic activities in bringing events here, and to be charged for space, heat, etc., as determined by the Commission. Plaintiff alleges he is a negro and that the Commission, in viola tion of the Constitution, Charter, and Ordinances, have deprived him and all negroes of the full and same right of admission to public attractions given in the Auditorium, and of the benefits derived from the building. That he has been taxed for the erection, upkeep, etc., of the building and this money and the money of thousands of other ne groes, as part of the general revenue of the City, is used for this public building and it is operated 14 in an illegal manner by defendants in that they discriminate against negroes, and deny them admission to public performances therein, and the use of the revenue while such discrimination con tinues is illegal. That as a subterfuge the defendants have concocted a plot whereby the large auditorium is rented to individuals who connive with defendants and are permitted and encouraged and allowed to refuse to sell tickets of admission to public performances to negroes solely because they are negroes. That he has no remedy at law and hence prays equitable relief to-wit to enjoin defendants, etc., from leasing, renting, etc., said building or parts thereof for performances for educational, etc., purposes that promote the common weal at which plaintiff or members of the negro race are excluded or denied the same rights of admission as any other race, solely because of their race or color, and from paying City funds to maintain, etc., the building until it is operated so there will be no race segregation or discrimi nation, etc. The answer makes some formal admissions, and then specifically denies any taxpayers use the building to the exclusion of others, and denies they have deprived plaintiff and all others of his race of the same right of admission to, and oppor tunity to attend public attractions given in the Auditorium, and they deny they are depriving them of benefits, etc., derived from the building. Deny illegal operation of the building by discrimi nation or that there was a plot or a conniving 15 with others to refuse to sell negroes as alleged. The reply is in effect a denial of defendants’ denials. The evidence was, in substance, that plaintiff resident here over fifty years, a tax payer about thirty years, and a deputy clerk in our Probate Court, and others of his race, all who testified being very respectable persons engaged in various occupations, had sought to buy tickets for admission to different parts of the Atiditorium to hear grand opera, presented to the public by Mr. Guy Golterman, the licensee from the City, which acted through the Municipal Auditorium Commission, for a period of some weeks in the spring of 1934, when the Auditorium was first opened to the public, and again in the fall of that year. The license, which seems to have been based on forms used in other cities, was non- assignable and revocable, and reserved the right of the City to control the management of the Auditorium, and to enforce all necessary rules for its management and operation. It provided for certain payments for the use of the Auditorium, and contained numerous provisions of no moment here. There was nothing in the license that in any way restricted the right of the licensee to say that negroes, or any other persons of what ever kind of race, should not be permitted to occupy seats except in such parts of the house as the licensee might designate for their use. Plaintiff and his witnesses testified they sought to buy tickets of admission at the office on Olive street where tickets were sold and were denied the right 16 to buy seats save certain side seats on the main floor and certain one dollar seats in the upper balcony. More expensive and more desirable seats not being sold to negroes. There was some question of whether this refusal was by direct authority of the Commission through Mr. Darst or because of Mr. Golterman’s orders, but that is immaterial for this reason. A committee, thor oughly representative of the colored people, had a conference with the Mayor, and others repre senting the Commission, protested against the discrimination as to their people, and suggested a clause in the license contracts forbidding same. The result was that on May 18th a letter was sent the chairman of the Committee, Mr. R. N. Owens, signed by Mr. James E. Darst for the City Com mission reading as follows: “ At its last meeting the Auditorium Com mission heard your letter and directed me to refer you to a rule of the Commission, made at a previous meeting: When the Auditorium Commission through the Manager leases any part of the Auditorium, for any sort of dramatic production, concert, reception, athletic event, etc., it shall leave to the discretion of the lessee any regulations regarding admission, price, sale of tickets and such matters. The Commission ruled that this applied to the admission of persons of various races and that it was within the province of the lessee to 17 say who should be admitted and under what con ditions. ’ ’ This is a very explicit statement of the City’s position and policy which the evidence : shows remains unchanged. There has been some modification by Mr. Golterman by way of liberal izing his policy as to seats for colored people. Instead of being limited to parts of the upper balcony on the right and left of center, they may now occupy any balcony seats. They could for merly buy only some seats in the rear sides of the main, or orchestra, floor, which seats 1770 people. It does not appear explicitly what is the present rule as to that floor but the Court’s con clusion from the evidence is that the rule as to that floor has not been changed. The second floor is arranged thus: In front a row of boxes seating, in all, 108; then two rows of mezzanine seats for 120; then the lower balcony, called at the hearing the dress circle, rows A to L inclusive, seating 719; then a passage way (on a level with the last upper stop of elevators from the lobby floor of the building) and then the upper balcony, rows M to Z inclusive, seating 854. The length of a line drawn from the stage to row Z, the extreme high row in the upper balcony, would be about 150 feet. The acoustics are excellent and speakers on the stage may be heard in the upper balcony. Loud speakers are used. The very large stage may be seen clearly from all parts of the house, though scenes or people on the stage may not be distinguished so satisfactorily 18 from the upper parts of the house, and one sees better down stairs than up. One of plaintiff’s witnesses said persons over fifty, or very heavy, or with certain troubles (heart, kidney, vision), might have difficulty in ascending to and using the high parts of the house. There are four assembly halls, with stages, two on either side of the large hall, which will each seat 698. Two of these may be used for dances. There is a great space called the exposition floor beneath the entire building, and the interior is now being finished of a convention hall, in the south end of the building, that will ordinarily seat 8500, and seats may be added to accommodate in all between 12000 and 13000. The large hall rents for $375.00, the Assembly halls for $75.00 and $50.00. There are lounge rooms, etc., adjoining the large hall and each of the assembly halls. Mr. Golterman, •Jr., testified there had been no complaints from colored people during the fall season of opera. The colored people were fully represented on the large Citizens’ Committee that arranged the various civic celebrations, lasting some days, at the opening of the Auditorium Center in the spring of 1934, and were freely admitted to all the civic entertainments. They had their own night of entertainment in the Auditorium (where the grand opera was later presented), and Miss Franklin, a colored teacher of dancing, used it for a dance recital of her school of dancing. Miss Franklin, who is a director of dancing for the City during summer months, said she dis tributed blocks of tickets to admit colored people 19 to the three Play Ground Festivals given by the City in the Auditorium in April and September last year. Colored people have also freely rented the assembly halls for their own use. Sometimes fraternities have used the halls admitting only their own members. Practically all the use made, since the opening of the building in the spring of 1934, of' the large auditorium, and the assembly halls and exposition floor, has been made by licensees, paying, the City therefor. In all the entertainments given under the direct auspices of the City there has been no discrimination, and there was no evidence that licensees, other than Mr. Golterman who only presented Grand Opera, in any way discriminated against colored people, and no complaints were made bv them as to any discrimination save in the Grand Opera seasons. Mr. Hay, the City Counselor, and a member there fore of the Commission, testified it did not intend to discriminate against colored people, but, while wanting to be absolutely fair to them, the Com mission did believe the licensee should have the right to control the question of who should be permitted to attend the entertainments, for which the license was granted. That licensees might limit attendance to the people of a special race or color or creed if they saw fit to do so. There was no evidence to sustain the allegation that there was a plot entered into by defendants among them selves, or with licensees, Golterman or any other, to refuse to sell tickets of admission to the large Auditorium to negroes because they were negroes. One witness for the plaintiff stated there were 20 between 93000 and 95000 colored people in this city, as per the 1930 census, many of whom were tax-payers. The part hereof descriptive of the building is taken from the evidence given in Court May 20, after a visit to the building, made May 6, by the Court accompanied by counsel for plaintiff and defendants—and plaintiff personally. The above resume not only sets forth the salient points necessary for consideration of the legal questions presented by counsel but is a finding of facts that meets a request made by counsel for plaintiff when the case was finally submitted May 20th. The petition might be dismissed because of failure to prove the specific charges made as the basis of complaint, namely, that the building was operated in an illegal manner in that the defendants discriminated against negroes, and denied them admission to public performances, and hence the use of revenue from the building was illegal, and that defendants had concocted a plot in renting the large auditorium to individuals who connived with defendants, and were permitted, encouraged and allowed to refuse to sell tickets to negroes for admission to public performances solely be cause they were negroes. However the case took a wide range, and the Court will pass on the question of the legal right of the City, through its Commission in charge of the Auditorium building, to license the use of parts therof, leav ing to the licensees’ discretion as to “ the ad mission of persons of various races, and that it was within the province of the lessee to say who 21 should be admitted and under what conditions.” Plaintiff contends that this policy of discrimina tion by the City which the City could not make and must prevent its licensees from making — Conceding that the City could not make it the proof is that when the City is the host at enter tainments in the building it does not make such discrimination, nor does it refuse to let any part of the building to negroes upon the same terms as a letting to whites. The legality of the bond issue was thoroughly considered by our Supreme Court in the Halbruegger case, 302 Mo. 573, in an opinion, in banc, written by Judge J. T. Blair. The decision turned on the question whether the money voted was to be used for a public purpose so that it came within the provisions of our Con stitution, Section 3 of Article 10 that: *‘ Taxes may be levied and collected for public purposes only.” The substance of the decision is that the “ public purposes” to be served, of providing a building for public meetings, conventions, and gatherings of various kinds, for educational, moral, musical, industrial, labor and other purposes, jus tified the expenditure of public money. The opinion was a learned and exhaustive review of what were municipal rights, and decisions relating thereto, in the way of spending revenue for the general welfare and happiness of the people, and whatever would “ advance the cause of education and morals among the people of a community and aid in contributing to the general welfare, the progressive influence of moral and cultural forces 2 2 essential to the advancement of the race.” That the Auditorium building would not be used for meetings, exhibitions and entertainments, educa tional, musical, and otherwise, held only under the direct auspices of the City, may well be inferred from the broad language of the proposition voted on, and this was recognized by the legislative branch of the City government when it passed the ordinance. (No. 40145), under which the Commission was provided for and giving it the right, in connection with its general control of the building, to fix a schedule of charges for its use. The building is very large, and the accom modations for public gatherings range from small halls where seven hundred may gather, to the great convention hall that, on special occasion, may seat thirteen thousand people. Manifestly every step taken was with a view to a structure that could be used by the City in whole or in part as needed, at any time for purely civic matters, and when not so needed, and that must be for the greater part of the time, rented, as to its various parts, to persons who would pay for the parts used just as one might rent any place for purposes of public entertainment. In such event the City becomes, for the time, the landlord and the person renting its tenant. The Charter gives the right to the City to lease, Ordinance No. 40145 carries out that right with respect to this building. It is the law generally that a City when it owns property that, for a time, cannot be used for a strictly public purpose may rent it for private 23 uses. That general rule has been specifically recognized and applied in this State in the Heger- Tower Grove Park case in 323 Mo. 1031, and the principle sustained in the much earlier case of Attorney General against Schweickhardt, 109 Mo. 496, which related to the operating of a restaurant in Forest Park under a contract with the owner made by the City under a City Ordinance. The City in matters of that kind does not act in its governmental or political capacity but in a quasi private capacity. Counsel for plaintiff in their oral arguments, supplemented by able briefs have emphasized their thought that what has happened here is a violation of the Fourteenth Amendment to the Constitution of the United States, and they have analyzed that amendment with clearness and precision, citing- many cases construing it in varying circumstances. The Court does not think that question is present in this case. The City has not segregated colored people from white people. It has not discriminated in any way against the former. It has not shut its doors to them, or said they cannot make use of this or that part of the building, or sit in this or that section of any part thereof. It has rented, and undoubtedly will continue to rent, any part thereof they wish to use to the colored people as to the white people—and either, when a renter, may say to the other—If you want to come in you will be assigned to certain parts only and to none other. That this may be irritating and vexing, and may run counter to a natural 24 pride is true, but if the City may rent a hall as any landlord might do, and it is within the legal rights of the lessee as to what he may do with the place he has rented for the night, or the week, then those admitted only on his terms cannot say they have been legally hurt—They have no ground for legal complaint because of his action—This was recognized as true by our Supreme Court in the Judah case, in 111 Mo., where a theatre owner in Kansas City was held to have the right to let colored persons occupy only balcony seats espe cially set apart for their use. Judge Black said: “ Colored persons have their own school, their own churches, and often their own places of amusement. Whites attending places of amusement designed specially for colored persons may be required to occupy separate seats. When colored persons at tend theatres and other places of amusement, conducted and carried on by white persons, custom assigns to them separate seats. Such separation does not necessarily assert or imply inferiority on the part of one or the other. It does no more than work out nat ural laws and race peculiarities. It ordi narily contributes to the convenience and com fort of both. The colored man has and is entitled to have all the rights of a citizen, but it cannot be said that equality of rights means identity in all respects. Here the defendant did not exclude or attempt to exclude colored persons from his theatre. 25 He provided accommodations for them, but in doing so required them to purchase tickets for and take seats in the balcony, and this rule adopted by him accords with the custom and usage prevailing in this State. Such custom has the force and effect of law until some competent legislative power shall es tablish some other and different rule. The defendant’s rule was no more than a reason able regulation which he had a right to make and enforce.” That case is the law of this State today, and if the Court is right in holding that the City can let the different parts of the Auditorium building, when not needed for its own use, as any property owner might let halls he owned, then it may allow the lessee, or licensee, to regulate the admission and seating of those who buy tickets, and the Commission’s resolution to that effect is lawful. It follows that the plaintiff’s petition must be dismissed, and judgment entered for defendants and it is so ordered. O ’Neill Ryan, Judge. June 3, 1935. TRIAL, SUBMISSION AND JUDGMENT And thereafter, at the September Term, 1934, of said Court, on October 11th, said cause being 26 called to trial on an order to show cause issued September 24th and all parties appearing ready for trial, the said cause was heard before the Honorable O’Neill Ryan. At the conclusion of said hearing the said cause was submitted. Thereafter, on April 8th, 1935, the return heretofore filed was refiled as an answer and the reply heretofore filed was refiled. The submis sion of October 11th, 1934, was set aside, addi tional testimony was heard and the case submitted on the merits of the evidence heard in October, 1934, and on April 8th, 1935. At the conclusion of the trial, petitioner submitted a finding of facts and a declaration of law. Thereafter, on June 3, the Court refused both the finding of facts and declaration of law and duly entered a decree dismissing the petition and judgment was entered for defendants, to all of which action by the court plaintiff duly excepted and still excepts. MOTION FOR A REHEARING FILED And thereafter, on June 6th, 1935, plaintiff filed his motion for a rehearing. MOTION FOR REHEARING OVERRULED And thereafter, on the 24th day of June, 1935, 27 after consideration of said motion for rehearing the court overruled same. AFFIDAVIT FOR APPEAL FILED And thereafter, on the 2nd day of July, 1935, plaintiff filed an affidavit for appeal in said cause and was granted an appeal to the Supreme Court of Missouri. BILL OF EXCEPTIONS FILED On the 11th day of September, 1935, at the June Term, 1935, the appellant’s bill of exceptions was presented, allowed, signed and ordered made a part of the record, said hill of exceptions is as follows, omitting caption and formal parts: BILL OF EXCEPTIONS ON BEHALF OF APPELLANT BE IT REMEMBERED that at the Septem ber Term, A. D., 1934, of the above-entitled Court and on, to-wit, beginning the 11th day of October, A. D., 1934, the above entitled cause came on for trial and was tried in the above-entitled Court be fore the Honorable O’Neill Ryan, Judge of said Court, and the following proceedings were had, to- wit: 28 APPEARANCES: FOR THE PLAINTIFF: S. R. Redmond, Esq., and Henry D. Espy, Esq. FOR THE DEFENDANTS: Charles M. Hay, Esq., and Oliver Senti, Esq. PLAINTIFF’S EVIDENCE THEREUPON, the plaintiff, in order to sus tain the issue upon his part to be sustained, offered and introduced the following evidence, to-wit : JOSEPH P. HARRIS (B. Ex. 1, p. 3-13) was the first witness in his own behalf. He testified that he has lived in St. Louis over fifty years; that he owns real estate and pays taxes to the City; that he has paid taxes over thirty years; that he attempted to purchase tickets to the Opera at the Municipal Auditorium during the opening of the Auditorium; that he did not get any tickets; Q. What happened? A. The lady at the Odeon (Aeolian) when I went to get them the lady claimed she had sold all the dollar tickets—I hadn’t asked for any class of tickets—and I said, “ Well, what other tickets have you?” and she said, 1 ‘ Well, we have three and five-dollar tickets, ’ ’ and I asked where they were located and she told me, and I said, “ Let me have them,” and she said, ‘ ‘ I cannot sell you any. ’ ’ That she said she had orders to sell my people 29 only one dollar tickets and all of them were sold; that the lady had five dollar tickets hut refused to sell me one because I was colored; that he ap plied again for tickets on October 3rd; that he had the money with which to buy a ticket. Q. And you requested a ticket? A. Yes; and I applied on the 3rd of October for tickets for the present opera. I asked for the diagram, and she had it and showed it, and I said, “ What is the price of those three seats,” and she said, “ Three dollars,” and I said, “ Give me two tickets,” and she turned away and came back and said, “ I cannot sell you any of those tickets,” and I said, “ Why,” and she said, “ Those are my orders, but,” she said, “ I can sell you tickets around here.” I said, “ Have you any?” and she said, “ We have plenty of them, but I can not sell any to you.” On Cross Examination; That he made appli cation for the tickets on the 3rd at the downtown ticket office; that a young lady was selling the tickets and gave him her name; that the tickets were sold at the Odeon (Aeolian)—the number is 1004; that it was about ten of eleven in the morning when he was there. Examination by the Court: Q. What did she say—when you inspected the diagram and she Avent away and came back, just what did she say? A. She said, “ I cannot sell you any of those tickets. We can sell you tickets in the diagram around on the side, but 30 cannot sell yon any of them here,” and I said, “ Have you got any of them!” and she said. “ Oh, yes, we have plenty of them; but it is not my fault, I have orders not to sell you any of them.” Q. When she said, “ We sell around here,” where did she indicate? A. That was around on the side of the main floor. If I had the dia gram, I could tell, because she pointed out on the diagram. Q. On the same floor with those seats you had selected in the diagram? A. Yes, sir; it was on that floor. Q. But around on the side? A. Yes, sir. Q. But she said she had plenty of those seats you asked to buy? A. Yes, she said she had plenty of them. When she said she had orders not to sell, did she say to whom? A. She said she had orders not to sell to my people, the colored people. She said it wasn’t her fault, but she had orders. Mr. Redmond: (continuing) Q. That hap pened on October 3rd, after this suit was filed? A. Yes, sir; on the 3rd. On Re-Cross Examination: I was at the Audi torium during the opening week on the night the colored people had a program; that was the only night I attended; that the lady said she had plenty of the kind of tickets I wanted but could not sell me any because of her orders. Examination by the Court. Q. Were those opera seats which you sought 31 to buy, in the spring of the year, on the main floor, on the same floor where you were selecting seats on the morning of October 3rd? A. Why, in the spring of the year, it seems she said—we had moved up to the window where the people were purchasing tickets, and I said, “ I want to get two tickets for the opera,” and she said, “ We haven’t any, they are all sold, all the dollar seats,” and I said, “ What other seats have you?” and I said, “ let me have two of those,” and she said, “ I can not sell you any. The dollar seats are in the bal cony,” and I said, “ I am not asking you for those. You have other seats there,” and she said, “ Yes, but I cannot sell them to you.” Mr. Senti: (continuing) Q. I have the dia gram here representing the two floors of the Audi torium, so if you can indicate on there where the tickets were that she offered to sell you, I will show you which side it is on. This is in the balcony (indicating), and this is in the orchestra (indicat ing.) This is the first floor, and this is the second floor (indicating). See if you can indicate. A. This is not made just as that was. There was a space in between here (indicating), on the one she had. Q. Perhaps it was this one here? A. No. When I asked there, she said, “ Right in here, right in the center.” The Court: Q. You are looking at the main floor now, are you? Mr. Senti: No, this is the balcony. A. (By the witness) Well, it was right in the center, here, where I spoke of the seat it was, 32 three-dollar seats, and then she went away and she came back and said she would sell me seats like around here (indicating), but couldn’t sell me any here (indicating). The Court: Q. The seats you indicated as those you could not get are about two-fifths of the wray back from the stage and on either side of the central passageway from the stage to the exit; is that right? A. Yes, sir. The Court: Q. And those you said she could give you are those to the rear on the right and left of the sides of the Auditorium? A. Yes, sir. Mr. Senti: Q. That would be the space then to about here (indicating). A. Yes, about where she indicated would be about like that. The Court: Q. About eight or ten rows from the rear on the extreme right or the extreme left? A. Yes, sir. Mr. Senti: Q. Those are the seats she told you she could sell you? A. Yes, sir. Mr. Senti: Q. That was on this last occasion in October ? A. Yes, sir. The Court: Q. Now, on the first occasion you did not select your seats? A. No, sir; on the first occasion I did not select seats. She just told me all the dollar seats were gone. Q. And she told you the dollar seats were in 33 the balcony! A. Yes, sir. Q. Did she say what part of the balcony? A. No, sir; she said they were all sold. Q. But she didn’t say where they were, in any event, except that they were balcony seats and they were all sold? A. Yes, sir. J. R. TERRY (B. Ex. pp. 13-19) introduced by plaintiff, testified that he has lived in St. Louis over seven years and is a teacher of music; that he is a graduate of Chicago Musical College and has taught music fifteen years; that he went to the Municipal Auditorium several nights during the celebration of the opening. Q. Did you ever go to the opera at the Munici pal Auditorium! A. No. Q. Did you ever try to go? A. I made an attempt to purchase tickets to go. Q. Explain the attempt you made to go. The Court: Q. And when it was, approxi mately. A. It was approximately during the spring— I don’t remember the exact date—during the spring opera. I made an attempt to purchase tickets for the entire season, and I got in line as all other purchasers had done, and when my turn came I went to the window and asked for tickets of the young lady—I don’t know her name—and the re sponse was that all the balcony tickets were sold out and that she had tickets on the first floor, and I stood there a moment, and she said, “ Who do 34 you want them for?” and I said, “ I want them for myself,” and, of course, when I said that her demeanor or attitude seemed to change, and she said, “ I am sorry, but you are. not allowed there,” and I stood there for a moment or two, so she jumped up and went to somebody at the other side of the window, and I stood there, and she said, “ I am sorry, but you are not allowed up there,” and I didn’t say anything further and I returned to my office. On Cross Examination: I attended the exer cises during the dedication of the Auditorium about three times, particularly during the nights that the Negroes were connected with the celebration; that the Negroes had one night and one Sunday after noon ; that I was there both times; that the Opera House was then turned over to everyone; that a large number of both races were present; that Indians and Italians participated in the celebra tion; that there were no restrictions as to seats; that no question arose about seats at any of the dedicatory performances; that the only time I had any difficulty was in getting tickets for the Opera; that I have never been there since; that the only difficulty concerning admission that I know of is the Opera. On Re-direct Examination: That I conducted a chorus of one thousand voices on Sunday after noon and a chorus of one thousand voices during the evening performance at the Auditorium; that there was no admission paid that day. 35 Re-cross Examination: That admission was by tickets and tickets were given to groups who sponsored the attraction and the distribution was by them; that no charge was made. NATHANIEL H. SWEETS (B. Ex. pp. 19-24) testified that he has lived in St. Louis six years and is in newspaper work; that he has never been to the Municipal Auditorium; that he has attempted to go. Q. When did you make an attempt and under what circumstances? A. At the opening of the Grand Opera season at the Municipal Opera, and I attempted to go to the first two performances given at the Auditorium. I went to the downtown ticket office to purchase tickets to those perform ances and I was in line with a number of others, who were purchasing tickets, and when it came my turn— The Court: Q. That was at the Aeolian of fice? A. Yes, sir. I asked for two tickets, and they said “ We haven’t any more dollar tickets,” and I said I wasn’t particular about buying dollar tickets, “ I want tickets at any price,” and she said, “ We have nothing less than $2.50 and $5.00 tickets,” and I said, “ I will take two of those,” and she said, “ I am sorry, but I cannot sell them to you ’ Q. Did you ask the young lady where she got her authority not to sell any tickets?” Mr. Hay: I think that is objectionable. 36 The Court: He may answer. A. I stopped when the young lady told me she was sorry she could not sell them to me. I asked her what was the objection. She said she had received orders not to sell any of the $2.50 or $5.00 seats to the colored; and I asked her from whom she had got her instructions, and she said, “ Those are the orders I have received from Mr. Darst.” I said, “ Who is Mr. Darst?” and she said, “ He has charge of the Auditorium, and, if you want any further information, you may go up to see him;” and I said, “ Thanks,” I would go up to see him. Examination by the Court: Q. Well, did you? A. I went up to see Mr. Darst, hut I didn’t find him the evening I went up. Q. Now, I understood you to say you Sought to get in for both the first and second perform ances? A. Yes, sir; of the Grand Opera. Q. Was it just the first performance, or did you attempt to get seats for both performances at the same time? A. No; I went there the first time, and she said they hadn’t any tickets, and I went back to get tickets for the second performance and I had an attorney with me when I went back the second time. Q. Now, how long before the opera opened was it when you went the first time approximately? A. As near as I recall, it was approximately, a week or two weeks before. 37 Q. And yon were told then that the house was sold out and no seats of any kind available? A. Yes, sir; sold out. Q. And how long after that was it that you went to secure seats for the second performance? A. It was after the first performance that I went back to secure the second seats. Q. And it was then what happened what you referred to? A. Yes, sir. Q. And after waiting at Mr. Darst’s office, you never had any conversation with him at all? A. No, sir; I did not. On Cross Examination-. I am positive the young lady mentioned the name of Mr. Darst. I asked her to repeat his name; that I know nothing about Mr. Golterman; that I never saw Mr. Darst; that if I remember correctly, the young lady did not give her name though I asked for it; that I was at the ticket office in the afternoon around two o ’clock; that I don’t recall just how the lady looked as I wasn’t paying any particular attention to her; that I was very much impressed with what she said but not to the extent to gaze into her face to see what kind of a lady she was; that she was a young lady. R. L. WITHERSPOON (B. Ex. pp. 24-29) tes tified that he is an attorney and lives at 11 North Jefferson Avenue. Q. Did you ever have occasion to purchase, or attempt to purchase, any tickets to the Grand 38 Opera being presented at the Municipal Audi torium? A. I did. Q. State when and under what circumstances, please. A. I don’t recall the exact date I went down to the company with Mr. Sweets, who just testified. I first went to the Municipal Audi torium, over here at Fourteenth and Market, and inquired for the ticket office, and we were directed to go down to the Aeolian Piano Company, where the tickets were being sold, and we got down there and got in line with the other persons who were in line to purchase tickets, and when our turn came at the window Mr. Sweets was in front and he asked for tickets, and the conversation en sued as he stated it; and I asked for tickets, and the young lady at the window, who was selling the tickets, stated that all the dollar tickets had been sold, and I asked for her next lowest priced ticket, and she told me that it was—I think she said it was $2.50—and I asked for one of those, and she said she was sorry but she couldn’t sell me one of those tickets, and I asked her for the next priced ticket, and she said it was a $5.00 ticket, and I asked her for one of those tickets, and she said she was sorry but she couldn’t sell me one of those. Then I asked her did she have those $2.50 and those $5.00 tickets, and she said yes, she had those tickets. Then I asked her, “ Why do you refuse to sell me one of those tickets?’ ’ She said, “ I have orders from Mr. Darst, the man who is in charge of the building, not to sell the colored people other than the balcony tickets, and they are all sold out.” 39 On Cross Examination: I am speaking of the Opera last spring; that I made no attempt to pur chase tickets this year; that I attended some of the other performances at the Auditorium; that I don’t recall any question about admission or seat ing arrangements because the ticket which admitted me was given to me; that white and colored people were there in large numbers; that I do not know whether they sat promiscuously in the building or not; that the only instance I know of of any dis cussion concerning admission was at the Opera. Examination by the Court: That I attended the Friday night performances where the partici pants were mostly colored and there was a chorus; that I think I went to the one Mr. Terry spoke of but I am not sure; that I can’t say whether groups of white and groups of colored were clustered to gether because I was upstairs and didn’t see very many white people upstairs; that I do not know what the condition was downstairs; that I attended the automobile show. On Re-direct Examination: That at least ninety per cent of the people I saw seated were colored; that it was known as Negro Night and was free. ROBERT OWENS (B. Ex. pp. 29-47) testified that he has lived in St. Louis eighteen years and is an attorney; that he has not been to the Grand 40 Opera at the Municipal Auditorium; that he has attempted to go on two occasions. Q. State the circumstances attending your attempts. A. Well, as I recall now, as near the date as I can recall, was between the 15th and 18th of April, I went down to the Auditorium to get seats to see one of the operas there, and they said they were not allowed to sell any tickets there, to go down to the Aeolian Company, on Olive Street. So I went down there and applied, and the young lady at the window told me that all of the dollar seats had been sold, and they were not selling seats to colored excepting the dollar seats in the balcony. Q. Did you get any tickets? A. I did not. Q. Did they have any tickets? A. She had tickets, other people were buying them there. Q. Did they refuse to sell you one? A. She did. The Court: Q. Well, you should state more specifically what she said by way of refusing to sell you one. A. She said she had no dollar seats and those were the only ones sold to colored peo ple. Q. Is that all she said? A. No; in addi tion to that, Your Honor, she said that she had received orders from Mr. Darst, who had charge of the opera, to sell only the dollar seats to Ne groes. In other words, she said she had been working for Mr. Darst quite a number of years. I think she said she was the same lady that sold tickets at the Odeon, “ and we are not accustomed 41 to sell tickets to colored other than the balcony,” and the same applied here. Mr. Redmond: (continuing) Q. Did you go there again after that time? A. Last spring. Q. Was that this year or last year? A. This year; in April, 1934. Q. Well, have you been there since then to purchase a ticket? A. I went there on the 2nd of October, this present season. Q. Then what happened. A. Well, I went there to get a ticket for the opera on the 10th, I think, which was Carmen, and asked her to see the diagram, and she showed me the diagram, and I selected a seat in the second section on the first floor, and she said the price of tickets was $3.00, and I asked for one of those, and she said she couldn’t sell me those seats there, but she could sell me on the side, and I said, “ Why can’t you sell me the seats in the center, are they all taken?” and she said they were there but she had orders from Mr. Grolterman not to sell to colored the seats in the center, and I asked her name, and she told me her name was Miss Onger. The Court: Q. That her orders from him were what? A. Not to sell that center section to colored. Mr. Redmond: (continuing) Q. After you were not sold tickets, you wrote a letter to the Mayor, did you? A. I did. Q. Did you take it up with any one? A. 42 Yes; that same afternoon I went over there and we had a conference in the Mayor’s office. Examination by the Court: Q. By “ we” who do yon mean? A. A committee of colored citizens had a conference in the Mayor’s office, that represented several asso ciations of negro advisement on colored people, the Civic Cooperative League, the Emergency Advisory Council for Negroes, and the Tom Powell Post of the American Legion. I had this conference in the Mayor’s office. Mr. Hay was present, as I re call, and the Mayor and Mr. Darst. Q. Who were some of the members of the committee, Mr. Owens? A. Mr. George Brant ley, principal of the Sumner High School; Mr. Robert Watts, of the Vashon High School; Mr. Elmer Mosee, Attorney George L. Vaughn. Q. Who is Mr. Mosee, just what identity has he? Is he connected with anything? A. Yes, sir; he represented the Democratic— Q. And who is the fourth person you named? A. Attorney George L. Vaughn, and Mr. Jordan Chambers. Q. Identify him, please. A. He is con nected with the Civic Cooperative League. Q. What is he in business? A. He is an undertaker. Q. Any others that you recall? A. Mr. Tocus, he has charge of the musical colored school, and Mr. Williams of the Urban League. Q. What is his business or profession? A. 43 I think he is industrial secretary; and Mr. Collier, also of the Urban League; and there was Mr. Mor ris, of the Pine Street Y. M. C. A., and Mr. Frank Williams, principal of the Vashon, was there, but he couldn’t stay, he had to leave. Those are all that I recall, but there were several others. Q. Is Mr. Watts the principal of the Yashon School? A. No; I think he teaches English there, Robert Watts. Q. Very well. A. That committee took the matter up with the Mayor about the Negroes not being able to get tickets. Q. Who was your spokesman? A. Well, who spoke there was Mr. Mosee. Q. Well, who started? A. Elmer Mosee. Q. Very well. Now, tell us what he said. A. He called the attention of the Mayor that the negroes had been refused tickets over there, and he said that he was a friend of the administration, and he would not like the administration to start off with the Auditorium giving the Negroes the right to criticize him; that he was a friend of the administration, that was his business—well, that is about the gist of what he said; and Mr. Brantley, I don’t know exactly what he said, but I know it was a protest against the refusal of selling Negroes tickets; and the same thing was more or less along that line. Q. Who was the one you said spoke as in general there against this discrimination? A. Mr. Brantley; and Mr. Vaughn also spoke, and Mr. Grant also spoke at this meeting. Q. You didn’t name him so far. Who is he? 44 A. He is in the City Counselor’s office. Q. One of your own race? A. One of our own race. Q. All right. Tell us, unless they said some thing special, in which event you may indicate it, tell us what vTas the response by the Mayor and either Mr. Hay or Mr. Darst, if they entered into the discussion. A. The Mayor said it was all new to him; he didn’t know7 anything about it; it was the first time it had been brought to his atten tion, and he called on Mr. Darst, and Mr. Darst spoke and he said that the question hadn’t come up at the time that he made the contract with the opera company, and that when he made the contract it was a stock contract, that he obtained it when he consulted other cities wdiere they had municipal auditoriums, and he didn’t see anything of that kind in the contract, but, after he had made the contract, he didn’t see how he could do anything; he didn’t see any clause in any other contract that he had obtained from other cities with regard to the admission of Negroes, Q. Well, did he say there was a clause of that kind in this contract? A. No; he said that he hadn’t thought of that, and that he couldn’t control, after he leased it out to private individuals, whom they vTould admit. Then in answer to that I said this: ‘ ‘ That the opera season will soon be over, so it doesn’t make so very much difference about this present opera, but w7hat wTe are mostly con cerned about is your future policy. Could you put a clause in your future contracts so there would not be any discriminations against Negroes on ac- 45 count of their race?” and he said no, that was impracticable, that couldn’t be done. Q. Mr. Darst said that? A. Mr. Darst. Plaintiff’s Exhibit No. 1 is a copy of the contract used by the City when it leases the build ing. It was introduced into evidence. PLAINTIFF’S EXHIBIT 1 THIS AGREEMENT is made and entered into this..................... day of ................................. 19....., by and between the City of St. Louis, a Municipal Corporation of the State of Missouri, acting by and through the Municipal Auditorium Commission, party of the first part, hereinafter referred to as the AUDITORIUM, and............................................. ................ .......... .... ............ ..... party of the second part, hereinafter referred to as the EXHIBITOR. The EXHIBITOR is desirous of having the non- assignable use of the ........................... ................... in the Municipal Auditorium and Community Cen ter Building in the City of St. Louis, State of Missouri, upon terms and conditions as hereinafter expressed. NOW, THEREFORE, THIS AGREEMENT WITNESSETH: For and in consideration of the sum of One Dollar, lawful money of the United States, by each of the parties hereto to the other in hand paid, the 46 receipt whereof is hereby acknowledged, and in further consideration of the mutual covenants here inafter contained, the parties hereto agree: FIRST: The AUDITORIUM in considera tion of the promises of the EXHIBITOR to the AUDITORIUM hereinafter expressed, hereby grants to the EXHIBITOR, a non-assignable, re vocable license to use the............................... ........... in the Municipal Auditorium and Community Center Building for the purpose of......................... ............................ therein a....................................... . it being the intent of this agreement to furnish to the exhibitor the use of the interior, auditorium and lobby of the.......................................................... in the Municipal Auditorium and Community Cen ter Building for the purpose of................................ therein .......... ........................................... ................ above mentioned, excluding from this license and reserving unto the AUDITORIUM, the manage ment’s box or space in said....................................... f in the Municipal Auditorium and Community Cen ter Building, contained and all other space on the inside, outside and roof of said premises which is not hereinbefore specifically granted to the EX HIBITOR. SECOND: For such non-assignable, revoc able license, the EXHIBITOR agrees to pay to the AUDITORIUM at the City Treasurer’s Office in the City Hall of St. Louis or at the office of the AUDITORIUM the sum of ($.....................) ...................................................................... Dollars, plus any tax which may be imposed on such 47 ..................... by any govern mental authority, payable in cash or Cashier’s Check to the order of Treasurer, City of St. Louis, payable as follows:....(one-fourth upon signing of this instrument, one-fourth within ten days of date of first performance under this contract and bal ance before noon of the day of the first perform ance under this contract), and if for any reason said rental be not paid as aforesaid, it is agreed that any box office receipts in the possession of the AUDITORIUM may be applied to the payment of said rent. THIRD: The EXHIBITOR shall ................. .......... ..................... ........................................ in said ...............................................of the Municipal Audi torium and Community Center Building during said term only what is known as ............................ FOURTH: The AUDITORIUM agrees dur ing the term of said license to furnish said.............. as above defined......................................................... FIFTH: The EXHIBITOR agrees to pay every other expense of every name and nature whatsoever, and every charge incurred in connec tion with the.................................................. of said ................................... -................................... in said ......................................................... not hereinabove provided to be paid for by the AUDITORIUM, and does hereby agree to indemnify and hold harm 48 less the AUDITORIUM from any claim or claims on account of such costs, charges or expenses; and the EXHIBITOR hereby authorizes the AUDI TORIUM to retain on account thereof any moneys heretofore received by it from the EXHIBITOR. SIXTH: The license hereby granted by the AUDITORIUM to the EXHIBITOR for the use of said.................................................................... , is subject to the following further terms and condi tions, to all of which the EXHIBITOR hereby assents and agrees: (1) Should the attraction of the EXHIBITOR be deemed by the manager of the AUDITORIUM to be at any time publicly criticized as illegal, in decent, obscene, immoral or in any manner publicly offensive, the AUDITORIUM shall have the right and is hereby given the right to demand of the EXHIBITOR that he immediately delete such por tions of the production as have received such criti cism or to re-write or have changed the said attrac tion so that it will not be publicly offensive or of fensive to the manager of the AUDITORIUM and the EXHIBITOR agrees immediately upon receipt by it of such notice to make such changes. (2) The EXHIBITOR does further agree not to distribute or circulate, or permit to be distri buted or circulated, any advertising matter or pro grams at the entrance to or in or about any part of the Municipal Auditorium and Community Cen ter Building at any time during the term of this Agreement, except such advertising or program as may be permitted in writing by the AUDITORIUM. 49 (3) The EXHIBITOR agrees not to deface, or permit Ms agents, servants or employees to de face, the lobby or the interior walls, or any other part of the premises the use of which is hereby licensed, in any manner, nor to make permanent or other alterations therein, nor to make any altera tions or improvements thereon or therein. The EXHIBITOR further agrees that the EXHIBI TOR and every member of the company organized to present the said above-named attraction, and all such other persons employed by the EXHIBITOR in connection with such attraction, shall abide by and conform to the rules and regulations promul gated for the government of the said building dur ing the term of the license hereby granted and that the EXHIBITOR will pay for any and all damage which the AUDITORIUM may sustain as a result of any act or omission on the part of the EXHIBI TOR and/or his agents, servants and employees. (4) The EXHIBITOR shall at his sole cost and expense comply with such orders, rules and regulations as may be promulgated during the period of this license by the various governmental departments having jurisdiction over the said building in so far as such orders, rules and regula tions apply or relate to the operation of said build ing and/or the.......... .................................therein. (5) In case the space contracted for in the Municipal Auditorium and Community Center Building, or any part thereof shall be destroyed or damaged by fire or by any other cause, or if any other casualty or unforeseen occurrence shall ren- 50 der the fulfillment of this contract by the AUDI TORIUM impossible, the said AUDITORIUM shall not in any case be held liable or responsible to the EXHIBITOR for any damage caused to him there by. (6) In renting the space above mentioned in the Municipal Auditorium and Community Center Building to the EXHIBITOR, the AUDITORIUM does not relinquish and does hereby retain the right to control the1 management thereof and to enforce all necessary and proper rules for the management and operation of the same, and duly authorized representative of the AUDITORIUM may enter the same, and all of the premises at any time, and on any occasion. (7) The EXHIBITOR does hereby agree that he will not sell or dispose, or permit to be sold or disposed, more tickets in excess of the seating capacity or admit a larger number of persons than can safely and freely move about in the rented areas, and the decision of the AUDITORIUM in this respect shall be final. (8) The EXHIBITOR will permit no chairs or movable seats to be or remain in the passage ways, and will keep said passageways clear at all times. (9) The AUDITORIUM reserves the right to control the sale of any and all refreshments and other merchandise, in or about the premises, to con duct a check room, to make photographs for its own records, and other privileges and the EX- 51 HIBITOR shall not engage in any of the aforesaid activities without the written consent of the AUDI TORIUM. The AUDITORIUM also reserves the right through its duly appointed representatives, to eject any objectionable person or persons from the premises, and by exercise o f this authority, through the duly appointed representative the EXHIBI TOR hereby waives any and all claims fo r damages against the A U D IT O R IU M or any and all o f its officers or agents. (10) All portions of the sidewalks, entries, passages, vestibules, halls, elevators, and all ways of access to public utilities of the premises shall not be obstructed, or cause to be obstructed, by the EXHIBITOR or used for any purpose other than for ingress or egress, to and from the premises. The doors, skylight, stairways or openings that reflect or admit light into any place in the build ing, including hallways, corridors and passageways, also radiators, and house lighting attachments, shall in no way be obstructed by the EXHIBITOR. The water closets and water apparatus shall not be used for any purpose other than for which they were constructed, and no sweepings, rubbish, rags, papers or other substances shall be thrown therein. Any damages resulting on account of use or mis-use thereof of any nature or character whatsoever, shall be paid by the EXHIBITOR. (11) The EXHIBITOR shall not assign this agreement nor suffer any use of the premises other than herein specified, nor sublet the premises or any part thereof, without the written consent of the a u d it o r iu m . 52 (12) The AUDITORIUM assumes no respon sibility whatsoever for any property of any nature placed in any part of the premises by the EXHIBI TOR or his employees or agents and the AUDI TORIUM is hereby expressly released and dis charged from any and all liability for any loss, in jury or damage to the persons or property that may be sustained by reason of the occupancy of the premises under this agreement, and all watchmen or other protective service desired by the lessee must be arranged for by special agreement. (13) The EXHIBITOR agrees that should it be necessary to employ any help and/or labor other than that specified herein, that he employ and pay for such help and/or labor and that such help and/or labor shall be members of the recognized unions who have jurisdiction over such help and/or labor. (14) If the EXHIBITOR desires to have his performance or performances broadcast, making use of the broadcasting facilities of the AUDI TORIUM, he shall obtain the consent of the man agement. Only the broadcasting equipment of the AUDITORIUM shall be used for such broadcasts unless with the consent of the management. In Witness Whereof, the parties hereto have caused these presents to be duly signed and sealed the day and year first above written. By Title. 53 By CITY OF ST. LOUIS, MO., Comptroller. MUNICIPAL AUDITORIUM, B y ............................................... Manager. (On back) Contract ................. Unit Date MUNICIPAL AUDITORIUM and COMMUNITY CENTER BUILDING Leased To REMARKS: Mr. Owens testified further that the Mayor had someone call Mr. Golterman to come over but Mr. Golterman was busy and could not do so. The Mayor then made an appointment with Mr. Goiter- man to meet this committee at eight o ’clock the 54 following morning in the Auditorium; that Mr. Golterman was at the meeting the following morn ing; that the same group was present and in addi tion there were Mr. McLemore, Mr. Bledsoe and Mr. Golterman. A. Mr. Golterman stated that he had given Grand Operas in several cities and was quite ex perienced along that line, and that was the first time he had ever had a question of this kind to come up. He stated that the opera here was started by people who had subscribed to large blocks of seats, as well as the boxes, and he felt that if Negroes were permitted to go on the first floor indiscriminately that they would cancel their subscriptions and he would not like to assume the responsibility of making a decision on that matter until he had consulted his opera commit tee, and he wanted a day or so to do that before he would give a decision on that. Mr. Redmond: (continuing) Q. Was it at this meeting that Mr. Hay, the City Counselor, offered any proposition? A. Yes, Mr. Hay did at this meeting. Mr. Hay stated that he could appreciate why the col ored people would object to being given certain seats, if the colored would be given undesirable seats that it was no more than reasonable they would object to it; but he said if any section of the theater, if you were given a particular place set aside, as it were, over some various sections, he thought that would be reasonable and fair; and, 55 of course, we discussed it pro and con from that angle. But, at any rate, Mr. G-olterman couldn’t give any decision, even on that, until he had con sulted his committee. Plaintiff’s Exhibit No. 2, being a letter re ceived from the Mayor acknowledging receipt of a letter which Mr. Owens had written the Mayor after he had received the decision from Mr. Goiter- man, was introduced in evidence. It reads as fol lows: EXHIBIT NO. 2 Office of the Mayor CITY OF ST. LOUIS (Seal) The Common Seal of the City of St. Louis. Bernard F. Dickmann Mayor April 25, 1934. Mr. Robert N. Owens, Chairman Emergency Advisory Council for Negroes 2947 Delmar Boulevard St. Louis, Missouri. Dear Sir: Your letter of April 21st received, and I have referred same to Hon. Frank J. McDevitt, Chair man of the Auditorium Commission. 56 The Auditorium Commission is in charge of the affairs of the Auditorium and decide on the policy of the Auditorium and I have asked them to make an appointment with your committee re garding the matter. Sincerely, Bernard F. Dickmann, Mayor. The Court: Go on. A. We met Mr. Golterman’s son in the cor ridor of the Auditorium about three o'clock (the next day). He said his father was quite busy preparing for the opera and was not able to be there, but he read there a prepared statement, and in his statement, as far as I can recall, he stated that those who had bought tickets, or who had tickets, they would be honored but, so far as that tended to the policy of selling Negroes tickets, they would adhere to the original policy. That is the sum and substance of it. Plaintiff’s Exhibit No. 3, being a letter to Mr. Robert N. Owens from Mr. McDevitt, Chairman of the Auditorium Commission, was offered in evi dence and reads as follows: “ May 18, 1934. Dear Sir: The Audi torium Commission has considered the matter 57 which you had brought to its attention, and instructed the manager, Mr. James E. Darst, to write and inform you what action the Com mission decided upon. (Signed) Frank J. McDevitt, Director of Streets and Sewers.” Plaintiff’s Exhibit No. 5, being a letter from Mr. Darst, was introduced in evidence and reads as follows: “ Attorney Kobert N. Owens, Chairman. Dear Sir: At its last meeting, the Audi torium Commission heard your letter and directed me to refer you to a rule of the Com mission made at a previous meeting: When the Auditorium Commission, through the Manager, leases any part of the Auditorium for use for any sort of dramatic production, concert, reception, athletic event, etc., it shall leave to the discretion of the lessee any regulations regarding admission, price, sale of tickets and such matters. The Commission ruled that this applied to the admission of persons of various races and that it was within the province of the lessee to say who would be admitted and under what conditions. 58 Mr. McDevitt has asked me to transmit this to you for your information. Very truly yours, (Signed) James E. Darst.” On Cross Examination: That I attended one celebration during the dedication of the Auditorium that being Negro Night; that white people were present; that a white lady set next to me; that I do not know of any discussion concerning the seat ing of Negroes at performances other than at the Opera; that the meeting called at eight o ’clock in the morning was in an effort to, try to adjust the matter between the colored people and Mr. Golterman; that the proposition suggested by Mr. Hay was discussed; that an attempt was made to explain the situation the City was in as between Mr. Golterman, the lessee, and the City; that the meeting was pleasant and no harsh words were passed; that there was a conference the next day with Mr. Golterman’s son; that I tried on the 3rd of October to get a ticket for the present Opera; that the ticket seller said her instructions were from Mr. Golterman; that I understood the sale of the tickets was under the direction of Mr. Golterman; that Mr. Darst had nothing to do with the sale of the tickets. On Re-direct Examination: That no written communication was received from Mr. Golterman and the last word was the letter published in the 59 paper that showed that the Auditorium Commission had charge of the building. SIDNEY ft, WILLIAMS testified that he is the Assistant Industrial Secretary of the St. Louis Urban League; that he reserved some tickets to the Opera and when he went to get them he was advised by the lady at the window that she had orders from Mr. Golterman not to sell tickets to any Negroes unless she had specific orders from him and consequently he was denied his tickets; that he later secured tickets from a member of another group (white person) in the City; that he used the tickets and was completely surrounded by white people; that the relations there were most cordial. On Cross Examination-. That my tickets were ordered at the Auditorium; that I was seated in the dress circle; that I did not see any other colored people at the first performance; that I saw some at a subsequent performance; that I do not recall seeing a couple of colored ladies on the first floor; that I remember seeing Mr. Hay at the Opera; that I saw him in the mezzanine next to Mr. Dickman. Examination by the Court: That Mr. Dickman was in a box; that the first Opera presented was Aida and the second was 11 Travatore; that I went again and saw Madame Butterfly; that the eon- 60 ference was held, resolutions were adopted by the committee and as a result of that meeting I could get tickets without any difficulty following this condition that was set forth under which we could get them; that I reserved my tickets through a lady at Washington University. On R ecross Exam ination : That the people around me were most cordial; that many people looked at us when we walked in; that after the first act we walked around and several outstanding citizens and members of the committee spoke to us and there was a change of the expression of a number of other people; that the ushers were cordial; that after the conference I got my tickets from the Aeolian office. Apparently word had been passed on to her. Redirect Examination'. That the tickets had been reserved by a white person for me. R ecross Exam ination: That I was refused tickets for the first performance and got a white person to get them for me; that I got the tickets myself for Madame Butterfly. Examination by the C ourt: That a white friend got tickets for II Travatore for me as I had been refused; that I got tickets myself for Madame Butterfly which was following the conference. S. R. REDMOND (B. Ex. pp. 56-63) testified 61 that he is an attorney and. has lived in St. Louis about five years; that the tickets to the Opera are tax exempt; that he got tickets to Negro Night hut wanted some to the other nights and wrote Mayor Dickman on behalf of the N. A. A. C. P. a letter of protest to remind him of the fact of all the colored people there were in the City and asked him if some provision could be made whereby they could get tickets to the other five per formances; that the Mayor sent me a letter and one or two hundred tickets to see St. Louis on Parade which was an automobile show downstairs; that I was unable to get tickets to the night per formances other than the one known as Negro Night; that the free performances had nothing to do with the Opera; that I went to the Aeolian on Friday to get two tickets when they were first put on sale and the young lady showed me the chart and I wanted to get two, two dollar tickets for La Tosca and she showed me the two dollar tickets started in Row M and ended in Row W ; that I wanted some in the center but she offered me some over on the side and refused to sell me any in the center telling me she had them but couldn’t sell them to Negroes; that I later called up and asked what was the attitude of the Aeolian Music House in selling tickets to Negroes and she said that the Negroes were being sold tickets on the side for one dollar and two dollar seats; that I made a visit there on a Friday and called up three or four days later; that I was permitted to buy tickets on the side in Row N which was the second row of the two dollar tickets; 62 that Row 1ST is upstairs and the only tickets Negroes could buy were the two dollar and one dollar tickets. Examination by the Court: That Row N to W are the two dollar tickets and from W on back are the one dollar tickets; that W, X, Y and Z are one dollar seats; that Negroes could buy on the side from N to Z but not in the center; that I asked for one in the center and the lady said, “ I am sorry but that is the only place I can sell you a ticket, on the side,” and then she went on to show me how good they were; that I wanted center seats; that I went on Friday, the first day the tickets were sold, so that I could get as near to the front of the two dollar tickets as possible; that I was refused a ticket in the center; that she did not say right or left side but “ side” ; that she offered me seats in Row N, left. THEREUPON, the plaintiff rested his case. DEFENDANTS’ CASE IN CHIEF THEREUPON, the defendants in order to sustain the issues in their behalf, offered and introduced the following evidence: JAMES E. DARST (B. Ex pp. 63-85) testified that he is superintendent and manager of the 63 Auditorium and secretary of the Auditorium Com mission; that the Auditorium Commission is a body under which I work; that it consists of seventeen men appointed by the Mayor, of which Mr. McDevitt is chairman; they are the governing policy body and entrust the actual management to me and when a question of policy arises, I always report the matter to them; that I am in charge of the executive part of the building and I am under the general direction of this Com mission; that I have had this position ever since the Auditorium was opened and several months prior to that; that the dedicatory exercises lasted the better part of two weeks; that the Commission and the Mayor, in order to make the building as widely used as possible, set up a general super visory committee composed of several hundred for the dedicatory exercises; that every group in the City was represented on the committee and it was decided to turn one night over to each group for a show with the understanding that the tickets were to be free; that there are approximately thirty-five hundred seats in the Opera House; that the performers wanted two thousand which left about fifteen hundred to the general public and the tickets were given to the members of the com mittee after two thousand had been given to the performers; that no plan was made for the order in which the seats should be located; that they were given out indiscriminately; that no complaint was made of discrimination; the only complaint being the inability to get seats; that the colored people were well represented on the citizens’ 64 committee and had a night which their repre sentative asked for; that there were no complaints about being denied admission; that there was an unusually heavy demand for the colored per formances; that I have seen colored people in the large Auditorium frequently; that Negroes at tended the play ground affair and participated in it; that no complaints were made because Negroes were excluded; that I recall a complaint made about the sale of tickets for the Opera last spring; that I was summoned to the Mayor’s office rather late one afternoon and found the group referred to by the witness. "We went into a conference. The Mayor was present and Mr. Hay, and the Mayor called me in to state the situation as I understood it, which I did, and I told it, and my recollection of it is about the same as the wit ness. When the contract was written no such matter came up. At that time, the Opera was about to start in a few days or very shortly; that I do not recall any discrimination since that time; that I do not know of any dissatisfaction or ex clusion since then; that neither the Committee nor I have adopted any policy excluding Negroes from the Auditorium; that no complaint has come to me because of the adoption of such a policy; that neither I nor any member of the Commission have entered into any arrangements with any lessee as the result of which colored people wTere to be excluded; that since the dedication, the large Auditorium has been used for attractions spon sored by colored people; that no complaint has been registered about any restrictions that were 65 imposed upon their use of the Auditorium; that Miss Franklin wrote the Commission a compli mentary letter; that she gave a performance for the Mildred Franklin School of Expression; that the tickets for admission were turned over to Miss Franklin, the lessee, and she distributed them as she saw fit; that there were no restrictions on the distribution of those tickets; that I have kept informed only in a general way as to the sale of the Opera tickets; that the Grand Opera Society founders sell their own tickets and none are sold at the Auditorium at all; that no complaint of colored people being unable to get tickets for the present Opera has come to me; that I was in charge of the Auditorium when the Christmas dinner was given; that colored people were ad mitted there free; that I was there all day and there was no discrimination whatever; that Negroes were served meals on the same basis as the whites; that they were at the same tables with the whites; that I am familiar with the construction of the Auditorium building as to sound and vision; that in my opinion, in the case of the Grand Opera, there would be very little choice of seats; that we have an acoustically per fect house; that you can sit in the last row of the balcony and hear a very softly modualted voice on the stage and there was no post in the way of the vision at all and I would as soon sit in the back row as the front of the balcony; that there is some difference in the seeing and hearing but not appreciative; that there is an exhibition hall 66 on the first floor and four assembly halls used for dances in the Auditorium; that colored people use the assembly halls quite frequently; that there is no restriction against colored people using them; that colored and white use them on the same terms; that the only complaint from them has been one night they were too hot; that no com plaints on account of distinction between -the colored and white has ever been made because of the hall; when the smaller halls are rented the tickets are turned over to the lessee to sell as he sees fit; the same policy applies to colored people; that no complaint has been received about Negroes using the halls but on the contrary received com pliments ; that I did not give the young lady selling tickets to the Opera instructions not to sell tickets to Negroes; that I gave no instructions to any young lady or anyone else about selling tickets; that I had nothing whatever to do with the sale of Grand Opera tickets. On Cross Examination: That the Auditorium is used preeminently for pay performances; that when the Negroes complained of discrimination the contract for the use of the Auditorium building had been executed; that the second contract for the Opera was negotiated at approximately the same time as the first one; that since then a contract has been entered into for the performance of the Follies; that no provision saying there shah be no discrimination on account of races was in serted in the contract; that I am acting under instructions of the Commission; that the Audi- 67 torium Commission has full control over the Auditorium; that I was present when the Com mission took up Mr. Owens’ letter and wrote him that the Commission took a vote on policy and decided to let the lessee handle the matter of admissions; that I leased the building to Miss Mildred Franklin and she wrote a letter praising the Commission; that every seat in the Auditorium is a good seat; that the prices range from one dollar to five dollars which is customary; that the comptroller makes contracts for the City; that I conduct all preliminaries; that the contract is written in my office; that we didn’t reserve the rights to sell tickets and prefer not to sell them; that most lessees use our ticket sellers but a large proposition like the Symphony or Grand Opera has its own ticket sellers; that there is a separate booth for their sellers and one for our own; that we retain control of the building during the performance; that is preparing a lease, we have never discussed with lessees about permitting colored people to come in as other citizens; that we did not treat the matter of discrimination lightly but the form of contract is one used throughout the country; that it was drawn by the City Counselor and passed on to the Auditorium Commission and I couldn’t arbitrarily change it; that protection of union labor was passed on by the Committee and it is customary to protect the morality of the citizensp that it was impossible to make any change in the contract that had been signed; that I was informed the one dollar 68 and two dollar tickets were being sold to Negroes and all of them were sold; that I did not protest to the Auditorium Commission and the Auditorium Commission did not protest the sale of only one dollar and two dollar tickets to Negroes. EDWARD GOLTERMAN (B. Ex pp. 85-88) testified that he is secretary of the Grand Opera Founders; that the sale and distribution of tickets is under his supervision at the box office of the Aeolian Company; that he is there several times daily; that there have been no complaints this season from colored people on account of having been denied the purchase of tickets for the Grand Opera; Q. Do you know what policy has been adopted there for the sale of the tickets to the colored people for the present opera1? A. Yes, our policy is to sell tickets from the lower “ N” back the entire second section of the balcony for $2.00 and $1.00. The Court: Q. What row? A. All over this row “ N,” Your Honor, that my father gave those instructions through me; that the girl in charge is complying with those instruc tions. On Cross Examination: That the lease for the last spring called for ten performances and was made between my father and Mr. Darst; that five 69 performances were given last year and eight this year; that the second lease for eight performances was signed about a month or two months ago. WILLIAM CBONK (B. Ex. pp 88-99) testi fied that he is treasurer of the Municipal Audi torium and has been since last March; that I sell tickets as the lessee wants me to do so; that I have never refused to sell tickets to a person be cause he was colored; that I have never received a complaint from colored people because they could 'not buy tickets; that I see colored people going to entertainments frequently; that as far as I know, Negroes have never been excluded; that the only complaint I have ever heard was for the Grand Opera last spring. Cross Examination: That they have had other performances there and I remember tickets were sold to Negroes; that my instructions were to sell the tickets to colored people as well as any others; that I don’t remember how many performances were given in the large Auditorium between the time the Grand Opera closed last spring and the summer; that I have no idea; that I saw Negroes go to the Marionettes; that Father McDonald, who presented the Marionettes, wanted no discrimination whatever; that I do not re member the exact time of the voting on some issue about then but that we had nothing to do with that; that I called Father McDonald up 70 and asked him should tickets be sold to Negroes and he said sell to colored as well as to white; Q. If he told you to restrict to white people, you would have excluded the colored! A. I would have done------ Q. (Interrupting) But you are working for the Municipal Auditorium Commission? A. That is right. Redirect Examination: That if a controversy came up about whether to sell tickets to colored people or not, I would take it up with my superior, Mr. Darst. On Recross Examination: That Father Mc Donald who is a priest Avho was in charge of the “ Queen’s Work” ; that he brought the Marionettes to St. Louis for the benefit of the “ Queen’s Work” ; that it was his idea and order that Negroes be admitted as any other people at those performances. On Further Direct Examination: That on no occasion other than the Grand Opera has there been a question as to whether the colored people should be admitted or not; there has been no complaint about the colored people except at the Opera; that Father McDonald was not leasing the Auditorium because iof the election. On Further Recross Examination: That I called Father McDonald up because I knew him personally and it was a matter I wanted to 71 clarify in my own mind; that there was no need for clarification but I just wanted to know how he wanted the tickets sold. Q. The policy was not to admit Negroes, and you wanted to see what Father McDonald wanted 'to do? A. There was no policy set up about it at all. Q. Well, what was the need for the call? A. There was just a question in my mind as to how he wanted it handled. Q. Did you ask him if you must sell tickets to Indians? A. I would not be that imperti nent to Father McDonald. Q. Well, you asked him with reference to Negroes? A. I asked him how he wanted to handle his ticket sales. Q. With reference to Negroes, you must have said that? A. That was brought up in many of the discussions we had about tickets. There was some difference in the tickets, which is in the printing of them. Q. I am talking about the time you called Father McDonald and asked him about the sale. I want to know the cause of the call. Why was it necessary to call him as to what he wanted done, if the policy was to treat all alike? A. I I said there was a question in my mind and I called him up. Examination by the Court: Q. Just what led you to speak to Father McDonald on the subject of whether or not you 72 should sell to Negroes as well as to whites, Mr. Cronk? That is the point of inquiry. A. I just wanted to satisfy a question in my own mind. Q. Well, why should you have that question in your own mind? A. Well, working in theaters for a number of years around St. Louis, I had that thought in my mind. Q. And not because of any policy that had theretofore been followed in selling tickets for admission to the hall? A. No, sir. MILDRED P. FRANKLIN testified that she teaches dancing and is connected with the Mildred P. Franklin School of Dancing; that her school gave the entertainment mentioned by Mr. Darst; that the tickets were turned over to her and she had absolute charge of all tickets, that some were sold through the box office at the Auditorium and were handled by the City; that no complaints came to her because of refusal to admit colored people; that there were no restric tions whatever on the use of the Auditorium and she had absolute charge; that she received most courteous treatment from the Auditorium and had no complaint at all. On Cross Examination: That she did not discriminate against white people who attended her performance; that her performance was in the large Auditorium; that during the summer months I serve as dancing director on the City 73 pay roll and have served since 1930 and would like to serve next summer; that I was instructed to issue 250 or 300 tickets on four occasions, three of them being in the Opera House; that the tickets were distributed promiscuously over the house with no discrimination whatever; that those performances were free; that there was absolutely no discrimination in connection with those tickets given by the City. CARR CABANNE LINK (B. Ex. pp. 102-104) testified that he is general assistant of the Municipal Auditorium and has charge of the serv ice staff, ushers and ticket takers; that the ushers work under my direction; that I am always on the floor whenever there is a performance; that I have been there since January; that I have seen colored people go to the large auditorium at different times; that Negroes are seated wher ever their tickets call for; that I have never had a complaint from a colored person not being admitted where he ought to be. On Cross Examination: That I have nothing to do with the policy of the Auditorium and do as my superiors direct. CHARLES M. HAY (B. Ex. pp. 104-116) testified that he is City Counselor of St. Louis 74 and a member of the Commission; that I heard the testimony about the complaint last spring and think it is substantially correct; that I was not present at the Commission when the resolution was offered and passed with reference to the sale by the lessee; that the Commission had in mind absolute freedom of access of all matters of a municipal nature and over which the City had control; that there would be no question with respect to any performance so far as the City is concerned; that it is the consensus of the Commission that where the lessee leases the building, the lessee would have the right to determine the policy to be adopted but it was not in the minds of the Commission to discriminate or eliminate any colored person but it was with the conception of the right of the lessee, in order to be fair to the lessee, in the matter; that the Commission was very much concerned when the Opera matter came up and it was an affair of Mr. Golterman, the lessee, and the colored people; that the Commission feels that there should be free and full use of the building in all matters over which the City has control; that I heard no further complaint and was surprised when suit was filed as I thought the matter had been sat isfactorily adjusted; that I am not sure there would be no hesitancy on the part of the Com mission to reconsider its present policy which is not satisfactory to an appreciable number of people because we want to adopt an attitude of absolute fairness to colored people as well as the 75 rest of the community; that I saw a couple of colored ladies sitting three of four seats in front of me (that was on the main floor); that I don’t know of any member of the Commission who has any desire to discriminate against colored people. On Cross Examination: I thought this matter had been adjusted; that I heard for the first time in this case that Negroes were sold only two dollar and one dollar tickets and didn’t know anything about it; that the contract was in final form when it was submitted to my office and I vouched for its form; that the City retains general control of the building during the per formances ; that I do not know if that would enable the City to say you can not discriminate and would be very happy to have the opinion of the Court on it; that the Commission wants to be fair to the lessee; that the freedom of some may be restricted in order that others may have free dom; that it never entered my head as to whether the colored people had rights or not any more than the question of any other people; that the theory of exclusion never occurred to me; that Union labor is one of the things that is to be protected and it is to the credit of the colored and white people of this community that when one sits down to pass on a contract he doesn’t think of the race question, it is so foreign here; that I think that if, instead of filing this law suit, you had come to me or come to the Com mission, this whole thing could have been ironed 76 out to your entire satisfaction; that I did not know the Commission voted to give the lessee full control of those who entered performances until that matter was entered into here today; that I did not know that the committee had acted on that matter; that I was not present when a motion was made to permit Negroes to go to the Audi torium just like white people; that Darst had so many meetings of the Commission I had to stop going. Examination by the Court: That Mr. Darst stated that he had entered into the contract for the Opera and no question arose at the time about Negroes being admitted and it was too late now to change the contract; that I don’t recall whether anything was said indicating what the policy would be later on; that the contract for the present Opera season was made in May; that nothing has come up before the Commission concerning the policy of admission since Mr. Owens was advised of the Commission’s action; that I saw colored people at the Opera and thought the thing had been ironed out; that the attitude of the Commission remains the same now 'as expressed in Mr. Darst’s letter to Mr. Owens (Upon inquiry by the Court, Mr. Darst stated that this matter has not been discussed by the Commis sion since he wrote Mr. Owens the letter which appears in evidence). 77 ALFRED FLEISCHMAN testified that he is superintendent of recreation for the City; that the recreation department had three affairs at the Auditorium and he was in charge; that there was no question about discrimination and tickets were given .out to various children through the supervisors who were white and colored; that no complaints of discrimination were received from colored people but a number of them sent many compliments; that white and colored were included indiscriminately and sat in the front and back rows. At this point defendants offered a letter from A. J. Cos sin which was marked Exhibit “ B ” which complimented the City on the performance. On Cross Examination: That the per formances were free and by tickets; that there was no disturbance because white and colored peo ple sat together and the children dressed in the same dressing room. During a conversation between the Court and counsel, Mr. Golterman stepped up and stated that under their policy, the only place Negroes can buy seats is from “ N” back in the balcony, they cannot go in the lower part of the house at all. The Court: Very well. Now, you have that qualified. Now, on the facts after, and I am going to deal with the situation from now on—I 78 mean I am not going to be bothered much by what happened last spring, that water has gone over the dam, why bother about it. You want your rights determined now and hereafter, not what you were deprived of six months ago. Now, we have the facts as to what is the attitude of this opera, this lessee, as to this season’s opera, which is ended now, as to Mr. Golterman, no seats for your race anywhere except in the bal cony from “ N,” inclusive, back------ Mr. Golterman: (Interrupting) That is cor rect. The Court: (continuing) And the City’s attitude that they have a right to those, so that is a fact. Mr. Hay: Yes, that is the attitude that we have taken and contend by this resolution which was adopted. They take the position that the lessees should have the right to determine the 'rules and regulations. I think this, further; of course, that resolution goes to that whole extent. ! The Court: Absolutely. Mr. Hay: And there has been no subsequent action, and I think that is the position we must stand on. The Court: Now, I understand that in so far as the powers of this Commission are con cerned, they are before me somewhere through vX " M U S I C H A L L A Y U N I C I P A L A U D I T O K I U O R C H E S T I C A F L O O R P L A N 78 mean I am not going to be bothered much by what happened last spring, that water has gone over the dam, why bother about it. You want your rights determined now and hereafter, not what you were deprived of six months ago. Now, we have the facts as to what is the attitude of this opera, this lessee, as to this season’s opera, which is ended now, as to Mr. Golterman, no seats for your race anywhere except in the bal cony from “ N,” inclusive, back-..... Mr. Golterman: (Interrupting) That is cor rect. The Court: (continuing) And the City’s attitude that they have a right to those, so that is a fact. Mr. Hay: Yes, that is the attitude that we have taken and contend by this resolution which was adopted. They take the position that the lessees should have the right to determine the 'rules and regulations. I think this, further; of course, that resolution goes to that whole extent. The Court: Absolutely. Mr. Hay: And there has been no subsequent action, and I think that is the position we must stand on. The Court: Now, I understand that in so far as the powers of this Commission are con cerned, they are before me somewhere through M U S I C H A L L M U N I C I P A L A U D I T O R I U M O R C H E S T R A F L O O R . P L A N M U S ) M U N I C I P A 79 the pleadings, either by the pleadings or something attached by the pleadings. There: is an ordinance creating this commission? Mr. Redmond: Yes, sir. The Court: And they are doing that because the city hasn’t control of that situation! Mr. Hay: I don’t think so, under the action of the Commission. A diagram of the building was marked Exhibit 5 and offered in evidence. THEREUPON, defendants rested. THEREAFTER, on the 20th day of May, 1935, the submission of the case was set aside and it was reopened for the introduction of the follow ing testimony: DEFENDANTS’ ADDITIONAL EVIDENCE EDWARD J. BURKE (B. Ex. pp. 133-157) testified that he is superintendent of operation of the Municipal Auditorium; that on the 2nd of this month he pointed out certain locations in the Municipal Auditorium to His Honor, Judge Ryan, Attorney Redmond, Mr. Senti and Mr. Hay; 80 that the parties mentioned first went to the Opera House and it was pointed out that the distance from the stage to the north wall is seventy-five feet and the distance from the orchestra pit to the main floor of the balcony is one hundred and fifty feet; that the question of acoustics came up and a stranger was seated in a balcony; that Judge Ryan spoke to him to see if he could hear and he could and the Judge asked him to go to the last row and repeat his questions and he did; that the tone of voice Judge Ryan used was considerably lower than one used by a performer on the stage; that at the time Judge Ryan was talking, he was on the first floor near the stage and the other man was in the last row of the balcony; that the balcony consists of a separa tion, consisting of two parts, the lower part being known as the dress circle and the upper part is the balcony; that each aisle runs east and west; •that the lower part has 119 seats; that the lower part is termed the mezzanine row consisting of 112 seats and in front of them are the boxes; that the boxes seat 108; that there are 20 boxes seating from four to six each; that back of the mezzanine is the lower balcony; that the dress bircle is now called the balcony; that the part of the dress circle below the mezzanine seats 71:9 and are rows A to L; that the two mezzanine rows are called A and B ; that the first row of the lower balcony is A ; that the dress circle is A to L inclusive; that an aisle separates L and M and above the aisle are rows M to Z; that 81 there are 854 seats in rows M to Z ; that we left the balcony and went to the assembly halls; that there are four assembly halls; that assembly 'hall No. 3 seats 698 people; that all are identical but rent for different amounts; that there is an elevation in one end and it is used for stage productions; that it rents for $75.00 because it is fixed up for a theater; that halls No. 1 and No. 2 rent for $50.00 and No. 3 and No. 4 for $75.00; that the main hall rents for $375.00; that the ex position hall is on the ground floor and runs under the entire structure from Market Sreet to the alley, a distance of about 468 feet; that the distance east and west is about 276 feet; that we did not go into the main room that is now under construction; that is the convention hall and is on the same floor as the orchestra in the Opera House; that its seating capacity is 8500 (and can be made to seat 12,000 and 13,000. On Cross Examination: That the place was empty when Judge Ryan made his test of hearing; that originally the two large compartments upstairs were known as the dress circle and bal- Icony; that its name was changed three or four months ago. “ I said in the beginning, in naming the lower portion the ‘ Dress Circle’ and the other top part the ‘Upper Balcony,’ they did not want the folks to get the impression that the tipper balcony was a gallery, or what was termed ‘ Negro Heaven,’ and I added on to it and apolo gized for it, as I knew it, that I paid ten cents to get into the gallery, the third floor was always 82 known as ‘Negro Heaven.’ ” (B. Ex. p. 143.) That that statement slipped, while the gentlemen above-mentioned were inspecting the building; that the name of the place was not changed because it was referred to as Negro Heaven; that you should hear better when the Opera House is filled rather than when it is empty; that there has been no complaint of the acoustics; that the elevator goes to the balcony where we were standing at the time, and that patrons are seated from there upward; that the elevator goes to the landing between the upper and lower balcony; people wanting to go from rows M to Z would get off on that level and walk up; that there are thirteen rows of seats and two steps to a row and counting the landings there are about thirty steps from where you get off the elevator to the last row; that the dedication covered fifteen days; that the Opera House was in charge of a dif ferent person during the dedication exercises; that the Negroes had one night; that there was no charge for admission; that the Mayor has called a number of meetings at different places in the building; that all affairs given by the Mayor were open to all citizens; that the price of tickets is left to the lessee; that there have been one or two occasions where tickets in the upper balcony have been the same as those in the orchestra; that in all theaters the cheapest seats are those in the upper balcony; that the upper balcony seats are the farthest back; that the seats in the upper balcony are cheaper than 83 those in the lower balcony; that the distance from row M to row Z is 35 feet; that row Z is about 40 or 50 feet from the first floor of the orchestra, the rear end; that the rear end is higher than the other end as the floor slants; that the seating capacity of the orchestra is 1770, the boxes, 108, the mezzanine 112, the lower balcony or dress circle, from A to M, 719, the 'upper balcony, M to Z, 854, making a total of 3563 seats; that the assembly halls seat 698; the convention hall is intended to seat 8500 per manent seats; that the distance from A to L in the balcony is 17 feet and from M to Z is 19^ feet; that row A in the lower balcony is from 10 to 12 feet above the orchestra floor; that the dis tance from row A down to the orchestra floor would go about 15 or 16 feet. PLAINTIFF’S REBUTTAL EVIDENCE ROBERT L. WITHERSPOON testified that he had testified in this case before; that he has occupied a seat both in the orchestra and the balcony of the Opera House; that the seat in the balcony was six or seven rows beyond M and he had to lean over most of the time in order to hear what was going on on the stage and the hearing was very difficult; that I sat five rows most the rear down stairs and the hearing was good; that one can hear much better in the orchestra than in the upper balcony; that the colored population 84 of St. Louis is between 93,000 and 95,000; that a large number of the colored people are tax-payers. On Cross Examination: That I did not make any complaint to the Auditorium staff about the difficulty in hearing; that those are the only two times I have been in the Auditorium; that I had to lean over to see what was going on when I was up stairs; that I could see much better down stairs than up stairs. WALLACE B. CHRISTIAN (B. Ex pp. 163- 173) testified that he is a physician and has practiced since 1906; that he has practiced in Mis souri since 1919; that sound travels in waves and one would hear probably better at the distance of 150 feet if there was a slight elevation and no 'obstruction; that any break such as an alleviated body or any material that does not give back a sound in an alteration and a mitigation in the transmission of sound; that you can hear better in an empty auditorium than in a full auditorium though in an empty auditorium you might get some echoes; that a large number of individuals cannot sit way up high; that they are not accus tomed to height and have some discomfort when they are put on an elevation; that this is not limited to sick people; that most any heart condition or a kidney condition will cause this feeling; that any person who weighs 200 pounds has some inconvenience from walking up two 85 flights of steps; that a person with defective hearing could not hear as well in the balcony and that a nearsighted person could not see as well. On Cross Examination: That I was in the Auditorium merely looking through it; that the seats are slightly elevated; that sound waves are continuous and any obstruction would naturally interfere with them and to illustrate, one individual two seats behind would get less sound than the individuals in front if he is between that person and the point which the sound comes. His body is an interference to some extent; that if the person behind were elevated there would not be the same obstruction as if he were on the same level; that loud speakers overcome the obstruction to a certain extent; that sound can be so intense the drum of the ear will not record it which ex plains why we can some times hear better on the radio from a distance; that some people experience discomforts on an elevation; that if they could not see anything below it would not make any ■ difference but if they could see something, like the street, then their reactions would be in ac cordance; that there is discomfort or dizziness sitting in a seat in the balcony that is somewhat higher than the other seats; that the discomforture depends on how much higher the seat is than the individual’s accepted position; that the discomfort increases in proportion to the height above his normal. 86 EDWARD J. BUBBLE was recalled by de fendant and testified that there are amplifiers that come off the stage board to take care of the Opera House; that it is on at all performances unless a request is made to leave it off; that unless a person is absolutely deaf, there is no reason any person should not hear very clearly all over the building; that when Judge Ryan spoke at the Auditorium the other day, it was just his natural voice; that no complaint has ever come about the hearing and the acoustics are praised; that I have been to all parts of the building; that an exception might be with an amateur performer who is not accustomed to throwing his voice, it is a trifle difficult to hear; that with average hearing you should hear a voice all over the building. Both sides rested. THEREUPON, plaintiff presented to the Court and asked the Court to find the following Binding of Facts: FINDING OF FACTS Request having been made for a finding of facts separate from conclusion of law, the Court, in compliance therewith, does find from the evi dence that Joseph P. H;arris, the plaintiff, is a Ne 87 gro; that there are about 95,000 Negroes living in the City of St. Louis, Missouri; that thousands of them are tax payers. The defendant City of St. Louis erected and maintains the Municipal Auditorium with public funds raised from the taxation of all citizens regardless of race or color; that Negroes, because of their race and color, are discriminated against in the use of the Municipal Auditorium in that they are not permitted to sit anywhere they choose in the Oepra House of the Municipal Auditorium but are restricted to use of the seats in the balcony. Judge. THEREUPON, plaintiff presented to the Court and asked the Court to give the following Conclusions of Law: CONCLUSIONS OF LAW The Court declares the law to be: That it is the duty of the defendants to use public property for the purpose for which it was erected and to make it equally accessible on the same terms to all citizens regardless of race, creed or color. That the City of St. Louis and the other de- f’endants cannot permit their lessees to do what they themselves cannot do. That it is illegal for the defendants to exclude members of the Negro race from certain sections of the Opera House at public performances solely because of their race and color, and that such exclusion on the part of the defendants was discriminatory and resulted in a loss to petitioner and he is entitled in this action to an injunction restraining the defendants from a continuation of the discriminatory practices. Judge. Both of which were refused by the Court and plaintiff duly excepted and still excepts. FINDINGS OF FACT AND LAW BY THE COURT (Caption omitted) This case filed August 27, 1934, was heard October 11 last on a return to an order to show cause issued September 24, was later fully briefed and argued, and on April 8, the return was re filed as an answer and reply filed and cause sub mitted on the merits on the evidence heard in Octo ber. 89 The petition alleges plaintiff is a citizen and resident of St. Louis for forty years, a tax-payer and owner of real estate, and that he brings the action for himself and such other citizens as care to join therein. Makes suitable allegations identi fying the defendants, the City of St. Louis, the City Treasurer, H. C. Menne, Director of Public Service Joseph M. Darst, Manager of the Audi torium James Darst, and states the other defend ants are Members of the Municipal Auditorium Commission, a body created by City Ordinance No. 40145. Alleges that pursuant to the Constitution of the State, the Charter of the City, and a City Ordinance a bond issue of $5,000,000 was proposed and adopted by a vote of the people to acquire a site and a civil building, to be known as the “ Municipal Auditorium and Community Center Building” to be used holding public meetings, gatherings, conventions to discuss public questions * * # and to provide suitable meeting places for educational, moral, musical, industrial, labor, and other purposes. That the building is now wholly or partly completed and is being used for and by some citizens and tax payers to the exclu sion of others. Ordinance No. 40145, approved June 27, 1933, is pleaded whereby the Commission was authorized and its power and duties defined. The Commission consisting of the Mayor, the Comptroller, the President of the Board of Aider- men, the City Counselor, the Director of Streets and Sewers, the Director of Public Safety, five Members of the Board of Aldermen, selected by 90 that body, and seven others to be appointed by the Mayor, to hold office during his pleasure, to represent certain bodies, convention bureau, etc., etc., all serving without compensation. The Com mission to act in an advisory capacity in the man agement, control and use of the building, with power to make rules and regulations, cooperating with civic bodies that work to the same end to secure events appropriate for the Auditorium and Community Center, and which would benefit the City. The Commission to establish a schedule of charges for the use of the building, and with the right to exempt in whole or in part from any charges for use by the convention of an organiza tion which might draw an attendance that would re sult in a considerable return to the City. All monies collected for the use of the Auditorium and Center to be deposited with the City Treasurer, The Convention, etc., Bureau to be afforded suf ficient office space to aid its civic activities in bringing events here, and to be charged for space, heat, etc., as determined by the Commission. Plain tiff alleges he is a Negro and that the Commission, in violation of the Constitution, Charter, and Ordinances, have deprived him and all Negroes of the full and same right of admission to public at tractions given in the Auditorium, and of the bene fits derived from the building. That he has been taxed for the erection, upkeep, etc., of the building and this money and the money of thousands of other Negroes, as part of the general revenue of the City, is used for this public building and it is 91 operated in an illegal manner by defendants in that they discriminate against Negroes, and deny them admission to public performances therein, and the nse of the revenue while such discrimination continues is illegal. That as a subterfuge the de fendants have concocted a plot whereby the large auditorium is rented to individuals who connive with defendants and are permitted and encouraged and' allowed to refuse to sell tickets of admission to public performances to Negroes solely because they are Negroes.' That he has no remedy at law and hence prays equitable relief to-wit to enjoin defendants, etc., from leasing, renting, etc., said building or parts thereof for performances for edu cational, etc., purpose that promote the common wealth at which plaintiff or members of the Negro race are excluded or denied the same rights of ad mission as any other race, solely because of their race or color, and from paying City funds to main tain, etc., the building until it is operated so there will be no race segregation or discrimination, etc. The answer makes * some formal admissions, and then specifically denies any taxpayers use the building to the exclusion of others, and denies they have deprived plaintiff and all others of his race of the same right of admission to, and opportunity to attend public attractions given in the Audi torium, and deny they are depriving them of benefits etc., derived from the building. Deny illegal operation of the building by discrimina tion or that there was a plot or a conniving with others to refuse to sell Negroes as alleged. The 92 reply is in effect a denial of defendants’ denials. The evidence was, in substance, that plaintiff, re sident here over fifty years, a tax payer about thirty years, and a deputy clerk in our Probate Court, and others of his race, all who testified be ing very respectable persons engaged in various occupations, had sought to buy tickets for admis sion to different parts of the Auditorium to hear grand opera, presented to the public by Mr. Guy Golterman, the licensee from the City, which acted through the Muncipal Auditorium Commission, for a period of some weeks in the spring of 1934, when the Auditorium was first opened to the public, and again in the fall of that year. The license, which seems to have been based on forms used in other cities, was non-assignable and revocable, and re served the right of the City to control the manage ment of the Auditorium, and to enforce all neces sary rules for its management and operation. It provided for certain payments for the use of the Auditorium, and contained numerous provisions of no moment here. There was nothing in the license that in any way restricted the right of the licensee to say that Negroes, or any other persons of what ever kind or race, should not be permitted to oc cupy seats except in such parts of the house as the licensee might designate for their use. Plaintiff arid his witnesses testified they sought to buy tickets of admission at the office on Olive street where tickets were sold and were denied the right to buy seats save certain side seats on the main floor and certain one dollar seats in the upper balcony. More expensive and more desirable seats 93 not being sold to Negroes. There was some ques tion of whether this refusal was by direct authority of the Commission through Mr. Darst or because of Mr. Golterman’s orders, but that is immaterial for this reason. A committee, thoroughly representa tive of the colored people, had a conference with the Mayor, and others representing the Commis sion, protested against the discrimination as to their people, and suggested a clause in the license contracts forbidding same. The result was that on May 1.8th a letter was sent the chairman of the Committee, Mr. K. N. Owens, signed by Mr. James E. Darst for the City Commission reading as fol lows : “ At its last meeting the Auditorium Com mission heard your letter and directed me to refer you to a rule of the Commission, made at a previous meeting: When the Auditorium Commission through the Manager leases any part of the Audi torium, for any sort of dramatic production, concert, reception, athletic event, etc., it shall leave to the discretion of the lessee any regula tions regarding admission, price, sale of tickets and such matters. The Commission ruled that this applied to the admission of persons of various races and that it was within the province of lessee to say who should be admitted and under what condi tions.” This is a very explicit statement of the City’s position and policy which the evidence shows re- 94 mains unchanged.. There has been some modifica tion by Mr. Golterman by way of liberalizing his policy as to seats for colored people. Instead of be ing limited to parts of the upper balcony on the right and left of center, they may now occupy any balcony seats. They could formerly buy only some seats in the rear sides of the main, or orchestra, floor, which seats 1770 people. It does not ap pear explicitly what is the present rule as to that floor but the Court’s conclusion from the evi dence is that the rule as to that floor has not been changed. The second floor is arranged thus: In front a row of boxes seating, in all, 108; then two rows of mezzanine seats for 120; then the lower balcony, called at the hearing the dress circle, rows A to L inclusive, seating 719; then a passage way (on a level with the last upper stop of elevators from the lobby floor of the building) and then the upper balcony, rows M to Z inclusive, seating 854. The length of a line drawn from the stage to row Z, the extreme high row in the upper balcony, would be about 150 feet. The acoustics are excellent and speakers on the stage may be heard in the up per balcony. Loud speakers are used. The very large stage may be seen clearly from all parts of the house, the scenes or people on the stage may not be distinguished so satisfactorily from the up per parts of the house, and one sees better down stairs than up. One of plaintiff’s witnesses said persons over fifty, or very heavy, or with cer tain troubles, (heart, kidney, vision,) might have difficulty in ascending to and using the high parts of the house. There are four assembly halls, with 95 stages, two on either side of the large hall, which will each seat 698. Two of these may be used for dances. There is a great space called the exposi tion floor beneath the entire building, and the in terior is now being finished of a convention hall, in the south end of the bidding, that will ordinarily seat 8500, and seats may be added to accommodate in all between 12000 and 13000. The large hall rents for $375.00, the Assembly halls for $75.00 and $50.00. There are lounge rooms, etc., adjoining the large hall and each of the assembly halls. Mr. Golterman, Jr. testified there had been no com plaints from colored people during the fall season of opera. The colored people were fully represent ed on the large Citizens’ Committee that arranged the various civic celebrations, lasting some days, at the opening of the Auditorium Center in the spring of 1934, and were freely admitted to all the civic entertainments. They had their own night of en tertainment in the Auditorium, (where the grand opera was later presented) and Miss Franklin, a colored teacher of dancing, used it for a dance re cital of her school of dancing. Miss Franklin, who is a director of dancing for the City during sum mer months, said she distributed blocks of tickets to admit colored people to the three Play Ground Festivals given by the City in the Auditorium in April and September last year. Colored people have also freely rented the assembly halls for their own use. Sometimes fraternities have used the halls admitting only their own members. Prac tically all the use made, since the opening of the building in the spring of 1934, of the large audi 96 torium, and the assembly halls and exposition floor, has been made by licensees, paying the City there for. In all the entertainments given under the di rect auspices of the City there has been no dis crimination, and there was no evidence that li censees, other than Mr. Golterman who only pre sented Grand Opera, in any wray discriminated against colored people, and no complaints were made by them as to any discrimination save in the Grand Opera seasons. Mr. Hay, the City Counse lor, and a member therefor of the Commission, testified it did not intend to discriminate against colored people but, while wanting to be absolutely fair to them, the Commission did believe the licen see should have the right to control the question of v/ho should be permitted to attend the entertain ments, for which the license was granted. That licensees might limit attendance to the people of a special race or color or creed if they saw fit to do so. There was no evidence to sustain the allega tion that there was a plot entered into by defend ants among themselves, or with licensees. Golter man or any other, to refuse to sell tickets of admis sion to the large auditorium to negroes because they were negroes. One witness for the plaintiff stated there were between 93000 and 95000 colored people in this city, as per the 1930 census, many of whom were taxpayers. The part hereof descrip tive of the building is taken from the evidence given in court May 20, after a visit to the building, made May 6, by the court accompanied by counsel for plaintiff and defendants—and plaintiff person ally. The above resume’ not only sets forth the 97 salient points necessary for consideration of the legal questions presented by counsel but is a find ing of facts that meet a request made by counsel for plaintiff when the case was finally submitted May 20th. The petition might be dismissed because of failure to prove the specific charges made as the basis of complaint, namely, that the building was operated in an illegal manner in that the defend ants discriminated against negroes, and denied them admission to public performances, and hence the use of revenue from the building was illegal, and that defendants had concocted a plot in renting the large auditorium to individuals who connived with defendants, and were permitted, encouraged and allowed to refuse to sell tickets to negroes for admission to public performances solely be cause they were negroes. However the case took a wide range, and the Court will pass on the ques tion of the legal right of the city, through its Com mission in charge of the Auditorium building, to license the use of parts thereof, leaving to the licensees’ discretion as to “ the admission of per sons of various races, and that it was within the province of the lessee to say who should be ad mitted and under what conditions.” Plaintiff con tends that this policy of discrimination by the City which the City could not make and must prevent its licensees from making—Conceding that the City could not make it the proof is that when the City is the host at entertainments in the building it does not make such discrimination, nor does it refuse 98 to let any part of the building to negroes upon the same terms as a letting to whites. The legality of the bond issue was thoroughly considered by our Supreme Court in the 11 alb megger case, 302 Mo. 573, in an opinion, in banc, written by Judge J. T. Blair. The decision turned on the question whether money voted was to be used for a public purpose so that it came within the provisions of our Con stitution Section 3 of Article 10 that: ‘ ‘ Taxes may be levied and collected for public purposes only.” The substance of the decision is that the “ public purposes” to be served, of providing a building for public meetings, conventions, and gatherings of various kinds, for educational, moral, musical, in dustrial, labor and other purposes, justified the ex penditure of public money. The opinion was a learned and exhaustive review of what were muni cipal rights, and decisions relating thereto, in the way of spending revenue for the general welfare and happiness of the people, and whatever would “ advance the cause of education and morals among the people of a community and aid in contributing to the general welfare, the progressive influences of moral and cultural forces essential to the ad- \ancement of the race.” That the Auditorium building would not be used for meetings, exhibi tions and entertainments, educational, musical and otherwise, held only under the direct auspices of the City, may well be inferred from the broad lan guage of the proposition voted on, and this was recognized by the legislative branch of the City government when it passed the ordinance. (No. 40145), under which the Commission was provided 99 for and giving it the right, in connection with its general control of the building, to fix a schedule of charges for its use. The building is very large, and the accommodations for public gatherings range from small halls where seven hundred may gather, to the great convention hall that, on special occasion, may seat thirteen thousand people. Mani festly every step taken was with a view to a struc ture that could be used by the City in whole or in part as needed, at any time for purely civic mat ters, and when not so needed, and that must be for the greater part of the time, rented, as to its various parts, to persons who would pay for the parts used just as one might rent any place for purposes of public entertainment. In such event the City becomes, for the time, the landlord and the person renting its tenant. The Charter gives the right to the City to lease, Ordinance No. 40145 carries out that right with respect to this building. It is the law generally that a City when it owns property that, for a time, cannot be used for a strictly public purpose may rent it for private uses. The general rule has been specifically rec ognized and applied in this State in the Heger- Tower Grave Park case in 323 Mo. 1931, and the principle sustained in the much earlier case of Attorney General against Schweickhardt, 109 Mo. 496, which related to the operating of a restaurant in Forest Park under a contract with the owner made by the City under a City Ordinance. The City in matters of that kind does not act in its governmental or political capacity but in a quasi private capacity. 1 0 0 Counsel for plaintiff in their oral arguments, supplemented by able briefs, have emphasized their thought that what has happened here is a viola tion of the Fourteenth Amendment to the Consti tution of the United States, and they have analyzed that amendment with clearness and pre cision, citing many cases construing it in varying circumstances. The Court does not think that question is present in this case. The City has not segregated colored people from white people. It has not discrimiated in any way against the former. It has not shut its doors to them, or said they cannot make use of this or that part of the building, or sit in this or that section of any part thereof. It has rented, and undoubtedly will continue to rent, any part thereof they wish to use to the colored people as to the white people— and either, when a renter, may say to the other— If you want to come in you will be assigned to certain parts only and to none other. That this may be irritating and vexing, and may run counter to a natural pride is true, but if the City may rent a hall as any landlord might do, and it is within the legal rights of the lessee as to what he may do with the place he has rented for the night, or the week, then those admitted only on his terms cannot say they have been legally hurt —They have no ground for legal complaint be cause of his action—This was recognized as true by our Supreme Court in the Judah case, in 111 Mo., where a theatre owner in Kansas City was held to have the right to let colored persons oc 1 0 1 cupy only balcony seats especially set apart for their use. Judge Black said: “ Colored persons have their own schools, their own churches, and often their own places of amusement. Whites attending places of amusement designed specially for colored persons may be required to occupy separate seats. When colored persons attend theatres and other places of amusement, conducted and carried on by white persons, custom assigns to them separate seats. Such separation does not necessarily assert or imply inferiority on the part of one or the other. It does no more than work out natural laws and race peculiarities. It ordinarily contributes to the convenience and comfort of both. The col ored man has and is entitled to have all the rights of a citizen, but it cannot be said that equality of rights means identity in all re spects. Here the defendants did not exclude or attempt to exclude colored persons from his theatre. He provided accommodations for them, but in doing so required them to purchase tickets for and take seats in the balcony, and this rule adopted by him accords with the custom and usage prevailing in this State. Such custom has the force and effect of law until some competent legislative power shall establish some other and different rule. The defendant’s rule was no more than a reasonable regulation which he had a right to make and enforce.’ ’ 1 0 2 That case is the law of this State today, and if the Court is right in holding that the City can let the different parts of the Auditorium building, when not needed for its own use, as any property owner might let halls be owned, then it may allow the lessee, or licensee, to regulate the admission and seating of those who buy tickets, and the Com mission’s resolution to that effect is lawful. It follows that the plaintiff’s petition must be dismissed, and judgment entered for defendants and it is so ordered. O ’Neill Ryan, June 3, 1935. Judge. To which action, ruling and order by the Court plaintiff duly excepted at the time and still excepts. PLAINTIFF’S MOTION FOR A REHEARING (Caption omitted) Comes now the plaintiff and moves the Court to set aside its verdict and grant it a rehearing in the above-styled cause for the following reasons: 1. The judgment of the Court is for the wrong party. 103 2. The judgment of the Court is against the weight of the evidence and contrary to the law. 3. The Court erred in refusing the finding of facts and conclusions of law submitted by plain tiff. 4. The judgment of the Court is contrary to and in violation of Section 30 of Article 2 of the Constitution of the State of Missouri in that it deprives plaintiff of his liberty and property with out due process of law. 5. The judgment of the Court is contrary to and in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States in that it deprives plaintiff of his property and liberty without due process of law. 6. The finding of facts made by the Court is erroneous and contains many immaterial matters and matters not in evidence and omits many per tinent and vital matters. 7. The Court erred in putting the Municipal Auditorium on the same basis as a private enter prise. 8. The Court erred in its conclusions of law. 9. The Court erred in basing its conclusions of law on facts not in the record. 10. The judgment of the Court is contrary to Section 3 of Article 10 of the Constitution of the State of Missouri which provides that taxes 104 may be levied and collected for public purposes only. PLAINTIFF’S MOTION FOE A REHEARING OVERRULED On the 24th day of June, 1935, during the June Term of said Court, by an order duly made and entered of record, the Court overruled plaintiff’s motion for a rehearing; to which action, ruling and order of the Court in overruling said motion for rehearing, plaintiff, by his counsel, then and there duly excepted and still continues to except. And thereafter, on the 2nd day of July, A. D. 1935, the plaintiff duly filed in said court in said cause, in writing, his affidavit for an appeal in words and figures as follows: AFFIDAVIT FOR APPEAL State of Missouri, City -of St. Louis, ss. Henry D. Espy, attorney for Joseph P. Harris, plaintiff, being duly sworn, makes oath and says, that the appeal prayed for in the above entitled cause is not made for vexation or delay, but be cause the affiant believes that the appellant is aggrieved by the judgment or decision of the Court. (Signed) H enry D. E spy, Attorney for Joseph P. Harris, Plaintiff. 105 Subscribed and sworn to before me this 2nd day of July, A. D. 1935. (SEAL) H. Sam Priest, Clerk. WHEREUPON, the Court granted plaintiff an appeal in said cause to the Supreme Court of Mis souri. BILL OP EXCEPTIONS PILED Inasmuch as the foregoing evidence, proceed ings, matters, things, rulings, and exceptions do not appear of record and in order that same may be made a part of the record in this cause so as to be presented to the Supreme Court of Missouri, plaintiff here and now presents to the Court this, his bill of exceptions, and prays that the same may be settled, allowed, approved, signed, sealed and filed and ordered made a part of the record in this cause; all of which is accordingly done on this 11 day of Sept. 1935. Frank C. O ’Malley, Judge of the Circuit Court of the City of St. Louis, presiding in Divi sion No. 2. O ’Neill Ryan, Judge of the Circuit Court of the City of St. Louis, before whom this cause was tried. 106 Approved by: S. R. Redmond, E sq., Henry D. E spy, E sq., Attorneys for Appellant (Plaintiff). Charles M. Hay, E sq., Oliver Senti, Esq., Attorneys for Respondents (Defendants). On July 6, 1935, appellant caused to be filed in the office of the clerk of the Supreme Court of Missouri, a certified copy of the record entry of the judgment appealed from in this cause, showing the term, day of the term and month and year when the same was rendered, together with the order of the court granting the appeal herein and the docket fee of $10.00 was paid to said clerk and said cause is now pending on appeal in this Court. The foregoing is submitted by appellant as and for an abstract of record in this cause. S. R. Redmond, Henry D. Espy, Attorneys for Appellant. ' INDEX Title ................... 1 Abstract of Record .................................... 1 Amended Petition .............. 2 Answer ......................................................... 7 Reply .......................................................... 9 Plaintiff’s Motion for a Rehearing ...... 10, 26, 102 Findings of Fact and Law ......................... 11, 88 Trial Submission and Judgment .............. 25 Motion for Rehearing Filed and Overruled 26, 102 Application and Affidavit for Appeal..........27, 104 Appeal Granted ........................................... 27, 105 Bill of Exceptions Filed ....... ..................... 27, 105 Bill of Exceptions on Behalf of Appellant 27 Appearances .... 28 Finding of Facts ......................................... 86 Conclusions of Law ................................... 87 Certificate ....... 106 PAGE PLAINTIFF’S EVIDENCE Joseph P. Harris: Direct Examination ................... 28 Cross Examination ............................. 29 Examination by the Court ................. 29 Re-cross Examination ..................... 30 Examination by the Court ................. 30 J. R. Terry: Direct Examination .................. 33 Cross Examination ............................ 34 Re-direct Examination .............. 34 Re-cross Examination ......................... 35 INDEX Continued Nathaniel H. Sweets: Direct Examination ............................. 35 Examination by the Court .................. 36 Cross Examination .............. 37 E. L. Witherspoon: Direct Examination ............................. 37 Cross Examination ............................ 39 Examination by the Court .................. 39 Ee-direct Examination......................... 39 Eobert Owens: Direct Examination ...................... 39 Examination by the Court .................. 42 Examination continued ..................... 53 Examination continued......................... 56 Cross Examination ............................. 58 Ee-direct Examination......................... 58 Sidney E. Williams: Direct Examination ......................... 59 Cross Examination ............................. 59 Examination by the Court .............................59 Ee-cross Examination ......................... 60 Ee-direct Examination......................... 60 Ee-cross Examination ......................... 60 Examination by the Court ........ 60 S. E. Eedmond: Direct Examination ............................ 61 Examination by the Court.................. 62 Plaintiff Eests............................................... 62, 86 PAGE INDEX Continued DEFENDANT’S EVIDENCE James E. Darst: Direct Examination ............................ 62 Cross Examination ............................ 66 Edward Golterman: Direct Examination ............................ 68 Cross Examination ....................... 68 William Cronk: Direct Examination ............................ 69 Cross Examination .............. 69 Re-direct Examination ....... 70 Re-cross Examination ..... 70 Re-direct Examination......................... 70 Re-cross Examination ......................... 70 Examination by the Court ................. 71 Mildred P. Franklin: Direct Examination ............................ 72 Cross Examination ............................ 72 Carr Cabanne Link: Direct Examination ............................ 73 Cross Examination ............................ 73 Charles M. Hay: Direct Examination ............................ 73 Cross Examination .............. 75 Examination by the Court ................. 76 Alfred Fleischman: Direct Examination ............................ 77 Cross Examination ............................ 77 Consultation between the court and counsel ........................................... 77 PAGE INDEX Continued Edward J. Burke: Direct Examination ............................ 79 Cross Examination ....................... — 81 Defendants Rest ........................................... 79, 86 PAGE PLAINTIFF’S EVIDENCE IN REBUTTAL Robert L. Witherspoon: Direct Examination .................... ........ 83 Cross Examination ........... 84 Wallace B. Christian: Direct Examination ............................. 84 Cross Examination ............................. 85 DEFENDANT’S EVIDENCE IN REBUTTAL Edward J. Burke: Direct Examination ............................. 86 PLAINTIFF’S EXHIBITS Exhibit 1—Copy of Contract..................... 45 Exhibit 2—Letter ...................................... 55 Exhibit 3—Letter ................................... 56 Exhibit 5—Letter ....................................... 57 DEFENDANT’S EXHIBITS Exhibit 5—Diagram of building .............. 79 SUPREME COURT OF THE UpITED STATES I OCTOBER TERM, 1938 No. 643 WILLIE EYA SIMMONS vs. Appellant, THE BOARD OF EDUCATION OF THE CITY OF MUSKOGEE OF THE STATE OF OKLAHOMA ET AL. APPEAL FROM T H E DISTRICT COURT OF T H E UN ITED STATES FOR T H E EASTERN DISTRICT OF O KLAH OM A STATEMENT AS TO JURISDICTION. C h a r l e s A. C h a n d l e r , Counsel for Appellant. . INDEX. Subject I ndex. Page Statement as to jurisdiction...................................... 1 Statutory provisions sustaining jurisdiction. ... 1 The District Court of the United States for the Eastern District of Oklahoma had original jurisdiction of said cause............ 1 The Supreme Court of the United States has jurisdiction of said cause upon appeal. . . . 3 The statutes of the State of Oklahoma contended by said appellant to be violative of the Consti tution of the United States.............................. 4 Date of order and decree sought to be reviewed, and date upon which application for appeal was presented to trial court and upon which appeal was allowed to this Court..................... 12 Nature of case and rulings of trial court............ 13 Cases sustaining jurisdiction............................ 15 Cases in support of the substantial nature of the Federal questions ........................................... 15 The doctrine of Cumming v. Board of Education is not applicable to this case............................ 16 Opinion of trial court......................................... 16 Exhibit “ A ” —Findings of fact and conclusions of law of the District Court of the United States for the Eastern District of Oklahoma........................... 19 Table of Cases Cited. Buchanan v. Warley, 245 U. S. 60, 62 L. Ed. 149......... 15 Cumming v. Board of Education, 175 U. S. 528, 44 L. Ed. 262.................................................................... 16 Herkness v. Irion ei al., 278 U. S. 92, 73 L. Ed. 198.. . 15 Home Tel. and Tel. Co. v. Los Angeles et al., 227 U. S. 278, 57 L. Ed. 510.................... 15 McFarland v. Goins, 96 Miss. 67, 50 So. 493.............. 15 Norfolk and Western Ry. v. Board of Public Works, etc., 3 Fed. Supp. 791............................................... 15 —10012 i i INDEX Page Pierce et al v. Society of the Sisters, etc., 268 U. S. 510, 69 L. Ed. 1070................................................... 15 Reppel v. Board of Liquidation, 11 Fed. Supp. 799. . . 15 State of Missouri ex rel. Gaines v. Canada, etc., No. 57, October Term, 1938, decided December 12,1938. 15 Sterling v. Constantin, 287 U. S. 378........................... 15 Truax v. Raich, 239 U. 8. 33, 60 L. Ed. 131................ 15 Yick Wo v. Hopkins, 118 IT. S. 356, 30 L. Ed. 220....... 15 Statutes Cited. Act of February 13, 1925, Section 8(a) (28 U. S. C. 350, 43 Stat. L. 936)................................................. 13 Constitution of the State of Oklahoma, Article 13, Section 3 (Yol. II, O. S. 1931, p. 1495, Sec. 13676). . 8 Constitution of the United States, 14th Amendment, Section 1 ................................................................. 3,4 Judicial Code, Section 24, amended (28 U. S. C. 41(1) and (4 ) ) .......................................... 2 Section 52 (28 U. S. C. 113).............. 2 Section 238, amended (28 U. S. C. 345 (3)) ............................................... 4 Section 266, amended (28 U. S. C. 380) ............................................... 3,4 Oklahoma Statutes of 1931, Chapter 27, Article 5: Sec. 5412 ............................................................. 7 Sec. 5413 .............................................................. 7 Sec. 5414.............................................................. 8 Oklahoma Statutes of 1931, Chapter 34, Article 9: Sec. 6853 ...................................................... 4 Sec. 6861 ............................................................. 5 Sec. 6867 ...................................................... 5 Sec. 6876 ...................................................... 5 Sec. 6880 .............................................................. 6 Sec. 6881 .............................................................. 6 Sec. 6884 ............................................................. 7 Sec. 6892 .............................................................. 7 Oklahoma Statutes of 1931, Chapter 34, Article 18: Sec. 7033 .............................................................. 8 Sec. 7034 9 INDEX 111 Page Sec. 7035 ............................................................. 9 Sec. 7036 ............................................... 9 Sec. 7037 ............................................................. 10 Sec. 7038 ............................................................. 10 Sec. 7039 ............................................................. 10 Sec. 7040, as amended by Sec. 1, H. B. 320, Okla homa Statutes, 1937 ....................................... 10 Sec. 7045 ............................................................. 11 Sec. 7046 ............................................................. 11 Sec. 7049 ............................................................. 12 Revised Statutes, Section 1977 (8 U. S. C. 41)........... 2 Section 1979 (8 U. S. C. 43)........... 2 SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1938 No. 643 WILLIE EVA SIMMONS vs. Appellant, THE BOARD OF EDUCATION OF THE CITY OF MUSKOGEE OF THE STATE OF OKLAHOMA ET AL. APPEAL FROM T H E DISTRICT COURT OF T H E U N ITED STATES FOR T H E EASTERN DISTRICT OF OKLAH OM A STATEMENT AS TO JURISDICTION. May it please the H onorable Court : The appellant in the above entitled cause, Willie Eva Sim mons, in support of the jurisdiction of this Honorable Court to review the above entitled cause on appeal, respectfully represents: A. Statutory Provisions Sustaining Jurisdiction. (a) The District Court of the United States for the East ern District of Oklahoma had original jurisdiction of said cause. 2 By her first amended and supplemental complaint (R. 1- 25) filed in said District Court, said appellant prayed for an interlocutory injunction and also for a permanent injunc tion, under Sec. 266, Judicial Code, Amended, to restrain the appellee Mac Q. Williamson, Attorney General and ex- Officio Bond Commissioner of the State of Oklahoma; the Board of Education of the City of Muskogee, Oklahoma, and other local officials from proceeding to issue, sell, certify and approve proposed bonds of said Board of Education in the sum of $275,000.00, and to restrain said parties from doing other acts pursuant to and in the enforcement of the herein after mentioned statutes of the State of Oklahoma, it being alleged in said complaint and contended by appellant that said State Statutes and said acts of the defendants there under violate Section 1 of the 14th Amendment to the Fed eral Constitution, and violated R. S., Secs. 1977 and 1979 ( I T . S. C., Title 8, Secs. 41 and 43), providing for equal rights of citizens of the United States. Said appellant, as plaintiff, sued on behalf of herself as well as on behalf of many other Negro citizens similarly situated. All proper jurisdictional allegations were made in said complaint. Plaintiff and all other parties, except Mac Q. Williamson, were alleged to be residents of the East ern District, and said Mac Q. Williamson, was alleged to be a resident of the Western District, all of the State of Okla homa (R. 2). It was properly alleged that the amount in con troversy exclusive of interest and cost, exceeded the sum and value of $3,000.00. Said District Court for the Eastern District of Oklahoma had original jurisdiction. Judicial Code, Sec. 24, Amended, U. S. C., Title 28, Sec. 41, paragraphs (1) and (14). Venue of said cause properly lay in said District Court. Judicial Code, Sec. 52; U. S. C., Title 28, Sec. 113. 3 (b) The Supreme Court of the United States has jurisdic tion of said cause upon appeal. Said suit was instituted in said Federal District Court, under Sec. 266 of the Judicial Code, Amended, U. S. C., Title 28, Sec. 380, amended, for interlocutory injunction and also for a permanent injunction to restrain Mac Q. William son, as Attorney General and ex-Officio Bond Commissioner of the State of Oklahoma, and also to restrain other local officers from enforcing and executing the hereinafter men tioned statutes of the State of Oklahoma, it being contended by appellant that said statutes were unconstitutional and violative of Section 1 of Article 14 of Amendment to the Con stitution of the United States, and violative of R. S., Secs. 1977 and 1979, providing for equal rights of persons within the jurisdiction of the United States. It further appeared that due and proper notice of hearing in the trial court was properly made and given to said At torney General of said State of Oklahoma, to the Governor of said State of Oklahoma, as well as to the defendants in said cause; and that said cause was heard before a statu tory, three-judge court, under J. C., Sec. 266, amended. This appeal is prosecuted to this Supreme Court of the United States from the order of said Federal District Court, upon hearing, denying to said appellant an interlocutory in junction as prayed for, and also from the final decree in said cause, denying to said appellant a permanent injunction as prayed for (R. 62, 64). The appeal herein has been allowed by said Federal District Court, and duly perfected to this Court, in all respects in conformity with law and agreeably to the rules of this Honorable Court (R. 68-106). Said appellant respectfully contends that this Honorable Supreme Court of the United States has jurisdiction in 4 said appeal by virtue of U. S. C. A., Title 28, Sec. 345 (Judicial Code, 238, as amended by tbe Act of Feb. 13, 1925); paragraph No. 3 of said Section 238; as well as by reason of Sec. 266 of the Judicial Code, Amended; U. S. C. A., Title 28, Sec. 380, as amended by the Act of Feb. 13, 1925, providing for a direct appeal to this Court from an order of a statutory three-judge district court denying interlocutory injunction, as well as from a final decree de nying a permanent injunction in such case. This appeal is prosecuted from such order and from such final decree in such case. B. The Statutes of the State of Oklahoma Contended by Said Appellant to be Violative of the Constitution of the United States. It appears from the allegations of the complaint (R. 4, paragraph 6), as well as from the findings of fact and con clusions of law made by the trial court (copy thereof at tached hereto; also, R. 40) that in proceeding to issue, sell, and certify the bonds herein sought by appellant to be en joined, the appellees are proceeding with the enforcement, operation, and execution of the statutes of the State of Okla homa, duly enacted by the Legislature of said State, desig nated as Article 9, of Chapter 34, 0. S. 1931 (Secs. 6853- 6914; Vol. I, 0. S. 1931, pp. 1998-2015), and pertaining to Independent School Districts. Appellant respectfully shows to the Honorable Court that the provisions of said Article 9 of said Chapter 34, partic ularly contended by said appellant to be unconstitutional, violative of Section 1 of Article 14 of Amendment to the Constitution of United States and also violative of U. S. C., title 8, Section 41 (R. S., Sec. 1977), are as follows, to wit: Sec, 6853 (Vol. I, 0. S. 1931, p. 1999): “ 6853. Independent Districts in Cities and Towns.— Each city of the first class, and each incorporated town 5 maintaining a four years high school fully accredited with the State University, shall constitute an inde pendent district and he governed by the provisions of this article.” Sec. 6861 (Yol. I, 0. S. 1931, p. 2001): “ 6861. Independent District a Body Corporate— Powers.—The public schools of each city or town or ganized in pursuance of this article shall be a body corporate and shall possess the usual power of corpo rations for public purposes, by the name and style of ‘ The Board of Education of the city or town o f ------, of the State of Oklahoma,’ and in that name may sue or be sued, and be capable of contracting or being con tracted with, of holding and conveying such personal and real estate as it may come into possession of, by will or otherwise, or as is authorized to be purchased by the provisions of this article. ’ ’ Sec. 6867 (Vol. I, 0. S. 1931, p. 2003): “ 6867. Powers of Boards.—The Board of Education shall have power to elect their own officers, except the treasurer, to fill any vacancy which may occur in that body to serve the unexpired term; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to establish a high school whenever, in their opinion, the educational interest of the city demands the same, and to exercise the sole control over the school and school property of the city. ’ ’ Sec. 6876 (Vol. I, O. S. 1931, p. 2005): “ 6876. Property Subject to Taxation—Taxes Turned Over to Treasurer.—The taxable property of the whole city or incorporated town, including the territory at tached for school purposes, shall be subject to taxa tion. All taxes collected for the benefit of the school shall he placed in the hands of the treasurer, subject to the order of the hoard of education.” 6 “ 6880. Board May Borrow Money and Issue Bonds for Improvements.—Whenever it shall become neces sary for the Board of Education of any school district, in which is included in whole or in part, a city of the first class, to raise sufficient funds for the purchase of school site or sites, or to erect or purchase and equip a suitable school building or buildings, or both, or for the purpose of making repairs of such school building or buildings or purchasing a school site or sites, for such building or buildings, either or both, it shall be lawful for such Board of Education of such city to bor row money for which they are hereby authorized and empowered to issue bonds bearing a rate of interest, not exceeding five per cent, per annum, payable semi annually, at such place as may be shown on the face of such bonds, which bonds shall be payable in not more than twenty-five years from date; and the Board of Education is hereby authorized and empowered to sell such bonds at not less than their par value: Pro vided, that before any bonds shall be issued, the mayor of the city composing in whole or in part such school district, shall cause an election to be held in such dis trict as herein provided: Provided, further, that bonds may be voted in one issue at the same election, for any or all of the purposes hereinbefore enumerated.” Sec. 6881 (Yol. I, 0. S. 1931, p. 2007): “ 6881. Bond Election—Procedure.—It shall be the duty of the mayor of each city governed by this article, upon the request of the board of education, forthwith to call an election, to be conducted in all respects as are special elections for city officers in the same city, ex cept that the returns shall be made to the board of edu cation for the purpose of taking the sense of such district upon the question of issuing such bonds, nam ing in the proclamation of such election the amount of bonds to be voted on and the purpose for which they are to be issued; and he shall cause to be published in a newspaper of general circulation published in the Sec. 6880 (Vol. I, O. S. 1931, p. 2006) : 7 said district the time and place of such election, such notice to be given at least ten days before such elec tion. ’ ’ Sec. 6892 (Vol. I, 0. S. 1931, p. 2009): “ 6892. School Property Pledged to Pay Bonds.— The school fund and property of such city and terri tory attached for school purposes is hereby pledged to the payment of the interest and principal of the bonds mentioned in this article, as the same may become due. ’ ’ It seems that a clear understanding of the afore-quoted statutes of the State of Oklahoma, contended by appel lant to be unconstitutional, necessitates a consideration of the other cognate constitutional and statutory laws of said State. Such other and related provisions of the Constitu tion and Statutes of the State of Oklahoma are as follows: Sec. 6884 (Vol. I, 0. S. 1931, p. 2007): “ 6884. Bonds—Signing and Certifying—Denomina tions.—The bonds, the issuance of which is provided in the preceding sections, shall be signed by the presi dent, attested by the clerk and countersigned by the treasurer of the board of education, and shall have en dorsed thereon a certificate signed by the county clerk or other officer authorized by law to sign such certifi cate and the county attorney of the county wherein such district is located, stating that said bonds, or evi dence of debt is issued pursuant to law and that said issue is within the debt limit; provided, that each of said bonds shall be for a sum of not less than one hun dred dollars.” Article 5, Chapter 27 (Vol. I, O. S. 1931, pp. 1576-1577): “ 5412. Attorney General ex-Officio Commissioner.— The Attorney General is hereby made ex officio bond commissioner of the State of Oklahoma. “ 5413. Duties of Commissioner—Bonds Incontest able 30 Days After Approval.—It shall be the duty of 8 such bond .Commissioner to prepare uniform forms and prescribe a method of procedure under the laws of the State in all cases where it is desired to issue public securities or bonds, in any county, township, municipality or political or other subdivisions thereof of the State of Oklahoma; and it shall be the further duty of said bond commissioner to examine into and pass upon any security so issued, and such security, when declared by the certificate of said bond commis sioner to be issued in accordance with the forms of procedure so provided shall be incontestable in any court in the State of Oklahoma unless suit thereon shall be brought in a court having jurisdiction of the same within thirty days from the date of the approval of said securities by the bond commissioner. “ 5414. Bond Invalid Without Certificate.—No bond hereafter issued by any political or municipal subdivi sion of this State shall be valid without the certificate of said bond commissioner.” Sec. 3, Article 13, of the Oklahoma Constitution (Vol. II, O. S. 1931, p. 1495, Sec. 13676): “ 13676. Separate Schools.— See. 3. Separate schools for white and colored chil dren with like accommodation shall be provided by the Legislature and impartially maintained. The term ‘ colored children,’ as used in this section, shall be con strued to mean children of African descent. The term ‘white children’ shall include all other children.” And said appellant further represents and shows to the court that Article 18 of aforementioned Chapter 34, 0. S. 1931, concerning “ Separate Schools” , provides as follows: Section 7033 (Vol. I, 0. S. 1931, p. 2048): “ 7033. Separation of White and Colored Races.— The public schools of the State of Oklahoma shall be organized and maintained upon a complete plan of sep aration between the white and colored races, with im partial facilities for both races.” 9 “ 7034. Definition of Terms.—The term ‘ colored’, as used in the preceding section shall be construed to mean all persons of African descent who possess any quantum of negro blood, and the term ‘white’ shall include all other persons. The term ‘public school’, within the meaning of this article, shall include all schools provided for, or maintained, in whole or in part, at public expense.” Section 7035 (Yol. I, O. S. 1931, p. 2048) : “ 7035. Separate School Defined.—The county sep arate school in each school district is hereby declared to be that school in said school district of the race having the fewest number of children in said school district; provided that the county superintendent of public instruction of each county shall have authority to designate what school or schools in each school dis trict shall be the separate school and which class of children, either white or colored, shall have the privi lege of attending such separate school or schools in said school district. Members of the district school board shall be of the same race as the children who are entitled to attend the school of the district, not the separate school.” Section 7036 (Vol. I, O. S. 1931, p. 2049): “ 7036. Allowing child of One Race to Attend School of Another—Penalty.—Any teacher in this state who shall wilfully and knowingly allow any child of the colored race to attend the school maintained for the white race, or allow any white child to attend the school maintained for the colored race, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than ten dollars nor more than fifty dollars, and his certificate shall be cancelled and he shall not have another issued to him for a term of one year.” 2 q Section 7034 (Yol. I, 0. S. 1931, p. 2048): 1 0 “ 7037. Mixed Schools—Punishment for Conducting. —It shall be unlawful for any person, corporation or association of persons, to maintain or operate any col lege, school or institution of this state where persons of both white and colored races are received as pupils for instruction, and any person or corporation who shall operate or maintain any such college, school or institution in violation hereof, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, and each day such school, college or institution shall be open and maintained shall be deemed a separate offense.” Similarly, Section 7038 makes it a misdemeanor to teach in such mixed school; and Section 7039 makes it a mis demeanor to attend such mixed school. In each case, each day of such violation is denominated a separate offense. Sec. 1, H. B. 320, Oklahoma Statutes, 1937, Amending Sec. 7040, O. S. 1931 (Okla. Statutes, 1937, p. — ), provides: “ 320. Separate Schools—Tax Levy—Regulations.— In all cases where County Separate Schools for white and colored children are maintained, the County Ex cise Board shall annually levy a tax on all taxable property in their respective counties, sufficient to main tain such separate schools as are hereinafter provided. Upon estimate made by the County Commissioners, said taxes shall be estimated, published, levied, and collected in the same manner as other taxes for county purposes; provided, however, that in all Independent Districts where separate schools for white and colored children are maintained, it shall be the duty of the Board of Education therein, at the time provided for preparing its annual budget, to prepare a separate budget showing the amount of money that will be re quired to be raised by taxation, for the support and maintenance of such separate schools, including a sum Section 7037 (Vol. I, 0. S. 1931, p. 2049): li sufficient to pay a reasonable pro rate share of the cost of superintending, supervising and administering the schools and school system of said Independent District including said separate schools, and the amount neces sary to purchase sites and to erect school buildings for such separate schools for the coming fiscal year; * * *” Sec. 7045 (Vol. I, 0. S. 1931, p. 2051) provides: “ 7045. Teachers—Employment and Qualifications. —It shall hereafter be the duty of all County Super intendents of Public Instruction to contract with and employ all teachers for the county separate schools, except independent district, now maintained or here after to be established in their respective counties; Provided, that the Board of Education in all independ ent districts, shall contract with, and employ all teach ers in the separate schools of such independent dis tricts. Teachers so employed shall possess all the qualifications which are now required by law, and the County Superintendent of Public Instruction shall have the power to prescribe rules and regulations for the government of all county separate schools in his county, except independent districts.” Sec. 7046 (Vol. I, O. S. 1931, p. 2051) : “ 7046. Same.—It shall hereafter be the duty of the County Superintendent of Public Instruction to con tract with and employ all teachers for the county sep arate schools now maintained, or hereafter to be estab lished in their respective counties; provided, that the Board of Education in all independent districts shall contract with and employ all the teachers for the schools of such district which have been designated by the county superintendents as the county separate school within such districts. Teachers, before being so employed, shall possess all the qualifications which are now required by law, and the county superintendent of public instruction shall have the power to prescribe rules and regulations for the government of all county 1 2 separate schools in his county, except those within the independent districts, and in such independent dis tricts where the same is composed wholly or in part by a city of the first class the Board of Education of such city shall have full control, management and dis cipline and prescribe the rules and regulations for the government of the separate schools in such districts; and that the Board of Education of cities of the first class shall keep a separate account of all expenditures made in maintaining such separate schools and shall at the end of each month, certify the same to the Board of County Commissioners of the county in which such school district is situated, and said Board of County Commissioners shall pay the same.” Sec. 7049, (Vol. I, 0. S. 1931, p. 2052) : “ 7049. Payment of Teachers.—Warrants for the salary of teachers employed in the separate schools, excepting those in independent districts, and all orders or warrants for the expense of such schools shall be issued upon the Treasurer by the County Clerk and countersigned by the County Superintendent; Provided, however, that the County Clerk shall not draw on said separate school fund for any greater amount for teachers employed for any district than is paid the like number of teachers for like time by the school district for teaching in other schools for said districts.” C. Date of Order and Decree Sought to be Reviewed, and Date Upon Which Application for Appeal was Presented to Trial Court, and Upon Which Appeal was Allowed to This Court. Both the order denying interlocutory injunction and the final decree denying permanent injunction were made, entered and filed in the trial court on the 12th day of Oc tober, 1938 (see order denying interlocutory injunction, R. 62, and also, judgment (final decree), R. 64). 13 Application for appeal herein (R. 68) to this Honorable Court was duly presented to the Honorable Eugene Rice, District Judge (and one of the trial judges) on the 4th day of January, 1939, within three months after the entry of such respective order and final decree, and within the time provided by Section 8 (a) of the Act of Congress of Feb ruary 13,1925; U. S. Code, Title 28, Sec. 350; 43 Stat. L. 936. The Appeal herein to this Honorable Court has been per fected in all respects in conformity with law, the Equity Rules, and the Rules of the Supreme Court. D. Nature of Case and Rulings of the Trial Court. It seems that the nature of the case has been hereinabove sufficiently set forth. The trial court denied plaintiff both the interlocutory injunction and permanent injunction as prayed for (R. 62, 64), and found and held that the statutes of the State of Oklahoma in question (Article 9 of Chapter 34, 0. S. 1931; herein supra; Yol. I, 0. S. 1931, pp. 1998- 2015) were constitutional and not violative of the 14th Amendment. The basis of the rulings of the trial court is set forth in its findings of fact and conclusions of law hereto attached. That the Federal constitutional questions involved are fundamental, serious, and substantial—and not strained or fanciful, appears from the 5th, 6th and 7th assigned errors (see assignment of errors, R. 99-107), which are, respec tively, as follows: V. It appears from the Fifth Finding of Fact that the Defendants, under the State laws in question, are pro ceeding to expend Five Hundred Thousand Dollars ($500,000.00) of public funds for improvement of the white schools, and that under said State laws it would 14 be illegal for said defendants to expend any part of said fund (or of any similar fund) for the separate or Negro schools, although the trial court found that the white and Negro schools were equally in need of im provements ;—such laws and such acts by the defend ants deny to Negro citizens and tax payers, includ ing plaintiff, equal protection of the laws in violation of Section 1 of the 14th Article of Amendment to the Con stitution of the United States, and the trial court com mitted error in failing and refusing so to find and hold. VI. It appearing that under 0. S. 1931, Sec. 7045, the de fendant Board of Education of the City of Muskogee is given supervision and control of the separate or Negro schools in said city; and it appearing from the Fifth Finding of Fact (under 0. S. 1931, Sec. 7035) that the members of said Board of Education must be of the white race; such laws, making it impossible for plain tiff, or any other Negro patron or tax payer, to be a member of the Board of Education having supervision and control of the Negro schools, deny to plaintiff the equal protection of the laws and violate Section 1 of the 14th Article of Amendment to the United States Consti tution ; and the trial court erred in refusing so to hold. VII. Article 9 of Chapter 34, 0. S. 1931 (Secs. 6880-6884, and 6892) purports to give to the defendant Board of Education, having supervision of both the white and colored schools in the City of Muskogee, ample power to issue bonds, secured by all property in the City, to provided funds for improving the said white schools, but no authority to issue bonds for the improvement of said Negro schools; and said laws and the enforcement thereof by defendants deny to plaintiff the equal protec tion of the laws, they violate Section 1 of the 14th Ar ticle of Amendment to the Federal Constitution, and the trial court committed error in holding to the contrary. 15 (a) Cases Cited by Appellant in Support of the Jurisdiction of This Court. The action being to enjoin the Attorney General, ex-Officio Bond Commissioner of the State of Oklahoma, and other defendants from enforcing and executing the laws of said State alleged to be unconstitutional (under U. S. Constitu tion), the District Court had original jurisdiction, and this Court has appellate jurisdiction (Judicial Code, See. 266, Amended; U. S. C., Title 28, Sec. 380, Amended): Home Tel. and Tel. Co. v. Los Angeles et al. (1913), 227 U. S. 278, 57 L. Ed. 510; Truax et al. v. Raich (1915), 239 U. S. 33, 60 L. Ed. 131; Pierce et al. v. Society of the Sisters, etc. (1924), 268 U. S. 510, 69 L. Ed. 1070; Herkness v. Irion et al. (1928), 278 U. S. 92, 73 L. Ed. 198; Sterling, Gov. of Texas, et al., v. Constantin (1932), 287 U. S. 378, — L. E d.— ; Norfolk and Western Ry. v. Board of Public Works, etc. (1933, D. C. W. Va.), 3 Fed. Sup. 791; Reppel v. Board of Liquidation (D. C., E. D., La. 1935), 11 Fed. Sup. 799. (b) Cases Cited by Appellant in Support of the Substantial ity of the Federal Constitutional Questions Involved. McFarland v. Goins (1909), 96 Miss. 67, 50 So. 493; Yick Wo v. Hopkins (1885), 118 U. S. 356, 30 L. Ed. 220; Buchanan v. Warley (1917), 345 U. S. 60, 62 L. Ed. 149; State of Missouri ex rel. Lloyd Gaines v. Canada, etc., et al. (No. 57, October Term, 1938, decided Dec. 12, 1938), not officially reported at date hereof. 1 6 (c) The Doctrine of Oumming v. Board of Education is Not Applicable to This Case. This case, wherein the State statutes in question as well as their administration patently and uniformly discriminate against the minority group, is not controlled by the doctrine of Cumming v. Board of Education (1899), 175 II. S. 528, 44 L. Ed. 262, in which latter case, in the administration of a law which was fair and equal on its face, occurred minor and insubstantial inequality which was necessitated by peculiar circumstances. The case of McFarland v. Goins, supra, is squarely in point on the present constitutional question raised under the 14th Amendment; and the opinion in said case clearly dis tinguishes the Cumming-Board of Education case from one like the instant case. E. Opinion of Trial Court. The trial court did not render a formal opinion, but the findings of fact and conclusions of law (pp. 11-32, infra) sufficiently disclosed the bases of the rulings of said trial court. There were no earlier opinions in this case, nor were there any companion cases. As hereinabove stated, the trial court rendered its order denying interlocutory injunction, and also its final decree denying permanent injunction (R. 62, 64), and this appeal is from both said order and final decree. It is by this appellant contended that the trial court erred and improvidently and abusively exercised the judicial dis cretion, in denying both interlocutory injunction and per manent injunction, prayed for by appellant. The bases of said contentions of appellant are as follows, to-wit: 1. This appellant contended in her complaint (R. 4) that said Article 9, Chapter 34, 0. S. 1931, violated the 17 14th Amendment to the Federal Constitution, because in the enforcement of said state law the defendants are proceeding to expend Five Hundred Thousand Dollars ($500,000.00) of public funds, for the exclusive benefit of the white or Independent Schools in the City of Muskogee; that under said state laws it would be illegal for said defendants to expend any part of said fund (or of any similar fund) upon any of the Negro schools in said city; further, that appellant, as a tax payer in said city, must under said laws pay taxes to discharge the bonds used to raise said funds; and that it would be a criminal act for any child of appellant, or of any other Negro parent, to attempt to attend any schools so im proved by said funds. The trial court held, in effect, that plaintiff had an adequate remedy by application for writ of mandamus, to procure sufficient funds to “ maintain” said Separate or Negro schools “ a full school term” (See: Fifth Finding of Fact.) Such rul ing by the trial court was erroneous, and not dispositive of the constitutional question before it, for it was con tended by appellant, and the effect of said Amendment, that the 14th Amendment guaranteed her the equal pro tection of the laws, and not that it guaranteed any group a school of any particular quality of length of term. 2. The appellant contended that said laws of the state of Oklahoma, creating the appellee Board of Education, giving it control and supervision of the Separate or Negro schools in the City of Muskogee, and limiting the membership of said Board to the members of the white race, denied to appellant, as well as to other Negroes, the equal protection of the laws. The trial court (Find ing No. 4) found that in some of the schools districts in the State of Oklahoma, under said state laws, the ma jority schools are established and operated for and by the Negroes. Said finding and holding by the trial court was merely another illustration of the discrimina tory and unconstitutional operation of said state laws against other minority groups who are denied equal protection of the laws; and said finding was not dis positive of the constitutional question before said 1 8 court; and said trial court abused its discretion in find ing and bolding that said laws in question did not vio late said 14th Amendment by denying to appellant and other Negroes the equal protection of the laws. 3. By its Fifth Finding of Fact, the trial court found: “ That up to this time, before this proposition for the white schools was made, it appeared from the evi dence that white and Negro schools were in equal need for improvements” Then said trial court proceeded to find and to hold that said state laws in question, authorizing said appellee Board of Education to expend Five Hundred Thousand Dollars ($500,000.00) for the improvement of said white schools of the City of Muskogee, said public funds to be repaid by Negro residents and tax payers, as well as by the whites; said Board of Education not being author ized to expend any part of said fund (nor of any similar fund) for said Negro schools of said city; did not deny to said Negro schools or to said Negro residents and tax payers of said City, the equal protection of the laws re quired by the 14th Amendment. Such holding was so clearly erroneous as to amount to an abuse of the judi cial discretion. W herefore it is respectfully submitted by the appellant that this Honorable Supreme Court of the United States has jurisdiction of this appeal by virtue of Sections 238 and 266 of the Judicial Code, as amended by the Act of February 13, 1925. Respectfully submitted, Charles A. Chandler, Counsel for Appellant. Note.'—At the date of preparation of this Jurisdictional Statement, the Transcript of Record has not been printed; and all references therein to the record are to the pages of the unprinted record prepared by the clerk of the United States District Court for the Eastern District of Oklahoma. 19 EXHIBIT “ A” . Findings by the Court under Rule 52, the Findings Being Made Specially and Conclusions of Law Separately. Findings of Fact. (1) That plaintiff is a native born citizen and resident of the City of Muskogee, in Muskogee County, Eastern District of Oklahoma, all other defendants other than Mac Q. Williamson, Attorney General of the State of Oklahoma, being citizens and residents of Muskogee County, Eastern District of said state, the defendant, Mac Q. Williamson, Attorney General and Ex-Officio Bond Commissioner of the State of Oklahoma, being a citizen and resident of the Western District thereof. (2) Notice of this hearing before a three-judge court has been given to the Governor of said state and to the Attorney General thereof as provided by the requirements of the judicial code as amended, the Attorney General appearing in person. The complainant in open court through her attorney states that she does not challenge or question the provisions of the Constitution of Oklahoma or of the stat utes of said state insofar as they, on their face, provide for a separation of the races in the schools of said state. (3) That defendant, Board of Education of the City of Muskogee of said state is a subordinate municipal or politi cal corporation. The school district under its administra tive control embraces the City of Muskogee and adjacent territory thereto attached for school purposes, and the de fendants, Arthur Catlett, James A. Lathim, W. H. Cun ningham and C. A. Ambrister, and E. D. Cave, except as to said Cave, are the duly elected, qualified and acting members of said Board of Education, the said Cave being the duly appointed, qualified and acting Clerk of said board, and other defendants are duly qualified and acting officials as designated, to-wit: S. M. McManus, Mayor of said city; A. Camp Bonds and Theo Frazier, respectively County Attorney and County Clerk of said county in said state; and Mac Q. Williamson, Attorney General and Ex- 2 0 Officio Bond Commissioner of said state, and the City of Muskogee and the adjacent territory thereto attached for school purposes has been duly and legally constituted and designated as Independent School District No. 20. (4) That the majority schools in said district No. 20 are designated and established as schools for children of those other than of African or negro descent, denominated as negroes or colored, the Separate Schools in said district being constituted, designated and established as schools for children of negroes. That in the State of Oklahoma Sepa rate Schools for children have been established and oper ated for the two races; that in a number of the districts of the State of Oklahoma, the majority schools are established and operated for negroes and the Separate or minority schools are correspondingly established and operated for pupils other than negroes. In the white school districts the board members are to correspond with the race for which the school is established. If it was for the whites, so denominated, the members of the board are to so cor respond, if the African or negro race the members of the board are to so correspond. That is, if the majority school was for the whites, the members of the school board should be from the whites, but if the majority school was colored, the members of the school board should be from the African race. (5) That in the entire state of Oklahoma, the amount of money expended per pupil for the school year of 1935-36 was approximately $54.00 per capita for white pupils and $52.00 per capita for negro pupils, and since that year the amount spent per capita for negro pupils has increased more in proportion by reason of the operation of the state statutes relating to primary and secondary aid. That the schools for negroes have been established and are being operated in the State of Oklahoma with the same standards required as in the case of white schools, and that such negro schools so established have increased during the past four years more than 24% and high schools established for the use of white children have increased only one-fourth of 1%; that all of said high schools, both for white and colored children are duly accredited in the state of Okla 2 1 homa under the same standards; and that in many cities of the State of Oklahoma, other than the City of Muskogee, greater amounts are expended for the operation of the negro schools than the white schools, particularly in the cities of Tulsa and Oklahoma City; that in 38 of the 77 counties in the state of Oklahoma, the amount per capita per annum expended for negro schools is greater than that expended for the white schools. That in School District No. 20, embracing the City of Muskogee and adjacent ter ritory attached thereto for school purposes, the pupils at tending negro schools are approximately 23% of the total number of pupils in the district; that the negro schools have 22% in number of teachers, and have expended a budget of approximately 19% of the total amount spent for education in said district; that there is expended for maintenance of negro schools approximately 22% of the total amount expended in said district. That the average number of pupils per teacher in the schools of said district is 30.2 for the white schools and 31.6 for the negro schools; that the average annual salary of teachers in the white schools in said district is $1172.72 and in the negro schools $887.05; that all the expense of supervision and adminis tration, care of grounds and supervision of Art and Music of the negro schools has heretofore been paid out of the budget provided for the white schools. That substantially the same curricula is offered in both the white and negro schools and that recent additions and improvements have been made to the negro school buildings and, as well, addi tional ground has been purchased for their use; that both white and negro schools receive the same care and attention as to repairs and upkeep; that the negro schools are pro vided with a suitable athletic field which is lacking in the case of white schools; that the negro high school of the City of Muskogee is a duly accredited high school in the State of Oklahoma. That School District No. 20 has heretofore called an elec tion for the purpose of voting on the following proposition: “ Shall the School District comprising the City of Muskogee, of the State of Oklahoma, and the territory thereto attached for school purposes, incur an indebt 2 2 edness by issuing its negotiable coupon bonds in the sum of two hundred seventy-five thousand ($275,000.00) Dol lars to provide funds for the purpose of purchasing a site, erecting and equipping a Junior High School, and constructing and equipping additions to existing schools, all to be owned exclusively by such district; and levy and collect an annual tax, in addition to all other taxes upon all the taxable property in such district suf ficient to pay the interest on such bonds as it falls due, and also constitute a sinking fund for the payment of the principal thereof, when due, such bonds to bear in terest not to exceed the rate of four (4) per centum per annum, payable semi-annually, and to become due serially within twenty-five (25) years from their date. “ Provided, however, that the issuance of said bonds is expressly conditioned upon the grant to said school district of the sum of not less than Two Hundred Twenty-five Thousand ($225,000.00) Dollars by the Federal Emergency Administration of Public Works, said grant to be used as far as may be necessary to aid in the payment of the cost of such improvement and the balance of such grant to be used for the construction of an Athletic Stadium, such Stadium to cost not more than Eighty-five Thousand ($85,000.00) Dollars.” That the election upon said proposed Bond issue was held September 15th, 1938, and the same carried and the Board of Education advertised for sale of said bonds. That the evidence does not disclose that any proposition is now being made for the improvement of the negro or separate school buildings in said district; that all of this proposition is for the majority schools or the white schools; that up to this time, before this proposition for the white schools was made, it appeared from the evidence that the white and negro schools were in equal need for improve ments. As to whether a county levy has been made for addi tional buildings or additions to buildings, that is not clear from the evidence. The proclamation for the call of this election provides: “ Shall the School District comprising the City of Muskogee * * * and the territory thereto attached for 23 school purposes, incur an indebtedness * * * in the sum of two hundred seventy-five thousand ($275,000.00) Dollars to provide funds for the purpose of purchasing a site, erecting and equipping a Junior High School, and constructing and equipping additions to existing schools. * * * ” That an athletic stadium does not come within the purpose as stated in the proclamation: “ purchasing a site, erecting and equipping additions to existing schools * * That any reservation as to the constructing of a stadium from the grant of the Federal Emergency Administration of Public Works has not been presented in this case. That the negro high school auditorium is used also as a gymnasium, a part thereof being set off also and used as a library, and the negro schools also have an athletic ground available for their use. The two high schools for white pupils in said city are each equipped with a gymnasium. That beginning with the fiscal year of 1937-38 by legisla tive act and state appropriation substantial and adequate primary and secondary aid for the public schools of the state, which included not only the white schools but also the negro schools, has afforded relief to the end that the schools might be adequately maintained for a full school year, which was aimed to include from eight to nine months prior to that time, and which now is a nine-months ’ school. The available school funds prior to that time were not sufficient either in the negro schools or the white schools to meet the minimum or reasonable requirements for either the white or negro schools. That beginning with the fiscal year 1937-1938, the per pupil expenditure in the white high schools was $65.41, and in the negro high school was $63.43, and in the white ele mentary schools $60.21, and in the negro elementary schools, $38.79, and that if these amounts, to-wit, $63.43 for the negro high school and $38.79 for the negro elementary schools were not reasonably adequate to maintain a full school term, that an adequate remedy at law existed by mandamus to re quire full levies within the legal limitation to be made for tax levies which applied equally to the whites as well as to the negro schools, in case the white was the minority or the 24 negro was the minority school, and in many instances in the state the whites are in the minority school, and there is no showing in the evidence that under the tax limitations an additional levy, if such were necessary, was not available. That the negro high school and white high schools are examined by the same inspectors as to qualifications and accrediting, and there is no evidence showing any bad faith or inefficiency in such examination as to either race. That as to the Junior College work furnished by the white Junior College in Muskogee, the entrants therein pay tuition to cover the two Junior College years, and there is no evidence in the record to show it is not a reasonable tuition, but it does appear that the education therein is not free; that if there is any discrimination in this respect, there is a legal remedy by mandamus for its correction, and there is no evidence shown that any such contention has been made or such remedy invoked. That it does not appear that any part of the Two Hun dred Seventy-Five Thousand ($275,000.00) Dollar bond issue is to be used for building a stadium, but that the stad ium is to be constructed out of the Public Works Adminis tration grant, which is the sum of Two Hundred Twenty- Five Thousand ($225,000.00) Dollars. That in said school district, the children of the respective races, white and negro, attend separate schools, the ma jority schools of said district being attended by white chil dren. The members of the Board of Education in said dis trict are as provided by the Constitution and statutes of the same race as of the children attending the majority schools, and the negro children attend the schools desig nated as minority or separate schools, the same rule apply ing when the negroes are the majority school district, in that case the board to be filled by negroes and not whites. The existing school enrollment for said schools, white and negro respectively, for the school year 1937-38, was 6,391 white, and 1,916 colored. That the plaintiff is the mother or parent of a son who is of African or negro descent attending said separate school in said district, and that she is also of African or negro descent, and is a tax payer. That there are many other negro residents in said city, citizens of the United 25 States, who are parents of negro children attending said separate public schools in said district, and taxpayers in said city, and that complainant or plaintiff sues on behalf of them as well as for her own benefit. That the Manual Training High School was erected in 1909, the Douglas School in 1905, and the Dunbar School in 1904, and the evidence shows other additions and im provements to the school buildings in said separate dis trict since 1909, but there should be some improvement apparently, from the evidence, as to the sewerage and toil ets, adequate remedy by law being available for such re lief. Conclusions of Law. (1) That this court has jurisdiction only insofar as the constitutionality of the separate school law is involved, as contravening the Constitution of the United States, there being no diversity of citizenship, the jurisdiction of this court being invoked not on the ground of diverse citizen ship, the complainant raising a federal question by assert ing that her right under the Constitution of the United States and especially under Section 1 of the Fourteenth Amendment have been violated on account of the provi sions in the state constitution of Oklahoma, and the stat ute thereof as to separate schools for the negro and white races. This court is restricted to the determination of that question, as to whether the state constitution and stat utes as to separate schools, for the white and negro races violate complainant’s federal guaranteed constitutional rights. As to the question of the proper administration of the separate schools as between the whites and the negroes, that issue is not determinable in this case on account of lack of diversity of citizenship, the complainant being pre- termitted for the determination of her rights in the state court where she would have an adequate remedy at law. Jew Ho. v. Williamson (9th Cir.), 103 Fed. 10. (2) The notice served on the Governor and the Attorney General wherein the Attorney General also appears in per son, complies with the provision of the statute requiring such notice as preliminary to his hearing. 2 6 See School District No. 7, Muskogee Co. v. Hunnicut (10th Cir.), 51 Fed. (2d) 528; id. 283 U. S. 810; Oklahoma Constitution, Article 13, Sections 1, 3, 4, 5, 6, and 7; Article 10, Section 9 as amended; and Oklahoma Statutes, Section 7033, 0. S. 1931, Tit. 70, O. S. A. Sec. 451; Section 7034, O. S. 1931, Tit. 70 0. S. A. Sec. 452; Section 7035, 0. S. 1931, Tit. 70 0. S. A. Sec. 453; and Section 7040, 0. S. 1931, as amended and superseded by Act of May 11, 1937, House Bill No. 320, Tit. 70, Sec. 458, Chapter 15, 0. S. A., July 1937, pp. 554. In School District No. 7, Muskogee Co. v. Hunnicut, supra, it is said: “ Another contention of the plaintiffs is that the action of the county superintendent should be enjoined because a discrimination is said to result from the dis proportionate funds allowed for the colored school as compared with the white school, as the former could not then be maintained with equal facilities or advan tages, on account of the needs of a greater number of pupils. “ If we assume that there was the alleged disparity in the funds, it did not arise from the interchange of the schools, but from an insufficient levy by the county ex cise board, which is not a party to this suit. It is our opinion that the constitutional requirement of equal advantages or like accommodations to the schools does not mean that the colored race shall have the district school or vice versa. The question under the Federal Constitution (Amendment 14) is whether there is a denial of the equal protection of the laws, but it does not occur if equal advantages are granted. United States v. Buntin (C. C.), 10 F. 730, cited with approval in Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 172. See Wong Him v. Callahan (C. C.), 119 F. 381. “ A shortage of funds might exist for either school, due to an insufficient levy of taxes. But it works no denial of a constitutional right, because all the laws ap plicable should be considered, and among them there is the remedy to bring a mandamus action to compel an additional levy of taxes. Board of Education v. Excise 27 Board, 86 Okl. 24, 206 P. 517. Even a suspension of a separate school, for economic reasons under some con ditions, may be justified. Cumming v. County Board of Education, 175 U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; Gong Lum v. Bice, supra. “ The plaintiffs did not pursue the remedy open to them, but chose to contest the statute and the enforce ment of it and claim an infringement of their constitu tional rights. But there was no invalidity of the statute or wrong committed by the defendant. They are not entitled to maintain this equity suit, because of an ade quate and efficient remedy at law. Section 267, Jud. Code (28 U. S. C. A., Section 384).” This case on appeal to the Supreme Court of the United States was affirmed in a per curiam opinion. Id. 283 U. S. 810. (3) No question of law raised by complainant as to the facts found in paragraph 3. (4) The Oklahoma statute requires that members of the district school board shall be of the same race as the children who are entitled to attend the schools of the district (not the separate school). See Jelsma, Co. Treas. v. Butler, 80 Okla. 46,194 Pac. 436. Section 3, Article 13, Constitution of Oklahoma, provides that: “ Separate schools for white and colored children with like accommodation shall be provided by the Legis lature and impartially maintained. The term ‘ colored children,’ as used in this section, shall be construed to mean children of African descent. The term ‘white children’ shall include all other children.” Section 7033, Chapter 34, Article 18, O. S. 1931, provides: “ The public schools of the State of Oklahoma shall be organized and maintained upon a complete plan of separation between the white and colored races, with impartial facilities for both races.” Under Section 7034, Chapter 34, Article 18, O. S. 1931,the term “ public school,” within the meaning of this article 2 8 (as defined) shall include all schools provided for, or main tained, in whole or in part, at public expense. Section 7035 thereof provides : “ The county separate school in each school district is hereby declared to be that school in said school dis trict of the race having the fewest number of children in said school district; provided that the county super intendent of public instruction of each county shall have authority to designate what school or schools in each school district shall be the separate school and which class of children, either white or colored, shall have the privilege of attending such separate school or schools in said school district. Members of the dis trict school board shall be of the same race as the children who are entitled to attend the school of the district, not the separate school.” Under Section 6950, Chapter 34, Article 12, 0. S. 1931, form of report for taking the enumeration of school children upon which state and county apportionments of public school funds are made is prescribed, and it is held by the Supreme Court of said State that funds received by independent school district based upon minority scholastic enumeration are to be used only for benefit of minority school. Board of Ed. v. Board of Comrs., 140 Okla. 229; Board of Comrs. v. School Dist. 25, 141 Okla. 65. It has also been held by said court that separate schools entitled to equal rights under scholastic enumerations required to be made by law. Board of Ed. v. Board of Comrs., 127 Okla. 132, 260 Pac. 22. As to enumeration provided for by law, see Sections 6951, 6952, 6953, 6954, 6955, 6956, 6957, 6958, 6959, 6960, 6961, Chapter 34, Article 12, O. S. 1931. In Section 5, Article 1, Constitution of Oklahoma, it is provided: “ Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and free from sectarian control; and said schools shall always be con ducted in English: Provided, That nothing herein shall preclude the teaching of other languages in said public 29 schools: And Provided Further, That this shall not he construed to prevent the establishment and maintenance of separate schools for white and colored children.” Section 7104, Chapter 34, Article 21, 0. S. 1931, provides that: “ In extending aid to the separate schools of any county, all of said schools in a county shall be consid ered together as one district, and if the county shall have levied two mills for common schools, the separate schools in said county may receive aid in toto in such amounts as is consistent with the provisions of this Act, as the State Board of Education may approve.” H. B. No. 320, Section 1, Oklahoma Statutes, Ann., 1937, effective 90 days after May 11, 1937, pp. 554, Tit. 70, Section 458, Chapter 15, Sections 1 and 2 provide as follows: “ In all cases where County Separate Schools for white and colored children are maintained, the County Excise Board shall annually levy a tax on all taxable property in their respective counties, sufficient to main tain such separate schools as are hereinafter provided. Upon estimate made by the County Commissioners, said taxes shall be estimated, published, levied, and collected in the same manner as other taxes for county purposes; provided, however, that in all Independent Districts where separate schools for white and colored children are maintained, it shall be the duty of the Board of Edu cation therein, at the time provided for preparing its annual budget, to prepare a separate budget showing the amount of money that will be required to be raised by taxation, for the support and maintenance of such separate schools, including a sum sufficient to pay a rea sonable pro rata share of the cost of supervising, super intending and administering the schools and school sys tem of said Independent District including said sepa rate schools, and the amount necessary to purchase sites and to erect school buildings for such separate schools for the coming fiscal year; provided, that the share of the cost of superintending, supervising and administer 30 ing the schools and school system of said Independent District to be charged against the separate schools thereof shall be fixed at an amount not exceedingly the percentage of the total cost of said superintendence, supervision and administration equivalent to the per centage thereof, which the average daily attendance at the separate schools in said Independent District for the preceding school year bear to the total average daily attendance at all schools, majority and separate, in said Independent District for the preceding school year. “ It shall be the duty of the County Excise Boards in such counties to levy a tax on all taxable property in their respective counties sufficient to pay the cost of superintending, supervising, administering, supporting and maintaining such separate schools and purchasing sites and erecting school buildings for such separate schools as shown by such budget so prepared by the Board of Education. Said tax shall be published, levied and collected in the same manner as other taxes for county purposes, and when collected shall be paid over to the respective Treasurers of the Boards of Educa tion in such districts to be expended upon the order of such Board of Education for the purpose for which the same was levied and collected. “ No white child shall attend a colored school, nor a colored child attend a white school.” Section 341, Tit. 68, Section 292, S. B. No. 384, Section 1, approved May 22, 1937 (Oklahoma Statutes, Ann., July, 1937) page 484, provides that: ‘ ‘ Pending the expiration of the time within which pro tests may be filed with the State Auditor, no warrant shall be issued or debt contracted by any municipality for any purpose except as provided hereinafter. * * and in such amounts as may be necessary to provide accommodations, facilities and school term in the sepa rate schools, if any, in each district in the county equal to the accommodations, facilities and school term pro vided for the other regular public schools in the same 31 district, for county high school, if any, in so far as the salaries of teachers and other necessary maintenance is concerned, and for aid to the common schools of the county. * * *” H. B. No. 6, Laws, 1937, pages 555, 556, 557, 558, 559, Tit. 70, Section 648, provides for state aid for the common schools, and on the hearing in this case, it was stated that prior to the passage of said act, difficulties existed as to a full school year of nine months, but that after the passage of this act the separate school of district No. 20 did not ex perience such difficulty. It was also disclosed that prior to the same time, a great percentage of the white schools ex perienced the same difficulty. (5) The conclusion is that the provisions of the Consti tution of Oklahoma and also the statutes of said state do not violate Section 1 of the Fourteenth Amendment to the Federal Constitution, or any other federal guaranteed con stitutional right. School District No. 7, Muskogee Co. v. Hunnicut (10th Cir.), supra-, Gong Lum v. Rice, 275 U. S. 78, 72 L. Ed. 172; Cumming v. County Board of Ed., 175 U. S. 527, 44 L. Ed. 262; Song Him v. Callahan, 119 Fed. 381; IT. S. v. Buntin, supra-, Jelsma, Co. Treas. v. Butler, supra; State ex rel. Gumm v. Albritton, 98 Okla. 158, 224 Pac. 511; State ex rel. Cheeks v. Wirt, 203 Ind. 121,177 N. E. 441: Reynolds v. Board of Ed., 66 Kan. 672, 72 Pac. 274; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 81 L. Ed. 1245; Gulf Refining Co. v. Phillips (5th Cir)., 11 Fed. (2d) 967; Thomas v. Gay, 169 IT. S. 264, 142 L. Ed. 740; Lawrence v. State Tax Commissioner, 266 IT. S. 276,76 L. Ed. 1102; Stehhins v. Riley, 268 IT. S. 137, 69 L. Ed. 884; Travel lers Ins. Co. v. State of Conn., 185 U. S. 364, 46 L. Ed. 949; Colgate v. Harvey, 296 H. S. 404, 80 L. Ed. 299; Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256,16 Sup. Ct. Rep. 1138; Greathouse v. Board of School Comrs., — Ind. —, 151 N. E. 411; Corrigan v. Buckley, 271 U. S. 323, 70 L. Ed. 969; Newton v. Board of Comrs., — Colo. —, 282 Pac. 1068; and Judice v. Village of Scott, — 121 So. 593. It is concluded that said state statutes and the provisions of the constitution for the separation and maintenance of 32 the separate schools on their face do not violate the federal constitution, and that the evidence does not prove a dis crimination in the administering of the schools in district No. 20 so as to deny the negroes equal protection o f the law required by Section 1 of the Fourteenth Amendment to the Constitution of the United States. It does not appear that said Board of Education of said City of Muskogee, District No. 20, is without constitutional or legal authority to issue or sell said bonds, or that the acts of said board of education with reference to the proposed sale of such bonds are null and void, or that the Attorney General and Ex-Officio bond commissioner of said state is without legal or constitutional authority to approve or cer tify such proposed bonds, or that he should be enjoined and restrained from approving said bonds. The court concludes that as to any matters in the ad ministration of the issuance of the bonds, that plaintiff has a plain, adequate, speedy and complete remedy at law in the matters complained of in her First Amended and Supple mental complaint. Plaintiff’s or complainant’s application for a temporary injunction should be denied. (Signed) Robert L. W illiams, United States Circuit Judge. (Signed) A lfred P. Mtjrrah, United States District Judge. (Signed) E ugene Rice, United States District Judge. Filed Oct. 12,1938. Filed in the United States District Court January 4,1939. ( 10012) ' F £ 3 4 1 S 3 9 SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1938 No. 643 WILLIE EVA SIMMONS, Appellant,vs. THE BOARD OF EDUCATION OF THE CITY OF MUS KOGEE OF THE STATE OF OKLAHOMA ET AL. APPEAL FROM T H E DISTRICT COURT OF TH E UN ITED STATES FOR T H E EASTERN DISTRICT OF OKLAH OM A. STATEMENT OPPOSING JURISDICTION AND MOTION TO DISMISS OR AFFIRM. Mac Q. W illiamson, E zra Brainerd, J r., Douglas Garrett, Counsel for Appellees. Charles P. Gotwals, W m . A. K illey, James D. Gibson, C. A. A mbrister, Of Counsel. INDEX. Subject I ndex. Statement opposing jurisdiction and motion to dis miss or affirm......................................................... Table of Cases Cited. Barker Printing Co. v. Local No. 7 3 4 , etc., 281 U. S. 462, 74 L. Ed. 967, 50 Sup. Ct. Rep. 356.................. Brownlow v. Schwarts, 261 U. S. 216, 67 L. Ed. 620, 43 Sup. Ct. Rep. 263................................................. Collins, Ex parte, 277 U. S. 565, 72 L. Ed. 990, 48 Sup. Ct. Rep. 589 ............................................................ Jones v. Montague, 194 IT. S. 147, 48 L. Ed. 913, 24 Sup. Ct. Rep. 611.................................................... Oklahoma Gas and Electric Co. v. Oklahoma Packing Co,, 292 U. S. 386, 78 L. Ed. 1318, 54 Sup. Ct. Rep. 732 .......................................................................... Public National Bank of New York, Ex parte, 278 U. S. 102, 73 L. Ed. 202, 49 Sup. Ct. Rep. 43............ School District v. Hunnicutt, 283 U. S. 810, 75 L. Ed. 1428, 51 Sup. Ct. Rep. 653....................................... Statute Cited. Judicial Code, Section 266 (28 U. S. C. 380) ■10013 SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1938 No. 643 WILLIE EVA SIMMONS, vs. Appellant, THE BOARD OF EDUCATION OF THE CITY OF MUS KOGEE OF THE STATE OF OKLAHOMA ET AL. APPEAL FROM T H E DISTRICT COURT OF T H E U N ITED STATES FOR T H E EASTERN DISTRICT OF OKLAH OM A. STATEMENT OF OPPOSITION TO JURISDICTION AND MOTION OF APPELLEES TO DISMISS OR AFFIRM JUDGMENT. The appellees (defendants in the trial court), The Board of Education of the City of Muskogee, of the State of Okla homa; Arthur Catlett, James A. Lathim, W. H. Cunningham and C. A. Ambrister, Members of the Board of Education of the City of Muskogee, Oklahoma; E. D. Cave, Clerk of the Board of Education of the City of Muskogee, Oklahoma; S. M. McManus, Mayor of the City of Muskogee, Oklahoma; Theo Frazier, County Clerk of Muskogee County, Okla homa ; Douglas Garrett, County Attorney of Muskogee County, Oklahoma; and Mac Q. Williamson, Attorney Gen eral and ex-officio Bond Commissioner of the State of Okla homa, respectfully submit the following statement disclos ing matters and grounds, making against the jurisdiction 2 of the Supreme Court of the United States, asserted by the Appellant. The Supreme Court of the United States Does Not Have Jurisdiction of This Case on Appeal. The first amended and supplemental complaint of the plaintiff in the court below, as disclosed by the allegations contained therein and the prayer, alleges that the defendant, The Board of Education of the City of Muskogee, Oklahoma, is about to issue and sell the bonds of said Board of Educa tion to the amount of $275,000.00, in pursuance of an elec tion held in the City of Muskogee and the territory thereto attached for school purposes, on the 15th day of September, 1938, and seeks relief as follows: (1) A temporary restraining order restraining said Board of Education and other local officers from proceeding with a proposed issuance or sale of such bonds, and also restraining the defendant, Mac Q. Williamson, as Bond Commissioner of the State of Oklahoma, from approving or certifying the same, such being the only relief sought as against the said Mac Q. Williamson, as Bond Commissioner of the State of Oklahoma, and he being the only State officer as a party defendant in this action; (2) For an interlocutory injunction enjoining the enforce ment, operation and execution of certain statutes of the State of Oklahoma, and restraining and enjoining said Bond Commissioner from approving and certifying such bonds; (3) For a permanent injunction as against the same par ties above mentioned; and (4) For costs and additional relief. There is attached hereto and made a part of this state ment and motion, the affidavit of Mac Q. Williamson, Attor ney General of the State of Oklahoma, showing that on the 26th day of October, 1938, the bonds in question were approved by the said Mac Q. Williamson, Attorney Gen- 3 eral and ex-officio Bond Commissioner of the State of Okla homa, and it, therefore, follows that, as to this defendant, this action has become moot. The said Mac Q. Williamson, Attorney General of the State of Oklahoma, is the only State official defendant in this action and, therefore, jurisdiction ceased when this cause, as to him, became moot. And the appellees now respectfully move this Court to dis miss or affirm. The appellees, in support of their objections to jurisdic tion and motion to dismiss or affirm, respectfully submit the following citations— Under the provisions of Sec. 266 of the Judicial Code, U . S. C., Title 28, Sec. 380, the concurrence of two things is necessary to confer jurisdiction— (1) the suit must seek to have a State statute declared unconstitutional or that in effect; (2) it must seek to restrain the action of an officer of the State in the enforcement of such Statutes. Ex Parte J. D. Collins, 277 U. S. 565, 72 L. Ed. 990, 48 S. Ct, 589; Ex Parte In Re Public National Bank of New York, 278 U. S. 102, 73 L. Ed. 202, 49 S. Ct. 43; School District v. Hunnicutt, 283 U. S. 810, 75 L. Ed. 1428, 51 S. Ct. 653. If there be no basis for relief of any sort against State officers, jurisdiction is lacking. Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 292 U. S. 386, 78 L. Ed. 1318, 54 S. Ct. 732. So far as the jurisdiction of this Court is concerned, the controversy on appeal has become moot. The act of the State official, the doing of which was sought to be prevented in the lower court, has been accomplished. The bonds have been approved by the Attorney General. J ones v. Montague, 194 U. S. 147, 48 L. Ed. 913, 24 S. Ct. 611; 3n tlie ihtpremr Court of tl)e XCnited States No. 643, October Term, 1938. ................... .......... ........................................... ..... WILLIE EVA SIMMONS, A p p ella n t, VERSUS THE BOARD OF EDUCATION OF THE CITY OF MUS KOGEE, OF THE STATE OF OKLAHOMA; ARTHUR CATLETT, JAMES A. LATHIM, W. H. CUNNINGHAM, AND C. A. AMBRISTER, ETC., E T A L ., A p p ellees . i'll.. APPEAL FR O M T H E U N I T E D S T A T E S D IS T R IC T C O U R T FO R T H E E A S T E R N D IS T R IC T O F O K L A H O M A . Brief o f A pp ellan t O p p osin g A p p ellees ’ M o tion to Dism iss o r A ffirm . CHARLES A. CHANDLER, Muskogee, Oklahoma, C ounsel fo r A p p ella n t. I N D E X . PAGE Brief of appellant opposing appellees’ motion to dismiss or affirm.................................................................... 1 Appendix: Affidavit.................................................................... 7 Letter of Citizens National Bank............................. 8 L i s t op A u t h o r i t i e s . Chicot County, Arkansas, v. Sherwood (1893), 149 U. S. 529, 37 L, ed. 546...................................................... 6 Leonard v. Earle (1928), 279 U. S. 392, 73 L. ed. 754, 49 Sup. Ct. 372.............................................................. 5 Oklahoma Operating Co. v. J. E. Love, et al. (1919), 252 IT. S. 331, 337, 64 L, ed. 596, 599.............................. 5, 6 Southern Pacific Co., etc., v. Interstate Commerce Com mission (1910), 219 IJ. S. 433, 55 L. ed. 283, 31 Sup. Ct. 228...................................................................... 5, 6 Southern Pacific Terminal Co., etc., v. Interstate Com merce Commission (1910), 219 U. S. 498, 514, 516, 55 L. ed. 310, 315, 316, 31 Sup. Ct. 299..................... 5 U. S. v. Trans-Missouri Freight Ass’n (1896), 166 U. S. 290, 307, 41 L. ed. 1007, 1016, 17 Sup. Ct. 540........... 5 In the Supreme Court of the United States No. 643 O C T O B E R T E R M , 1938. WILLIE EVA SIMMONS, A ppellan t, vs. THE BOARD OF EDUCATION OF THE CITY OF MUS KOGEE, OF THE STATE OF OKLAHOMA; ARTHUR CATLETT, JAMES A. LATHIM, W. H. CUNNINGHAM, AND C. A. AMBRISTER, ETC., E T A L ., A p p ellees . APPEAL FR O M T H E U N I T E D S T A T E S D IS T R IC T C O U R T FOR T H E E A S T E R N D IS T R IC T O F O K L A H O M A . BRIEF OF APPELLANT OPPOSING APPELLEES’ MO TION TO DISMISS OR AFFIRM. May it Please T he Court : The appellant, Willie Eva Simmons, has filed herein the Jurisdictional Statement required by Rule 12 of this Court, which statement, on account of the important na ture of the case, was more extended than otherwise would have appeared necessary. The appellees have filed herein, pursuant to said Rule 12, their Motion to Affirm or Dismiss. The attention of this Court is first called to the fact that said motion of appellees does not contend in any manner that the trial court was without jurisdiction, or that the cause is without merit, or that there was any defect in said Jurisdictional Statement of appellant, or that the appeal 18 prosecuted for delay. Their sole contention seems to be 2 Simmons v. B oard of E ducation. that this Court is without jurisdiction of the cause, upon appeal, for the reason, as appellees contend, the contro versy has become moot by reason of the approval by the Attorney General, appellee herein, after judgment below and pending appeal to this court, of the bonds involved in the trial court. It appears from said Motion to Dismiss or Affirm, as well as from the affidavit thereto attached, that said appel lees take a very narrow view of the nature of this contro versy, of the relief sought by the appellant herein, as well as of the law relating to moot questions. It is not controverted that the trial court had original jurisdiction of the parties to the suit, other than the At torney General; nor is it in anywise contended that the con troversy is moot as to said other parties. Said motion of appellees wholly ignores the fact that appellant seeks here in to restrain the Attorney General, not only from approv ing and certifying the specific bonds in question, but also from enforcing the state laws in question in the future. Ap pellant seeks also, in effect, to have the state laws under which said appellee Attorney General is acting, declared unconstitutional, and she seeks a permanent injunction “ for ever restraining and enjoining the defendants [including the Attorney General] and each of them, from enforcing in any manner, or from attempting to enforce said laws and statutes of the State of Oklahoma herein alleged to be un constitutional” (See Prayer to Complaint R., p. .. .). Further, said motion of appellees fails in any manner to disclose facts even tending to prove that the controversy has become moot, or that the final judgment of this Court in this cause, if possibly in favor of appellant, will be inef fectual to accomplish, completely, the results sought by said suit. The actual facts in the case disclose that the pur- Brief of A ppeliant Opposing M otion. 3 ported approval of said bonds by the Attorney General, ap pellee herein, was made in violation of a statement he made in open court during trial below; and further, that said purported approval was not final, but was, as appears from his own affidavit attached to said motion, subject to ju dicial review; and that, so far as this controversy is con cerned, said purported approval of said bonds will be a mere nullity, if this suit should finally be decided in favor of appellant. It appears from a counter-affidavit hereto attached, and which is incorporated herein by reference, that the bonds in question have not been sold or passed into the hands of any stranger to this suit; that no other act, visible or tangible, has been performed either by parties to this suit or strangers, effectual toward the erection of the struc tures sought to be enjoined; that the bidder on said bonds in question has refused to accept them pending the outcome of this controversy; and that the entire matter is held in abeyance pending the final determination of this cause. It cannot, under any circumstances, be contended that said controversy has become moot; or that final judgment in this Court will be ineffectual to accomplish every pur pose sought by appellant originally. If this Court assumes jurisdiction and decides that the state laws in question are unconstitutional, it can also decide that the approval of said bonds by the appellee Attorney General was a nullity. This Supreme Court of the United States can, it would seem, restrain the Attorney General from enforcing said laws in the future, or from approving future bonds thereunder— even though it appears from his affidavit that such action by this Court would be contrary to his mandate that ‘ ‘ such bonds should be incontestable” unless contested in such manner, court, or time as he should direct. Further, the authorities cited in said motion of ap- 4 Simmons v. B oard of E ducation. pellees are applicable only to a controversy which is truly moot, and in which it is “ impossible for this Court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever # Jones v. Montague (1904), 194 U. S. 147, 152, 48 L. ed. 913, 915, 24 Sup Ct. 611, cited by appellees. In the opinion in said case, by Mr. Justice Brewer, it was stated: “ i * * * ^ necessarily follows that when, pending an ap peal from the judgment of a lower court, and without any fault of the defendant, an event occurs which ren ders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal *** . ” ’ (Italics ours.) And how can the approval of said bonds by the appellee Attorney General, made in an ex parte hearing without any notice to appellant, and contrary to his voluntary statement and declaration in open court, be said to have been done “ without any fault” on his part, as provided by the rule stated in said Jones-Montague case relied upon by appellees" The other cases cited and relied upon by appellees on this proposition, to-wit: Brownlow v. Schwartz, 261 U. S. 216, 67 L. ed. 620, 43 S. Ct. 263; and Barker Painting Co. v. Local No. 734, etc., 281 U. S. 462, 74 L. ed. 967, 50 S. Ct. 356; are mere illustrations of the application of the rule stated by Mr. Justice Brewer in the opinion in Jones v. Montague, supra. On the contrary, and concerning the proposition under consideration, the appellant cites and relies upon the fol lowing authorities, to-wit: Bbief of A ppellant Opposing M otion. 5 U. S. v. Trans-Missouri Freight Ass’n (1896), 166 U. S. 290, 307, 41 L. ed. 1007, 1016, 17 Sup. Ct. 540; Southern Pacific Co., etc., v. Interstate Commerce Commission (1910), 219 IT. S. 433, 55 L. ed. 283, 31 Sup. Ct. 228; Southern Pacific Terminal Co., etc., v. Interstate- Commerce Commission (1910), 219 IT. S. 498, 514, 516, 55 L, ed. 310, 315, 316, 31 Sup. Ct. 299; Leonard v. Earle (1928), 279 U. S. 392, 73 L. ed. 754, 49 Sup. Ct. 372; Oklahoma Operating Co. v. J. E. Love, et al. (1919), 252 IT. S. 331, 337, 64 L. ed. 596, 599. The first two syllabi in U. S. v. Trans-Missouri Freight Assn., supra, opinion by Mr. Justice Peckham, are respec tively, as follows: “ The voluntary dissolution of an association of common carriers after a decree dismissing a suit in equity seeking such dissolution and asking that defend ants be enjoined from continuing in a like combina tion, and from further conspiring, agreeing, combining, or acting together to maintain rates of freight, does not prevent this court from taking cognizance of an appeal and deciding the case on its merits, where the .judgment of this court is sought upon the legality of their agreement and defendants claim it to be legal and necessary, and on dissolving such association en tered into and acted upon another similar agreement. “ 2. Where parties have entered into an illegal agreement and are acting under it, and there is no adequate remedy at law, and the jurisdiction of the court has attached by the filing of a bill to restrain such or any like action under a similar agreement, and a trial has been had and judgment entered, the appel late jurisdiction of this court is not ousted by a simple dissolution of the association, effected subsequently to the entry of judgment in the suit.” 6 Simmons v. Board of E ducation. It appears that in the case last cited, the defendants attempted to out-wit and evade the jurisdiction of the fed eral court, by the ruse of speciously yielding the relief sought by the plaintiff, and making it appear that the suit was unnecessary: in the instant case, on the contrary, it seems that the appellee Attorney General attempts to set at naught the jurisdiction of the Supreme Court of the United States, and this circumstance, instead of defeating such jurisdiction, seems to make imperative its exercise. The provision, either in the state statute or in the certificate of the Attorney General (see affidavit attached to motion) to the effect that such bonds were still eon- testable in the state courts could not affect the original jurisdiction of the federal court, under federal statutes, to inquire into the validity of said bonds, of the certificate of the Attorney General, or of the state laws under which they existed. Chicot County, Arkansas, v. Sherwood (1893), 148 U. S. 529, 37 L. ed. 546. And no act of the Attorney Gen eral, a party to the suit, could divest the jurisdiction of the federal courts, already properly vested. Oklahoma Op erating Co. v. Love, supra, in which case was involved an appeal under Section 266 of the Judicial Code, and in which the state statute the federal constitutionality of which was attacked was remedied by the state legislature after the institution of the federal suit to enjoin its enforcement. Wherefore, appellant respectfully submits that the con troversy herein is not moot; that this Court has jurisdiction of this cause upon appeal, as shown by the jurisdictional statement filed herein by appellant; and said appellant prays the Court to proceed herein according to law. Respectfully submitted this 2nd day of February, 1939. Charles A. Chandler, Counsel for Appellant. Brief of A ppellant Opposing M otion. 7 APPENDIX. AFFIDAVIT. United States of A merica, Eastern Judicial District of Oklahoma.—ss. Charles A. Chandler, being first duly sworn, alleges and states upon oath: That he is counsel for appellant Willie Eva Simmons in above cause; that he was present at the trial of said cause in the Federal District Court at Muskogee, Oklahoma, on October 3, 1938, and at said trial the appellee Mac Q. Williamson, Attorney General and Ex-Officio Bond Commis sioner of the State of Oklahoma, stated in open court that it was an unbroken policy of his office not to approve or certify bonds while they were in litigation, and that he would not approve the bonds in question while they were in litigation. And this affiant, as counsel for appellant, be lieved said statement to be made in good faith and to be true, and he relied thereupon, and took no steps to super sede the decree of trial court dismissing plaintiff’s bill in this cause. That affiant was present at the sale of said bonds, on October 3, 1938, when bids were received therefor (pur suant to court order); and that at said time the Citizens National Bank of Muskogee, Oklahoma, bid in said bonds upon the express condition that said hank would not ac cept said bonds unless or until they were free and clear of litigation. That neither affiant, as counsel, nor said appellant had any notice of any hearing for the approval of said bonds by the Attorney General, appellee, nor was either of them given any opportunity to be heard in any proceedings for such approval. Further, that said Citizens National Bank, bidder on said bonds, has refused to accept said bonds until after termination of this suit, and subject to the outcome hereof. That said bonds have not been delivered to said Bank, nor otherwise sold or disposed o f ; that the Public Works Ad ministration has not advanced appellees the proposed funds m question; and that appellees have not done nor caused s Simmons v. Board of E ducation. to be done anything further, tangible, or visible, looking toward the erection of the structures for the financing of which said bonds were proposed to be issued. That all of said things and matters are held in abeyance pending final disposition of the appeal herein, and subject to the final determination of this cause. That there is attached hereto and incorporated herein a true and correct copy of the letter of said Citizens Na tional Bank, communicated to appellee Board of Education, whereby said bank refused to accept said bonds. That said letter was widely published in the press of Muskogee, Ok lahoma. Charles A. Chandler, Affiant. Subscribed and sworn to before me this 2nd day of February, 1939. W . V. M cClure, Seal U. S. Court Clerk. By Ellis Quiett, Deputy Clerk. THE CITIZENS NATIONAL BANK of Muskogee, Okla. November 28, 1938. Board of Education, Muskogee, Oklahoma. Gentlemen: Begarding the board of education building bonds in the sum of $275,000.00, which were offered for sale at public auction some time ago and in connection with which this bank was the successful bidder. In our contract for the purchase of these bonds, we agreed to pay the sum of $275,000.00' plus accrued inter est to date of delivery and a premium of $7.50. In our bid we stipulated that we would take these bonds if and when approved by a reputable bond attorney. When the transcript covering these bonds was com pleted, we referred it to Chapman & Cutler, bond attorneys of Chicago, Illinois, who heretofore have passed on the le gality of numerous Oklahoma bond issues and who, in our Brief of A ppellant Opposing M otion. 9 opinion, are qualified to pass on the legality of this issue. They take position they cannot approve the issue until the litigation, which is now pending, has been ultimately dis posed of. While we are anxious, ready and willing to pay for the bonds at this time, yet with this litigation pending and be ing unable to get a favorable opinion from our attorneys, we cannot see our way clear to pay for the bonds at this time, but will pay for them just as soon as the school board can furnish us with a non-litigation certificate in connec tion with the bonds. Our officers and directors have always tried to op erate our institution in a conservative manner and we do not believe that it is right or proper that we should be asked to pay for the bonds until a clear title can be obtained, as we feel that we would be derelict in our duty to our stock holders and depositors if we should take up the bonds be fore the question of their legality has been finally deter mined. In order to show our willingness to do the right thing and to make it possible for the board to proceed with the contemplated improvements, we are willing to relinquish our right to the purchase of the bonds, provided the school board can find a legitimate purchaser and one who will pay for the bonds immediately. We reserve the right to take the bonds unless they are sold pending the litigation. We are merely agreeing, in the interest of the public, to allow you to sell the bonds during the pending litigation if you can do so. We bid these bonds in in good faith and still believe that they are a good investment and we would like very much to have the bonds in our portfolio and regret that it is impossible to take them up at this time on account of the pending litigation. Yours very truly, (Signed) T. F. K ing, Exec. Yice President. SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1938 No. 643 WILLIE EVA SIMMONS vs. Appellant, THE BOARD OF EDUCATION OF THE CITY OF MUSKOGEE OF THE STATE OF OKLAHOMA ET AL. APPEAL FROM T H E DISTRICT COURT OF T H E U N ITED STATES FOR TH E EASTERN DISTRICT OF O KLAH OM A STATEMENT AS TO JURISDICTION. C h a r l e s A. C h a n d l e r , Counsel for Appellant. INDEX. Subject I ndex. Page Statement as to jurisdiction..................................... 1 Statutory provisions sustaining jurisdiction. ... 1 The District Court of the United States for the Eastern District of Oklahoma had original jurisdiction of said cause............ 1 The Supreme Court of the United States has jurisdiction of said cause upon appeal. . . . 3 The statutes of the State of Oklahoma contended by said appellant to be violative of the Consti tution of the United States.............................. 4 Date of order and decree sought to be reviewed, and date upon which application for appeal was presented to trial court and upon which appeal was allowed to this Court..................... 12 Nature of case and rulings of trial court............ 13 Cases sustaining jurisdiction............................ 15 Cases in support of the substantial nature of the Federal questions ........................................... 15 The doctrine of Cumming v. Board of Education is not applicable to this case............................ 16 Opinion of trial court......................................... 16 Exhibit “ A ” —Findings of fact and conclusions of law of the District Court of the United States for the Eastern District of Oklahoma.......................... 19 Table oe Cases Cited. Buchanan v. Warley, 245 U. S. 60, 62 L. Ed. 149......... 15 Cumming v. Board of Education, 175 U. S. 528, 44 L. Ed. 262.................................................................... 16 Herkness v. Irion ei al., 278 U. S. 92, 73 L. Ed. 198... 15 Home Tel. and Tel. Co. v. Los Angeles et al., 227 U. S. 278, 57 L. Ed. 510................................................... 15 McFarland v. Goins, 96 Miss. 67, 50 So. 493.............. 15 Norfolk and Western By. v. Board of Public Works, etc., 3 Fed. Supp. 791.............................................. 15 —10012 11 INDEX Page Pierce et al v. Society of the Sisters, etc., 268 U. S. 510, 69 L. Ed. 1070................................................... 15 Reppel v. Board of Liquidation, 11 Fed. Supp. 799. . . 15 State of Missouri ex rel. Gaines v. Canada, etc., No. 57, October Term, 1938, decided December 12,1938. 15 Sterling v. Constantin, 287 U. S. 378........................... 15 Truax v. Raich, 239 U. S. 33, 60 L. Ed. 131................ 15 Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220....... 15 Statutes Cited. Act of February 13, 1925, Section 8(a) (28 U. S. C. 350, 43 Stat. L. 936)................................................. 13 Constitution of the State of Oklahoma, Article 13, Section 3 (Vol. II, O. S. 1931, p. 1495, Sec. 13676). . 8 Constitution of the United States, 14th Amendment, Section 1 ................................................................. 3 ; 4 Judicial Code, Section 24, amended (28 U. S. C. 41(1) and (4 ) ) .......................................... 2 Section 52 (28 U. S. C. 113).............. 2 Section 238, amended (28 IT. S. C. 345 (3)) ............................................... 4 Section 266, amended (28 U. S. C. 380) ............................................... 3,4 Oklahoma Statutes of 1931, Chapter 27, Article 5: Sec. 5412........................................ 7 Sec. 5413 .............................................................. 7 Sec. 5414.............................................................. 8 Oklahoma Statutes of 1931, Chapter 34, Article 9: Sec. 6853 ............................................... 4 Sec. 6861 ............................................................ 5 Sec. 6867 .............................................................. 5 Sec. 6876 ............................................................. 5 Sec. 6880 .............................................................. 6 Sec. 6881 .............................................................. 6 Sec. 6884 ............................................... 7 Sec. 6892 .......................................................................7 Oklahoma Statutes of 1931, Chapter 34, Article 18: Sec. 7033 ................................... 8 Sec. 7034 ............................................................. 9 INDEX 111 Page Sec. 7035 ............................................................. 9 Sec. 7036 ............................................................. 9 Sec. 7037 ............................................................. 10 Sec. 7038 ............................................................. 10 Sec. 7039 ............................................................. 10 Sec. 7040, as amended by Sec. 1, H. B. 320, Okla homa Statutes, 1937 ....................................... 10 Sec. 7045 ............................................................. 11 Sec. 7046 ............................................................ 11 Sec. 7049 ............................................................. 12 Revised Statutes, Section 1977 (8 TJ. S. C. 41).......... 2 Section 1979 (8 U. S. C. 43)........... 2 . ■ ■ •• . ■ , .■ • . V- . % ■ SUPREME COURT OF THE UNITED STATES O C T O B ER T ER M , 1938 No. 643 WILLIE EVA SIMMONS VSm Appellant, THE BOARD OF EDUCATION OF THE CITY OF MUSKOGEE OF THE STATE OF OKLAHOMA ET AL. APPEAL FROM T H E DISTRICT COURT OP TH E UNITED STATES FOR T H E EASTERN DISTRICT OF OKLAHOM A S T A T E M E N T A S T O JU R IS D IC T IO N . May it please the H onorable Court : The appellant in the above entitled cause, Willie Eva Sim mons, in support of the jurisdiction of this Honorable Court to review the above entitled cause on appeal, respectfully represents: A. Statutory Provisions Sustaining Jurisdiction. (a) The District Court of the United States for the East ern District of Oklahoma had original jurisdiction of said cause. 2 By her first amended and supplemental complaint (R. 1- 25) filed in said District Court, said appellant prayed for an interlocutory injunction and also for a permanent injunc tion, under Sec. 266, Judicial Code, Amended, to restrain the appellee Mac Q. Williamson, Attorney General and ex- Officio Bond Commissioner of the State of Oklahoma; the Board of Education of the City of Muskogee, Oklahoma, and other local officials from proceeding to issue, sell, certify and approve proposed bonds of said Board of Education in the sum of $275,000.00, and to restrain said parties from doing other acts pursuant to and in the enforcement of the herein after mentioned statutes of the State of Oklahoma, it being alleged in said complaint and contended by appellant that said State Statutes and said acts of the defendants there under violate Section 1 of the 14th Amendment to the Fed eral Constitution, and violated R. S., Secs. 1977 and 1979 (TJ. S. C., Title 8, Secs. 41 and 43), providing for equal rights of citizens of the United States. Said appellant, as plaintiff, sued on behalf of herself as well as on behalf of .many other Negro citizens similarly situated. All proper jurisdictional allegations were made in said complaint. Plaintiff and all other parties, except Mac Q. Williamson, were alleged to be residents of the East ern District, and said Mac Q. Williamson, was alleged to be a resident of the Western District, all of the State of Okla homa (R. 2). It was properly alleged that the amount in con troversy exclusive of interest and cost, exceeded the sum and value of $3,000.00. Said District Court for the Eastern District of Oklahoma had original jurisdiction. Judicial Code, Sec. 24, Amended, U. S. C., Title 28, Sec. 41, paragraphs (1) and (14). Venue of said cause properly lay in said District Court. Judicial Code, Sec. 52; U. S. C., Title 28, Sec. 113. 3 (b) The Supreme Court of the United States has jurisdic tion of said cause upon appeal. Said suit was instituted in said Federal District Court, under Sec. 266 of the Judicial Code, Amended, U. S. C., Title 28, Sec. 380, amended, for interlocutory injunction and also for a permanent injunction to restrain Mac Q. William son, as Attorney General and ex-Officio Bond Commissioner of the State of Oklahoma, and also to restrain other local officers from enforcing and executing the hereinafter men tioned statutes of the State of Oklahoma, it being contended by appellant that said statutes were unconstitutional and violative of Section 1 of Article 14 of Amendment to the Con stitution of the United States, and violative of ft. S., Secs. 1977 and 1979, providing for equal rights of persons within the jurisdiction of the United States. It further appeared that due and proper notice of hearing in the trial court was properly made and given to said At torney General of said State of Oklahoma, to the Governor of said State of Oklahoma, as well as to the defendants in said cause; and that said cause was heard before a statu tory, three-judge court, under J. C., Sec. 266, amended. This appeal is prosecuted to this Supreme Court of the United States from the order of said Federal District Court, upon hearing, denying to said appellant an interlocutory in junction as prayed for, and also from the final decree in said cause, denying to said appellant a permanent injunction as prayed for (R. 62, 64). The appeal herein has been allowed by said Federal District Court, and duly perfected to this Court, in all respects in conformity with law and agreeably to the rules of this Honorable Court (R. 68-106). Said appellant respectfully contends that this Honorable Supreme Court of the United States has jurisdiction in 4 said appeal by virtue of U. S. C. A., Title 28, Sec. 345 (Judicial Code, 238, as amended by the Act of Feb. 13, 1925); paragraph No. 3 of said Section 238; as well as by reason of Sec. 266 of the Judicial Code, Amended; U. S. C. A., Title 28, Sec. 380, as amended by the Act of Feb. 13, 1925, providing for a direct appeal to this Court from an order of a statutory three-judge district court denying interlocutory injunction, as well as from a final decree de nying a permanent injunction in such case. This appeal is prosecuted from such order and from such final decree in such case. B . The Statutes of the State of Oklahoma Contended by Said Appellant to be Violative of the Constitution of the United States. It appears from the allegations of the complaint (R. 4, paragraph 6), as well as from the findings of fact and con clusions of law made by the trial court (copy thereof at tached hereto; also, R. 40) that in proceeding to issue, sell, and certify the bonds herein sought by appellant to be en joined, the appellees are proceeding with the enforcement, operation, and execution of the statutes of the State of Okla homa, duly enacted by the Legislature of said State, desig nated as Article 9, of Chapter 34, 0. S. 1931 (Secs. 6853- 6914; Vol. I, 0. S. 1931, pp. 1998-2015), and pertaining to Independent School Districts. Appellant respectfully shows to the Honorable Court that the provisions of said Article 9 of said Chapter 34, partic ularly contended by said appellant to be unconstitutional, violative of Section 1 of Article 14 of Amendment to the Constitution of United States and also violative of U. S. C., title 8, Section 41 (R. S., Sec. 1977), are as follows, to wit: Sec. 6853 (Vol. I, 0. S. 1931, p. 1999): ‘ ‘ 6853. Independent Districts in Cities and Towns.— Each city of the first class, and each incorporated town 5 maintaining a four years high school fully accredited with the State University, shall constitute an inde pendent district and be governed by the provisions of this article.” Sec. 6861 (Vol. I, 0. S. 1931, p. 2001): “ 6861. Independent District a Body Corporate— Powers.—The public schools of each city or town or ganized in pursuance of this article shall be a body corporate and shall possess the usual power of corpo rations for public purposes, by the name and style of ‘ The Board of Education of the city or town o f ----- , of the State of Oklahoma,’ and in that name may sue or be sued, and be capable of contracting or being con tracted with, of holding and conveying such personal and real estate as it may come into possession of, by will or otherwise, or as is authorized to be purchased by the provisions of this article. ’ ’ Sec. 6867 (Vol. I, 0. S. 1931, p. 2003): ‘ ‘ 6867. Powers of Boards.—The Board of Education shall have power to elect their own officers, except the treasurer, to fill any vacancy which may occur in that body to serve the unexpired term; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to establish a high school whenever, in their opinion, the educational interest of the city demands the same, and to exercise the sole control over the school and school property of the city.” Sec. 6876 (Vol. I, O. S. 1931, p. 2005): “ 6876. Property Subject to Taxation—Taxes Turned Over to Treasurer.—The taxable property of the whole city or incorporated town, including the territory at tached for school purposes, shall be subject to taxa tion. All taxes collected for the benefit of the school shall be placed in the hands of the treasurer, subject to the order of the board of education,” 6 “ 6880. Board May Borrow Money and Issue Bonds for Improvements.—Whenever it shall become neces sary for the Board of Education of any school district, in which is included in whole or in part, a city of the first class, to raise sufficient funds for the purchase of school site or sites, or to erect or purchase and equip a suitable school building or buildings, or both, or for the purpose of making repairs of such school building or buildings or purchasing a school site or sites, for such building or buildings, either or both, it shall be lawful for such Board of Education of such city to bor row money for which they are hereby authorized and empowered to issue bonds bearing a rate of interest, not exceeding five per cent, per annum, payable semi annually, at such place as may be shown on the face of such bonds, which bonds shall be payable in not more than twenty-five years from date; and the Board of Education is hereby authorized and empowered to sell such bonds at not less than their par value: Pro vided, that before any bonds shall be issued, the mayor of the city composing in whole or in part such school district, shall cause an election to be held in such dis trict as herein provided: Provided, further, that bonds may be voted in one issue at the same election, for any or all of the purposes hereinbefore enumerated.” Sec. 6881 (Vol. I, O. S. 1931, p. 2007): “ 6881. Bond Election—Procedure.—It shall he the duty of the mayor of each city governed by this article, upon the request of the board of education, forthwith to call an election, to be conducted in all respects as are special elections for city officers in the same city, ex cept that the returns shall be made to the board of edu cation for the purpose of taking the sense of such district upon the question of issuing such bonds, nam ing in the proclamation of such election the amount of bonds to be voted on and the purpose for which they are to be issued; and he shall cause to be published in a newspaper of general circulation published in the Sec. 6880 (Yol. I, 0. S. 1931, p. 2006): 7 said district the time and place of such election, such notice to be given at least ten days before such elec tion. ’ ’ Sec. 6892 (Vol. I, 0. S. 1931, p. 2009): “ 6892. School Property Pledged to Pay Bonds.— The school fund and property of such city and terri tory attached for school purposes is hereby pledged to the payment of the interest and principal of the bonds mentioned in this article, as the same may become due. ’ ’ It seems that a clear understanding of the afore-quoted statutes of the State of Oklahoma, contended by appel lant to be unconstitutional, necessitates a consideration of the other cognate constitutional and statutory laws of said State. Such other and related provisions of the Constitu tion and Statutes of the State of Oklahoma are as follows: Sec. 6884 (Vol. I, 0. S. 1931, p. 2007): “ 6884. Bonds—Signing and Certifying—Denomina tions.—The bonds, the issuance of which is provided in the preceding sections, shall be signed by the presi dent, attested by the clerk and countersigned by the treasurer of the board of education, and shall have en dorsed thereon a certificate signed by the county clerk or other officer authorized by law to sign such certifi cate and the county attorney of the county wherein such district is located, stating that said bonds, or evi dence of debt is issued pursuant to law and that said issue is within the debt limit; provided, that each of said bonds shall be for a sum of not less than one hun dred dollars.” Article 5, Chapter 27 (Vol. I, O. S. 1931, pp. 1576-1577): “ 5412. Attorney General ex-Officio Commissioner.— The Attorney General is hereby made ex officio bond commissioner of the State of Oklahoma. “ 5413. Duties of Commissioner—Bonds Incontest able 30 Days After Approval.—It shall be the duty of 8 such bond Commissioner to prepare uniform forms and prescribe a method of procedure under the laws of the State in all cases where it is desired to issue public securities or bonds, in any county, township, municipality or political or other subdivisions thereof of the State of Oklahoma; and it shall be the further duty of said bond commissioner to examine into and pass upon any security so issued, and such security, when declared by the certificate of said bond commis sioner to be issued in accordance with the forms of procedure so provided shall be incontestable in any court in the State of Oklahoma unless suit thereon shall be brought in a court having jurisdiction of the same within thirty days from the date of the approval of said securities by the bond commissioner. “ 5414. Bond Invalid Without Certificate.—No bond hereafter issued by any political or municipal subdivi sion of this State shall be valid without the certificate of said bond commissioner.” Sec. 3, Article 13, of the Oklahoma Constitution (Vol. II, 0. S. 1931, p. 1495, Sec. 13676): “ 13676. Separate Schools.— Sec. 3. Separate schools for white and colored chil dren with like accommodation shall be provided by the Legislature and impartially maintained. The term ‘ colored children,’ as used in this section, shall be con strued to mean children of African descent. The term ‘white children’ shall include all other children.” And said appellant further represents and shows to the court that Article 18 of aforementioned Chapter 34, 0. S. 1931, concerning “ Separate Schools” , provides as follows: Section 7033 (Vol. I, 0. S. 1931, p. 2048): “ 7033. Separation of White and Colored Races.— The public schools of the State of Oklahoma shall be organized and maintained upon a complete plan of sep aration between the white and colored races, with im partial facilities for both races.” 9 “ 7034. Definition of Terms.—The term ‘ colored’, as used in the preceding section shall be construed to mean all persons of African descent who possess any quantum of negro blood, and the term ‘white’ shall include all other persons. The term ‘public school’, within the meaning of this article, shall include all schools provided for, or maintained, in whole or in part, at public expense.” Section 7035 (Yol. I, O. S. 1931, p. 2048): “ 7035. Separate School Defined.—The county sep arate school in each school district is hereby declared to be that school in said school district of the race having the fewest number of children in said school district; provided that the county superintendent of public instruction of each county shall have authority to designate what school or schools in each school dis trict shall be the separate school and which class of children, either white or colored, shall have the privi lege of attending such separate school or schools in said school district. Members of the district school board shall be of the same race as the children who are entitled to attend the school of the district, not the separate school.” Section 7036 (Vol. I, O. S. 1931, p. 2049): “ 7036. Allowing child of One Race to Attend School of Another—Penalty.—Any teacher in this state who shall wilfully and knowingly allow any child of the colored race to attend the school maintained for the white race, or allow any white child to attend the school maintained for the colored race, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than ten dollars nor more than fifty dollars, and his certificate shall be cancelled and he shall not have another issued to him for a term of one year.” 2 q Section 7034 (Yol. I, 0. S. 1931, p. 2048): 10 “ 7037. Mixed Schools—Punishment for Conducting. —It shall be unlawful for any person, corporation or association of persons, to maintain or operate any col lege, school or institution of this state where persons of both white and colored races are received as pupils for instruction, and any person or corporation who shall operate or maintain any such college, school or institution in violation hereof, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, and each day such school, college or institution shall be open and maintained shall be deemed a separate offense. ’ ’ Similarly, Section 7038 makes it a misdemeanor to teach in such mixed school; and Section 7039 makes it a mis demeanor to attend such mixed school. In each case, each day of such violation is denominated a separate offense. Sec. 1, H. B. 320, Oklahoma Statutes, 1937, Amending Sec. 7040, O. S. 1931 (Okla. Statutes, 1937, p. —), provides: “ 320. Separate Schools—Tax Levy—Regulations.— In all cases where County Separate Schools for white and colored children are maintained, the County Ex cise Board shall annually levy a tax on all taxable property in their respective counties, sufficient to main tain such separate schools as are hereinafter provided. Upon estimate made by the County Commissioners, said taxes shall be estimated, published, levied, and collected in the same manner as other taxes for county purposes; provided, however, that in all Independent Districts where separate schools for white and colored children are maintained, it shall be the duty of the Board of Education therein, at the time provided for preparing its annual budget, to prepare a separate budget showing the amount of money that will be re quired to be raised by taxation, for the support and maintenance of such separate schools, including a sum Section 7037 (Vol. I, 0. S. 1931, p. 2049): 11 sufficient to pay a reasonable pro rate share of the cost of superintending, supervising and administering the schools and school system of said Independent District including said separate schools, and the amount neces sary to purchase sites and to erect school buildings for such separate schools for the coming fiscal year; * * Sec. 7045 (Yol. I, 0. S. 1931, p. 2051) provides: “ 7045. Teachers—Employment and Qualifications. —It shall hereafter be the duty of all County Super intendents of Public Instruction to contract with and employ all teachers for the county separate schools, except independent district, now maintained or here after to be established in their respective counties; Provided, that the Board of Education in all independ ent districts, shall contract with, and employ all teach ers in the separate schools of such independent dis- tiicts. Teachers so employed shall possess all the qualifications which are now required by law, and the County Superintendent of Public Instruction shall have the power to prescribe rules and regulations for the government of all county separate schools in his county, except independent districts.” Sec. 7046 (Vol. I, O. S. 1931, p. 2051): “ 7046. Same.—It shall hereafter be the duty of the County Superintendent of Public Instruction to con tract with and employ all teachers for the county sep arate schools now maintained, or hereafter to be estab lished in their respective counties; provided, that the Board of Education in all independent districts shall contract with and employ all the teachers for the schools of such district which have been designated by the county superintendents as the county separate school within such districts. Teachers, before being so employed, shall possess all the qualifications which are now required by law, and the county superintendent of public instruction shall have the power to prescribe rules and regulations for the government of all county 12 separate schools in his county, except those within the independent districts, and in such independent dis tricts where the same is composed wholly or in part by a city of the first class the Board of Education of such city shall have full control, management and dis cipline and prescribe the rules and regulations for the government of the separate schools in such districts; and that the Board of Education of cities of the first class shall keep a separate account of all expenditures made in maintaining such separate schools and shall at the end of each month, certify the same to the Board of County Commissioners of the county in which such school district is situated, and said Board of County Commissioners shall pay the same.” Sec. 7049, (Vol. I, O. S. 1931, p. 2052) : ” 7049. Payment of Teachers.—Warrants for the salary of teachers employed in the separate schools, excepting those in independent districts, and all orders or warrants for the expense of such schools shall be issued upon the Treasurer by the County Clerk and countersigned by the County Superintendent; Provided, however, that the County Clerk shall not draw on said separate school fund for any greater amount for teachers employed for any district than is paid the like number of teachers for like time by the school district for teaching in other schools for said districts.” C. Date of Order and Decree Sought to be Reviewed, and Date Upon Which Application for Appeal was Presented to Trial Court, and Upon Which Appeal was Allowed to This Court. Both the order denying interlocutory injunction and the final decree denying permanent injunction were made, entered and filed in the trial court on the 12th day of Oc tober, 1938 (see order denying interlocutory injunction, R. 62, and also, judgment (final decree), R. 64). 13 Application for appeal herein (R. 68) to this Honorable Court was duly presented to the Honorable Eugene Rice, District Judge (and one of the trial judges) on the 4th day of January, 1939, within three months after the entry of such respective order and final decree, and within the time provided by Section 8 (a) of the Act of Congress of Feb ruary 13,1925; U. S. Code, Title 28, Sec. 350; 43 Stat. L. 936. The Appeal herein to this Honorable Court has been per fected in all respects in conformity with law, the Equity Rules, and the Rules of the Supreme Court. D. Nature of Case and Rulings of the Trial Court. It seems that the nature of the case has been hereinabove sufficiently set forth. The trial court denied plaintiff both the interlocutory injunction and permanent injunction as prayed for (R. 62, 64), and found and held that the statutes of the State of Oklahoma in question (Article 9 of Chapter 34, 0. S. 1931; herein supra; Vol. I, 0. S. 1931, pp. 1998- 2015) were constitutional and not violative of the 14th Amendment. The basis of the rulings of the trial court is set forth in its findings of fact and conclusions of law hereto attached. That the Federal constitutional questions involved are fundamental, serious, and substantial—and not strained or fanciful, appears from the 5th, 6th and 7th assigned errors (see assignment of errors, R. 99-107), which are, respec tively, as follows: V. It appears from the Fifth Finding of Fact that the Defendants, under the State laws in question, are pro ceeding to expend Five Hundred Thousand Dollars ($500,000.00) of public funds for improvement of the white schools, and that under said State laws it would 14 be illegal for said defendants to expend any part of said fund (or of any similar fund) for the separate or Negro schools, although the trial court found that the white and Negro schools were equally in need of im provements ;—such laws and such acts by the defend ants deny to Negro citizens and tax payers, includ ing plaintiff, equal protection of the laws in violation of Section 1 of the 14th Article of Amendment to the Con stitution of the United States, and the trial court com mitted error in failing and refusing so to find and hold. VI. It appearing that under 0. S. 1931, Sec. 7045, the de fendant Board of Education of the City of Muskogee is given supervision and control of the separate or Negro schools in said city; and it appearing from the Fifth Finding of Fact (under 0. S. 1931, Sec. 7035) that the members of said Board of Education must be of the white race; such laws, making it impossible for plain tiff, or any other Negro patron or tax payer, to be a member of the Board of Education having supervision and control of the Negro schools, deny to plaintiff the equal protection of the laws and violate Section 1 of the 14th Article of Amendment to the United States Consti tution ; and the trial court erred in refusing so to hold. VII. Article 9 of Chapter 34, 0. S. 1931 (Secs. 6880-6884, and 6892) purports to give to the defendant Board of Education, having supervision of both the white and colored schools in the City of Muskogee, ample power to issue bonds, secured by all property in the City, to provided funds for improving the said white schools, but no authority to issue bonds for the improvement of said Negro schools; and said laws and the enforcement thereof by defendants deny to plaintiff the equal protec tion of the laws, they violate Section 1 of the 14th Ar ticle of Amendment to the Federal Constitution, and the trial court committed error in holding to the contrary. 15 (a) Cases Cited by Appellant in Support of the Jurisdiction of This Court. The action being to enjoin the Attorney General, ex-Officio Bond Commissioner of the State of Oklahoma, and other defendants from enforcing and executing the laws of said State alleged to be unconstitutional (under U. S. Constitu tion), the District Court had original jurisdiction, and this Court has appellate jurisdiction (Judicial Code, Sec. 266, Amended; U. S. C., Title 28, Sec. 380, Amended): Home Tel. and Tel. Co. v. Los Angeles et al. (1913), 227 U. S. 278, 57 L. Ed. 510; Truax et al. v. Raich (1915), 239 U. S. 33, 60 L. Ed. 131; Pierce et al. v. Society of the Sisters, etc. (1924), 268 IT. S. 510, 69 L. Ed. 1070; Herkness v. Irion et al. (1928), 278 U. S. 92, 73 L. Ed. 198; Sterling, Gov. of Texas, et al., v. Constantin (1932), 287 U. S. 378, — L. Ed.— ; Norfolk and Western Ry. v. Board of Public Works, etc. (1933, D. C. W. Va,), 3 Fed. Sup. 791; Reppel v. Board of Liquidation (D. C., E. D., La. 1935), 11 Fed. Sup. 799. (b) Cases Cited by Appellant in Support of the Substantial ity of the Federal Constitutional Questions Involved. McFarland v. Goins (1909), 96 Miss. 67, 50 So. 493; Yick Wo v. Hopkins (1885), 118 IT. S. 356, 30 L. Ed. 220; Buchanan v. Warley (1917), 345 IT. S. 60, 62 L. Ed. 149; State of Missouri ex rel. Lloyd Gaines v. Canada, etc., et al. (No. 57, October Term, 1938, decided Dec. 12, 1938), not officially reported at date hereof. 1 6 (c) The Doctrine of Gumming v. Board of Education is Not Applicable to This Case. This case, wherein the State statutes in question as well as their administration patently and uniformly discriminate against the minority group, is not controlled by the doctrine of Gumming v. Board of Education (1899), 175 U. S. 528, 44 L. Ed. 262, in which latter case, in the administration of a law which was fair and equal on its face, occurred minor and insubstantial inequality which was necessitated by peculiar circumstances. The case of McFarland v. Goins, supra, is squarely in point on the present constitutional question raised under the 14th Amendment; and the opinion in said case clearly dis tinguishes the Cumming-Board of Education case from one like the instant case. E. Opinion of Trial Court, The trial court did not render a formal opinion, but the findings of fact and conclusions of law (pp. 11-32, infra) sufficiently disclosed the bases of the rulings of said trial court. There were no earlier opinions in this case, nor were there any companion cases. As hereinabove stated, the trial court rendered its order denying interlocutory injunction, and also its final decree denying permanent injunction (R. 62, 64), and this appeal is from both said order and final decree. It is by this appellant contended that the trial court erred and improvidently and abusively exercised the judicial dis cretion, in denying both interlocutory injunction and per manent injunction, prayed for by appellant. The bases of said contentions of appellant are as follows, to-wit: 1. This appellant contended in her complaint (R. 4) that said Article 9, Chapter 34, 0. S. 1931, violated the 17 14th Amendment to the Federal Constitution, because in the enforcement of said state law the defendants are proceeding to expend Five Hundred Thousand Dollars ($500,000.00) of public funds for the exclusive benefit of the white or Independent Schools in the City of Muskogee; that under said state laws it would be illegal for said defendants to expend any part of said fund (or of any similar fund) upon any of the Negro schools in said city; further, that appellant, as a tax payer in said city, must under said laws pay taxes to discharge the bonds used to raise said funds; and that it would be a criminal act for any child of appellant, or of any other Negro parent, to attempt to attend any schools so im proved by said funds. The trial court held, in effect, that plaintiff had an adequate remedy by application for writ of mandamus, to procure sufficient funds to “ maintain” said Separate or Negro schools “ a full school term” (See: Fifth Finding of Fact.) Such rul ing by the trial court was erroneous, and not dispositive of the constitutional question before it, for it was con tended by appellant, and the effect of said Amendment, that the 14th Amendment guaranteed her the equal pro tection of the laws, and not that it guaranteed any group a school of any particular quality of length of term. 2. The appellant contended that said laws of the state of Oklahoma, creating the appellee Board of Education, giving it control and supervision of the Separate or Negro schools in the City of Muskogee, and limiting the membership of said Board to the members of the white race, denied to appellant, as well as to other Negroes, the equal protection of the laws. The trial court (Find ing No. 4) found that in some of the schools districts in the State of Oklahoma, under said state laws, the ma jority schools are established and operated for and by the Negroes. Said finding and holding by_ the trial court was merely another illustration of the discrimina tory and unconstitutional operation of said state laws against qther minority groups who are denied equal protection of the laws; and said finding was not dis positive of the constitutional question before said 18 court; and said trial court abused its discretion in find ing and holding that said laws in question did not vio late said 14th Amendment by denying to appellant and other Negroes the equal protection of the laws. 3. By its Fifth Finding of Fact, the trial court found: “ That up to this time, before this proposition for the white schools was made, it appeared from the evi dence that white and Negro schools were in equal need for improvements” Then said trial court proceeded to find and to hold that said state laws in question, authorizing said appellee Board of Education to expend Five Hundred Thousand Dollars ($500,000.00) for the improvement of said white schools of the City of Muskogee, said public funds to be repaid by Negro residents and tax payers, as well as by the whites; said Board of Education not being author ized to expend any part of said fund (nor of any similar fund) for said Negro schools of said city; did not deny to said Negro schools or to said Negro residents and tax payers of said City, the equal protection of the laws re quired by the 14th Amendment. Such holding was so clearly erroneous as to amount to an abuse of the judi cial discretion. W herefore it is respectfully submitted by the appellant that this Honorable Supreme Court of the United States has jurisdiction of this appeal by virtue of Sections- 238 and 266 of the Judicial Code, as amended by the Act of February 13, 1925. Respectfully submitted, Charles A. Chandler, Counsel for Appellant. Note.— At the date of preparation of this Jurisdictional Statement, the Transcript of Record has not been printed; and all references therein to the record are to the pages of the unprinted record prepared by the clerk of the United States District Court for the Eastern District of Oklahoma. 19 E X H I B I T “ A ” . Findings by the Court under Rule 52, the Findings Being Made Specially and Conclusions of Law Separately. Findings of Fact. (1) That plaintiff is a native born citizen and resident of the City of Muskogee, in Muskogee County, Eastern District of Oklahoma, all other defendants other than Mac Q. Williamson, Attorney General of the State of Oklahoma, being citizens and residents of Muskogee County, Eastern District of said state, the defendant, Mac Q. Williamson, Attorney General and Ex-Officio Bond Commissioner of the State of Oklahoma, being a citizen and resident of the Western District thereof. (2) Notice of this hearing before a three-judge court has been given to the Governor of said state and to the Attorney General thereof as provided by the requirements of the judicial code as amended, the Attorney General appearing- in person. The complainant in open court through her attorney states that she does not challenge or question the provisions of the Constitution of Oklahoma or of the stat utes of said state insofar as they, on their face, provide for a separation of the races in the schools of said state. (3) That defendant, Board of Education of the City of Muskogee of said state is a subordinate municipal or politi cal corporation. The school district under its administra tive control embraces the City of Muskogee and adjacent territory thereto attached for school purposes, and the de fendants, Arthur Catlett, James A. Lathim, W. H. Cun ningham and C. A. Ambrister, and E. D. Cave, except as to said Cave, are the duly elected, qualified and acting members of said Board of Education, the said Cave being the duly appointed, qualified and acting Clerk of said board, and other defendants are duly qualified and acting officials as designated, to-wit: S. M. McManus, Mayor of said city; A..,Camp Bonds and Theo Frazier, respectively County Attorney and County Clerk of said county in said state; and Mac Q. Williamson, Attorney General and Ex- 20 Officio Bond Commissioner of said state, and the City of Muskogee and the adjacent territory thereto attached for school purposes has been duly and legally constituted and designated as Independent School District No. 20. (4) That the majority schools in said district No. 20 are designated and established as schools for children of those other than of African or negro descent, denominated as negroes or colored, the Separate Schools in said district being constituted, designated and established as schools for children of negroes. That in the State of Oklahoma Sepa rate Schools for children have been established and oper ated for the two races; that in a number of the districts of the State of Oklahoma, the majority schools are established and operated for negroes and the Separate or minority schools are correspondingly established and operated for pupils other than negroes. In the white school districts the board members are to correspond with the race for which the school is established. If it was for the whites, so denominated, the members of the board are to so cor respond, if the African or negro race the members of the board are to so correspond. That is, if the majority school was for the whites, the members of the school board should be from the whites, but if the majority school was colored, the members of the school board should be from the African race. (5) That in the entire state of Oklahoma, the amount of money expended per pupil for the school year of 1935-36 was approximately $54.00 per capita for white pupils and $52.00 per capita for negro pupils, and since that year the amount spent per capita for negro pupils has increased more in proportion by reason of the operation of the state statutes relating to primary and secondary aid. -That the schools for negroes have been established and are being operated in the State of Oklahoma with the same standards required as in the case of white schools, and that such negro schools so established have increased during the past four years more than 24% and high schools established for the use of white children have increased only one-fourth of 1%; that all of said high schools, both for white and colored children are duly accredited in the state of Okla 21 homa under the same standards; and that in many cities of the State of Oklahoma, other than the City of Muskogee, greater amounts are expended for the operation of the negro schools than the white schools, particularly in the cities of Tulsa and Oklahoma City; that in 38 of the 77 counties in the state of Oklahoma, the amount per capita per annum expended for negro schools is greater than that expended for the white schools. That in School District No. 20, embracing the City of Muskogee and adjacent ter ritory attached thereto for school purposes, the pupils at tending negro schools are approximately 23% of the total number of pupils in the district; that the negro schools have 22% in number of teachers, and have expended a budget of approximately 19% of the total amount spent for education in said district; that there is expended for maintenance of negro schools approximately 22% of the total amount expended in said district. That the average number of pupils per teacher in the schools of said district is 30.2 for the white schools and 31.6 for the negro schools; that the average annual salary of teachers in the white schools in said district is $1172.72 and in the negro schools $887.05; that all the expense of supervision and adminis tration, care of grounds and supervision of Art and Music of the negro schools has heretofore been paid out of the budget provided for the white schools. That substantially the same curricula is offered in both the white and negro schools and that recent additions and improvements have been made to the negro school buildings and, as well, addi tional ground has been purchased for their use; that both white and negro schools receive the same care and attention as to repairs and upkeep; that the negro schools are pro vided with a suitable athletic field which is lacking in the case of white schools; that the negro high school of the City of Muskogee is a duly accredited high school in the State of Oklahoma. That School District No. 20 has heretofore called an elec tion for the purpose of voting on the following proposition: “ Shall the School District comprising the City of Muskogee, of the State of Oklahoma, and the territory thereto attached for school purposes, incur an indebt 22 edness by issuing its negotiable coupon bonds in the sum of two hundred seventy-five thousand ($275,000.00) Dol lars to provide funds for the purpose of purchasing a site, erecting and equipping a Junior High School, and constructing and equipping additions to existing schools, all to be owned exclusively by such district; and levy and collect an annual tax, in addition to all other taxes upon all the taxable property in such district suf ficient to pay the interest on such bonds as it falls due, and also constitute a sinking fund for the payment of the principal thereof, when due, such bonds to bear in terest not to exceed the rate of four (4) per centum per annum, payable semi-annually, and to become due serially within twenty-five (25) years from their date. “ Provided, however, that the issuance of said bonds is expressly conditioned upon the grant to said school district of the sum of not less than Two Hundred Twenty-five Thousand ($225,000.00) Dollars by the Federal Emergency Administration of Public Works, said grant to be used as far as may be necessary to aid in the payment of the cost of such improvement and the balance of such grant to be used for the construction of an Athletic Stadium, such Stadium to cost not more than Eighty-five Thousand ($85,000.00) Dollars.” That the election upon said proposed Bond issue was held September 15th, 1938, and the same carried and the Board of Education advertised for sale of said bonds. That the evidence does not disclose that any proposition is now being made for the improvement of the negro or separate school buildings in said district; that all of this proposition is for the majority schools or the white schools; that up to this time, before this proposition for the white schools was made, it appeared from the evidence that the white and negro schools were in equal need for improve ments. As to whether a county levy has been made for addi tional buildings or additions to buildings, that is not clear from the evidence. The proclamation for the call of this election provides : “ Shall the School District comprising the City of Muskogee * * * and the territory thereto attached for 23 school purposes, incur an indebtedness * * * in the sum of two hundred seventy-five thousand ($275,000.00) Dollars to provide funds for the purpose of purchasing a site, erecting and equipping a Junior High School, and constructing and equipping additions to existing schools. * * * ” That an athletic stadium does not come within the purpose as stated in the proclamation: “ purchasing a site, erecting and equipping additions to existing schools * # * That any reservation as to the constructing of a stadium from the grant of the Federal Emergency Administration of Public Works has not been presented in this case. That the negro high school auditorium is used also as a gymnasium, a part thereof being set off also and used as a library, and the negro schools also have an athletic ground available for their use. The two high schools for white pupils in said city are each equipped with a gymnasium. That beginning with the fiscal year of 1937-38 by legisla tive act and state appropriation substantial and adequate primary and secondary aid for the public schools of the state, which included not only the white schools but also the negro schools, has afforded relief to the end that the schools might be adequately maintained for a full school year, which was aimed to include from eight to nine months prior to that time, and which now is a nine-months’ school. The available school funds prior to that time were not sufficient either in the negro schools or the white schools to meet the minimum or reasonable requirements for either the white or negro schools. That beginning with the fiscal year 1937-1938, the per pupil expenditure in the white high schools was $65.41, and in the negro high school was $63.43, and in the white ele mentary schools $60.21, and in the negro elementary schools, $38.79, and that if these amounts, to-wit, $63.43 for the negro high school and $38.79 for the negro _ elementary schools were not reasonably adequate to maintain a full school tei m, that an adequate remedy at law existed by mandamus to i e- quire full levies within the legal limitation to be made for tax levies which applied equally to the whites as well as to the negro schools, in case the white was the minority oi the 24 negro was the minority school, and in many instances in the state the whites are in the minority school, and there is no showing in the evidence that under the tax limitations an additional levy, if such were necessary, was not available. That the negro high school and white high schools are examined by the same inspectors as to qualifications and accrediting, and there is no evidence showing any bad faith or inefficiency in such examination as to either race. That as to the Junior College work furnished by the white Junior College in Muskogee, the entrants therein pay tuition to cover the two Junior College years, and there is no evidence in the record to show it is not a reasonable tuition, but it does appear that the education therein is not free; that if there is any discrimination in this respect, there is a legal remedy lay mandamus for its correction, and there is no evidence shown that any such contention has been made or such remedy invoked. That it does not appear that any part of the Two Hun dred Seventy-Five Thousand ($275,000.00) Hollar bond issue is to be used for building a stadium, but that the stad ium is to be constructed out of the Public Works Adminis tration grant, which is the sum of Two Hundred Twenty- Five Thousand ($225,000.00) Dollars. That in said school district, the children of the respective races, white and negro, attend separate schools, the ma jority schools of said district being attended by white chil dren. The members of the Board of Education in said dis trict are as provided by the Constitution and statutes of the same race as of the children attending the majority schools, and the negro children attend the schools desig nated as minority or separate schools, the same rule apply ing when the negroes are the majority school district, in that case the board to be filled by negroes and not whites. The existing school enrollment for said schools, white and negro respectively, for the school year 1937-38, was 6,391 white, and 1,916 colored. That the plaintiff is the mother or parent of a son who is of African or negro descent attending said separate school in said district, and that she is also of African or negro descent, and is a tax payer. That there are many other negro residents in said city, citizens of the United 25 States, who are parents of negro children attending said separate public schools in said district, and taxpayers in said city, and that complainant or plaintiff sues on behalf of them as well as for her own benefit. That the Manual Training High School was erected in 1909, the Douglas School in 1905, and the Dunbar School in 1904, and the evidence shows other additions and im provements to the school buildings in said separate dis trict since 1909, but there should be some improvement apparently, from the evidence, as to the sewerage and toil ets, adequate remedy by law being available for such re lief. Conclusions of Law. (1) That this court has jurisdiction only insofar as the constitutionality of the separate school law is involved, as contravening the Constitution of the United States, there being no diversity of citizenship, the jurisdiction of this court being invoked not on the ground of diverse citizen ship, the complainant raising a federal question by assert ing that her right under the Constitution of the United States and especially under Section 1 of the Fourteenth Amendment have been violated on account of the provi sions in the state constitution of Oklahoma, and the stat ute thereof as to separate schools for the negro and white races. This court is restricted to the determination of that question, as to whether the state constitution and stat utes as to separate schools, for the white and negro races violate complainant’s federal guaranteed constitutional rights. As to the question of the proper administration of the separate schools as between the whites and the negroes, that issue is not determinable in this case on account of lack of diversity of citizenship, the complainant being pre- termitted for the determination of her rights in the state court where she would have an adequate remedy at law. Jew Ho. v. Williamson (9th Cir.), 103 Fed. 10. (2) The notice served on the Governor and the Attorney General wherein the Attorney General also appears in per son, complies with the provision of the statute requiring such notice as preliminary to his hearing. 26 See School District No. 7, Muskogee Co. v. Hunnicut (10th Cir.), 51 Fed. (2d) 528; id. 283 U. S. 810; Oklahoma Constitution, Article 13, Sections 1, 3, 4, 5, 6, and 7; Article 10, Section 9 as amended; and Oklahoma Statutes, Section 7033, 0. S. 1931, Tit. 70, O. S. A. Sec. 451; Section 7034, O. S. 1931, Tit. 70 0. S. A. Sec, 452; Section 7035, 0. S. 1931, Tit. 70 0. S. A. Sec. 453; and Section 7040, 0. S. 1931, as amended and superseded by Act of May 11, 1937, House Bill No. 320, Tit. 70, Sec. 458, Chapter 15, 0. S. A., July 1937, pp. 554. In School District No. 7, Muskogee Co. v. Hunnicut, supra, it is said: “ Another contention of the plaintiffs is that the action of the county superintendent should be enjoined because a discrimination is said to result from the dis proportionate funds allowed for the colored school as compared with the white school, as the former could not then be maintained with equal facilities or advan tages, on account of the needs of a greater number of pupils. “ If we assume that there was the alleged disparity in the funds, it did not arise from the interchange of the schools, but from an insufficient levy by the county ex cise board, which is not a party to this suit. It is our opinion that the constitutional requirement of equal advantages or like accommodations to the schools does not mean that the colored race shall have the district school or vice versa. The question under the Federal Constitution (Amendment 14) is whether there is a denial of the equal protection of the laws, but it does not occur if equal advantages are granted. United States v. Buntin (C. C.), 10 F. 730, cited with approval in Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 172. See Wong Him v. Callahan (C. C.), 119 F. 381. “ A shortage of funds might exist, for either school, due to an insufficient levy of taxes. But it works no denial of a constitutional right, because all the laws ap plicable should be considered, and among them there is the remedy to bring a mandamus action to compel an additional levy of taxes. Board of Education v. Excise 27 Board, 86 Okl. 24, 206 P. 517. Even a suspension of a separate school, for economic reasons under some con ditions, may be justified. Gumming v. County Board of Education, 175 U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; Gong Lum v. Rice, supra. “ The plaintiffs did not pursue the remedy open to them, but chose to contest the statute and the enforce ment of it and claim an infringement of their constitu tional rights. But there was no invalidity of the statute or wrong committed by the defendant. They are not entitled to maintain this equity suit, because of an ade quate and efficient remedv at law. Section 267, Jud. Code (28 U. S. C. A., Section 384).” This case on appeal to the Supreme Court of the United States was affirmed in a per curiam opinion. Id. 283 U. S. 810. (3) No question of law raised by complainant as to the facts found in paragraph 3. (4) The Oklahoma statute requires that members of the district school board shall be of the same race as the children who are entitled to attend the schools of the district (not the separate school). See Jelsma, Co. Treas. v. Butler, 80 Okla. 46, 194 Pac. 436. Section 3, Article 13, Constitution of Oklahoma, provides that: “ Separate schools for white and colored children with like accommodation shall be provided by the Legis lature and impartially maintained. The term ‘colored children,’ as used in this section, shall be construed to mean children of African descent. The term ‘white children’ shall include all other children.” Section 7033, Chapter 34, Article 18, O. S. 1931, provides: “ The public schools of the State of Oklahoma shall be organized and maintained upon a complete plan of separation between the white and colored races, with impartial facilities for both races.” Under Section 7034, Chapter 34, Article 18, O. S. 1931, the term “ public school,” within the meaning of this article 2 8 (as defined) shall include all schools provided for, or main tained, in whole or in part, at public expense. Section 7035 thereof provides: “ The county separate school in each school district is hereby declared to be that school in said school dis trict of the race having the fewest number of children in said school district; provided that the county super intendent of public instruction of each county shall have authority to designate what school or schools in each school district shall be the separate school and which class of children, either white or colored, shall have the privilege of attending such separate school or schools in said school district. Members of the dis trict school board shall be of the same race as the children who are entitled to attend the school of the district, not the separate school.” Under Section 6950, Chapter 34, Article 12, 0. S. 1931, form of report for taking the enumeration of school children upon which state and county apportionments of public school funds are made is prescribed, and it is held by the Supreme Court of said State that funds received by independent school district based upon minority scholastic enumeration are to be used only for benefit of minority school. Board of Ed. v. Board of Comrs., 140 Okla. 229; Board of Comrs. v. School Dist. 25, 141 Okla. 65. It has also been held by said court that separate schools entitled to equal rights under scholastic enumerations required to be made by law. Board of Ed. v. Board of Comrs., 127 Okla. 132, 260 Pac. 22. As to enumeration provided for by law, see Sections 6951, 6952, 6953, 6954, 6955, 6956, 6957, 6958, 6959, 6960, 6961, Chapter 34, Article 12, O. S. 1931. In Section 5, Article 1, Constitution of Oklahoma, it is provided: “ Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and free from sectarian control; and said schools shall always be con ducted in English: Provided, That nothing herein shall preclude the teaching of other languages in said public 29 schools: And Provided Further, That this shall not be construed to prevent the establishment and maintenance of separate schools for white and colored children.” Section 7104, Chapter 34, Article 21, 0. S. 1931, provides that: “ In extending aid to the separate schools of any county, all of said schools in a county shall be consid ered together as one district, and if the county shall have levied two mills for common schools, the separate schools in said county may receive aid in toto in such amounts as is consistent with the provisions of this Act, as the State Board of Education may approve. ’ ’ H. B. No. 320, Section 1, Oklahoma Statutes, Ann., 1937, effective 90 days after May 11, 1937, pp. 554, Tit. 70, Section 458, Chapter 15, Sections 1 and 2 provide as follows: “ In all cases where County Separate Schools for white and colored children are maintained, the County Excise Board shall annually levy a tax on all taxable property in their respective counties, sufficient to main tain such separate schools as are hereinafter provided. Upon estimate made by the County Commissioners, said taxes shall be estimated, published, levied, and collected in the same manner as other taxes for county purposes; provided, however, that in all Independent Districts where separate schools for white and colored children are maintained, it shall be the duty of the Board of Edu cation therein, at the time provided for preparing its annual budget, to prepare a separate budget showing the amount of money that will be required to be raised by taxation, for the support and maintenance of such separate schools, including a sum sufficient to pay a rea sonable pro rata share of the cost of supervising, super intending and administering the schools and school sys tem of said Independent District including said sepa rate schools, and the amount necessary to purchase sites and to erect school buildings for such separate schools for the coming fiscal year; provided, that the share of the cost of superintending, supervising and administer 30 ing the schools and school system of said Independent District to be charged against the separate schools thereof shall be fixed at an amount not exceeding^/ the percentage of the total cost of said superintendence, supervision and administration equivalent to the per centage thereof, which the average daily attendance at the separate schools in said Independent District for the preceding school year bear to the total average daily attendance at all schools, majority and separate, in said Independent District for the preceding school year. ‘ ‘ It shall be the duty of the County Excise Boards in such counties to levy a tax on all taxable property in their respective counties sufficient to pay the cost of superintending, supervising, administering, supporting and maintaining such separate schools and purchasing- sites and erecting school buildings for such separate schools as shown by such budget so prepared by the Board of Education. Said tax shall be published, levied and collected in the same manner as other taxes for county purposes, and when collected shall be paid over to the respective Treasurers of the Boards of Educa tion in such districts to be expended upon the order of such Board of Education for the purpose for which the same was levied and collected. “ No white child shall attend a colored school, nor a colored child attend a white school. ’ ’ Section 341, Tit. 68, Section 292, S. B. No. 384, Section 1, approved May 22, 1937 (Oklahoma Statutes, Ann., July, 1937) page 484, provides that: ‘ ‘ Pending the expiration of the time within which pro tests may be filed with the State Auditor, no warrant shall be issued or debt contracted by any municipality for any purpose except as provided hereinafter. * * * and in such amounts as may be necessary to provide accommodations, facilities and school term in the sepa rate schools, if any, in each district in the county equal to the accommodations, facilities and school term pro vided for the other regular public schools in the same 31 district, for county high school, if any, in so far as the salaries of teachers and other necessary maintenance is concerned, and for aid to the common schools of the county. * * *” H. B. No. 6, Laws, 1937, pages 555, 556, 557, 558, 559, Tit. 70, Section 648, provides for state aid for the common schools, and on the hearing in this case, it was stated that prior to the passage of said act, difficulties existed as to a full school year of nine months, but that after the passage of this act the separate school of district No. 20 did not ex perience such difficulty. It was also disclosed that prior to the same time, a great percentage of the white schools ex perienced the same difficulty. (5) The conclusion is that the provisions of the Consti tution of Oklahoma and also the statutes of said state do not violate Section 1 of the Fourteenth Amendment to the Federal Constitution, or any other federal guaranteed con stitutional right. School District No. 7, Muskogee Co. v. Hunnicut (10th Cir.), supra-, Gong Lum v. Bice, 275 U. S. 78, 72 L. Ed. 172; Cumming v. County Board of Ed., 175 U. S. 527, 44 L. Ed. 262; Song Him v. Callahan, 119 Fed. 381; U. S. v. Buntin, supra-, Jelsma, Co. Treas. v. Butler, supra; State ex rel. Gumrn v. Albritton, 98 Okla. 158, 224 Pac. 511; State ex rel. Cheeks v. Wirt, 203 Ind. 121,177 N. E. 441: Reynolds v. Board of Ed., 66 Kan. 672, 72 Pac. 274; Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 81 L. Ed. 1245; Gulf Refining Co. v. Phillips (5th Cir)., 11 Fed. (2d) 967; Thomas v. Gay, 169 U. S. 264, 142 L. Ed. 740; Lawrence v. State Tax Commissioner, 266 U. S. 276,76 L. Ed. 1102; Stebbins v. Riley, 268 U. S. 137, 69 L. Ed. 884; Travel lers Ins. Co. v. State of Conn., 185 U. S. 364, 46 L. Ed. 949; Colgate v. Harvey, 296 U. S. 404, 80 L. Ed. 299; Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256,16 Sup. Ct. Rep. 1138; Greathouse v. Board of School Comrs., — Ind. —, 151 N. E. 411; Corrigan v. Buckley, 271 U. S. 323, 70 L. Ed. 969; Newton v. Board of Comrs., — Colo. —, 282 Pac. 1068; and Judice v. Village of Scott, — 121 So. 593. It is concluded that said state statutes and the provisions of the constitution for the separation and maintenance of 32 the separate schools on their face do not violate the federal constitution, and that the evidence does not prove a dis crimination in the administering of the schools in district No. 20 so as to deny the negroes equal protection of the law required by Section 1 of the Fourteenth Amendment to the Constitution of the United States. It does not appear that said Board of Education of said City of Muskogee, District No. 20, is without constitutional or legal authority to issue or sell said bonds, or that the acts of said board of education with reference to the proposed sale of such bonds are null and void, or that the Attorney General and Ex-Officio bond commissioner of said state is without legal or constitutional authority to approve or cer tify such proposed bonds, or that he should be enjoined and restrained from approving said bonds. The court -concludes that as to any matters in the ad ministration of the issuance of the bonds, that plaintiff has a plain, adequate, speedy and complete remedy at law in the matters complained of in her First Amended and Supple mental complaint. Plaintiff’s or complainant’s application for a temporary injunction should be denied. (Signed) Robert L. W illiams, United States Circuit Judge. (Signed) A lfred P. Murrah, United States District Judge. (Signed) E ugene Rice, United States District Judge. Filed Oct. 12,1938. Filed in the United States District Court January 4, 1939. ( 10012) 2 nd Civil N o. 14117 In the District Court of Appeal SECOND APPELLATE DISTRICT State of California CHRISTINE BURKHARDT, Plaintiff and Respondent, •vs. LEE LOFTON, JOHN DOE, JOHN DOE ONE, JOHN DOE TWO, JENNIE P. LOFTON, (sued as JANE DOE ONE), and JANE DOE TWO, Defendants, LEE LOFTON and JENNIE. P. LOFTON, __________________ Appellants. DOLE M. BURKMAN and GENEVA E. BURKMAN, BER THA COLLEY, MARY ELIZABETH CRUME, WIL LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE A. COIN and ALICE MARIE COIN, CLARENCE E. GRAY, LESLIE A. [ONES and MILDRED J. TONES, GERTRUDE KADOTJS, FRED KROEKER and ETHEL MAE KROEKER VERNON D. MAXSON AND INEZ B. MAXSON, JOSE MENDOZA and CONSUELO M. MENDOZA, ARNOLD THOMAS and PEARL THOMAS, NICK A. VACCARIELLO and JOSEPHINE M. VACCA- RIELLO, ALBERT HAMILTON VINCENT and VERDA LUELA VINCENT, Plaintiffs and Respondents, vs. MAE LIDDY. VINCENT TENCHAVEZ, BERTHA TEN- CHAVEZ, SIMON D. ROPARIO, LEE S. LOFTON and JENNIE P. LOFTON, Defendants, LEE S. LOFTON and JENNIE P. LOFTON, Appellants. DOLE M. BURKMAN and GENEVA E. BURKMAN, BER THA COLLEY, MARY ELIZABETH CRUME, WIL LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE A. GOIN and ALICE MARIE GOIN, CLARENCE E. GRAY, LESLIE A. JONES and MILDRED J. JONES, GERTRUDE KADOUS, FRED KROEKER and ETHEL MAE KROEKER, VERNON D, MAXSON and INEZ B. MAXSON, JOSE MENDOZA and CONSUELO M. MENDOZA, ARNOLD THOMAS and PEARL THOMAS, NICK A. VACCARIELLO and JOSEPHINE M. VAC CARIELLO, ALBERT HAMILTON VINCENT and VERDA LUELA VINCENT, Plaintiffs and Respondents, vs. HENRY LAWS, ANNA LAWS and PAULETTA LAWS (sued as ONE DOE), Defendants and Appellants. APPEAL FROM SUPERIOR COURT OF LOS ANGELES COUNTY HON. ROY V. RHODES, JUDGE. APPELLANTS’ OPENING BRIEF. T homas L. Griffith, Jr., Loren M iller, 1105 East Vernon Avenue, Los Angeles, Attorneys for Appellants. Statement of Questions Involved. I. Was the evidence sufficient to support a judgment enjoining use and occupancy of two parcels of land by Negroes where the parcels are located on a border line street still sparsely set tled 16 years after the opening of the tract and which front on a subdivision occupied almost exclusively by Negroes, and was the evidence sufficient to support a finding that there has been no change in the racial character of the neighbor hood sufficient to stay the hand of equity, where the evidence shows certain changes in bordering tracts and that the lots so used and occupied had little or no value to Caucasians, and where plain tiffs failed to show either damage by non- Caucasian occupancy or benefit by enforcement of the covenant? II. Will a restriction against use and occu pancy of property by persons not of the Cau casian race be enforced where no time limit is specified ? Is a dominant tenement created where the grantor reserves the right to modify the re strictions at his discretion and where the trustee holds legal title to sell and subdivide and closes the trust and conveys the unsold lots in the tract to the settlors, free of any restrictions, and the settlors thereafter convey one of the lots to an appellant free of any restrictions? III. Does the evidence support a finding that plaintiffs were not guilty of laches and waiver? IV. Does judicial decree enforcing a restrict ing racial covenant offend the equal protection clause of the Fourteenth Amendment of the United States Constitution? TOPICAL INDEX. Statement of questions involved.......................... Preface Statement of the case.................................................. 2 Specifications of error................................................. 12 Argument .................................................................. 15 There can be no equitable servitude where no domi nant tenement created ......................................... 15 Equity will not enjoin use and occupancy merely to harass a lot owner.......................................... 20 Changes in the character of a neighborhood will stay enforcement of a restrictive covenant.......... 24 Laches and waiver will bar the right to enforce a restrictive agreement ........................................... 31 A restriction of use and occupancy unlimited as to time is void.......................................................... 36 All necessary parties to a complete determination of an action should be made parties to the action 38 An injunction should not issue to restrain the al leged violation of restrictions in a tract where the restrictions have been modified and the original grantees took the lots with notice that the grantor reserved the right to modify the restrictions...... 41 (1) A subsequent grant contrary to restrictions by a grantor with power to modify oper ates as a revocation of the original instru ment ............................................................. 41 (2) An equitable servitude is not created where the understanding of the parties is left to mere conjecture .....................................-.... 45 PAGE A judicial decree of a state court enforcing, against members of the Negro race, restrictive residence covenants, offends the equal protection clause of the Fourteenth Amendment to the United States and Article One, Sections One and Twenty-one of the Constitution of the State of California ................................................. 53 (1) Judicial action constitutes “State” action within the meaning of the Fourteenth Amendment ........................ 53 (a) The broadening scope of the Fourteenth Amendment as to what constitutes state action ..................................................... 54 (b) The broadening protection of Negroes from discrimination because of race or color ............ 55 (c) The growing judicial emphasis upon personal rights as distinguished from property or contract rights....... 60 Enforcement of restrictive covenants against the Negro race, because of race or color, is against the present public policy of the nation, and of this state ......... 64 (a) National unity urged in the National De fense Program ................................ _........... 64 (b) Restrictions because of race, creed or color are inconsistent with the public policy of this state ....................................................... 65 (c) The right to acquire and possess property is guaranteed by our California Constitution 68 Conclusion ......................................... 69 ii. PAGE TABLE OF AUTHORITIES CITED. Cases. page Allgeyer v. Louisiana, 165 U. S. 578........................ 62 Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667 .................................................... 39 Bank of America v. Superior Court, 16 Cal (2d) 516........................................................................... 39 Bard v. Kent, 37 Cal. App. (2d) 160........................ 42 Berryman v. Hotel Savoy Co., 160 Cal. 559..........17, 47 Boye v. Boerner, 12 Cal. App. (2d) 186................... 43 Bresee v. Dunn, 178 Cal. 96............................... ....... 17 Bridges v. California, 86 L. Ed. (Adv. Op.) 179.... 54 Brown v. Wrightman, 5 Cal. App. 391...................... 48 Buchanan v. Worley, 245 U. S. 60...................... 56, 58 Chapman v. Bank of California, 97 Cal. 155............. 31 Cornish v. O’Donoghue, 30 Fed. 298.......................... 58 Corrigan v. Buckley, 271 U. S. 323............................ 57 Downs v. Kroeger, 200 Cal. 743............................... .................................................... 21, 22, 23, 24, 25, 29 Feinberg v. One Doe Co., 14 Cal. (2d) 24............... 24 Firth v. Marovich, 160 Cal. 257................................ 17 Foster v. Stewart, 134 Cal. App. 482.................... 36, 37 Friesen v. City of Glendale, 209 Cal. 524................... 25 Gandolfo v. Hartman, 49 Fed. 181.......................... 59 Grady v. Garland, 89 Fed. (2d) 817.......................... 58 Hague v. C. I. O., 307 U. S. 496............................... 54 Flamilton v. Regents, 293 U. S. 245.......................... 55 Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. App. 462 48 Hansberry v. Lee, 311 U. S. 32..........24, 34, 35, 39, 57 iii. IV. Hartman Ranch Co. v. Associated Oil Co., 10 Cal. (2d) 232 ................................................................ 38 Hess v. Country Club Park, 213 Cal. 613.................. 25 Home Building and Loan Association v. Blaisdell, 290 U. S. 398.................................................................. 63 Hundley v. Gorewitz, ..... Fed. Rep................ 25, 26, 30 Hurd v. Albert, 214 Cal. 14........................................ 25 Kennedy v. Lee, 147 Cal. 596................................... 42 Kern v. Commissioners of City of Newton, 147 Kan. 471 ......................................................................... 67 Koehler v. Rowland, 275 Mo. 573.........................25, 27 Kuhn v. Saum, 316 Mo. 805................................ ....... 19 Lake v. Dow, 207 Cal. 290........................................... 38 Latteau v. Ellis, 122 Cal. App. 584.........................25, 72 Lorenzen, Ex parte, 128 Cal. 431....................... ....... 69 Los Angeles and Arizona Land Co. v. Marr, 187 Cal. 126 .............................................................35, 48 Los Angeles Athletic Club v. Long Beach, 128 Cal. App. 427 .................................................................. 32 Los Angeles Investment Co. v. Garry, 180 Cal. 680 ............................................................................. 57, 58 Lovell v. Griffin, 303 U. S. 444.................................. 54 Main St. etc. Railroad Co. v. Los Angeles Traction Co., 129 Cal. 301....................................................... 42 Martin v. Holm, 197 Cal. 733.................................... 47 McBride v. Freeman, 191 Cal. 158..........................44, 47 Minersville School District v. Gobitis, 310 U. S. 586 60 Missouri ex rel. Gaines v. Canada, 305 U. S. 337...... 55 Mitchell v. United States, 313 U. S. 80................... 55 Mooney v. Holohan, 294 U. S. 103.................... ........ 53 PAGE V. Nixon v. Herndon, 273 U. S. 536.............................. 55 Norris v. Alabama, 294 U. S. 594.............................. 55 O’Connor v. Irvine, 74 Cal. 435................................. 38 One and Three South William St. Bldg. Corporation v. Gardens Corporation, 232 App. Div. Reports (N. Y.) 59............................................................. 19 Palko v. Connecticut, 302 U. S. 219.......................... 61 Pierre v. Lousiana, 306 U. S. 354.............................. 55 Piper v. Big Pine School District, 193 Cal. 664........ 67 Russell v. Wallace, 30 Fed. (2d) 981............... ......... 58 Sacramento O. etc. Home v. Chambers, 25 Cal. App. 536........................................................................... 67 Schneider v. State, 308 U. S. 147.............................. 54 Simpson v. City of Los Angeles, 4 Cal. (2d) 60, 27 Cal. App. (2d) 293............................................ 69 Smith v. Texas, 311 U. S. 129.............. .................... 55 Stone v. Board of Directors of Pasadena, 47 Cal. App. (2d) 851......................................................... 67 Taylor v. Georgia, 86 L. Ed. (Adv. Op.) 371............ 55 Tenant v. John Tenant Memorial Home, 167 Cal. 575 .......................................................................... 46 Title Guaranty v. Henry, 208 Cal. 185...................... 38 Truax v. Corrigan, 257 U. S. 312............................. 59 Tucker v. Beneke, 180 Cal. 588................................. 32 Twohey v. Realty Syndicate Co., 4 Cal. (2d) 397...... 42 Tynan v. Kerns, 119 Cal. 447................................... 36 Vesper v. Forest Lawn Cemetery Assn., 20 Cal. App. (2d) 157.................................................................. 23 Wagoner v. Hannah, 38 Cal. I l l ..................... 15 Walker v. Haslett, 44 Cal. App. 394.......................... 23 PAGE VI. Waltz, In re, 197 Cal. 263.......................................... 43 Ward v. Flood, 48 Cal. 36.......................................... 67 Wedum-Aldahl Co. v. Miller, 18 Cal. App. (2d) 745 48 Werner v. Graham, 181 Cal. 174................15, 17, 44, 47 West Coast Hotel Co. v. Parrish, 300 U. S. 379....... 62 Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d) 472........ .........................................................15, 18, 49 Yick Wo v. Hopkins, 118 U. S. 356........................ . 59 PAGE Miscellaneous. 57 American Law Reports 336........................... 23 20 California Jurisprudence, 575, 576....................... 39 26 Corpus Juris Secundum 515, 516........................... 17 26 Corpus Juris Secundum 574......................... 22 26 Corpus Juris Secundum 774, 775........................... 23 Executive Order No. 8802, dated June 25, 1941........ 64 Wendell Willkie’s address in Los Angeles on July 20, 1942........................................................................... 65 Wendell Willkie, One World.......................... ,........... 71 Statutes. California Constitution, Art. I, Sec. 1......................... 68 California Constitution, Art. I, Sec. 21....................... 68 Civil Code, Sec. 51................................................ 66 Civil Code, Sec. 52....................................................... 66 Civil Code, Sec. 1229.................................................... 46 Civil Code, Sec. 1698.................................................... 42 Code of Civil Procedure, Sec. 389....................... 39 Code of Civil Procedure, Sec. 711........................ 36, 37 Code of Civil Procedure, Sec. 715 ..................36, 37 Fifth Amendment to the United States Constitution.... 59 Fourteenth Amendment to the United States Con stitution ................................................................... 59 In the District Court of Appeal SECOND APPELLATE DISTRICT State of California CHRISTINE BURKHARDT, Plaintiff and Respondent, vs. LEE LOFTON, JOHN DOE, JOHN DOE ONE, JOHN DOE TWO, JENNIE P. LOFTON, (sued as JANE DOE ONE), and JANE DOE TWO, Defendants, LEE LOFTON and JENNIE P. LOFTON, Appellants. DOLE M. BURKMAN and GENEVA E. BURKMAN, BER THA COLLEY, MARY ELIZABETH CRUME, WIL LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE A. COIN and ALICE MARIE COIN, CLARENCE E. GRAY, LESLIE A. TONES and MILDRED J. JONES, GERTRUDE KADOUS, FRED KROEKER and ETHEL MAE KROEKER VERNON D. MAXSON AND INEZ B. MAXSON, TOSE MENDOZA and CONSUELO M. MENDOZA, ARNOLD THOMAS and PEARL THOMAS, NICK A. VACCARIELLO and TOSEPHINE M. VACCA RIELLO, ALBERT HAMILTON VINCENT and VERDA LUELA VINCENT, Plaintiffs and Respondents, * vs. MAE LIDDY, VINCENT TENCHAVEZ, BERTHA TEN- CHAVEZ, SIMON D. ROPARIO, LEE S. LOFTON and JENNIE P. LOFTON, Defendants, LEE S. LOFTON and JENNIE P. LOFTON, Appellants. DOLE M. BURKMAN and GENEVA E. BURKMAN, BER THA COLLEY, MARY ELIZABETH CRUME, WIL LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE A. COIN and ALICE MARIE GOIN, CLARENCE E. GRAY, LESLIE A. JONES and MILDRED J. JONES, GERTRUDE KADOUS, FRED KROEKER and ETHEL MAE KROEKER, VERNON D, MAXSON and INEZ B. MAXSON, JOSE MENDOZA and CONSUELO M. MENDOZA, ARNOLD THOMAS and PEARL THOMAS, NICK A. VACCARIELLO and JOSEPHINE M. VAC CARIELLO, ALBERT HAMILTON VINCENT and VERDA LUELA VINCENT, Plaintiffs and Respondents, vs. HENRY LAWS, ANNA LAWS and PAULETTA LAWS (sued as ONE DOE), Defendants and Appellants. APPELLANTS’ OPENING BRIEF. — 2 — Statement of the Case. This is an appeal from a judgment entered in three cases, consolidated for the trial and for the purpose of appeal, enjoining defendants, Lee Lofton and Jennie P. Lofton, from using, or occupying any portion of Lot 498 or any other lot in Tract 7421 as recorded in Book 81, pages 64, 65, 66, of Maps in the office of the County Recorder of Los Angeles County, and enjoining defendants, Henry Laws, Anna Laws, and Paul- etta Laws, from using or occupying any portion of Lot 500 or any other lot in the same tract. All defendants are Negroes. A perpetual in junction was granted on the ground that use or occupancy of the lots would be violative of cer tain “ Building Restrictions of Tract 7421 known as New Goodyear Tract Unit No. 2” recorded in Book 3027, pages 35, 36, of Official Records of Los Angeles County, the cogent parts of which follow: “That said premises shall not be leased, sold, or conveyed to or used or occupied by any person not of the Caucasion race. “ The Bank of Italy hereby reserves the right to modify at its discretion the provi sions, conditions, restrictions and covenants herein contained.” Tract 7421 is located in the southeasterly sec tion of the City of Los Angeles and is bounded on the west by Central avenue, on the east by —3— Zamora avenue, on the south by East 92nd street and on the north by Manchester avenue [Plain tiff’s Exhibit 6] and was subdivided in 1923 [Plaintiff’s Exhibit 2], Central Gardens Tract adjoins the easterly half of Tract 7421 on its southern border. [Rep. Tr. p. 323, lines 8 to 11.] Tract 7593 adjoins the westerly half of Tract 7421 on its southern bor der. [Rep. Tr. p. 322, lines 1 to 4.] The Pardee Tract adjoins a portion of Tract 7421 on the east. [Rep. Tr. p. 327, lines 8 to 11.] Also lying east of Tract 7421 is the Prince Tract. [Rep. Tr. p. 327, lines 18 to 21.] Defendants Loftons’ post office address is 1219 East 92nd street, Los Angeles [Rep. Tr. p. 223, line 19] ; defendant Laws’ post office address is 1235 East 92nd street, Los Angeles. [Rep. Tr. p. 223, line 22.] Defendants Loftons purchased their parcel and began occupancy early in Oc tober, 1939 [Rep. Tr. p. 222, lines 20, 22], and have resided there continuously since. [Rep. Tr. p. 223, lines 6 to 8.] Defendants Laws pur chased their parcel on contract in November, 1935 [Rep. Tr. p. 536, line 19], and recorded a deed to it on August 29, 1940 (Defendant’s Ex hibit A ) ; they began building a home on the par cel in June, 1941 [Rep. Tr. p. 540, lines 8 to 10], and began occupancy of the home constructed by Federal Housing Authority funds about March 17, 1942. [Rep. Tr. p. 227, lines 22, 4 23.] Prior to the construction of the home de fendant, Henry Laws, had made certain use of that parcel [Rep. Tr. p. 564, lines 19, 20; p. 565, line 3; p. 566, line 6; p. 567, line 4; p. 567, line 8], which h^d extended over a period of approxi mately seven years. [Rep. Tr. p. 565, line 3.] There are 21 lots on north side of East 92nd street, included in Tract 7421 (Plaintiff’s Exhibit 6), and at the time the defendants Loftons began occupancy of Lot 500 only four of those lots were occupied as dwellings. [Rep. Tr. p. 656, line 24, to p. 657, line 6.] The only other structure of any kind on the north side of 92nd street, included in Tract 7421, was a busi ness structure near Central avenue. [Rep. Tr. p. 660, lines 14, 15.] The south side of East 92nd street between Hooper avenue and Zamora street is. included in the Central Avenue Gardens Tract occupied almost exclusively by Negroes. [Rep. Tr. p. 518, lines 17 to 20.] The house facing Lot 500 is occupied by Negroes. [Rep. Tr. p. 660, line 23, to p. 661, line 2.] All houses on the south side of East 92nd street be tween Central avenue and Zamora avenue, the area fronting on Tract 7421, are used and occu pied by non-Caucasians. [Rep. Tr. p. 514, lines 10 to 14.] Defendants called three expert witnesses, all real estate brokers, zvho testified that Lots 498 and 500, Tract 7421, had “no sale value to Cau- — 5— eastern, races” [Rep. Tr. p. 489, line 16], but “could be sold to colored people” [Rep. Tr. p. 490, line 2], explaining that there “are so many colored people from Compton avenue over to Central that white people wouldn’t buy in there. We have tried it; they won’ t buy” [Rep. Tr. p. 490, lines 12 to 14]; that “A person of the Cau casian race zuould not buy that property” [Rep. Tr. p. 685, lines 6, 7]; that these parcels “woidd not have much sale value to people of the Cau casian race” [Rep. Tr. p. 557, line 9 ]; that the property woidd have “ limited, very limited, if any” sale value to persons of the Caucasion race. [Rep. Tr. p. 554, line 9.] No evidence of any kind was adduced to the contrary. All evidence as to changed conditions of racial occupancy referred to conditions outside of Tract 7421 and in adjoining areas. There were few Negroes in the entire surrounding area in 1923. [Rep. Tr. p. 484, lines 10 to 13.] The Central Avenue Gardens Tract, one of the south erly adjoining tracts, was developed roughly simultaneously with Tract 7421 and the number of Negroes living in that tract has steadily in creased over the years. [Rep. Tr. p. 511, lines 21 to 25.] The number of Negroes in the Par dee Tract, adjoining a portion of Tract 7421 to the east, and subdivided long before subdivision of Tract 7421, has increased steadily since 1923. [Rep. Tr. p. 627, lines 17 to 20; p. 628, line 9; p. 630, lines 10 to 12; p. 727, lines 3 to 5; p. 364, lines 5 to 16.] The change in the Pardee Tract has been from one of a majority of whites to a majority of Negroes within the past five or seven years. [Rep. Tr. p. 364, lines 5 to 16.] The increase in the number of Negroes living in tracts adjacent to Tract 7421 has brought a cor responding proportionate increase in the number of Negroes using the public streets in and about Tract 7421. [Rep. Tr. p. 574, line 10; p. 528, line 14; p. 529, line 8; p. 601, lines 13, 14; p. 612, line 23 to 26; p. 501, lines 18 to 23.] The number of Negro children at the Firth Boulevard School located approximately a mile south of Tract 7421 had increased materially in the past ten years [Rep. Tr. p. 521, lines 6 to 25], and that school now employs one Negro teacher. [Rep. Tr. p. 525, lines 18 to 23.] A market lo cated in the center of Tract 7421 attracts Negro customers [Rep. Tr. p. 764, line 23], and of that market’s sixty or so steady customers some seven or eight are Negroes [Rep. Tr. p. 764, line 23], and there are additional Negro cus tomers who are more casual customers. [Rep. Tr. p. 766, line 15.] A bus line routed through Tract 7421 carries more Negro passengers than white [Rep. Tr. p. 750, lines 4 to 7], and the number of Negro bus passengers is on the in crease. [Rep. Tr. p. 751, lines 13 to 15.] There were no changes in Prince Tract, which remains an area of white occupancy. —7— Plaintiffs all kneiv of defendants Loftons’ oc cupancy of Lot 498 at the time they began that occupancy [Rep. Tr. p. 634, lines 2 to 7] in Oc tober, 1939. [Rep. Tr. p. 223, lines 6 to 8.] First suit was filed against defendants Loftons by plaintiff Burkhardt on June 24, 1940. [Clk. Tr. p. 10, lines 19, 20.] Second suit was filed by other plaintiffs against defendants Loftons on August 7, 1941. [Clk. Tr. p. 42, lines 19, 20.] Meanwhile defendants Loftons had made certain improvements to their property in the interim before the first suit was filed. [Rep. Tr. p. 583, line 14; p. 584, lines 14, 20, 24; p. 585, lines 18, 22, 23, 25; p. 586, lines 3, 5, 22.] In explanation of the delay in filing suit against defendants Loftons plaintiffs were per mitted, over objection, to introduce into evidence Plaintiff’s Exhibit 45, a letter from an attorney, Paul Briskin, to Bank of America in which de mand was made on the bank to enforce the re strictive covenant, and another letter, Plaintiff’s Exhibit 48, from a Mrs. Ada Mclver, not a party plaintiff in any of the actions, to Bank of America also demanding enforcement of the racial restrictions. Replies to each of these let ters were also admitted into evidence and are marked, respectively, Plaintiff’s Exhibits 47 and 49. Plaintiffs then “organized a meeting” [Rep. Tr. p. 798, lines 8 to 10] and that meeting was held about August 23rd, 1939 [Rep. Tr. p. 798, line 12], and the attorney Briskin was employed to represent tract owners. [Rep. Tr. p. 806, lines 12 to 16.] He continued to represent that group until after the disposition of Case No. 444,606, not involved in this appeal, and directed against a certain other alleged Filipino violator of the covenant not before this court. [Rep. Tr. p. 806, lines 23 to 26.] Mr. Briskin was attorney for the entire group. [Rep. Tr. p. 807, lines 8 to 11.] From 75 to 100 persons were members of that group [Rep. Tr. p. 808, lines 1 to 3] which collected funds to employ first the attorney Briskin and later an attorney Nathan Snyder [Rep. Tr. p. 808, lines 19, 20] and have borne all expenses of litigation. [Rep. Tr. p. 812, lines 12 to 14.] The attorney Snyder first represented plaintiffs in the action 453,530, on appeal here. [Rep. Tr. p. 809, lines 3 to 6.] That group is still active and was the moving spirit behind the cases on appeal here. [Rep. Tr. p. 809, lines 9, 10.] Plaintiffs delayed filing suit on advice of counsel that a suit filed against the alleged Fili pino violator, prior to entering of suits against appellants here, would “take care of any other violators in the tract” [Rep. Tr. p. 891, line 22, to p. 892, line 3], and who believed that the suit filed against the alleged Filipino violator was a class or representative suit sufficient to bind by its judgment all property owners in the tract and all other alleged violators of the agreement. [Rep. Tr. p. 894, lines 9 to 19.] —9— Defendants Loftons’ deed was silent as to the question of restrictions and made no reference to the plan of restrictions [Plaintiff’s Exhibit 34] and defendants Loftons testified that they had no actual notice of the racial restrictions at the time of purchase. [Rep. Tr. p. 590, lines 19 to 22.] Title to the Loftons’ lot was deraigned through mesne conveyances from the Bank of Italy, the first of which did set forth the restrictions as to the use and occupancy and made reference to the plan of restrictions. Defendants Laws purchased Lot 500 from one Gilbert. [Plaintiff’s Exhibit 40.] Gilbert was one of four original owners of the entire tract who conveyed it in trust to Bank of Italy for sub division purposes [Rep. Tr. p. 764, lines 16 to 18] Bank of America, successor to Bank of Italy, entered into a contract for purchase of the lot with one Maude Darden [Plaintiff’s Exhibit 37] referring to the restrictions. Bank of America later conveyed entire interest in tract back to four trustors. [Rep. Tr. p. 114, pp. 3 to 9.] Darden later quit claimed all her interest in Lot 500 to four trustors. [Plaintiff’s Exhibit 38.] Three of the four trustors then conveyed all claimed in terest in Lot 500 to Gilbert, one of their number [Plaintiff’s Exhibit 39] and Gilbert’s conveyance to Laws of Lot 500 made no reference to restric tions or of the plan of restrictions. Thus de fendants Laws deraign title from a grantor in — 1 0 — whom both legal and equitable title had 'merged at the time of sale and who inserted in the deed to that Lot 500 no restrictions and made no refer ence in that deed to the plan of restrictions. Defendants find themselves enjoined from using and occupying property which they own and which has great value to them but which has little or no sale or rental value to persons of the Caucasian race, property which had stood vacant for many years and which fronts on property owned, used and occupied by other Negroes. In 1930 and prior to the purchase of Lots 498 and 500 the subdivision trust on Tract 7421 was closed. The Bank of Italy reconveyed unsold lots back to the trustors without inserting in the instrument that the lots were subject to the re strictions. This act constituted a modification of the restrictions which they had a right to do, and of which the original grantees had notice. The alleged restrictions were no longer enforceable since they were created for the benefit of the whole tract and not for certain lots in the tract. The court found that the restrictions are im posed for the benefit of each owner of land in said tract or any interest therein and was a servitude in favor of each and every parcel of land. [Clk. Tr. p. 142, lines 12 to 21.] — 1 1 — The court found that the provision in said re strictions that said lots or parcels of said tract shall not be used or occupied by any person not of the Caucasian race is valid and enforceable. The court further found that the character of the community in which Tract No. 7421 is located had not changed. [Clk. Tr. p. 120, lines 7 to 10.] The court further found that it is untrue that said Bank of Italy, or any successor in interest of said bank did exercise any such discretion, or did modify any provision, condition, restriction or covenant contained in said Exhibit “A ” . [Clk. Tr. p. 126, lines 2 to 4.] As a conclusion of law the court found that Lee S. Lofton, Jennie P. Lofton, Henry Laws and Pauletta Laws should be restrained and en joined from using or occupying any portion of Lots No. 498 and 500, or any other lot of said Tract No. 7421. [Clk. Tr. p. 144, line 25, to p. 145, line 9.] As a conclusion of law the court further found that the restrictions are for the benefit of each owner of land in said tract, or having any inter est therein. [Clk. Tr. p. 142, lines 13 to 16.] As a conclusion of law, the court further found that the restrictions are imposed upon said prop- — 1 2 — erty as a servitude in favor of each and every lot or parcel of land in said tract as the dominant tenement or tenements. [Clk. Tr. p. 142, lines 18 to 21.] And as a conclusion of law, the court further found that as to each lot owned in said tract, re strictions are covenants running with the land and the breach thereof for the continuance of any such breach may be enjoined, abated or remedied by appropriate proceedings. [Clk. Tr. p. 142, line 23, to p. 143, line 1.] Specifications of Error. 1. A finding that the restrictions are imposed for the benefit of each owner of land in said tract is contrary to law. 2. A finding that the provision in said restric tions that said lots or parcels of said tract, shall not be used or occupied by any person not of the Caucasian race is valid and enforceable is not supported by the evidence, is contrary to law, and against the policy of the law. 3. A finding that the character of the com munity in which Tract No. 7421 is located had not changed, is not supported by the evidence. 13— 4. A finding that the Bank of Italy or its successors had not exercised its discretion or modified the provision, is not supported by the evidence. 5. The conclusion of law and the judgment permanently and perpetually enjoining Lee S. Lofton, Jennie P. Lofton, Henry Laws, Anna Laws and Pauletta Laws are not supported by the evidence. 6. The preponderance of evidence conclusively shows that the racial character of the community in which Tract 7421 is located had changed ma terially, and that the lots so used and occupied by appellants had little or no sale value to Caucasians. 7. The preponderance of evidence conclusively shows that the Bank of Italy did modify the re strictions and that its successors did modify the restrictions. 8. That a finding that the Bank of Italy was the owner of the real property known as Tract 7421 and was not a necessary party to a complete determination of the controversy, and that there has not been a defect or non-joinder of parties plaintiff, is not supported by the evidence. ( — 14— 9. A conclusion found that the restrictions are for the benefit of each owner of land in said tract or having any interest therein, is contrary to the evidence' and an error in law. 10. A conclusion found that the restrictions are imposed upon said property as a servitude in favor of each and every lot or parcel of land in said tract as the dominant tenement or tenements, is not supported by the evidence and is an error in law. 11. A conclusion found that the restrictions are covenants running with the land and the breach thereof for the continuance of any such breach may be enjoined, abated or remedied by appropriate proceedings, is not supported by the evidence, and is an error in law. 12. A conclusion found that said restrictions are for the benefit of each owner of land as aforesaid, and are imposed upon said property as a servitude in favor of each and every lot or par cel of land and are covenants with the land, is contrary to the evidence where the evidence af firmatively shows that the grantor imposed the alleged restrictions on the lots conveyed to the grantee, but in nowise bound itself to impose re strictions on any which was retained by it, or con vey to the property which it may have held sub ject to the same or similar restrictions, or to do anything in favor of the property of the grantee. - 1 5 - ARGUMENT. There Can be No Equitable Servitude Where No Dominant Tenement Created. The law is well settled in California that there can be no equitable easement without the creation of a dominant tenement. Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d) 472; Wagoner v. Hannah, 38 Cal. I l l ; Werner v. Graham, 181 Cal. 174. Reference to the so-called “building restric tions of Tract 7421 known as the New Goodyear Tract Unit No. Two” [Clk. Tr. p. 30, line 11, to p. 34, line 24] discloses the fact that the instrument purports to create dominant and servient tenements in these words, the owner of the real property “hereby certifies and declares that it has established and does hereby establish a gen eral plan for the improvement and develop ment of said Tract, and does hereby estab lish the provisions, conditions, restrictions and covenants upon and subject to which all lots and portions of lots in said Tract, herein referred to as ‘said property,’ shall be im proved or sold and conveyed by it as such owner, each and all of which is and are for the benefit of each owner of land in said property, or any interest therein, and shall inure to and pass with each and every parcel ■16— of said property and shall apply to and bind the respective successors in interest of the principal owner or owners thereof, and are and each thereof is imposed upon said property as a servitude in favor of each and every such parcel of land therein as the dominant tenement or tenements.” [Clk. Tr. p. 30, line 20, to p. 31, line 8.] Following that declaration the restrictions are set forth in detail and if the documents were silent except as to restrictions from that point forward there could be no question but that a dominant tenement had been created, and that subsequent grantees would have been given the right which they assert in the case at bar. However, the subdivider did not stop at that point. It provided that: “ The Bank of Italy hereby reserves the right to modify at its discretion the pro visions, conditions, restrictions and cove nants herein contained.” [Clk. Tr. p. 34, lines 13 to 15.] Thus, what it had given with one hand, it took back with the other hand; it could at any time have modified any condition, restriction, or pro vision and taking with notice as they did, grantee could have had no cause for complaint had the Bank so modified the conditions, restrictions, and covenants as to admit a Negro to the right of use and occupancy in the Tract. An instrument creating or claiming to create a servitude will be strictly construed any doubt being resolved in favor of the free use of the land. Werner v. Graham, 181 Cal. 174; Firth v. Marovich, 160 Cal. 257; Berryman v. Hotel Savoy Co., 160 Cal. 559; Bresee v. Dunn, 178 Cal. 96; 26 C. J. S. 515, 516. The Court in this case is then confronted with a situation in which the original grantor was in no wise found to impose restrictions and where the subsequent grantees could not have com plained had the grantor failed or refused to im pose restrictions. Under such circumstances the grantees cannot maintain an action for injunction to restrain alleged violations of the racial restric tive covenant. Where the grantor in no wise bound itself to impose restrictions on any prop erty retained by it or to convey other property which it may have held subject to the same or similar restrictions or to do anything in favor — 1 7 - -1 8 - of the property of the grantee equitable servitude is not created. Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d) 472 at 481. Where a grantee cannot compel his grantor to reserve the restrictions, he cannot compel a sub sequent grantee to do so. That statement is quoted with approval in Wing v. Forest Lawn Assn., supra, in quoting from a Missouri case. “The next inquiry is whether the deed from the St. Louis Improvement Company to respondent imposed a negative easement in favor of the grantee on the remaining lands of the grantor, which included the lot subsequently purchased by appellants. In this connection it will be noted that all the covenants in that deed, which may be termed restrictive, were made on the part of the grantee. The grantor made none. That fact, standing alone, shows prima facie that the restrictions were imposed solely for the benefit of the grantor’s remaining land. Consequently, if the grantor made use of his remaining land which did not conform to such restrictions, his grantee had no ground of complaint. And if the grantee could not compel his grantor to observe the restric tions, he could not compel a subsequent grantee to do so. Beattie v. Howell, 98 N. J. Eq. 163, 129 A. 822. However, the - 1 9 - deed from the St. Louis Improvement Com pany to respondent expressly provided that the restrictions were made ‘for the mutual benefit of all parties purchasing lots by similar conveyances from this grantor.’ But the grantor on its part did not covenant to make similar conveyances of the lots, or any of them, and he did not make a similar conveyance to appellants’ grantor.” Kuhn v. Saum, 316 Mo. 805. Reservation of the right to modify gives the grantor the right to vary the restrictions and to permit building of a kind wholly differing from those described in restrictions. One and Three South William St. Bldg. Corporation v. Gardens Corporation. 232 App. Div. Reports (N. Y.) 59. In the case just cited earlier deeds provided for houses of a certain character and the sub division had become one of New York City’s most beautiful residential centers. Under the right to modify the subdivider permitted the con struction of an apartment house. The court held that the right to “waive change and modify” gave the subdivider the right to permit the con struction sought to be enjoined, remarking that the grantees had notice of that right through the reservation in the restrictions. — 2 0 - Equity Will Not Enjoin Use and Occupancy Merely to Harass a Lot Owner. There is no dispute in this case that defendants Loftons and Laws who were enjoined from using and occupying respectively Lot 489 and Lot 500 in Tract 7421, or any other lot or lots in the Tract, are Negroes, and that the lots occupied by them are located on the southern border line street of Tract 7421. Additionally, the evidence shows that the lots occupied by them are directly across the street from and their houses face a subdivision occupied almost ex clusively by Negroes. [Rep. Tr. p. 518, lines 17 to 20.] The evidence is also clear that of the twenty- one lots on East 92nd street, the southern border line street of Tract 7241, only six are occupied as dwellings [Rep. Tr. p. 656, line 24, to p. 657, line 6] and appellants herein occupied two of those dwellings. Tract 7421 was opened as a subdivision in 1923, but the rest of the lots remain vacant. The houses located on East 92nd street that face the homes occupied by appellants herein are occupied by Negroes. [Rep. Tr. p. 660, line 23, to p. 661, line 2.] Appellants’ witnesses testified that the lots 498 and 500 had little or no sale value to persons of the Caucasian race, but could be sold to colored people. One witness stated categorically that ef forts had been made to sell the property to Cau- —21 casians, but that they would not buy. [Rep. Tr. p. 685, lines 6-7.] There is absolutely no evidence to the contrary. The factual situation is plain: Appellants are occupying lots on a sparsely set tled street, the lots have little or no sale value to Caucasians, but do have value to Negroes and the lots are located on a street one side of which is an area of Negro occupancy. Under that situation the effect of an injunction restraining continued use and occupancy would be to harass appellants herein. Equity will not grant relief under such circumstances. Downs v. Kroeger, 200 Cal. 743. The situation in Downs v. Kroeger, supra, is the identical factual situation presented here, ex cept that in Downs v. Kroeger, supra, an effort was made to enforce a building restriction and in this case a racial restriction is sought to be en forced. In the cited case the trial court made findings in favor of the alleged violator while in the case at bar the trial court has made find ings against the alleged violator. But on prin ciple it is submitted that the final judgment in the case at bar should accord with that which finally obtained in the cited case. Although respondents in the case at bar al leged that they would be and were being dam aged by appellants’ use and occupancy of the lots, it is significant that there is not a single - 2 2 - word of testimony to that effect in the record. Nor is there any testimony that the granting of the injunction would or can confer any benefit on them whatsoever. None of the respondents in the cases below were residents of East 92nd street, the street occupied by appellants herein. Although the Court made a general finding XLVII [Clk. Tr. p. 123, line 13] that the allega tions of the complaints in respect to damages were true, such a finding has no support in the evidence and it is essential in a case of this kind that damage will flow from non-enforcement of the restrictive covenant or that benefit will ac crue from enforcement of the covenant. Downs v. Kroeger, 200 Cal. 743. The rule is well stated as follows: “While it has been held that under proper circumstances equity will give relief in case of a breach of a restrictive covenant regard less of the fact that the complaint has suffered no substantial injury, the more general rule, particularly in the case of re strictions imposed by a general building- plan is that equity will not take cognizance of technical or immaterial violations.” 26 C. / . 6'. 574. —23- “Equity will not as a rule take cognizance of a violation of a restriction . . . where the enforcement would have no other result than to harass or injure defendant without effecting the purpose for which it was originally made.” 26 C. J. S. 774, 775. True enough there is an expression in an earlier California case, Walker v. Haslett, 44 Cal. App. 394, to the effect that damage need not be al leged; the practical effect of the holding of Downs v. Kroger, supra, is to abrogate that rule where as here there are other circumstances such as change in the character of the community, as will be dealt with later, and other circumstances negating damage to plaintiffs. In other words, where evidence is introduced showing lack of damage and absence of material benefit to com plainants the complainants must meet the issue by showing damage to themselves. The foregoing condition is strengthened when the relief sought is in essence a mandatory in junction. Vesper v. Forest Lawn Cemetery Assn., 20 Cal. App. (2d) 157; 57 A. L. R. 336. —24— There can be no doubt that mandatory injunc tion is sought in this case for the purport of the decision if injunction is granted is to require ap pellants to act. Feinberg v. One Doe Co., 14 Cal. (2d) 24. The judgment clearly is not supported by the evidence as to Lots 498 and 500 and the attempt to enjoin appellants’ use and occupancy “ of any other lot in Tract 7421” is beyond the jurisdic tion of the court since this is not a class or representative suit and since each lot in the Tract would be subject to an inquiry as to con ditions surrounding it. Downs v. Kroeger, 200 Cal. 743; Hansberry v. Lee, 311 U. S. 32. Changes in the Character of a Neighborhood Will Stay Enforcement of a Restrictive Covenant. The rule is well established in California that equity will not decree enforcement of a restrictive covenant against a particular lot in a case where by reason of a change in the character of the surrounding neighborhood, not resulting from a breach of the covenant, it would be oppressive and inequitable to give the restriction effect as where the enforcement of the covenant would —25- have no other result than to harass or injure the defendant without benefiting the plaintiff. Hurd v. Albert, 214 Cal. 14; Friesen v. City of Glendale, 209 Cal. 524; Hess v. Country Club Park, 213 Cal. 613; Downs v. Kroeger, 200 Cal. 743. The rule as announced in Hurd v. Albert, supra, was enunciated as controlling in building restriction cases, and is the distillation of a long line of cases involving building restrictions. The same rule is applicable in cases involving racial restrictions. Latteau v. Ellis, 122 Cal. App. 584; Koehler v. Rowland, 275 Mo. 573; Hundley v. Gorewits, ..... Fed. Rep....... In Letteau v. Ellis, supra, the court discussed the question of the applicability of the rule in building restrictions to cases involving racial re strictions in these words: “ But, argue respondents, the found changed conditions make it unjust and in equitable to enforce the conditions. There is much authority in support of respondents’ position. (Downs v. Kroeger, 200 Cal. 743; Hess v. Country Club Park, 213 Cal. 613; Hurd v. Albert, 214 Cal. 15.) These cases deal with the restrictive covenant and conditions limiting the use of real estate, the - 2 6 - particular restrictions being as to the maintenance of the property as residential. The holding in each case is that where there has been a change in the use to which prop erty in the neighborhood is being put, so that such property is no longer residential property, it would be unjust, oppressive and inequitable to give effect to such restric tions, if such change has resulted from causes other than their breach. A refer ence to these cases suffice. The subject is exhaustively covered and leaves no further ground of discussion.” The court then brushes aside the argument that a so-called race restriction is not within either the spirit or the letter of the doctrine announced in building restriction cases. The rule as to change is also well illustrated in Hund ley v. Gorewits, supra, where the Court says: “However, it is equally well settled that since the purpose of such restrictions is the mutual benefit of the burdened properties, when it is shown that the neighborhood in question has so changed in its character and environment and in the use to which the property therein may be put that the pur pose of the covenant cannot be carried out or that its enforcement shall substantially lessen the value of the property, or, in short, that injunctive relief would not give a bene fit by rather imposing a hardship, the rule will not be enforced.” - 2 7 - Counsel for respondent raised some question in the Court below as to applicability of the rule as to changes outside the tract as obtaining in building restriction cases to cases involving racial restriction. On principle it would seem that the rule should not vary and it is unthink able that the Courts will throw a greater safe guard around the right to establish a business than it will around the right of American citizens to occupy their own homes. So far as appel lants know, the question has never been directly adjudicated. However, it has been said: “ It is true that where circumstances are changed owing to the material growth of a city or of the principal use of a whole neighborhood so that the purposes of a re striction in a conveyance no longer can be accomplished and it would be oppressive and inequitable to give effect to such restriction, the Courts will not enforce it.” Koehler v. Rowland, 275 Mo. 573. The Court’s finding that there had been in sufficient change in the character of the neighbor hood to stay the hand of equity in the case at bar is contrary to the evidence. There is no dispute that the Central Gardens Tract, a portion of which adjoins Tract 7421 on the south, was de veloped roughly simultaneously with Tract 7421 although it was apparently laid out a year before Tract 7421. The record is replete with evidence -28— that Central Gardens Tract is populated almost exclusively by Negroes. Ninety-second street is the dividing line between Tract 7421 and the Central Gardens Tract. Houses on that street face each other. Homes occupied by appellants face homes occupied by Negroes in the Central Gardens Tract. The Pardee Tract adjoins Central Gardens Tract and a portion of Tract 7421 on the east. Conditions of racial occu pancy in the Pardee Tract have changed ma terially since 1923 and even respondents’ wit nesses testified that the change continues. [Rep. Tr. p. 630, lines 10 to 12.] The evidence also shows that there has been a general northerly migration of Negroes toward Tract 7421 since the subdivision of Tract 7421, and that whereas Negroes in appreciable numbers lived in the vicinity of 105 th street when Tract 7421 was subdivided, they now live as far north as 89th street to the east of Tract 7421 and as far north as 92nd street directly south of Tract 7421. [Rep. Tr. p. 484, lines 10 to 13.] The increase of Negroes in the immediate vicinity has made for a consequent increase of Negroes using the public streets in and about Tract 7421. A market located in the center of Tract 7421 at tracts Negro customers. [Rep. Tr. p. 764, line —29— 23.] A bus line routed through Tract 7421 car ries large numbers of Negro passengers. [Rep. Tr. p. 750, lines 4 to 7.] Change is a relative term, and when change is asserted as bearing on the right to occupy a parcel of land, a court of equity should and must view the whole situation. Change sufficient to permit occupancy of a border line lot might fall far short of change required to permit occupancy of an interior lot in a tract. Furthermore, the use of a border line lot in violation of a restric tive covenant does not invalidate an entire re strictive covenant and equity may well find such change as will permit violative use of that border line lot, while leaving other lots bound as be fore. Downs v. Kroeger, 200 Cal. 743. It must be remembered that appellants herein did not cross-complain for relief invalidating the entire restrictive covenant; they sought and they seek only to be left undisturbed in use and oc cupancy of their border line lots, and certainly the weight of evidence as to change as to the character of the community in which those border line lots are located preponderates in ap pellants’ favor when the whole situation is taken — 30— into account. The whole situation is that appel lants seek to use and occupy lots located directly across a forty-foot street from other property used and occupied by Negroes; that prior to their purchase and use and occupancy the lots on their side of the street were largely vacant; the lots they use and occupy have little or no value to persons of the Caucasian race; the street on which the lots are located is continually used as a thoroughfare by Negroes; the plaintiffs failed to show any damage to themselves by appellants’ use and occupancy, and that no material benefit will flow to respondents from enforcement of the restrictive covenant. Occupied as it is on one side by Negroes and with lots on the other side largely vacant, 92nd street is essentially a “ Negro” street, not only along the border line of Tract 7421, but far to the east where it bisects the Pardee Tract. The practical effect of depriving appellants of the right to use and occupy their lots would be to establish a virtually uninhabitable section of the city, a very undesirable result, especially in these times when there is already overcrowding and inadequacy of housing facilities. Hundley v. Gorewits, supra. - 3 1 - Laches and Waiver Will Bar the Right to Enforce a Restrictive Agreement. The principal factors in determining the ques tion of laches are acquiescence and lapse of time but other circumstances are also material such as that a change in the value or character of the property has taken place. Chapman v. Bank of California, 97 Cal. 155. Respondents’ attorney stipulated that all of re spondents knew that appellants Loftons began occupancy of lot 498 in Tract 7421 at the time they began that occupancy in October, 1939. [Rep. Tr. p. 636, lines 2 to 7.] The records show that the first suit filed against appellants Loftons was commenced on June 24, 1940 [Clk. Tr. p. 10, lines 19, 20] a period of more than nine months after appellants Loftons began occupancy and that they had made certain improvements to their property before the first suit was filed. They had built a fence, constructed a concrete drive way, put in a lawn, and made certain additions to the porch. [Rep. Tr. p. 583, line 14; p. 584, lines 14, 20, 24; p. 585, lines 18, 22 to 25; p. 586, lines 3 to 5, 22.] It will be observed that a greater part of these improvements were done in such view that respondents had means of knowl- -3 2 - edge, and under some circumstances means of knowledge may properly be accounted actual knowledge. Tucker v. Beneke, 180 Cal. 588. The second suit in which defendants Loftons appear herein as appellants was not commenced until August 7, 1941 [Clk. Tr. p. 42, lines 19, 20], a period of one year and ten months after Loftons began occupancy. There is no hard and fast rule as to what lapse of time coupled with other factors will constitute laches. It has been held that inactivity for a period of six months after completion of work sought to be abated, the doctrine of laches is to be invoked. Los Angeles Athletic Club v. Long Beach, 128 Cal. App. 427. In considering the applicability or inapplicabil ity of the doctrine of laches, one should consider all surrounding circumstances and in this case it is submitted that there is no sufficient reason to excuse inactivity on the part of respondents named in the first action or respondents named in the second action. By way of excuse for their inactivity the trial court permitted respondents, over objection of appellants, to detail a long series of meetings held —33— by owners of lots within the Tract, a consequent consultation with various attorneys and the ad vice offered by those attorneys. [Rep. Tr. p. 798, lines 8 to 10; p. 806, lines 12 to 16; p. 806, lines 23 to 26; p. 808, lines 19, 20.] The court also permitted introductions into evidence over appellants’ objections of letters from a resident of the Tract not a party to any of these actions, to Bank of America and a letter from an attorney representing the group of Tract owners and to the Bank of America, and replies to each of those letters. [Plaintiff’s Exhibits 45, 47, 48, 49.] Seasonable motions to strike all evidence relative to the activities of the group and the letters as admitted, were made by appellants. Appar ently respondents and their attorney were act ing on the belief that a suit involving restric tive covenant was a class or representative suit, and that an action against an alleged Fili pino violator allegedly living in the interior of the Tract was regarded as in essence an action against appellants. [Rep. Tr. p. 891, line 22, to p. 892, line 3. ] However, it has been held by the Supreme Court of the United States that such suits are not class or representative suits, and the only way that respondents could assert any rights as against these appellants was to name them parties defendant. — 34— “Where the covenant did not create joint obligation or liability, the several property owners did not constitute a single class, and there was a potential conflict of interest as between the parties to the suit and the per sons purported to be represented in that the latter might determine it to their interest to challenge rather than assert the restriction.” Hansberry v. Lee, 311 U. S. 32. The case just cited also involved attempts to enforce a racial restrictive covenant, and the holding was clear and plain that such suits are not class or representative suit, and that any ad judication binds only parties named as defendant or as plaintiffs. In view of that holding it cannot be said in the case at bar that respondents relieved them selves of any laches by their own mistake of law that they could bind appellants’ property by pro ceeding against another alleged violator, and in view of the lapse of time between the knowledge of appellants Loftons’ occupancy and the com mencement of the suits it would seem that the appellants Loftons should be left undisturbed in their use and occupancy. There is the additional question of waiver, especially as it relates to the second action filed in 1941, almost two years after knowledge of appellants Loftons’ occupancy. Waiver of the right to enforce a building restriction is recog- —35— nized as a valid defense to an action to enforce forfeiture or breach of a condition. Los Angeles and Arizona Land Co. v. Marr, 187 Cal. 126. Although it is apparent that respondents in the second action believe that they could relate their rights back to the filing of the first action, still in view of the holding in Hansberry v. Lee, supra, it is apparent that they could not do so, and if they could, their long silence must certainly amount to acquiescence in the occupancy of the appellants Loftons. In view of the law and the evidence as revealed by the record, it is submitted that the finding that there had been no laches or waiver is against the weight of the evidence in so far as appellants Loftons are concerned. Appellants Laws purchased their parcel on con tract November, 1935 [Rep. Tr. p. 536, line 19] recorded deed to it August 29, 1940 [Defendant’s Exhibit A] and began building a home on it in June, 1941. [Rep. Tr. p. 540, lines 8 to 10.] Prior to the construction of the home, appel lant Henry Laws testified that he had made cer tain use of the parcel extending over a period of approximately seven years. [Rep. Tr. p. 564, lines 19, 20; p. 565, line 3; p. 566, line 6; p. 567, lines 4 and 8.] Respondents disputed that testi mony sharply, and it is conceded that appellant Laws was named defendant in a suit filed shortly after he began occupancy. All that has been said — 36— of the doctrine of laches and waiver as to ap pellants Loftons applies with equal force to appel lants Laws with exception of the fact that re spondents denied knowledge of his use. That denial must, of course, be viewed in light of the familiar rule that means of knowledge may in some instances be determined to be knowledge, and all that respondents could possibly deny was not use of the lot but knowledge of the use. Means of knowledge is equivalent to knowledge. Tynan v. Kerns, 119 Cal. 447. A Restriction of Use and Occupancy Unlimited as to Time Is Void. Where no time is specified in said agreement (limiting racial occupancy) for its duration, it was void as being contrary to the provisions of Sections 711 and 715 of the Code of Civil Pro cedure, which prohibit an unlimited restraint on alienation. Foster v. Stewart, 134 Cal. App. 482. The holding in the cited case is plain and un equivocal and it is undisputed that so-called “building restrictions” [Plaintiffs Exhibit 2] in the case at bar are unlimited as to time. Foster v. Stewart, supra, was decided in 1933 and it is noteworthy that it has been cited as authority by text writers and in virtually in every digest issued since the decision. It has never been modified or limited or overruled by any later California ■37- case, either by the Courts of Appeal or by the Supreme Court. It certainly is binding until some disposition is made of it, and it would seem to be controlling in the case at bar. Such criticism as has been leveled at Foster v. Stewart, supra, seems to be based upon the ground that prior decisions had held that restraints on use and occupancy are not restraints upon alienation, and hence not within the prohibition of Sections 711 and 715 of the Code of Civil Procedure. That criticism begs the points upon which the ruling in Foster v. Stewart, supra, was made. A careful reading of the case will reveal the fact that the agreement in question had provided that “ the owners of the said several parcels of land will not permit the said property or any part thereof to be leased to or rented to nor shall the same even be used or occupied by any person” of the proscribed groups. In essence the court held that where the inducements for the signing of the covenant were not segregated and one of the in ducements was violative of the rule against re straints on alienation the whole covenant would be void. Viewed in that light, the decision in Foster v. Stewart, supra, is sound. The re strictive phrase in the case at bar is very similar to the covenant in the cited case, and reads' “that said premises shall not be leased, sold, or con veyed to or used or occupied by any person not of the Caucasian race.” [Clk. Tr. p. 32, lines 6 to 8.] - 3 8 - All Necessary Parties to a Complete De termination of an Action Should Be Made Parties to the Action. By seasonable motion [Clk. Tr. p. 50, line 1, to p. 51, line 19] appellants moved to require re spondents to name as parties plaintiff or defend ant each and every lot owner in Tract 7421 on the ground that each of said lot owners was an in dispensable to the complete determination of the controversy. The motion was denied. It is well settled that if the necessary parties to a full de termination of all issues are not before the court, it is the duty of the court on its own motion or on the motion of the parties to bring them before the court. Title Guaranty v. Henry, 208 Cal. 185; O’Connor v. Irvine, 74 Cal. 435; Lake v. Dow, 207 Cal. 290. The requirement that indispensable parties be before the court is mandatory. Hartman Ranch Co. v. Associated Oil Co., 10 Cal. (2d) 232. Where the record indispensably shows that a complete determination of the controversy cannot be had without the presence of other parties, such parties become necessary and indispensable, — 39— and Section 389 of the Code of Civil Procedure is mandatory, and the question then becomes one of jurisdiction in that the court may not proceed without bringing them in. Ambassador Petroleum Co. v. Superior Court, 208 Cal. 667; Bank of America v. Superior Court, 16 Cal. (2d) 516. If defendants actually before the court may be subjected to undue inconvenience or to danger of loss or to future litigation or more extensive lia bility by reason of the absence of necessary par ties, they may object to proceeding without them. 20 Cal. Jur. 575, 576. It has been held that cases involving attempts to enforce restrictive covenants such as this one are not class or representative suits, and that adjudication in any such case binds only those actually before the court. Hansberry v. Lee, 311 U. S. 32. In view of that holding, it is perfectly apparent that the decision in this case cannot bind other lot owners in Tract 7421. They can even if ap pellants finally prevail, file new actions to harass and vex appellants. The history of the case in 4 a that respect is itself restrictive. The first case denominated, Burkhardt v. Lofton, filed in 1940, was still pending and undetermined when the sec ond case, now on appeal, denominated, Burkman v. Liddy, et al., was filed. Issues in the two cases were identical. Defendants were identical, yet appellants herein found themselves faced with having to defend a second law suit. Had other parties resident in the tract been so inclined, they could have filed a third law suit. While this ap peal is pending, another resident or group of resi dents may file other law suits; the number is limited only by number of residents in the tract. It is no answer to this state of affairs to say that this action is simply one to determine adverse claims as to plaintiffs and named defendants. Since it is an equity action, and since equity does not act piecemeal, the whole controversy should be determined at once, and since respondents herein initiated the suit, the court should have required them to complete the action by naming the necessary and indispensable parties to a com plete determination of the issue to the end that appellants may not be subjected to the danger of future litigation. It is respectfully submitted that the trial court erred in denying appellants' motion for adjoining of additional parties. — 41— An Injunction Should Not Issue to Re strain the Alleged Violation of Restric tions in a Tract Where the Restrictions Have Been Modified and the Original Grantees Took the Lots With Notice That the Grantor Reserved the Right to Modify the Restrictions. (1) A Subsequent Grant Contrary to Re strictions by a Grantor W ith Power to M odify Operates as a Revocation of the Original Instrument. As has been made plain from the statement of fact of this case, concerning which there is no dispute, the Bank of Italy closed the trust in December, 1930, and delivered the assets con sisting of unsold lots back to the settlors, the legal title having been in the Bank of Italy only as trustee. [Rep. Tr. p. 114, lines 3 to 9.] As to Lot 500 of said tract, the lot was conveyed back to the trustors, who in turn conveyed it to one of their trustors, Henry D. Gilbert, who conveyed the lot to Henry and Anna Laws in 1940, appellants and owners of said Lot 500. No provision was inserted in the deeds by refer ence or otherwise, restricting the use or occu pancy because of race. [Plaintiffs’ Exhibits 38, 39 and 40; Rep. Tr. p. 536, lines 3 to 19; p. 786, line 9, to p. 787, line 26.] At once it becomes apparent that when the bank conveyed the unsold lots back to the trustors without restrictions, trustors’ conduct amounted -4 2 - to a modification of the provisions concurred in by the trustors. It is a general rule of law that the parties to a contract have the right to change it at any time during its life. Kennedy v. Lee, 147 Cal. 596; Main St. etc. Railroad Co. v. Los Ange les Traction Co., 129 Cal. 301; Civil Code, Section 1698. A written agreement may be abrogated by an executed oral contract. Twohey v. Realty Syndicate Co., 4 Cal. (2d) 397. In the case of Bard v. Kent, 37 Cal. App. (2d) 160, the court held: “That an oral agreement between the parties providing for the payment of com mission to a real estate broker and the re conveyance to the trustor of the remaining lots of a subdivision trust was an executed oral agreement.” It would seem, therefore, that in the case at bar the reconveyance to the trustors of the re maining lots of the subdivision trust was a suf ficient executed agreement modifying the restric tions set forth in Exhibit “A ” of plaintiffs’ com plaints. The actual and presumed intent to modify the restrictions is likewise indicated by the merger of the legal and equitable estates in —43— the trustors, I. B. Rubin, Henry D. Gilbert Solo mon Gross and Joseph Moent. By having a fee simple title to the unsold lots they held an estate inheritable and not subject to conditions or col lateral determination. In re Walts, 197 Cal. 263. Where the whole legal title as well as the equitable, unite in the same person, a merger takes place. Boye v. Boerner, 12 Cal. App. (2d) 186. We submit, that when plaintiffs or their prede cessors in interest purchased lots in the subject tract, they were put on notice that notwithstand ing the fact that the alleged restrictions were for the benefit of each owner of land in said tract, or any interest therein as a servitude of each and every lot or parcel of land in said tract as the dominant tenement or tenements, they took with notice as did the appellants herein, that the trus tees reserved the right to modify the restrictions, which was done in the case at bar. If, there fore, a modification of the restrictions took place as to the remaining unsold lots, then a modifica tion took place as to each and every lot or parcel of land in said tract, since the owners of said lots took the same with notice that the restric tions were covenants running with the land as to each and every lot in said tract and subject to a modification by the grantor, Bank of Italy. The 44 restrictions were for the benefit of the tract and not for the individual lots in said tract since any lot in said tract could have been sold free of any burdens of restriction by the trustees by vir tue of their power to modify the restrictions. We cannot refrain from stating- at this point that the Bank of Italy as trustor, considered the restrictions at an end upon the closing of the trust, and the acceptance of the unsold lots free of any restrictions, covenants or conditions by the trustors. It is not a matter of conviction by a question long decided by our cases in Califor nia. In the case of Werner v. Graham, 181 Cal. 174, the court held: “That where the owner of a tract of land subdivided it into lots and make sales of the lots subject to certain building restrictions, and thereafter quit claimed to the owner of one of the lots any interest he had in it, the effect was to release the restrictive pro visions as to such lot so far as it was in the power of the original owner to do so.” In addition to the ample reason already given, the provisions are in fact conditions not to be enforced by other lot owners under the deeds from the same grantor against the appellants, but are in favor of the grantor, since by assigns is meant the assignor of the reversion or right of re-entry. Werner v. Graham, supra; McBride v. Freeman, 191 Cal. 158. —45— (2 ) A n E qitable Servitude Is Not Created W here the U nderstanding of the Par ties Is Left to M ere Conjecture. George Wixson and Rose Wixson, original grantees, and predecessors in interest of Lot 498 of Tract 7421, now owned by Lee S. Lofton and Jennie P. Lofton, some of the appellants herein, by grant deed took title to said lot' February 24, 1928, subject to the provisions of the general restrictions on said tract. [Clk. Tr. p. 40, line 7; PL Ex. 32.] In 1939 and subse quent to the modification heretofore and here after mentioned, George Wixson and Rose Wix son conveyed title to said lot to Lee S. Lofton and Jennie P. Lofton, some of the appellants herein. [PI. Ex. No. 34; Rep. Tr. p. 200, line 25.] Maude V. Darden, original grantee and predecessor in interest of Lot 500 of Tract 7421, now owned by Henry Laws, Anna Laws and Pauletta Laws, some of the appellants herein, by grant deed took title to said lot August 28, 1930, subject to the provisions of the general restric tions on said tract. [Clk. Tr. p. 88, line 23, to p. 89, line 2; PL Ex. 37.] That thereafter the said Maude V. Darden conveyed said lot to I. B. Reuben and others. [PL Ex. 38; Rep. Tr. p. 203, line 10.] I. B. Reuben and others, are the original trustors who created the subdivision trust'herein. I. B. Reuben and others conveyed 4 6 the said Lot 500 of the tract to Henry D. Gilbert and Tillie Gilbert, as joint tenants. [Rep. Tr. p. 203, lines 18 to 24.] The said Henry D. Gilbert is one of the four original settlors of the trust. [PI. Ex. 39.] That thereafter in 1935 and subsequent to the modification heretofore and hereafter mentioned, the said Henry D. Gilbert, settlor, and his wife conveyed the said lot to Henry Laws, Anna Laws and Pauletta Laws, some of the appellants herein. [PI. Ex. No. 40; Rep. Tr. p. 204, lines 3 to 9.] The power of the grantor to revoke or modify an instrument where the power is reserved is set forth in Section 1229 of the California Civil Code, which provides: “Where the power to revoke or modify an instrument affecting the title to, or the en joyment of, an estate in real property, is re served to the grantor, or given tq any other person, a subsequent grant of, or charge upon the estate, by the person having the power of revocation, in favor of an en cumbrancer for value, operates as a revoca tion of the original instrument to the extent of the power in favor of such purchaser or encumbrancer.” In the leading case of Tenant v. John Tenant Memorial Home, 167 Cal. at page 575, the court said: “ Each of these sections is based on the assumption that the reservation mentioned — 47— would be valid if made. Furthermore, they entirely remove the foundation upon which these reservations, when inserted in deeds of feoffment, were held to be void, that is to prevent the danger of secret transfers, to the detriment of the lord of the manor, or sub sequent purchasers or encumbrancers. There is now no lord of the manor, and the sec tions provide a complete protection to subse quent purchasers or encumbrancers for value. Furthermore, the effect of the de cisions of this court is that such reservations are valid.” It is of course a rule well settled in California, that the deed is the final and exclusive memorial of the intention and right of the parties. (Mar tin v. Holm, 197 Cal. 733; Werner v. Graham, supra; Berryman v. Hotel Savoy Co., 160 Cal. 559; McBride v. Freeman, supra.) Furthermore, any provision of an instrument creating or claimed to create such a servitude will be strictly construed, any doubt being resolved in favor of the free use of the land. ( Werner v. Graham, 181 Cal. 174.) Tt is the plaintiffs’ position and the court found, that the restrictions are imposed as a servi tude in favor of each and every lot in the tract. But the restrictions were placed on the tract pursuant to a general scheme or plan of building up the tract. The subdivision trustee or grantor reserved the right to modify the restrictions at —48— its discretion, and the plaintiffs had notice. When the grantor reconveyed the unsold lots without such restrictions and the trustors likewise sold the lots, one to one of the appellants in the case at bar, the right to enforce the restrictions was waived. (Brown v. Wrightman, 5 Cal. App. 391; Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. App. 462; Los Angeles, etc. Land Co. v. Marr, 187 Cal. 126; Wedum-Aldahl Co. v. Miller, 18 Cal. App. (2d) 745.) It is submitted that the grantor and trustors not only modified the re strictions by their acts and conduct but aban doned the plan. In the case of Wedum-Aldahl Co. v. Miller, 18 Cal. App. (2d) the court said, at page 753: “A grantor may waive the right to en force a restriction with respect to the use of land by his acts and conduct and thus estop himself from asserting its future validity. . . .” “ In the case of restrictions imposed in pursuance of a general plan, that the originator of the plan, the common grantor, acquiesces in, that is, fails to take legal action to prevent, substantial infringements of the plan by some of his grantees, has been re garded as showing an abandonment by him of the plan, precluding him from subse quently enforcing the restriction as against others.” —4 9 - In the case at bar the grantor did nothing about the alleged violation of the restrictions by appellants or by the settlors of the trust, namely, I. B. Reuben, Henry Gilbert, Solomon Gross, and Joseph Moent, and reconveyed unsold lots back to the trustors, free of the restrictions. In other words, although the grantor by the terms of the Building Restrictions, imposed restrictions on some of the lots conveyed to some of the grantees, it was in no way bound by the re strictions. We, therefore, respectfully submit that the court erred in finding that a servitude was im posed by the restrictions in favor of each and every lot and that the restrictions are for the benefit of each owner of land in the tract, for the reason that it affirmatively appears that the grantor on his part never did covenant to make similar conveyances to appellants’ grantors, or to plaintififs’ grantors, or to any of the other grantees or owners of lots in said Tract. No equitable easement was created. In the leading case of Wing v. Forest Lawn Cemetery Association, 15 Cal. (2d) 472, the court said at page 480: “Werner v. Graham, 181 Cal. 174, 183 Pac. 945, has oft been cited as the leading case in this state defining the manner in which an equitable servitude may be estab lished. The case makes it requisite not -50— only that the deed contain (1) a proper expression of intent to create an equitable easement; that is, reference to a common plan of restriction or indication of an agree ment between the grantor and grantee that the conveyed lot be taken subject to some such plan, but also (2) ‘some designation or description of what is an essential factor, namely, the dominant tenement.’ “Measured by these standards it can scarcely be said that an equitable easement was created by plaintiff’s deed. Certainly, there is no description of a dominant tene ment which is to be benefited by the restric tion placed upon the property by the grantee. The importance of describing with certainty the property to be affected by a restrictive easement has been commented on by Pro fessor William Edward Burby in 10 So. Cal. Law Rev. 281, at Page 289, note 21, —thusly: “ ‘The desirability of adhering to the rule announced in Wagner v. Hann [38 Cal. I l l , 99 Am. Dec. 354] (cited in Werner v. Graham, supra), in connection with the creation of equitable easements, seems ap parent. There should he some written evi dence either in the form of a plat or other wise, delineating or pointing out the extent of the property affected by the restrictions. A more extensive area is usually involved in the case of equitable easements than is the case in the creation of legally enforce- —51— able easements. As a matter of policy, the understanding of the parties should be defi nite and clear, and should not be left to mere conjecture. Property described in the deed creating the equitable easements, and no other should be affected thereby’ ” (ital ics ours). . . Although the grantor by the terms of said deed imposed numerous re strictions on the lots conveyed to the grantee, it in nowise bound itself to impose restrictions on any which may have been retained by it, or to convey other property which it may have held subject to the same or similar restrictions or to do anything in favor of the property of the grantee.” “A similar situation was presented in the case of Kuhn v. Saum, 316 Mo. 805 [291 S. W. 104, at p. 105] wherein the Supreme Court of Missouri, said: “ ‘ . . . And if the grantee could not compel his grantor to observe the restric tions, he could not compel a subsequent grantee to do so. Beattie v. Howell, 98 N. J. Eq. 163, 129 A. 822. . . .’ “ . . . Therefore, it cannot be said that by the mere imposition of restrictions on the lands of the grantee, the grantor im pliedly placed the same restrictions on lands retained by it.” “ It is true that the deed stated that the restrictions on lands of the grantee might — 52— be enforced against the land of the grantee by other owners of burial space in Memorial Park, but said statement did not have the effect of creating a reciprocal negative easement.” “And further, at page 482, quoting from the case of Moe v. Gier, 116 Cal. App. 403. the Court said: “ • • To create an equitable servi tude in the grant of lands in a large area it is essential that there must be a general scheme of restrictions sufficiently uniform in character to indicate unmis takably a designated and adopted plan throughout common to all purchasers of lots. The restrictions must not only appear in one deed, but in all the deeds, and must expressly declare that such restrictions are for the benefit of and run with all other lots in the designated area. In other words, the restrictions must be for the mutual benefit of all parcel owners and each lot imposed with a servitude for the benefit of each and every lot.’ ” Appellants urge that no equitable servitude was created in the absence of a designation of a dominant tenement or tenements, hence there is no basis for holding that said restrictions are valid and enforceable and that appellants have violated any restrictions. — 53— A Judicial Decree of a State Court Enforcing, Against Members of the Negro Race, Re strictive Residence Covenants, Offends the Equal Protection Clause of the Four teenth Amendment to the United States and Article One, Sections One and Twen ty-one of the Constitution of the State of California. The Fourteenth Amendment of the United States Constitution, prohibits a state from de priving a person of property without due process of law. It would seem, therefore, that a decree by a state court upholding a provision of re strictions that certain premises are not to be sold, leased, used or occupied by persons not of the Caucasian race as valid and enforceable and permanently enjoining and restraining ap pellants who are not of the Caucasian race from occupying or using any portion of their prop erty in the premises, the state is lending its aid by the enforcement of such a provision depriv ing persons of their property. (1 ) Judicial A ction Constitutes “State” A ction W it h in the M eaning of the Fourteenth A mendment. This seems to be definitely determined by Mooney v. Holohan (1934), 294 U. S. 103, 112. “That Amendment” (the Fourteenth), said the court, “governs any action of a state ‘whether through its legislature, through its courts, or through its executive or administrative offices - 5 4 - In the most recent consideration of the sub ject, the U. S. Supreme Court, in Bridges v. California, 86 L. Ed. (Adv. Op.) 179, Dec. 8, 1941, nullified action by the Superior Court of the State of California on the ground that it abridged freedom of speech, and hence federal due process, under the Fourteenth Amendment. Such action by the court would have been im possible had the court not construed the word “state” in the Fourteenth Amendment as in cluding the Superior Court of this County as an agency of the state within the meaning of “state” in the Fourteenth Amendment. (a) The Broadening Scope of the Fourteenth Amendment as to What Constitutes State Action. The word “ state” in the Fourteenth Amend ment includes not only action by a state legis lature, but action by municipalities as well. Mu nicipalities are deemed to be agents of the state within the meaning of the Fourteenth Amend ment. In Hague v. C. I. O., 307 U. S. 496; Lovell v. Griffin, 303 U. S. 444; and Schneider v. State, 308 U. S. 147, municipal ordinances were held void because of infringement of the right of freedom of speech; and thus were held to constitute state action. (In the last the above three cases the Los Angeles Handbill Ordinance -55— was held invalid.) Similarly in another Califor nia case, in Hamilton v. Regents, 293 U. S. 245, a resolution by the Board of Regents of the University of California was held to constitute state action. To the same effect is Missouri ex rel. Gaines v. Canada, 305 U. S. 337. (b) The Broadening Protection of Negroes From Discrimination Because of Race or Color: (i) Selection of Grand and Trial Juries. Norris v. Alabama, 294 U. S. 594; Pierre v. Loviisiana, 306 U. S. 354; Smith v. Texas, 311 U. S. 129. (ii) The right to vote irrespective of color or race. Nixon v. Herndon, 273 U. S. 536, 541. (iii) Attendance at a state university ir respective of race. Missouri ex rel. Gaines v. Canada, 305 U. S. 337. (iv) Equality of accommodations in transportation. Mitchell v. U. S., 313 U. S. 80. (v) Freedom from Peonage. Taylor v. Georgia. 86 L. Ed. (Ad. Op.) 371. (vi) The Fourteenth Amendment was de signed particularly to protect the Negro from every form of discrimination because of color or race. — 56— The law is summarized in Buchanan v. Worley, 245 U. S. 60, 77, thus: “ It (the Fourteenth Amendment) was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, wherever it should be denied by the states. “ It ordains that no state shall deprive any person of life, liberty or property with out due process of law, or deny to any per son within its jurisdiction the equal protec tion of the laws. “ What is this but declaring that the law in the states shall be the same for the black as for the white; and that all persons, whether colored or white, shall stand equal before the laws of the states, and, in re gard to the colored race, for whose pro tection the amendment was primarily de signed, that no discrimination shall be made against them by law because of their color. “The Fourteenth Amendment makes no attempt to enumerate the rights it is de signed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of —57- legal protection, either for life, liberty or property. Any state action which denies this immunity to a colored man is in con flict with the Constitution.” “Again this court in Ex parte Virgina. 100 U. S. 339, 347, said: “Whoever, 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 law, violates the constitutional inhibition, and as he acts in the name of the state, and is clothed with the state’s power, his act is that of the state.” Certainly a judicial decree which enforces dis crimination in the establishment of residence be cause of race constitutes action “by virtue of public position” , and hence the exercise of such judicial power constitutes the act of the state within the meaning and prohibitions of the comprehensive terms of the Fourteenth Amend ment. Los Angeles Investment Co. v. Garry (1919), 180 Cal. 680, and Corrigan v. Buckley (1925), 271 U. S. 323, do not foreclose the issue adversely to the defendants. Thus, in Hansberry v. Lee, 311 U. S. 32, 85 L. Ed. 22, the court by its failure to construe the claim of the denial of equal protection of the laws by restrictive residential covenants based —58— on race, indicated that the issue was still an open one so far as that court was concerned. The court rules in favor of the Negroes on an issue involving lack of notice in a class suit. The examination of the petitioner’s briefs, as outlined in the United States Supreme Court reports at page 35, and more fully in the Law yers Edition Reports at page 24, discloses that the precise contention made in the instant case was made in behalf of the Negroes, in that case. An examination of the decision of the court discloses that the court avoided passing upon that issue. Had the court considered Buchanan v. Worley or Los Angeles Investment Company v. Garry, as conclusive, it would have said so. Russell v. Wallace, 30 Fed. (2d) 981; Cornish v. O’Donoghue, 30 Fed. 298; and Grady v. Garland, 89 Fed. (2d) 817, all decisions by the District Court of Appeal of the District of Columbia are neither binding upon this court nor precisely in point; nor is the denial of certiorari in each of the cases by the United States Supreme Court. The Supreme Court of the United States has declared on numerous occasions that the denial of certiorari is not an approval or an affirmance of an opinion; it simply is a determination by that court that it will not hear that case; it is - 5 9 - no indication that that court will not hear a similar case at another time. Moreover, in each of the cases the question of “ equal protection of the laws” was not an issue; the District of Columbia not being a state, is not subject to the Fourteenth Amendment. The Fifth Amendment to the United States Consti tution which contains guarantees against federal action, does not contain an assurance of equal protection. For a comprehensive discussion as to the dif ference between the guarantees of the due process clause and the equal protection clause, we refer to Truax v. Corrigan, 257 U. S. 312. That the equal protection clause is designed particularly to enjoin any kind of state dis criminating because of race or color, is disclosed by the Truax case, in which the landmark de cision Yick Wo v. Hopkins, 118 U. S. 356, 369, is approved by the court, the court quoting: “ These provisions (of the Fourteenth Amendment) are universal in their appli cation, to all persons within the territorial jurisdiction without regard to any differ ences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” In the early case of Gandolfo v. Hartman, 49 Fed. 181 (1892), restrictive covenants as — 6 0 — applied to the Chinese race were held to violate the Fourteenth Amendment, the court declaring: “ It would be a very narrow construction of the constitutional amendment (Four teenth) in question and the decisions based on it, and a very restricted application of the broad principle upon which both the amendment and the decisions proceed, to hold that while state and municipal legis latures are forbidden to discriminate against the Chinese in their legislation, a citizen of the state may lawfully do so by contract, which the courts may enforce . . . Any result inhibited by the Constitution can no more be accomplished by contracts of indi vidual citizens than by legislation, and the court should no more enforce the one than the other.” (c) The Growing Judicial Emphasis Upon Personal Rights as Distinguished From Property or Contract Rights. In recent years the Supreme Court has recog nized that constitutional values like all other values, when in conflict, must be reconciled where possible; in the process of reconciliation, each right must be allocated its proper place, some being recognized however, as superior to others. Thus, in Minersville School District v. Gobitis, 310 U. S. 586, 595, the court recognized that — 61 there was a “hierarchy of legal values,” declar ing that, by way of example, “religious freedom was inferior to none” in that hierarchy. Re cently the highest court in the land has placed the great personal liberties, like freedom of speech and of the press, and freedom from dis crimination because of color or race, as first in that hierarchy. Justice Cardozo, speaking for the court in Palko v. Connecticut, 302 U. S. 219, 223, enunciated the “rationalizing principle” which brings order out of what would otherwise appear to be judicial inconsistency and chaos. Said Cardozo: “ We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the Federal Bill of Rights, and brought within the Fourteenth Amendment by a process of absorption. These in their origin were ef fective against the Federal Government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed. This is true, for illustration, of freedom of thought and speech. Of that freedom one may say that it is the matrix, the indispensable condition, of nearly ever}’ other form of freedom.” —62- That contract and property rights may, un der special circumstance, be required to take a place, somewhere else than at the head of the table, is seen from the recent United States Su preme Court decisions. Thus, in West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391, in discussing freedom of contract the court, speaking Chief Justice Hughes, declared: “What is this freedom? The Constitu tion does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connota tion. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and wel fare of the people. “ . . . The essential limitation of lib erty in general governs freedom of con tract in particular.” The court then quotes from Allgeyer v. Louisiana, 165 U. S. 578: “ . . . freedom of contract is a quali fied and not an absolute right. There is no absolute freedom to do as one wills, or to contract as one chooses.” —63— Once again in Home Building and Loan As sociation v. Blaisdell, 290 U. S. 398, 435, the court in upholding interference with enforce ment of mortgage foreclosure contracts, said: “ The policy of protecting contracts against impairment pre-supposes the main tenance of a government by virtue of which contractual relations are worthwhile—a gov ernment which retains adequate authority to secure peace and good order of society.” The court then quotes with approval (page 443) Chief Justice Marshall: “We must never forget that it is a con stitution we are expounding (McCulloch v; Maryland, 4 Wheat., 316, 407) a consti tution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs.” In other words, the authority of courts of equity to impinge upon the alleged absolute right of contract or of property, in the inter ests of the public good, is on a par with the same authority of other departments of the state, e. g., the legislatures, so to do. -64 Enforcement of Restrictive Covenants Against the Negro Race, Because of Race or Color, Is Against the Present Public Pol icy of the Nation, and of This State. (a) N ational U n it y U rged in the N ational D efense Program. Our national policy with respect to racial dis crimination has been formally and officially ex pressed by the government in Executive Order No. 8802, dated June 25, 1941, which reads in part: “Reaffirming Policy of Full Participation in the Defense Program by all persons, re gardless of Race, Creed, Color, or National Origin, and Directing Certain Action in Furtherance of said Policy.” “Whereas, it is the policy of the United States to encourage full participation in the National Defense Program by all citi zens of the United States, regardless of race, creed, color or national origin, in the firm belief that the democratic way of life within the nation can be defended success fully only with the help and support of all groups within its border.” Pursuant to that policy, in that Executive Or der, the President of the United States has de creed that there shall be no discrimination in employment in defense industries because of race, creed, color or national origin. — 65— This national policy, expressed by a Demo cratic President, has been best expounded by Wendell Willkie in his address in Los Angeles on July 20, 1942, protested against “ imperialism” at home expressed through racial discrimination as interfering with our war effort. He disclosed the need for military unity on the part of all of the peoples of the United Nations, irrespective of race or color, declaring, among other things: . . But we are learning in this war that it is not racial classifications nor ethnological considerations which bind men together. It is shared concepts and kindred objectives. “Racial problems in the United States must take several steps toward solution as a result of the war, and our Negro citizens who make proportionate sacrifice and ef forts toward the winning of the war must win proportionate reward.” (b) Restrictions Because of Race, Creed or Color A re Inconsistent W ith the Pub lic Policy of T his State. Although the legislature can authorize the segregation of the races, it has not done so. It has, however, by enactment compelled a reor ganization of the equality of citizens in the right to the peculiar services of agencies for the ac commodation and entertainment of the public. -6 6 - Section 51 of the Civil Code provides as follows: “All citizens within the jurisdiction of the state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eat ing houses, places where ice-cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theatres, skating rinks, public accommoda tion or amusement, subject only to the con ditions and limitations established by law, and applicable alike to all citizens.” Whoever makes any discrimination, distinction or restrictions on account of color or race in re spect to the admission of any citizen or his treat ment in any of the agencies enumerated in Sec tion 51 of the Civil Code is liable in damages to the party aggrieved in an amount not less than one hundred dollars. ( Civil Code, Sec tion 52.) There is no doubt of the constitutionality of the provisions and of the sound public policy of such legislation. Mandamus is the proper remedy too for un lawful discrimination of a municipality in re fusing to admit Negroes to a swimming pool —67— owned and operated by the municipality. (Stone v. Board of Directors of Pasadena, 47 Cal. App. (2d) 851.) To compel the trustees of a school district and a teacher to admit an Indian child as a pupil, Piper v. Big Pine School District, 193 Cal. 664. To compel the admission of a Negro to a school, Ward v. Flood, 48 Cal. 36. In Stone v. Board of Directors of Pasadena, supra, the court at page 856 stated the rule held in Kern v. Commissioners of City of Newton, 147 Kan. 471: “ . . . Deprivation of the privilege of access to municipal recreation grounds es tablished or maintained at the general tax payers expense, on account of race or color, is legally and traditionally offensive to the history of this state, and although this court has repeatedly upheld statutes which sanction reasonable segregation of the racial stocks of this state, White and Colored, we have steadfastly held to our oft-repeated rule that the legislature alone can authorize such segregation; as in the many school cases cited above.” Our state policy with respect to racial dis crimination is well expressed in the leading case of Sacramento O. etc. Home v. Chambers, 25 Cal. App. 536, where the question involved - 68- Article I, Section 21 of our Constitution for a Writ of Mandamus to secure the payment of a claim for support of a minor orphan whose par ents were aliens and non-residents. Justice Burnett, speaking for the court, said at page 541: “ Mentally, morally and physically, no doubt, the sins and infirmities of the parents are often visited upon their descendant, but in the realm of civil and political rights, and privileges no such principle can be rec ognized or tolerated. To affirm the proposi tion contended for by respondents, that one citizen is, and another is not entitled to this privilege in consequence of the difference in citizenship and residence of the parents, is to deny all efficacy to the constitutional man date that privileges must be granted to all citizens upon all terms.” (c) T he R ight to A cquire and Possess Property Is Guaranteed by O ur Ca li fornia Constitution . Article I, Section 1 of the California Consti tution is as follows: “All men are by nature free and inde pendent, and have certain inalienable rights, among which are those of enjoying and de fending life and liberty, acquiring, possess ing and protecting property; and pursuing and obtaining safety and happiness (Con stitution of 1849, Art. I, Sec. II). (Italics ours.) - 6 9 - Enforcement of restrictions as in the case at bar against appellants who are Negroes for private consideration is a denial to them of one of the primary objects of government, guaran teed by the constitution. A man is not to be de prived of his property or of his property rights for any private consideration. {Ex parte Loren- sen, 128 Cal. 431.) The only immunities which can be justly claimed by one portion of society from another is that each individual is required to use his own as not to inflict injury upon his neighbor. Moreover, the right to use and enjoy property by the owner is zealously guarded in this state. ( Simpson v. City of Los Angeles, 4 Cal. (2d) 60; 27 Cal. App. (2d) 293.) Conclusion. The strict letter of the law favors the position of appellants: the uncertainties of the covenant should be strictly construed against those seeking to enforce it with all doubt resolved in favor of free use of the land; the facile findings of the trial court that change in the character of the community was insufficient to stay the hand of equity and that respondents have not been guilty of laches in prosecution of their claim are un supported by the evidence; the refusal to follow the plain holding that an unlimited restraint on use and occupancy are void is contrary to law; —70— the court acted beyond its jurisdiction in refusal to require the presence of indispensable parties to a final termination of the controversy; the appellant Laws undoubtedly took title freed of any burden of the covenant and finally the power of a court of equity to exert what in the last analysis is the power of the state to accomplish residential segregation, when that power is de nied to the legislative and administrative branches of government, requires careful re examination in the light of modern conditions. But it is well for all concerned to remember above all that this is a case in which the aid of equity is invoked. Respondents seek to oust appellants from their homes—homes they have purchased and built— solely on the accidental dif ference of color between American citizens. It is difficult to conceive a situation in which equity ought to tread more carefully. A fair consid eration of all the evidence demonstrates that appellants seek in good faith only to occupy property which has little or no value to those who seek to oust them and that appellant home owners seek to live in property long spurned as residential sites by their now unfriendly neigh bors, spurned perhaps because the homes face other homes occupied by other Negroes. If re spondents prevail, their victory is a barren one; —71 they will suffer no damage if appellants remain in occupancy of lots 498 and 500; they will reap no benefits if appellants are dispossessed. The attitude they exhibit is well defined by Wendell Willkie in his best selling book, One World: “The attitude of the white citizens of this country has undeniably had some of the un lovely and tragic characteristics of an alien imperialism— a smug racial superiority, a willing'ness to exploit an unprotected people.” Never was there a more unfortunate time than this for the display of that attitude. Census statistics, of which this court can take judicial notice, show that the Negro population of Los Angeles, city and county, has more than tripled since this covenant was conceived in 1923. That population increase has brought inevitable expansion of the Negro community; people must live somewhere and surely this court will not stake out an uninhabitable area in a rapidly growing city to gratify the whim of those who seek to enforce a barren right. This court can not shut its eyes to the broad question of public policy involved here nor by invoking over-techni cal rules of property and become party to the social ills that flow from overcrowding and lack of adequate housing facilities for those who seek •72— only to occupy their own homes. As the court well observes in Letteau v. Ellis, supra, at page 589: “ A principle of broad public policy has intervened to the extent that modern prog ress is deemed to necessitate a sacrifice of many former claimed individual rights. The only obstacle met has been the rule of prop erty or as termed the disinclination to dis turb vested property rights. To some ex tent this too has yielded in the sense that many rights formerly labeled as property rights by a process of academic relations are now considered merely personal and have been subjected to the common good.” Respectfully submitted, T homas L. Gr iffith , Jr., Loren M iller, Attorneys for Appellants. Received copy of the within for the judge who tried the case this...............................day of May, A. D. 1943. J. F. M oroney, County Clerk. By......... -........ -.......................... ... , Deputy. Service of the within and receipt of a copy thereof is hereby admitted this...................day of May, A. D. 1943.