Hurd v. Hodge Court Opinion

    SUPREME COURT OF THE UNITED STATES

Nos. 290 and 291.— October Term, 1947.

James M. Hurd and Mary I. Hurd,
Petitioners,

290 v.
Frederic E. Hodge, Lena A. Murray

Hodge, Pasquale DeRita, et al.

Raphael G. Urciolo, Robert H. Rowe,
Isabelle J. Rowe, et al., Petitioners,

291 v.
Frederic E. Hodge, Lena A. Murray

Hodge, Pasquale DeRita, et al.

[M ay 3, 1948.]

M r. Chief Justice V inson delivered the opinion of 
the Court.

These are companion cases to Shelley v. Kraemer and 
McGhee v. Sipes, ante, p. — , and come to this Court on 
certiorari to the United States Court of Appeals for the 
District of Columbia.

In 1906, twenty of thirty-one lots in the 100 block 
of Bryant Street, Northwest, in the City of Washington, 
-were sold subject to the following covenant:

“ . . . that said lot shall never be rented, leased, 
sold, transferred or conveyed unto any Negro or col­
ored person, under a penalty of Two Thousand Dol­
lars ($2,000), which shall be a lien against said 
property.”

The covenant imposes no time limitation on the restric­
tion.

Prior to the sales which gave rise to these cases, the 
twenty lots which are subject to the covenants were at

On Writs of Cer- 
t i o r a r i  to the 
United S t a t e s  
C o u r t  of Ap­
p e a l s  for the 
District of Co­
lumbia.



2 HURD v. HODGE.

all times owned and occupied by white persons, except 
for a brief period when three of the houses were occupied 
by Negroes who were eventually induced to move without 
legal action. The remaining eleven lots in the same 
block,1 however, are not subject to a restrictive agreement 
and, as found by the District Court, were occupied by 
Negroes for the twenty years prior to the institution of 
this litigation.

These cases involve seven of the twenty lots which 
are subject to the terms of the restrictive covenants. In 
No. 290, petitioners Hurd, found by the trial court to 
be Negroes,2 purchased one of the restricted properties 
from the white owners. In No. 291, petitioner Urciolo, 
a white real estate dealer, sold and conveyed three of the 
restricted properties to the Negro petitioners Rowe, Sav­
age, and Stewart. Petitioner Urciolo also owns three 
other lots in the block subject to the covenants. In both 
cases, the Negro petitioners are presently occupying as 
homes the respective properties which have been con­
veyed to them.

Suits were instituted in the District Court by respond­
ents, who own other property in the block subject to the 
terms of the covenants, praying for injunctive relief to 
enforce the terms of the restrictive agreement. The 
cases were consolidated for trial, and after a hearing, 
the court entered a judgment declaring null and void the 
deeds of the Negro petitioners; enjoining petitioner Urci­
olo and one Ryan, the white property owners who had 
sold the houses to the Negro petitioners, from leasing, 
selling or conveying the properties to any Negro or col­
ored person; enjoining the Negro petitioners from leasing

1 All of the residential property in the block is on the south side 
of the street, the northern side of the street providing a boundary 
for a public park.

2 Petitioner James M. Hurd maintained that he is not a Negro but 
a Mohawk Indian.



HURD v. HODGE. 3

or conveying the properties and directing those petition­
ers “ to remove themselves and all of their personal 
belongings” from the premises within sixty days.

The United States Court of Appeals for the District 
of Columbia, with one justice dissenting, affirmed the 
judgment of the District Court.3 The majority of the 
court was of the opinion that the action of the District 
Court was consistent with earlier decisions of the Court 
of Appeals and that those decisions should be held deter­
minative in these cases.

Petitioners have attacked the judicial enforcement of 
the restrictive covenants in these cases on a wide variety 
of grounds. Primary reliance, however, is placed on the 
contention that such governmental action on the part 
of the courts of the District of Columbia is forbidden by 
the due process clause of the Fifth Amendment of the 
Federal Constitution.4

Whether judicial enforcement of racial restrictive agree­
ments by the federal courts of the District of Columbia 
violates the Fifth Amendment has never been adjudicated 
by this Court. In Corrigan v. Buckley, 271 U. S. 323 
(1926), an appeal was taken to this Court from a judg­
ment of the United States Court of Appeals for the 
District of Columbia which had affirmed an order of 
the lower court granting enforcement to a restrictive 
covenant. But as was pointed out in our opinion in 
Shelley v. Kraemer, supra, the only constitutional issue 
which had been raised in the lower courts in the Corrigan 
case, and, consequently, the only constitutional question

3 —  U. S. App. D. C. — , 162 F. 2d 233 (1947).
4 Other contentions made by petitioners include the following: 

judicial enforcement of the covenants is contrary to § 1978 of the 
Revised Statutes derived from the Civil Rights Act of 1866 and to 
treaty obligations of the United States contained in the United Na­
tions’ charter; enforcement of the covenants is contrary to the public 
policy; enforcement of the covenants is inequitable.



4 HURD v. HODGE.

before this Court on appeal, related to the validity of 
the private agreements as such. Nothing in the opinion 
of this Court in that case, therefore, may properly be 
regarded as an adjudication of the issue presented by 
petitioners in this case which concerns, not the validity 
of the restrictive agreements standing alone, but the 
validity of court enforcement of the restrictive covenants 
under the due process clause of the Fifth Amendment.5 
See Shelley v. Kraemer, supra at — .

This Court has declared invalid municipal ordinances 
restricting occupancy in designated areas to persons of 
specified race and color as denying rights of white sellers 
and Negro purchasers of property, guaranteed by the 
due process clause of the Fourteenth Amendment. Bu­
chanan v. Warley, 245 U. S. 60 (1917); Harmon v. 
Tyler, 273 U. S. 668 (1927); Richmond v. Deans, 281 
U. S. 704 (1930). Petitioners urge that judicial enforce­
ment of the restrictive covenants by courts of the District

5 Prior to the present litigation, the United States Court of Appeals 
for the District of Columbia has considered cases involving enforce­
ment of racial restrictive agreements on at least eight occasions. 
Corrigan v. Buckley, 55 App. D. C. 30, 299 F. 899 (1924); Torrey v. 
Woljes, 56 App. D. C. 4, 6 F. 2d 702 (1925); Russell v. Wallace, 58 
App. D. C. 357, 30 F. 2d 981 (1929); Cornish v. O’Donoghue, 58 App. 
D. C. 359, 30 F. 2d 983 (1929); Grady v. Garland, 67 App. D. C. 73, 
89 F. 2d 817 (1937); Hundley v. Gorewitz, 77 U. S. App. D. C. 48, 
132 F. 2d 23 (1942); Mays v. Burgess, 79 U. S. App. D. C. 343, 147 
F. 2d 869 (1945); Mays v. Burgess, 80 U. S. App. D. C. 236, 152 F. 
2d 123 (1945).

In Corrigan v. Buckley, supra, the first of the cases decided by the 
United States Court of Appeals and relied on in most of the subse­
quent decisions, the opinion of the court contains no consideration of 
the specific issues presented to this Court in these cases. An appeal 
from the decision in Corrigan v. Buckley, was dismissed by this Court. 
271 U. S. 323 (1926). See discussion supra. In Hundley v. Gorewitz, 
supra, the United States Court of Appeals refused enforcement of a 
restrictive agreement where changes in the character of the neighbor­
hood would have rendered enforcement inequitable.



HURD v. HODGE. 5

of Columbia should likewise be held to deny rights of 
white sellers and Negro purchasers of property, guaran­
teed by the due process clause of the Fifth Amendment. 
Petitioners point out that this Court in Hirabayashi v. 
United States, 320 U. S. 81, 100 (1943), reached its deci­
sion in a case in which issues under the Fifth Amendment 
were presented, on the assumption that “ racial discrimi­
nations are in most circumstances irrelevant and therefore 
prohibited. . . And see Korematsu v. United States, 
323 U. S. 214, 216 (1944).

Upon full consideration, however, we have found it 
unnecessary to resolve the constitutional issue which peti­
tioners advance; for we have concluded that judicial 
enforcement of restrictive covenants by the courts of the 
District of Columbia is improper for other reasons herein­
after stated.6 7

Section 1978 of the Revised Statutes, derived from § 1 
of the Civil Rights Act of 1866/ provides:

“ All citizens of the United States shall have the 
same right, in every State and Territory, as is en­

6 It is a well-established principle that this Court will not decide 
constitutional questions where other grounds are available and dis­
positive of the issues of the case. Recent expressions of that policy 
are to be found in Alma Motor Co. v. Timken-Detroit Axle Co., 329 
U. S. 129 (1946); Rescue Army v. Municipal Court, 331 U. S. 549 
(1947).

7 14 Stat. 27. Section 1 of the Act provided: “ . . . That all per­
sons born in the United States and not subject to any foreign power, 
excluding Indians not taxed, are hereby declared to be citizens of 
the United States; and such citizens, of every race and color, without 
regard to any previous condition of slavery or involuntary servitude, 
except as a punishment for crime whereof the party shall have been 
duly convicted, shall have the same right, in every State and Terri­
tory in the United States, to make and enforce contracts, to sue, be 
parties, and give evidence, to inherit, purchase, lease, sell, hold, and 
convey real and personal property, and to full and equal benefit of all 
laws and proceedings for the security of person and property, as is 
enjoyed by white citizens, and shall be subject to like punishment,



6 HURD v. HODGE.

joyed by white citizens thereof to inherit, purchase, 
lease, sell, hold, and convey real and personal prop­
erty.” 8

All the petitioners in these cases, as found by the Dis­
trict Court, are citizens of the United States. We have 
no doubt that, for the purposes of this section, the District 
of Columbia is included within the phrase “ every State 
and Territory.” 9 Nor can there be doubt of the con­
stitutional power of Congress to enact such legislation 
with reference to the District of Columbia.10

We may start with the proposition that the statute 
does not invalidate private restrictive agreements so long 
as the purposes of those agreements are achieved by the 
parties through voluntary adherence to the terms. The 
action toward which the provisions of the statute under 
consideration is directed is governmental action. Such 
was the holding of Corrigan v. Buckley, supra.

In considering whether judicial enforcement of restric­
tive covenants is the kind of governmental action which 
the first section of the Civil Rights Act of 1866 was in­
tended to prohibit, reference must be made to the scope

pains, and penalties, and to none other, any law, statute, ordinance, 
regulation, or custom, to the contrary notwithstanding.”

The Civil Rights Act of 1866 was reenacted in § 18 of the Act 
of May 31, 1870, 16 Stat. 144, passed subsequent to the adoption 
of the Fourteenth Amendment. Section 1977 of the Revised Statutes 
(8 U. S. C. § 41), derived from § 16 of the Act of 1870, which in turn 
was patterned after § 1 of the Civil Rights Act of 1866, provides: 
“ All persons within the jurisdiction of the United States shall have 
the same right in every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of persons and 
property as is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions of every 
kind, and to no other.”

88 U .S .C . §42.
9 Cf. Talbott v. Silver Bow County, 139 U. S. 438, 444 (1891).
10 See Keller v. Potomac Electric Power Co., 261 U. S. 428, 442-443 

(1923).



HURD v. HODGE. 7

and purposes of the Fourteenth Amendment; for that 
statute and the Amendment were closely related both 
in inception and in the objectives which Congress sought 
to achieve.

Both the Civil Rights Act of 1866 and the joint resolu­
tion which was later adopted as the Fourteenth Amend­
ment were passed in the first session of the Thirty-Ninth 
Congress.11 Frequent references to the Civil Rights Act 
are to be found in the record of the legislative debates on 
the adoption of the Amendment.12 It is clear that in 
many significant respects the statute and the Amendment 
were expressions of the same general congressional policy. 
Indeed, as the legislative debates reveal, one of the pri­
mary purposes of many members of Congress in sup­
porting the adoption of the Fourteenth Amendment was 
to incorporate the guaranties of the Civil Rights Act of 
1866 in the organic law of the land.13 Others supported

11 The Civil Rights Act of 1866 became law on April 9, 1866. The 
Joint Resolution submitting the Fourteenth Amendment to the States 
passed the House of Representatives on June 13, 1866, having previ­
ously passed the Senate on June 8. Cong. Globe, 39th Cong., 1st 
Sess. 3148-3149, 3042.

12 See, e. g., Cong. Globe, 39th Cong., 1st Sess. 2459, 2461, 2462, 
2465, 2467, 2498, 2506,2511,2538,2896,2961,3035.

13 Thus, Mr. Thayer of Pennsylvania, speaking in the House of Rep­
resentatives, stated: “ As I understand it, it is but incorporating in 
the Constitution of the United States the principle of the civil rights 
bill which has lately become a law, . . .  in order . . . that that 
provision so necessary for the equal administration of the law, so 
just in its operation, so necessary for the protection of the funda­
mental rights of citizenship, shall be forever incorporated in the 
Constitution of the United States.” Cong. Globe, 39th Cong., 1st 
Sess. 2465. And note the remarks of Mr. Stevens of Pennsylvania 
in reporting to the House the joint resolution which was subsequently 
adopted as the Fourteenth Amendment. Id. at 2459. See also id. 
at 2462, 2896, 2961. That such was understood to be a primary 
purpose of the Amendment is made clear not only from statements 
of the proponents of the Amendment but of its opponents. Id. at 
2467, 2538. See Flack, The Adoption of the Fourteenth Amendment 
94-96.



8 HURD v. HODGE.

the adoption of the Amendment in order to eliminate 
doubt as to the constitutional validity of the Civil Rights 
Act as applied to the States.14

The close relationship between § 1 of the Civil Rights 
Act and the Fourteenth Amendment was given specific 
recognition by this Court in Buchanan v. Warley, supra 
at 79. There, the Court observed that, not only through 
the operation of the Fourteenth Amendment, but also by 
virtue of the “ statutes enacted in furtherance of its pur­
pose,” including the provisions here considered, a colored 
man is granted the right to acquire property free from 
interference by discriminatory state legislation. In Shel­
ley v. Kraemer, supra, we have held that the Fourteenth 
Amendment also forbids such discrimination where im­
posed by state courts in the enforcement of restrictive 
covenants. That holding is clearly indicative of the con­
struction to be given to the relevant provisions of the 
Civil Rights Act in their application to the Courts of the 
District of Columbia.

Moreover, the explicit language employed by Congress 
to effectuate its purposes, leaves no doubt that judicial 
enforcement of the restrictive covenants by the courts 
of the District of Columbia is prohibited by the Civil 
Rights Act. That statute, by its terms, requires that all 
citizens of the United States shall have the same right 
“ as is enjoyed by white citizens . . .  to inherit, purchase, 
lease, sell, hold, and convey real and personal property.”

14 No doubts were expressed as to the constitutionality of the Civil 
Rights Act in its application to the District of Columbia. Senator 
Poland of Vermont stated: “ It certainly seems desirable that no doubt 
should be left existing as to the power of Congress to enforce prin­
ciples lying at the very foundation of all republican government if 
they be denied or violated by the States, and I cannot doubt but 
that every Senator will rejoice in aiding to remove, all doubt upon this 
power of Congress.” Cong. Globe, 39th Cong., 1st Sess. 2961. See 
also id. at 2461,2498,2506, 2511,2896, 3035.



HURD v. HODGE. 9

That the Negro petitioners have been denied that right 
by virtue of the action of the federal courts of the Dis­
trict is clear. The Negro petitioners entered into con­
tracts of sale with willing sellers for the purchase of 
properties upon which they desired to establish homes. 
Solely because of their race and color they are confronted 
with orders of court divesting their titles in the properties 
and ordering that the premises be vacated. White sellers, 
one of whom is a petitioner here, have been enjoined 
from selling the properties to any Negro or colored person. 
Under such circumstances, to suggest that the Negro 
petitioners have been accorded the same rights as white 
citizens to purchase, hold, and convey real property is 
to reject the plain meaning of language. We hold that 
the action of the District Court directed against the Negro 
purchasers and the white sellers denies rights intended 
by Congress to be protected by the Civil Rights Act 
and that, consequently, the action cannot stand.

But even in the absence of the statute, there are other 
considerations which would indicate that enforcement of 
restrictive covenants in these cases is judicial action con­
trary to the public policy of the United States,15 and 
as such should be corrected by this Court in the exercise 
of its supervisory powers over the courts of the District 
of Columbia.16 The power of the federal courts to enforce

15See United States v. Hutcheson, 312 U. S. 219, 235 (1941); 
Johnson v. United States, 163 F. 30, 32 (1908).

16 Section 240 (a) of the Judicial Code, 43 Stat. 938, 28 U. S. C. 
§347 (a), provides: “ In any case, civil or criminal, in a circuit court 
of appeals, or in the Court of Appeals of the District of Columbia, 
it shall be competent for the Supreme Court of the United States, 
upon the petition of any party thereto, whether Government or other 
litigant, to require by certiorari, either before or after a judgment 
or decree by such lower court, that the cause be certified to the 
Supreme Court for determination by it with the same power and 
authority, and with like effect, as if the cause had been brought 
there by unrestricted writ of error or appeal.”



10 HURD v. HODGE.

the terms of private agreements is at all times exercised 
subject to the restrictions and limitations of the public 
policy of the United States as manifested in the Consti­
tution, treaties, federal statutes, and applicable legal prece­
dents.17 Where the enforcement of private agreements 
would be violative of that policy, it is the obligation of 
courts to refrain from such exertions of judicial power.18

We are here concerned with action of federal courts 
of such a nature that if taken by the courts of a State 
would violate the prohibitory provisions of the Four­
teenth Amendment. Shelley v. Kraemer, supra. It is 
not consistent with the public policy of the United States 
to permit federal courts in the Nation’s capital to exercise 
general equitable powers to compel action denied the 
state courts where such state action has been held to be 
violative of the guaranty of the equal protection of the 
laws.19 We cannot presume that the public policy of the 
United States manifests a lesser concern for the protection 
of such basic rights against discriminatory action of fed­
eral courts than against such action taken by the courts 
of the States.

Reversed.

Mr. Justice R eed, Mr. Justice Jackson, and Mr. 
Justice R utledge took no part in the consideration or 
decision of these cases.

17 Muschany v. United States, 324 U. S. 49, 66 (1945). And see 
License Tax Cases, 5 Wall. 462, 469 (1867).

18 Cf. Kennett v. Chambers, 14 How. 38 (1852); Tool Co. v. Norris, 
2 Wall. 45 (1865); Sprott v. United States, 20 Wall. 459 (1874); 
Trist v. Child, 21 Wall. 441 (1875); Oscanyan v. Arms Co., 103 U. S. 
261 (1881); Burt v. Union Central Life Insurance Co., 187 U. S. 
362 (1902); Sage v. Hampe, 235 U. S. 99 (1914). And see Beasley 
v. Texas & Pacific R. Co., 191 U. S. 492 (1903).

18 Cf. Gandoljo v. Hartman, 49 F. 181, 183 (1892).





SUPREME COURT OF THE UNITED STATES

Nos. 290 and 291.— October T erm, 1947.

James M. Hurd and Mary I. Hurd,
Petitioners,

290 v.
Frederic E. Hodge, Lena A. Murray

Hodge, Pasquale DeRita, et al.

Raphael G. Urciolo, Robert H. Rowe,
Isabelle J. Rowe, et al., Petitioners,

291 v.
Frederic E. Hodge, Lena A. Murray

Hodge, Pasquale DeRita, et al.

[M ay 3, 1948.]

M r. Justice Frankfurter, concurring.
In these cases, the plaintiffs ask equity to enjoin white 

property owners who are desirous of selling their houses 
to Negro buyers simply because the houses were subject 
to an original agreement not to have them pass into 
Negro ownership. Equity is rooted in conscience. An 
injunction is, as it always has been, “ an extraordinary 
remedial process which is granted, not as a matter of 
right but in the exercise of a sound judicial discretion.” 
Morrison v. Work, 266 U. S. 481, 490. In good con­
science, it cannot be “ the exercise of a sound judicial 
discretion” by a federal court to grant the relief here 
asked for when the authorization of such an injunction 
by the States of the Union violates the Constitution—  
and violates it, not for any narrow technical reason, but 
for considerations that touch rights so basic to our society 
that, after the Civil War, their protection against invasion 
by the States was safeguarded by the Constitution. This 
is to me a sufficient and conclusive ground for reaching 
the Court’s result.

On Writs of Cer­
t i o r a r i  to the 
United S t a t e s  
C o u r t  of Ap- 
p e a l s  for the 
District of Co­
lumbia.