Heyward v. Public Housing Administration Reply Brief for Appellants

    X

REPLY BRIEF FO R  A PPELLA N TS

Qkrurt nf Appeals
For the  D istrict of Colum bia C ircuit

No. 11,865

PRINCE F. HEYWARD, e t  a l .,
Appellants,

v.

PUBLIC HOUSING ADMINISTRATION, et  al .,
Appellees.

A p p e a l  e e o m  t p ie  U n it e d  S t a t e s  D is t r ic t  C o u r t  f o r  t h e  
D is t r ic t  o f  C o l u m b ia

F r a n k  A . D il w o r t h , III, 
458% West Broad Street, 

Savannah, Georgia;

T h u r g o o d  M a r s h a l l , 
C o n s t a n c e  B a k e r  M o t l e y , 

107 West 43rd Street, 
New York 36, N. Y.;

F r a n k  D . R e e v e s ,
2000 Ninth Street, N. W., 

Washington 1, D. C.;

D avid  E. P in s k y ,
of Counsel.

Attorneys for Appellants.

S upreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320
«^i8SD49



I N D E X

PAGE

I. The Action is Not Premature by Appellees’ Own Admis­
sion .......................................................................................  1

II. There is a Justiciable Controversy Between These 
Appellees and Appellants .................................................. 1

III. Appellees Have Injured Appellants By Denying Them
The Statutory Preference For Admission........................  9

IV. The Savannah Housing Authority is Not An Indis­
pensable Party ...................................................................  10

Conclusion .......................................................................................  15

TABLE OF CASES

Ainsworth v. Barn Ballroom Company, 157 F. 2d 97 (C. A. 4th, 1946) ..  14
Balter v. lckes, 89 F. 2d 856 (C. A. D. C. 1937) .......................................  13
Barrow v. Shields, 17 How. (U. S.) 130 ......................................................  14
Berlinsky v. Wood, 178 F. 2d 265 (C. A. 4th, 1949 ).................................... 13
Blank v. Bitker, 135 F. 2d 962 (C. A. 7th, 1943) .......................................  15
Bourdien v. Pacific Western Oil Company, 299 U. S. 65 ............................  14
Daggs v. Klein, 169 F. 2d 174 (C. A. 9th, 1948) ......... .................................  13
Federal Trade Commission v. Winsted Hosiery Co., 258 U. S. 483 .........  7
Franklin Township in Somerset County v. Tugwell, 85 F. (2d) 208 (C. A.

D. C. 1936) ...............................................................................................  11
Frothingham v. Mellon, 262 U. S. 447 ............................................................ 8
Fulton Iron Company v. Larson, 171 F. 2d 994 (C. A. D. C. 1946) .........  14
Howard v. United States ex rel Alexander, 126 F. 2d 667 (C. A. 10th,

1942)   15
Jacobs v. Office of Housing Expediter, 176 F. 2d 338 (C. A. 7th, 1949) 13
Joint Anti Fascist Refugee Comm. v. McGrath, 341 U. S. 123 ................. 7
Massachusetts v. Mellon, 262 U. S. 447 ..........................................................  8
Money v. Wallin, 186 F. 2d 411 (C. A. 3rd, 1951) .......................................  13
National Licorice Company v. National Labor Relations Board, 309

U. S. 350 .................................................................................................  12,13
Payne v. Fite, 184 F. 2d 977 (C. A. 5th, 1950) ............................................. 13
Rorick v. Brd of Comm’rs, Everglades Drainage District, 27 F. 2d 377,

381 (N. D. Fla. 1928)    11
Smart v. Woods, 184 F. 2d 714 (C. A. 6th, 1950) .......................................  13
State of Washington v. United States, 87 F. 2d 421 (C. A. 9th, 1936) . . . .  14



11

STATUTES
PAGE

Act of Sept. 1, 1937, c. 896, 50 Stat. 888, as amended by Act of 
July 15, 1949, c. 338, Title III, 63 Stat. 442, Title 42, U. S. C.,
Sections 1409 ......................................................................................

1410(a) ........................................................................................
1410(c) .........................................................................................
1410(g) ........................................................................................  7,10
1411(a) ........................................................................................  7
1413 .............................................................................................. 7
1415(7) (c) ................................................................................. 7
1421(a)(1) .................................................................................  7

Act of April 9, 1866, c. 31, Sec. 1, 14 Stat. 27, Title 8, U. S. C. § 42 .........  10

OTHER AUTHORITIES

Restatement of Torts, Section 876 .................................................................. 7-8
Memorandum of Jan. 12, 1954 of Secretary of Defense Charles E.

Wilson .......................................................................................................  11

M
 V

J V
I



llmtrii (tart nf Appeal#
For the  D istrict of C olum bia C ircuit 

No. 11,865

------------------o-------------------

P r in c e  F .  H ey w a r d , E r s a l in e  S m a l l , W il l ia m  M it c h e l l , 
W il l ia m  G o l d e n , M ik e  M a u s t ip h e r , W il l is  H o l m e s , 
A l o n z o  S t e r l in g , M a r t h a  S in g l e t o n , I r e n e  C h is h o l m , 
J o h n  F u l l e r , B e n j a m i n  E .  S im m o n s , J a m e s  Y o u n g , 
O l a  B l a k e ,

Appellants,
v.

P u b l ic  H o u s in g  A d m in is t r a t io n , body corporate; J o h n  
T . E g a n , Commissioner, Public Housing Administra­
tion,

Appellees.

A p p e a l  f r o m  t h e  U n it e d  S t a t e s  D is t r ic t  C o u r t  fo r  t h e  
D is t r ic t  o f  C o l u m b ia

------- ------------o-------------------

REPLY BRIEF FO R A PPELLA N TS



1

I. This A ction Is Not P rem ature  By A ppellees’ 
O w n A dm ission.

Appellees in their motion for summary judgment in 
the court below said in Paragraph 5 that: “ This project 
will not be ready for occupancy until approximately March, 
1954” (Joint Appendix 16). Therefore, Appellees’ argu­
ment in their brief in this court that the order below dis­
missing the complaint should be affirmed on the ground 
that the action is premature is no longer valid by Appellees ’ 
own statement and admission with respect to completion 
of Fred Wessels Homes, the project under construction 
at the time this complaint was filed. The court below, upon 
hearing the Appellees’ motion for summary judgment, 
refused to sustain Appellees’ contention that the action 
is premature (Joint Appendix 63).

II. T here Is A Justic iab le  C ontrovery Between 
These A ppellees A nd A ppellants.

Appellees’ argument that there is no justiciable case 
or controversy rests primarily on the contention that it 
is the local authority which leases the housing units and 
it alone determined that this project will be occupied by 
white families. Thus, the basis of this argument is that 
Appellees have done no act which can be considered the 
legal cause of Appellants ’ injury. This contention, Appel­
lants submit, is wholly specious. In Appellants’ brief, 
the nature and extent of the Public Housing Administra­
tion’s involvement in the local program has been related 
in detail (Appellants’ brief pp. 8-18). The bulk of this 
factual material thus need not be reiterated here. The 
inescapable conclusion, however, is that the Public Housing 
Administration’s involvement is so extensive and com­
plete in the planning, construction and operation of each 
project that it cannot be seriously contended that this low-



2

rent public housing program is a local undertaking devoid 
of any major federal control.

Of particularly crucial importance is the special role 
played by the Public Housing Administration with respect 
to local racial policies. In Appellants’ brief (p. 14) there 
is set forth the Public Housing Administration’s so-called 
“ racial equity formula” and the more recent policy direc­
tive promulgated in a release issued January 17, 1953 
(HHFA-OA No. 470) (pp. 14-16). The significance of the 
Appellees’ racial equity formula and related policy is 
candidly admitted in the affidavit of Mr. John T. Egan, 
the Commissioner of the Public Housing Administration, 
which is attached to Appellees’ motion for summary judg­
ment. He states that:

“ (b) The regulations of the Public Housing 
Administration further require that programs for 
the development of low-rent housing must reflect 
equitable provision for eligible families of all races 
determined on the approximate volume and urgency 
of their respective needs for such housing (Low- 
Bent Housing Manual, Section 102.1, a copy of which 
is attached to this affidavit as Exhibit 2) ” (emphasis 
supplied) (Joint Appendix p. 20).

The nature of the role played by the Public Housing- 
Administration with respect to local racial policies can 
be pinpointed in the following manner. If a local authority 
such as the Savannah Housing Authority is interested in 
securing approval for a development program, it has two 
alternatives. First, it can agree to make all low-rent 
public housing projects to be constructed by it available 
for occupancy to all racial groups without discrimination 
or segregation of any kind.

However, if such a plan is unacceptable to the local 
authority, it has a second alternative. It can agree to pro­



3

vide a specified number of units for the occupancy of white 
families and a specified number for the occupancy of Negro 
families, the families to be housed on a racially segregated 
basis. If the percentage for white families and the per­
centage for Negro families meet the standards for achiev­
ing racial equity determined by the Public Housing Admin­
istration, then the Development Program is approved in so 
far as this aspect is concerned. (See affidavit of John T. 
Egan, Joint Appendix pp. 23-24). In the instant case, the 
percentages approved by the Public Housing Administra­
tion were 36.7% of the dwelling units for whites and 63.3% 
of the units for Negroes. This overall percentage allocation 
must be approved by the Public Housing Administration. 
And once it was approved, it became a part of the con­
tractual relationship between the Public Housing Adminis­
tration and the Savannah Housing Authority.

There is, of course, logically a third possible alterna­
tive. The local authority could conceivably have complete 
freedom of choice. But a local housing authority has no 
such freedom, and it is the determination of the Public 
Housing Administration which deprives local authorities 
of such freedom.

In the instant case, the Savannah Housing Authority 
was obviously unwilling to agree to the first alternative 
noted above—i.e., open occupancy. Therefore, it was 
required by the Public Housing Administration to agree 
to the second alternative plan, i.e., segregated housing, 
with a specified percentage allocation to white families and 
to Negro families. For short-hand reference, we shall term 
the second plan the “ segregation-quota” plan. Once the 
Savannah Housing Authority agreed to the “ segregation- 
quota” plan and once the number of units for whites and 
the number of units for Negroes was agreed upon and thus 
made a part of the contractual relationship between the



4

parties, the Savannah Authority had no contractual right to 
deviate. The Savannah Authority obviously has no right to 
lease to white persons all units in all projects including 
those units designated exclusively for Negroes. Similarly, 
it has no right to lease all units in all projects to Negroes. 
In other words, the Savannah Authority has no right to 
deviate in any way from the quota system agreed upon, 
i.e., 36.7% of the dwelling units for whites and 63.3% of 
the dwelling units for Negroes. Thus, the statement in 
Appellees’ brief that they would have no objection if the 
local authority were to decide to admit Negro occupants 
(p. 13) is a flagrant distortion. If the Savannah Authority 
decided to integrate projects designated exclusively for 
whites, while leasing the projects designated exclusively 
for Negroes in conformance with the overall plan, then 
Negroes in Savannah would be securing a disproportionate 
number of units in violation of the Public Housing Adminis­
tration’s racial equity formula. Such action by the Savan­
nah Authority would thus clearly be in violation of the 
contractual relationship between it and the Public Housing 
Administration.

Plaintiffs are individual Negroes who claim that on the 
basis of their qualifications (and with the factor of race 
excluded) that they are entitled to be admitted to the Fred 
Wessels Homes. The Savannah Authority cannot admit 
these plaintiffs, for its contractual relationship with the 
Public Housing Administration requires it to allocate only 
63.3% units to Negro families and 36.7% to white families. 
For the Savannah Authority to admit Negroes to the Fred 
Wessels Homes would thus destroy the elaborate quota 
system set up and as required by the Public Jlousing 
Administration. The Savannah Authority has no contrac­
tual right to do this.

A hypothetical situation may help clarify the above 
analysis. Assume that a local housing authority chooses 
the “ segregation-quota” plan of development. Assume



b

further that the local authority agrees with the Public 
Housing Administration’s determination that an alloca­
tion of 200 units for whites and 200 units for Negroes will 
provide racial equity. This agreement of course becomes 
a part of the contractual relationship between the local 
authority and the Public Housing Administration. Assume 
further that the Negro project is completed first and that 
200 Negro families are given occupancy. If 50 additional 
Negroes were to apply to the local housing authority and 
were able to prove that they were more qualified and had 
a higher priority than 50 white families who were scheduled 
to be given occupancy in the 200 unit white project, could 
the local housing authority admit these 50 Negro families 
along with 150 white families to the project originally 
designated for whites? Appellants submit that the local 
authority would have no contractual right to admit these 50 
Negroes because such an act on the part of the local au­
thority would be in violation of the racial equity formula 
agreed upon by the local authority and required by the 
Public Housing Administration. Thus, it is the Public 
Housing Administration which determines whether any 
given Negro family can be admitted to Fred Wessels Homes. 
It is these Appellees who have made the determination to 
limit Fred Wessels Homes to occupancy by white families 
to the injury of these Appellants.

It is Appellants’ position that Appellees here do con­
siderably more than supply funds to the local authority. 
On the contrary, the Appellees exercise complete super­
visory control and participate in every material determi­
nation. However, even if this court should conclude that 
the role played by the Appellees is limited to the expendi­
ture of funds, Appellants contend that such expenditures 
here are unlawful and violative of their rights and that 
Appellants, therefore, have a justiciable case or contro­
versy.



6

The equal protection clause of the Fourteenth Amend­
ment prohibits the Savannah Housing Authority, a state 
agency, from leasing housing units on the basis of race or 
color. See cases cited in Appellants’ brief, pages 22-30. 
The expenditures by the Public Housing Administration 
constitute more than minor assistance—the expenditure of 
federal funds makes the illegal project possible.1 By these

1 Federal financial involvement in a project may precede the 
actual construction of the project and may continue for as long a 
period as sixty years after its construction.

The federal agency administering the basic act is authorized by 
it to make loans to local public housing agencies. These loans may 
be made for the purpose of assisting the local agency in defraying 
the costs involved in developing, acquiring or administering a project. 
PHA may therefore commence involving the federal government 
financially by making a preliminary loan to the local agency in order 
that it may have the funds with which to proceed to make plans for 
the proposed project and to conduct any necessary surveys in connec­
tion therewith. PHA may then make a further loan which enables 
the local agency to meet the cost of construction and to repay the 
preliminary loans. It may even loan money to pay any costs in 
administering the project.

PHA is, in addition, authorized by the basic enactment to specify 
in a contract with a local agency that it will contribute a fixed sum 
annually over a predetermined period of years “to assist in achieving 
and maintaining the low-rent character” of the project. PHA may 
therefore commit the federal government to financially subsidizing 
a project, after it is constructed, for a period as long as sixty years. 
From this subsidy the local agency may presumably repay any monies 
loaned to it by the federal government for construction of the project 
or in connection with its administration.

The annual contribution made by the federal agency is one of 
two methods provided whereby the federal government may subsidize 
a public housing project. The alternate method of effecting a federal 
subsidy provided for in the act provides for a capital grant to a local 
agency in connection with the development or acquisition of a project 
which will thereby enable it to maintain the low rent character of the 
project. PHA may make a capital grant in any amount which it 
considers necessary to assure the low rent character of the project. 
The PHA may, therefore, make a capital grant to a local agency 
which will pay the entire cost of development or acquisition of a 
project.



7

expenditures, the Public Housing Administration know­
ingly supplies the state agency with the means whereby 
the latter can effectively discriminate in violation of the 
Fourteenth Amendment. In so doing, Appellees flagrantly 
violate Appellants’ rights and the public policy of the 
United States.

Further, there is a firm basis in the common law to 
support our contention that a justiciable case or contro­
versy exists. See Joint Anti-Fascist Refugee Comm. v. 
McGrath, 341 U. S. 123, 159. For example, it has long been 
the law of unfair competition that one who furnishes 
another with the means of consummating a fraud is also 
guilty of unfair competition. See, Federal Trade Commis­
sion v. Winsted Hosiery Co., 258 U. S. 483, 494. Section 
876 of the Restatement of Torts expresses general prin­
ciples which are firmly imbedded in the common law.

In addition to this financial assistance which may be given to a 
local agency, PHA is further authorized to involve the federal gov­
ernment financially in the event of any foreclosure by any party on, 
or in the event of any sale of, any project in which the federal gov­
ernment has a financial interest. In the event of foreclosure, PHA 
may bid for and purchase such a project, or it may acquire and take 
possession of any project which it previously owned or in connection 
with which it has made a loan, annual contribution or capital grant. 
In such case it may complete the project, administer the project, pay 
the principal of and the interest on any obligation issued in connec­
tion with the project, thus further involving the federal government 
financially.

Finally, in the event of any substantial contractual default on the 
part of the local agency, PHA may involve the federal government to 
the extent of taking title or possession of a project as then consti­
tuted and must involve the federal government further financially 
by continuing to make annual contributions available to such project 
to pay the principal and interest on any obligation for which these 
contributions have been pledged as security.

It is, therefore, quite possible for the financial involvement of the 
federal government to constitute at some point the entire financial 
investment in a project. [Title 42 U. S. C. Secs. 1409, 1410, 1411, 
1413, 1415, 1421.]



8

“ Section 876 Persons Acting In Concert 
For harm resulting* to a third person from the tor­
tious conduct of another, a person is liable if he * # *

“ (b) knows that the other’s conduct consti­
tutes a breach of duty and gives substantial 
assistance or encouragement to the other so to 
conduct himself, or

“ (c) gives substantial assistance to the other 
in accomplishing* a tortious result and his own 
conduct, separately considered, constitutes a 
breach of duty to the third person.”

The above principles can be used by analogy to demon­
strate that even if the injury which Appellants receive 
originates from the unlawful conduct of the Savannah 
Housing Authority, Appellees’ participation nevertheless 
can be considered to be a legal cause of Appellants ’ injury.

Massachusetts v. Mellon and Frothingham v. Mellon, 
262 U. S. 447, upon which Appellees rely in Point Y of their 
brief, present merely one aspect of the general problem of 
justiciable issue. The Frothingham ease, which is the one 
more pertinent here, decided merely that federal taxpayers 
have too remote an interest in the expenditure of fed­
eral funds to be deemed legally injured by such expendi­
ture. Appellants here do not sue as taxpayers. On the 
contrary, Appellants sue as low-income families for whose 
specific benefit the federal government’s low rent housing 
program was enacted and as displaced families who, by 
express statutory provisions, must be granted preference 
for admission to Fred Wessels Homes. Hence, the doc­
trine of Massachusetts v. Mellon is not applicable and the 
question of justiciable case or controversy must be deter­
mined on the basis of principles already discussed.



9

III. A ppellees H ave In ju red  A ppellan ts By D eny­
ing Them  The S tatu to ry  Preference For Admission.

In the preceding section of this brief Appellants have 
demonstrated that it is Appellees who are responsible for 
the Fred Wessels Homes racial policy. Since it is Apelllees 
who require that Fred Wessels Homes be limited to white 
occupancy, it is Appellees who are denying- displaced Negro 
families their statutory preference for admission.

Congress has imposed upon Appellees the duty to see to 
it that every contract for annual contributions contains a 
clause requiring the local authority to extend preference 
to displaced families for admission to any low-rent housing 
project initiated after January 1, 1947. Appellees’ conten­
tion that their sole duty is to place the preference provision 
in each annual contributions contract is weak and uncon­
vincing. Certainly Congress intended to give those for 
whom it intended a preference a more substantial right than 
that. It must necessarily have been the intention of Con­
gress that the federal agency administering the Act should 
have the duty to enforce this provision. Appellees ’ failure 
to require the Savannah Authority to grant Appellants the 
preference to which they are entitled is the proximate legal 
cause of Appellants ’ injury.

If the statutory preference has any meaning, then cer­
tainly the holder of the preference has the right to receive 
occupancy as soon as it is available, consistent with the 
rights of others with a higher priority. It is indeed a rare 
species of preference which grants the holder occupancy in 
1955, while others with no preference obtain occupancy 
in 1954.



10

IV. The Savannah  H ousing A uthority  Is Not An
Indispensable Party .

Appellees in their motion for summary judgment urged 
that the Savannah Housing Authority is an indispensable 
party. However, the court below, upon hearing* Appellees ’ 
motion, refused to sustain this contention (Joint Appendix 
63).

Appellees on this appeal renew this contention, urging: 
that the lower court’s dismissal of the complaint be affirmed, 
on this ground. Appellees here contend that the Savannah 
Authority is indispensable for two reasons: 1) that it is 
the Savannah Authority and not these Appellees which is 
proposing the occupancy policy which Appellants challenge, 
and 2) that Appellants seek to invalidate Savannah’s con­
tractual rights in this action.

Appellants, in section II of this brief, have demonstrated 
that it is these Appellees by their own admission in Mr. 
Egan’s affidavit who required, proposed, and approved the 
occupancy policy of which Appellants complain. Appellees ’ 
first reason for urging that the Savannah Housing Author­
ity is an indispensable party is therefore without substance.

The Savannah Housing Authority has a contractual 
right to receive from Appellees federal funds for the con­
struction and operation of Fred Wessels Homes. But 
Savannah’s contractual right to receive such funds is obvi­
ously contingent upon its and Appellees’ compliance with 
the Housing Act of 1937, as amended, specifically section 
1410(g) of Title 42, United States Code. This right is 
further conditioned upon compliance with the Fifth Amend­
ment to the Constitution of the United States by Appellees, 
and upon compliance by both Appellees and the Savannah 
Authority with the provisions of Title 8 Section 42 of the 
United States Code. Appellees, as federal administrative 
officials, are subject to federal constitutional and statutory



11

proscriptions on their right to contract. They are under a 
duty to administer the federal program involved here in 
conformity with the Constitution, laws and public policy of 
the United States.2 The Savannah Housing Authority is 
likewise subject to federal constitutional and statutory pro­
scriptions on its right to contract. Neither these Appellees 
nor the Savannah Authority can lawfully contract to violate 
rights secured to Appellants by the Constitution and laws 
of the United States or in violation of the public policy of 
the United States.

Appellants in their brief have demonstrated that the law 
is clearly established that the Savannah Authority may not. 
under the equal protection clause of the Fourteenth Amend­
ment, enforce a policy of racial segregation in public hous­
ing. Since the Savannah Authority does not have the right 
to enforce racial segregation in public housing, it cannot 
have a right to receive federal funds from Appellees for 
the operation of a project from which Appellants will be 
excluded and denied admission solely because of race and: 
color under the “ segregation-quota” plan. Therefore, no 
legally protected right of the Savannah Authority could be 
adversely affected by a judgment for the Appellants in this 
action. Thus, the Savannah Authority is not an indispen­
sable party. Franklin Township in Somerset County, 
N. J. v. Tugwell, 85 F. 2d 208 (C. A. D. C. 1936); Rorick v. 
Brd. of Comm’rs, Everglades Drainage District (N. D. Fla., 
1928), 27 F. 2d 377, 381.

2 The most recent evidence of the public policy of the United States 
government is contained in a Memorandum issued January 12, 1954 by 
Secretary of Defense Charles E. Wilson barring racial segregation in 
schools operated by local public agencies on military posts. In Secre­
tary Wilson’s Order the policy of the United States government in 
cases involving the use of federal funds is made clear and unequiv­
ocal. The public policy issue in the instant case is identical with the 
public policy issue in the Wilson Order.



12

In addition, a judgment for Appellants, as a practical 
matter, will not result in any real injury to the Savannah 
Authority, since despite a judgment for the Appellants, it 
can nevertheless receive the money contracted for by simply 
adopting an open occupancy policy. In other words, the 
money contracted for can always be obtained by Savannah 
by complying with the law.

The public policy issue here asserted by Appellants 
supercedes any contract rights of the Savannah Housing 
Authority alleged to be at stake in this action. In fact, even 
in purely private litigation, where the rights asserted arise 
independently of any contract which the adverse party may 
have made with another, not a party to the suit, many courts 
have allowed the suit to be maintained if the absent party 
to the contract could not be joined. See, National Licorice 
Company v. National Labor Relations Board, 309 U. S. 350, 
363-364, and cases cited therein.

If the Housing Authority of Savannah is an indispen­
sable party to the instant case, it follows that Appellees 
here would be indispensable to a suit in Savannah against 
the Savannah Authority because Appellees’ contractual 
rights would be equally affected in such an action. The 
Savannah Authority, as Appellees point out, may not be 
joined in this action because it is outside the jurisdiction 
of the court below. Similarly, Appellees could not be joined 
in an action in Savannah since they would be outside the' 
jurisdiction of both the state and federal courts in Savannah. 
The suggestion, therefore, that Savannah is an indispen­
sable party, if sustained, would render these Appellants 
remediless in a case where federal constitutional and statu­
tory rights are sought to be secured and where vindication 
of the public policy of the United States is sought. Where 
the public interest or public policy is involved and parties 
deemed proper or even necessary cannot be brought before 
the court, a federal court should not refuse to proceed to



13

judgment without such parties. National Licorice Company 
v. National Labor Relations Board, 309 U. 8. 350.

Balter v. I  ekes, 89 F. 2d 856 (C. A. D. C. 1937), relied 
on by Appellees in urging lack of indispensable party, 
involved three factors not present in the instant case. First, 
in that case, the defendant federal official held the property 
of the City of St. Louis, the party not before the court. In 
ruling that St. Louis was an indispensable party, the court 
was simply following the settled line of decisions that where 
there is property to be disposed of the court cannot do so in 
the absence of those parties whose interest in such property 
will be determined by its decree. In this case Appellees 
hold no property of the local authority.

The second factor is that the plaintiffs sought to annul 
the contract between the federal officers and St. Louis. 
Here Appellants do not seek, as Appellees contend, to 
have the contract between them and Savannah Housing 
Authority annulled, per se. They seek to have the perform­
ance of the contract conditioned on securing their constitu­
tional and statutory rights and seek to have the contract 
carried out in accordance with the public policy of the 
United States.

The third factor is that the court was of the opinion that 
the plaintiffs were “ third parties, asserting a somewhat 
questionable interest. ’ ’ Balter v. lekes, supra, at 359. The 
plaintiffs in that case failed to show legal injury inflicted 
by either the federal officials or the City of St. Louis. The 
Balter case therefore was one in which there was no real 
controversy between the plaintiffs and defendants.

Appellees cite Money v. Wallin, 186 F. 2d 411 (C. A. 3rd, 
1951); Payne v. Fite, 184 F. 2d 977 (C. A. 5th, 1950); Daggs 
v. Klein, 169 F. 2d 174 (C. A. 9th, 1948); Smart v. Woods, 
184 F. 2d 714 (C. A. 6th, 1950); Berlinsky v. Wood, 178 
F. 2d 265 (C. A. 4th, 1949); Jacobs v. Office of Housing



14

Expeditor, 176 F. 2d 338 (C. A. 7th, 1949), and Ainsworth v. 
Barn Ballroom Company, 157 F. 2d 97 (C. A. 4th, 1946), 
all of which involved the question whether the defendants ’ 
superior officer was an indispensable party. Since this 
question is not involved in this action, these cases are clearly 
inapplicable.

Appellees also rely on Fulton Iron Company v. Larson, 
171 F. 2d 994 (C. A. D. C. 1948), and State of Washington v. 
United States, 87 F. 2d 421 (C. A. 9th, 1936). In the Larson 
case the real basis of the decision was that the plaintiff was 
a mere member of the public who had no right which had 
been violated by the federal officer. An alternative basis of 
the decision was that the case was in fact a suit against the 
United States. In State of Washington v. United States, 
supra, the situation there was quite different from the one 
presented in the instant case. There suit was brought by 
the United States against two private companies to obtain 
title and to be adjudged owner of certain lands between the 
States of Washington and Oregon. The private companies 
were the lessees of the States. The States had been denied 
the right to intervene and on appeal the court held that the 
States were indispensable parties to such an action. In the 
instant case, title to property is not in dispute.

It is only where a decree would do violence to equity 
and good conscience that a court should refuse to proceed 
to judgment without an absent party. Barrow v. Shields, 
17 How. (U. S.) 130, 139. In Bourdien v. Pacific Western 
Oil Company, 299 U. S. 65, 70-71, the Court said:

‘ ‘ The rule is that if the merits of the cause may be 
determined without prejudice to the rights of neces­
sary parties, absent and beyond the jurisdiction of 
the court, it will be done; and a court of equity will 
strain hard to reach that result. (Citing cases.)

“ We refer to the rule established by these authori­
ties because it illustrates the diligence with which



15

courts of equity will seek a way to adjudicate the 
merits of a case in the absence of interested parties 
that cannot be brought in. ’ ’

It should be noted, further, that if, as Appellees contend, 
the Savannah Housing Authority has such an interest in 
this case that it ought to be brought in, there is nothing 
which prevents the said Authority from voluntarily appear­
ing in this action. Matters of jurisdiction and venue may 
always be waived. See, Howard v. United States ex red. 
Alexander, 126 F. 2d 667 (C. A. 10th, 1942); and Blank v. 
Bitker, 135 F. 2d 962 (C. A. 7th, 1942).

Appellants therefore urge that the lower court be sus­
tained in its view that the Savannah Authority is not an 
indispensable party.

Conclusion

For the foregoing reasons, Appellants urge that the judg­
ment of the court below be reversed.

Respectfully submitted,

F r a n k  A. D il w o r t h , I I I ,
458)/2 West Broad Street, 

Savannah, Georgia;
T httrgood M a r s h a l l ,
C o n s t a n c e  B a k e r  M o t l e y ,

107 West 43rd Street,
New York 36, N. Y.;

F r a n k  D . R e e v e s ,
2000 Ninth Street, N. W., 

Washington 1, D . O.;
Attorneys for Appellants.

D avid  E. P in s k y ,
of Counsel.