Railway Mail Association v. Corsi; Screws v. U.S.; Mays v. Burgess
Public Court Documents
January 6, 1944 - December 31, 1944
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Brief Collection, LDF Court Filings. Railway Mail Association v. Corsi; Screws v. U.S.; Mays v. Burgess, 1944. f3fc6178-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/60df7a79-082c-4680-bebb-595dfbb5acd6/railway-mail-association-v-corsi-screws-v-us-mays-v-burgess. Accessed October 08, 2025.
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Supreme Court
Of the State of New York
A ppellate D ivision— T hird D epartment
B ailw ay M ail A ssociation,
Plaintiff-Respondent,
against
E dward S. Corsi, as Industrial
Commissioner of the State of
New York, and N athaniel L.
G oldstein, as Attorney Gen
eral of the State of New York,
Defendants-Appellants.
BRIEF FOR THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED
PEOPLE.
Arnicas Curiae.
The N. A. A. C. P. Legal Defense & Educa
tional Fund, Inc., is submitting a brief herein as
amicus curiae because of its interest in the ques
tion raised in this case. The N. A. A. C. P. Legal
Defense & Educational Fund, Inc., is an organi
zation devoted to the furtherance and protection
of the civil rights guaranteed by the Constitution
of the United States. For many years it has sup
ported individuals and groups whose basic rights
were threatened or invaded. Believing that this
case presents an issue of importance to the Negro
race generally, and to all persons interested in
the protection of civil rights, we beg leave to sub
mit the following brief discussion:
2
That the Railway Mail Association is a “ labor
organization” within the definition of the Civil
Rights Law, section 43, has been conclusively
established in the brief of the Attorney General
of the State of New York. In addition to the au
thorities and sources therein cited, we wish to call
attention to the following works:
In Patterns of Negro Segregation, by Professor
Charles S. Johnson, published in 1943 by Harper
and Brothers under a grant in aid by the Carnegie
Corporation of New York, it is stated:
“ Although there are isolated exceptions and
occasional changes in practice, existing labor
unions fall into a broad classification by racial
policy as follows: (1) Labor unions which
exclude all Negroes by special clauses in their
constitutions or rituals: . . . railway mail
clerks” (p. 98; italics supplied).
In an article in the June, 1943, issue of The
Journal of Political Economy, Herbert R. North-
rup, whose book on the Negro and American labor
unions is now in press, Harper and Brothers pub
lishers, says:
“ At least 15 American trade unions spe
cifically exclude Negroes from membership by
explicit provisions in either their constitutions
or rituals. Of these, six . . are of no great
importance in barring Negroes from jobs,
since none of them has a membership exceed
ing 3,000. Quite different, however, is the
effect of the remaining 9 exclusionist unions,
for they include some of the larger and more
influential organisations in the American
labor movement, namely: . . . the Railway
Mail Association” (pp. 206 and 207; italics
supplied).
3
It is clear from the material cited in the Attor
ney General’s brief and from the above passages
that the plaintiff-respondent is, in the full sense
of the term, a “ labor organization” within the
definition in section 43 of the Civil Eights Law.
That the Labor Law provisions are inapplicable
to the present action is clear from the history of
the Civil Rights Law, section 43. Furthermore,
the latter act contains within itself a definition of
a “ labor organization” . The statute states that
“ as used in this section ( (meaning section 43)), the
term Tabor organization’ means any organization
which exists and is constituted for the purpose, in
whole or in part, of collective bargaining, or of
dealing with employers concerning grievances,
terms or conditions of employment, or of other
mutual aid or protection” . By its very terms the
statute excludes the incorporation by reference of
a definition of a “ labor organization” from an
other statute on the basis of the rule of statutory
interpretation relating to legislative acts construed
to be in pari materia. To permit the plaintiff-re
spondent to get out “ from under” section 43 of
the Civil Rights Law by the argument that it is
not a “ labor organization” , is to open the door
to a nullification of the statute in practice.
The question of the constitutionality of section
43 of the Civil Rights Law has been adequately
covered by the brief of the Attorney General.
In view of the public policy on which the statute
is based, it is respectfully submitted that Mr. Jus
tice M urray committed legal error when he gave
to the section such narrow construction as to ex
clude from its coverage the Railway Mail Associa
tion. The practices of the Association would be
indefensible at any time, but especially are they
4
so at a time when our country needs every ounce
of manpower in order to defeat the Nazi and
Fascist system, which has as one of its chief tenets
a belief in the superiority of one race over an
other. The exclusion of Negro workers from a
labor organization keeps from jobs men and
women whose energy and industry are essential
to national defense. The Railway Mail Associa
tion, by its policy of exclusion of Negroes solely
because of their color or race, is committing an
act which is against the law, as well as an act
which outrages the basic principles of the demo
cratic pattern of life.
W herefore, it is subm itted that the order and
judgm ent below should be reversed and the com
plaint dism issed.
The City of New York, January 6, 1944.
Respectfully submitted,
E dward R. D udley,
Attorney for N. A. A. C. P. Legal
Defense & Educational Fund, Inc.
New York, New York.
T hurgood M arshall,
Baltimore, Maryland.
M ilton R. K onvitz,
Newark, New Jersey.
W illiam H . H astie,
Washington, D. C.
L eon A. R ansom ,
Columbus, Ohio.
Of Counsel.
L a w y e e s P bess, I nc., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300
§>uprrmr Court
A ppellate D ivision— T hird D epartment.
STATE OF NEW YORK.
RAILWAY MAIL ASSOCIATION,
Plaintiff-R esponderd,
against
EDWARD S. CORSI, as Industrial Com
missioner of the State of New York, and
NATHANIEL L. GOLDSTEIN, as At
torney-General of the State of New York,
D efendam ts-Appellants.
RECORD ON APPEAL
NATHANIEL L. GOLDSTEIN,
Attorney General of the State of
New York,
Attorney for Defendants-Appellants,
Office and P. 0. Address,
The Capitol,
Albany, New York.
DUG AN & DUGAN,
Attorneys for Plaintiff-Respondent,
Office and P. O'. Address,
90 State Street,
Albany, New York.
I N D E X .
PAGE
Statement Under Buie 234................................ 1
Notice of A p p ea l................................................ 2
Complaint ........................................................... 3
A nsw er................................................................. 17
Stipulation Presenting Issues to Special Term 18
Judgment Appealed from ........................ 23
Order Appealed from ...................................... 27
Opinion of Mr. Justice Murray....................... 30
Stipulation Waiving Certification......................44
'
STATE OF NEW YORK.
Court
A ppeelate D ivision— T hird D epartment.
RAILWAY MAIL ASSOCIATION,
Plaintiff-Respondent,
against
EDWARD S. CORSI, as INDUSTRIAL
COMMISSIONER of the State of New „
York, and NATHANIEL L. HOLD-
STEIN, as Attorney-General of the
State of New York,
Defendants-Appellants.
STATEMENT UNDER RULE 234.
This suit was commenced on December 28, 1942,
by service of the summons and verified complaint
upon the defendants. Those have been at all
times the officials discharging the duties of Indus
trial Commissioner and Attorney General, respec
tively, who were in 1942 Frieda S. Miller and John
J. Bennett, Jr., for whom have been substituted at
various times the persons succeeding to those of
ficial duties, the stipulations for such purpose be
ing omitted from printing in this record. Since
January 1, 1943, Nathaniel L. Goldstein has been
Attorney General and attorney for the defend
ants, and in November, 1943, Edward S. Corsi be
came Industrial Commissioner.
2
Notice of Appeal.
Issue was joined on or about May 28, 1943, by
service of a verified answer, and on September
16, 1943, the parties entered into a written stipu
lation upon which the issues were presented to the
Special Term.
NOTICE OF APPEAL.
SUPREME COURT—ALBANY COUNTY.
5 RAILWAY MAIL ASSOCIATION,
Plaintiff,
against
EDWARD S. CORSI, as Industrial Com
missioner of the State of New York, and
NATHANIEL L. GOLDSTEIN, as At
torney-General of the State of New York,
Defendants.
T o :
6 Dugan & Dugan,
Attorneys for Plaintiff,
90 State Street, Albany, New York.
And:
Albany County Clerk.
PLEASE TAKE NOTICE, that the defendants
above named (the defendant Edward S. Corsi hav
ing recently been appointed Industrial Commis
sioner and thus succeeded the former defendant,
Michael J. Murphy, as Acting Industrial Com-
3
missioner) hereby appeal to the Appellate Divi- y
sion, Third Department, from the order and judg
ment herein entered and filed in Albany County
Clerk’s office on November 24, 1943, and this ap
peal is from each and every part of such order and
judgment.
November 30, 1943.
NATHANIEL L. GOLDSTEIN,
Attorney-General of the
State of New York,
: Attorney for Defendants.
COMPLAINT.
STATE OP NEW YORK.
SUPREME COURT—ALBANY COUNTY.
-----------------------------------------——-----------\
RAILWAY MAIL ASSOCIATION,
Plaintiff, g
against
FRIEDA S. MILLER, as Industrial Com- .̂
missioner of the State of New York, and
JOHN J. BENNETT, JR., as Attor
ney-General of the State of New York,
Defendants.
Complaint.
Plaintiff for a cause of action herein through
Dugan & Dugan, its attorneys, alleges as follows:
4
̂ 1 . That the defendant, Frieda S. Miller, now
is .and was at the time herein stated the Industrial
Commissioner of the State of New York duly ap
pointed and acting and as such is the head of the
Department of Labor under the Labor Law of the
State of New York.
2. That the defendant, John J. Bennett, Jr.,
is the Attorney-General of the State of New York
duly elected and acting as such; that under Sec
tion 62 of the Executive Law of the State of New
York it is the duty of the Attorney-General to
1 1 prosecute and defend all actions and proceedings
in which the State is interested, and to have charge
and control of all the legal business of the depart
ments and bureaus of the State or of any office
thereof which requires the services of an attorney
or counselor.
3. That the plaintiff now is and was at all the
times hereinafter mentioned a foreign corpora
tion organized under the laws of the State of
New Hampshire and having its principal office at
̂ the City of Portsmouth in said State of New
Hampshire. That it is organized and established,
among other purposes, to conduct the business of
a fraternal beneficiary association for the sole
benefit of its members and beneficiaries and not
for profit.
4. That the other enumerated objects contain
ed in the charter of the plaintiff are as follows r
to promote closer social relationship among Rail
way Postal Clerks, to better enable them to per
fect any movement that may be for their benefit
Complaint.
5
Complaint.
as a class or for the benefit of the Railway Mail j ;>
Service; to provide relief for its members and
their beneficiaries and make provision for the pay
ment of benefits to them in case of death, sickness,
temporary or permanent physical disability, eith
er as a result of disease, accident or old age.
5. That for the purpose of administering the
business and fraternal affairs of the Railway Mail
Association there are established and maintained
a. National Association, Division Associations and
Branch Associations; that the Division Assoeia-
tions are established and maintained in areas in 4
accordance with the division of the Railway Mail
Service conducted by the United States of Amer
ica and with Branch Associations established 'with
in the areas and jurisdictions of said Division As
sociations.
6. That under Article III of the Constitution
of said Railway Mail Association membership
therein is confined to regular male Railway Pos
tal Clerks or male substitute Railway Postal
Clerks of the United States Railway Mail Serv- jg
ice who are of the Caucasian race or are native
American Indians.
7. That appointments and promotions in the
Railway Mail Service of the United States are
made under and pursuant to the Civil Service
Laws of the Government of the United States.
8. That the plaintiff carries on and conducts
its business and fraternal affairs through the Di
vision and Branch Associations aforesaid and
with the permission of various States of the Unit-
Complaint.
jg ed States, among which is the State of New York,
and that within such State of New York there are
established and maintained thirteen Branch As
sociations located in different parts of said State.
9. That under the Constitution of the plaintiff,
Article IV, the National Convention of the plain
tiff is the supreme executive, legislative and judi
cial body of the order and possesses and exer
cises the power to make' a Constitution, laws,
rules and regulations for the government of the
National Association, and of all Division Asso-
17 ciations and Branch Associations; and to annul,
repeal, modify, revise and change the same front
time to time; also to provide rules for the issu
ance of Charters to. Division Associations and
Branch Associations; and provide for its own
support, and do all other legitimate acts proper
or necessary to promote the welfare of the Rail
way Mail Association and to control its funds. .
10. That said Constitution provides further
that Division Associations and Branch Associa-
■jg tions shall adopt a Constitution, by-laws, rules
and regulations not inconsistent with the provi
sions of the plaintiff’s Constitution, and may
amend, repeal, modify, revise and change the
same from time to time, and that no Division or
Branch Constitution or amendment thereto shall
become operative or in force until approved by
the Executive Committee of the Railway Mail As
sociation.
11. That the plaintiff by its Constitution pro
vides for and selects an Executive Committee to
7
conduct the business and affairs of the plaintiff jg
in the interim between National Conventions which
Committee is the supreme executive and judicial
body of the plaintiff during the period between
holdings of its National Convention; that such
National Conventions are appointed to be held bi
ennially in the odd numbered years and that the
last National Convention was held in October,
1941, and that no National Convention is appoint
ed to be held until 1943, and that said Executive
Committee has authorized the commencement of
this action for the purpose of having the rights 20
of the plaintiff declared and established in the
declaratory judgment sought herein.
12. That membership in the Railway Mail As
sociation is comprised of- two classifications; one
of which is designated as general or 11011-benefi
ciary membership', and the other as beneficiary or
full membership.
That the beneficiary members contribute to a
benefit fund established by the levy upon said
beneficiary members of assessments which benefit 21
fund is created and maintained for the purpose
of paying claims of such beneficiary members or
their beneficiaries resulting from death or dis
ability occasioned to said beneficiary members
through external, violent and accidental means.
That the entire membership' in the Railway Mail
Association comprises upwards of 22,000 mem
bers, 99% of whom hold beneficiary or full mem
bership in said Association,
Complaint.
8
gg 13. That the Branch Associations of said Rail
way Mail Association have the right, subject only
to the terms and limitations contained in the Con
stitution of the Railway Mail Association, to pass
upon applications for and to elect and initiate ap
plicants into membership in the Railway Mail As
sociation.
14. That under the provisions of Article 20 of
the Labor Law of the State of New York, being
chapter 443 of the laws enacted in 1937, it is pro
vided under Subdivision 5 of Section 701, that,
23 “ The term ‘ labor organization’ means any
organization which exists and is constituted
for the purpose, in whole or in part, of collec
tive bargaining, or of dealing with employers
concerning grievances, terms or conditions of
employment, or of other mutual aid or protec
tion and which is not a company union as de
fined herein.”
15. That by Section 715 of the said Labor
Law, it is provided that,
24 “ The provisions of this article shall not
apply to the employees of any employer who*
concedes to and agrees with the board that
such employees are subject to and protected
by the provisions of the National Labor Re
lations Act or the Federal Railway Labor
Act, or to employees of the state or of any
political or civil subdivision or other agency
thereof, or to employees of charitable, edu
cational or religious associations or corpora
tions.”
Complaint.
9
16. That by Chapter 9 of the Laws of the State 2
of NewT York for the year 1940, Article 4, of the
Civil Rights Law of the State of New York was
amended by adding thereto a new section knoYn
as Section 43 which reads as follows:
“ Discrimination by labor organizations
prohibited. As used in this section, the term
‘ labor organization’ means any organization
which exists and is constituted for the pur
pose, in whole or in part, of collective bar
gaining, or of dealing with employers con
cerning grievances, terms or conditions of 26
employment, or of other mutual aid or protec
tion. No labor organization shall hereafter,
directly or indirectly, by ritualistic practice,
constitutional or by-law prescription, by tacit
agreement among its members, or otherwise,
deny, a person or persons membership in its
organization by reason of his race, color or
creed, or by regulations, practice or other
wise, deny to any of its members, by reason
of race, color or creed, equal treatment with
all other members in any designation of mem- 27
bers to any employer for employment, pro
motion or dismissal by such employer.”
17. That Section 41 of the Civil Rights Law of
the State of New York now in force provides as
follows:
“ Any person who or any agency, bureau,
corporation or association which shall vio
late any of the provisions of sections forty,
forty-a, forty-b or forty-two or who or which
shall aid or incite the violation of any of said
Complaint.
C
l
10
provisions and any officer or member of a
labor organization, as defined by section for
ty-three of this chapter, or any person repre-
resenting any organization or acting in its be
half who shall violate any of the provisions of
section forty-three of this chapter or who
shall aid or incite the violation of any of the
provisions of such section shall for each and
every violation thereof be liable to a penalty
of not less than one hundred dollars nor more
than five hundred dollars, to be recovered by
the person aggrieved thereby or by any resi
dent of this state, to whom such person shall
assign his cause of action, in any court of
competent jurisdiction in the county in which
the plaintiff or the defendant shall reside;
and such person and the manager or owner of
or each officer of such agency, bureau, cor
poration or association, and such officer or
member of a labor organization or person
acting in his behalf, as the case may be shall,
also, for every such offense be deemed guilty
of a misdemeanor, and upon conviction there
of shall be fined not less than one hundred
dollars nor more than five hundred dollars,
or shall be imprisoned not less than thirty
days nor more than ninety days, or both such
fine and imprisonment.”
18. That by Section 45 of said Civil Eights
Law, being Chapter 677 of the Laws of 1942 and
effective on May 6, of said year, it is provided
that:
Complaint.
11
“ The industrial commissioner may enforce ;>[
the provisions of sections forty-two, forty-
three and forty-four of this chapter. For
this purpose he may use the powers of ad
ministration, investigation, inquiry, sub
poena, and hearing vested in him by the labor
law; he may require submission at regular
intervals or otherwise of information, rec
ords and reports pertinent to discriminatory
practices in industries.”
19. That certain officers and members of oo
Branch Association of the Second Division of the
Kailwav Mail Association in the city of New York
have indicated an attitude to accept membership
in the Railway Mail Association by admitting ap
plicants to membership in such Branch Associa
tion contrary to and in violation of Article III
of the Constitution of plaintiff and have initiated
correspondence with the defendant, Frieda S.
Miller as Industrial Commissioner of the State of
New York, and raised the question of the legal
right of the plaintiff to insist upon the observ- ^
ance of the provisions of Article III of plaintiff’s
Constitution within the State of New York; that
said Industrial Commissioner has sought and re
ceived from the Attorney-General of the State of
New York his advice to the effect that the plain
tiff herein is a labor organization within the
meaning and contemplation of Chapter 9 of the
Laws of 1940 of the State of New York and comes
within the purview of the Labor Law and the
Civil Rights Law of the State of New York and
that Article III of the plaintiff’s Constitution is
Complaint.
12
invalid and unenforceable within the State of New
York and that the plaintiff has no valid or legal
right to deny to any applicant, otherwise duly
qualified, membership in the plaintiff’s organi
zation by reason of his race, color or creed.
20. That acting upon such advice the defend
ant, Frieda S. Miller as said Industrial Commis
sioner of the State of New York, has requested
the plaintiff to advise her for the completion of
the official records on this matter in the office of
the Commissioner of Labor of the future policy
of the plaintiff’s Branch Associations within the
State of New York with reference to compliance
with the Civil Rights Law and the Labor Law
aforesaid.
21. That plaintiff has notified the defendant,
Frieda S. Miller as such Industrial Commission
er of the State of New York, in reply to her re
quest aforesaid that the Civil Rights Law and
Labor Law aforementioned do not apply to the
plaintiff or its Branch Associations and if sought
gg to be applied would constitute and be a violation
of the Constitution of the United States and the
Constitution of the State of New York and fur
ther notified the said Commissioner of plaintiff’s
intention to bring action for a declaratory judg
ment of its rights and legal relations in the prem
ises.
22. Upon information and belief plaintiff al
leges that it is not a labor organization within
the spirit or contemplation of the Labor Law or
of the Civil Rights Law of the State of New York
Comjilaitil.
34
13
aforesaid but on the contrary is a membership 37
corporation authorized to, and carrying on the
business of a fraternal beneficiary association for
the benefit of its members and their beneficiaries
and not for profit.
That plaintiff draws its membership from male
clerks engaged in the Railway Mail Service of
the United States Government; that such Railway
Mail Service does not involve industrial enter
prise ; that appointments and promotions in such
Railway Mail Service are regulated and controlled
by the laws of the United States; that neither the
plaintiff nor any of the male Railway Postal
Clerks is engaged in industrial enterprise but its
members are and constitute a class of Civil Serv
ice employees of the United States Government
engaged in and conducting a governmental func
tion exclusive to the Government of the United
States and who possess certain peculiar rights
and privileges to security and protection in such
Government Service and have not the right to
strike to enforce any grievance in relation to their gg
service or employment in the Railway Mail Serv
ice.
23. That the defendant, Frieda S. Miller as
such Industrial Commissioner of the State oi
New York is asserting that the aforesaid provi
sions of the Labor Law and the amendments to
the Civil Rights Law as aforesaid apply to and
are controlling upon the plaintiff and its Division
and Branch Associations and members within the
State of New York, and that plaintiff is a labor
Complaint.
14
organization within the meaning of said statutes
and that because thereof, Article III of the Con
stitution of plaintiff is invalid and without force
or effect within the State of New York; that an
actual controversy exists between the parties
hereto as to their rights and legal relations aris
ing out of and as to the application to plaintiff
of the aforementioned Civil Eights and Labor
Laws involving public interests, including the in
terest of the plaintiff, and it is necessary and ex
pedient that the respective rights of the parties
_/j | be determined without delay and that adequate
relief is not presently available through other
forms of action.
24. That the provisions aforesaid of the Civil
Rights Law if sought to be applied against the
plaintiff, its Division and Branch Associations
and its members would be contrary to and viola
tive of the provisions of Section 6 of Article 1 of
the Constitution of the State of New York in that
it would deny to the plaintiff and its members,
and its Division and Branch Associations due
^ process and equal protection of law and would be
and constitute an unlawful and unreasonable
abridgement of the property rights of the plain
tiff and its Division and Branch Associations, and
would offend the due process provisions of the
Fifth and Fourteenth Amendments of the Con
stitution of the United States in that said provi
sions of the Labor Law and of the Civil Rights
Law of the State of New York would create arbi
trary, capricious and unreasonable classifica
tions, and would deny to the plaintiff and its mem
Complaint.
15
bers, and its Division and Branch Associations 43
within the State of New York the equal protec
tion of the laws and would deprive the plaintiff
of its property without due process of law; and is
an invasion of and in contravention to Subdivision
7 of Section 8 of Article I of the Constitution of
the United States concerning the legislative
power of the Congress of the United States to es
tablish post offices and post roads.
25. That through the medium of an action for
a declaratory judgment the issue of the plaintiff’s
legal rights and the legal rights of its members, ^4
and its Division and Branch Associations within
the State of New York sought to be affected by
procedure on the part of the defendant, Frieda S.
Miller as the Industrial Commissioner of the
State of New York can be expeditiously and finally
determined and that plaintiff has no other ade
quate remedy at law.
AYHEREFOBE, the plaintiff demands judg
ment that this Court declare and determine as fol
lows : 45
1. That Sections 41, 43 and 45 of the Civil
Bights Law of the State of New York and the
provisions of the Labor Law as now in existence
have no application and do not apply to the plain
tiff, Bailwav Mail Association, its members, and
Division and Branch Associations, and that the
Bailway Mail Association is not a labor organi
zation within the meaning or contemplation of
such laws.
Complaint.
16
2. That if sought to be applied to the plaintiff
herein such laws are in contravention to the Con
stitution of the United States, Article I, Section
8, Subdivision 7, and of Articles Fifth and Four
teenth of the amendments to said Constitution
and ,to the provisions of Section 6 of Article 1 of
the Constitution of the State of New York.
3. That this Court declare and determine the
rights of the parties, not herein otherwise spe
cifically asked.
4. And for the further and consequential relief
that the Industrial Commissioner of the State
of New York be enjoined from taking any action
or procedure against the plaintiff or its Division
or Branch Associations within the State of New
York, or the officers or members thereof, and for
such other and further relief as may be legal and
equitable in the premises with costs.
DUGAN & DUGAN,
Attorneys for Plaintiff,
Office and Post Office Address,
90 State Street,
Albany, New York.
Complaint.
(Verified by John J. Kennedy as secretary-
treasurer on December 23, 1942.)
17
ANSWER,
STATE OF NEW YORK. 49
SUPPREME COURT— C ounty of A lbany .
RAILWAY MAIL ASSOCIATION,
Plaintiff,
against
MICHAEL J. MURPHY, as Acting In
dustrial Commissioner of the State of >
New York, and NATHANIEL L. GOLD
STEIN, as Attorney-General of the
State of New York,
Defendants.
The defendants above named, for an answer to
the complaint herein, plead as follows:
1 . Defendants hereby deny that the definition
of “ Labor organization” set forth in paragraph
fourteen of the complaint is applicable for any
purpose except Article 20 of the Labor Law, and
they further deny that it is applicable to the is
sues involved herein. 01
2. Defendants likewise deny that the statutory
provision alleged in paragraph fifteen of the com
plaint is applicable to the issues involved herein.
3. Defendants deny each and every allegation
of paragraph twenty-four of the complaint; and
;so much of paragraph twenty-two of the com
plaint as alleges that the plaintiff is not a labor
organization within the spirit or contemplation of
the Labor Law or of the Civil Rights Law of the
State of New York.
18
~2 4. Defendants lack knowledge or means of in
formation as to the truth or falsity of the allega
tion contained in the second sentence of para
graph twenty-two of the complaint, and likewise
as to certain allegations contained in other para
graphs of the complaint; and defendants believe
that the allegations of paragraph two of the com
plaint are in certain immaterial respects too
broad; but for purposes of this litigation defend
ants admit all allegations of the complaint except
those denied in the preceding paragraphs of this
■rjg answer.
WHEREFORE, defendants demand judgment
dismissing the complaint, with the costs and dis
bursements herein.
NATHANIEL L. GOLDSTEIN,
Attorney-General of the State of
New York,
Attorney for Defendants,
The Capitol, Albany, N. Y.
54 ~
(Verified by Henry S. Manley, Assistant Attor
ney-General, on May 28, 1943.)
Stipulation Presenting Issues to Special Term.
STIPULATION PRESENTING ISSUES TO
SPECIAL TERM.
(Same Title.)
IT IS PIEREBY STIPULATED, between the
parties herein, by their respective attorneys whose
names are undersigned:
19
(1 ) That the issues arising between the Com- 55
plaint and the Answer shall be submitted to a
Special Term of this Court to be held in the City
of Albany, New York, on the 24th day of Septem
ber 1943, as though upon a motion by the plaintiff
for summary judgment as prayed in the Com
plaint, and upon a cross-motion by the defendants
that the Complaint be dismissed.
(2) That such submission shall be upon oral
argument, and the primary briefs of each side
shall be exchanged at the time of the original hear
ing; answering briefs shall be exchanged and sub- ~i''>
mitted at such time as the Court may direct.
(3) That any decision made by the Court shall
be subject to appeal or other action as fully as
though presented by the adverse motions afore
said.
(4) It is agreed that the defendants may offer
in evidence, upon the hearing of the motions and
that any Appellate Court may consider as exhibits
offered by the defendants, the documents or ex
cerpts therefrom relied upon by defendants and
included in the following printed documents,
books and pamphlets, without any question being-
raised on the part of the plaintiff as to the gen
uineness or authenticity of such documents, or
on the ground that such documents are not the
best evidence of their contents:
(a) Pamphlet copy of charter, constitution,
etc., 1941-1943, of Railway Mail Association, as
printed by it;
Stipulation Presenting Issues to Special Term.
20
(b) Pamphlet, “ The Railway Mail Associa-
'><C’ tion and the Railway Postal Clerk” , as printed by
the Association, without date but apparently soon
after 1930;
(c) Periodical, “ Railway Post Office” , Vols.
42, 43 and 44, being the issues of July, 1940, to
May, 1943, inclusive:
(d) Proceedings of American Federation of
Labor 1941 annual convention held at Seattle, as
printed by the A. F. of L.;
(e) “ Handbook of American Trade-Unions” ,
1936 edition, being' Bulletin No. 618 of U. S.
Ilept. of Labor;
(f) Pamphlet copies of hearings before cer
tain committees of the House of Representatives,
as officially printed, the dates and titles of such
hearings and the particular testimony being the
following:
(I) 1939 Mar. 21. “ Substitute Postal Em
ployees” , particularly testimony of J.
Frank Bennett, Pres, of R. M. A., pages 46-
«0 50.
(II) 1940 Mar. 12. “ Substitute Postal Em
ployees” , particularly testimony of Pres.
Bennett, page 13.
(III) 1940 Apr. 5. “ Postal Employees Long
evity Pay” , particularly testimony of In
dustrial Secty. Strickland, pages 42-44.
(This was a joint sub-committee rather
than a House Committee.)
(IV) 1940 Apr. 25. “ Motor Garage Service” ,
particularly testimony of Pres. Bennett,
page 14.
Stipulation Presenting Issues to Special Term.
21
(V) 1941 Mar. 25. “ Basis for Computing Pay gj
for Overtime Work by Railway Mail
Laborers” , particularly testimony of Vice-
Pres. Harvey, page 7.
(VI) 1943 Feb. 25, 26. “ Postal Employees
Salary Bills” , particularly testimony of
Mr. Mitiguy, pages 73-74; Pres. Harvey,
92-98; Mr. Wright, 110-113; Mr. Gladstone,
140-142.
(VII) Either side shall have the right to call the
Court’s attention to any other testimony
or statement appearing in said pamphlets gy
designated as I-VI inclusive, given or made
in relation to the legislative measures be
ing considered at such hearings.
(g) Printed form, “ Application for Member
ship in the Beneficiary Department of the Rail
way Mail Association” ;
(h) Certificate of Affiliation, granted by the
American Federation of Labor to the Executive
Officers of the plaintiff, bearing date the 22d day •
of December, 1917; g;i
(i) “ The Labor Movement in a Government
Industry” , by Sterling Denhard Spero, publish
ed by George II. Doran Co., N. Y., 1924;
(j) “ The Black Worker” (sub-title, “ A
'Study of the Negro and the Labor Movement” )
by Sterling D. Spero and Abram L. Harris. Col
umbia University Press, 1931. Quotations from
pages 67-69, 57-58, and 122-124, typed and
submitted herewith, to which defendants shall
be limited;
Stipulation Presenting Issues to Special Term.
22
(34 (k) “ The Travelling Post Office” , by William
J. Dennis, published by Homestead Printing Co.,
Des Moines, 1916, pages 54-73;
(l) Four telegrams: Berkley to Meany, May
19, 1943; Meany to Berkley, May 20; Berkley to
Meany, May 21; Meany to Berkley, May 24;
(m) “ How Collective Bargaining Works” , a
1942 publication of the Twentieth Century Fund.
Only the line on page 961, “ Railway Mail As
sociation 22,700” , and the material on page 958
to the effect that this purports to be a list of trade
unions and statement of their 1941 memberships,
taken from the Report of the Executive Council
of the A. F. of L. for that year; but plaintiff re
serves the right to object to the receiving in evi
dence or the consideration of the same as exhibits
on appeal, upon the ground that the same are in
competent, immaterial and irrelevant to the is
sues of law raised in this action by the pleadings,
except as to the items (a) to (h) inclusive.
(5) It is further agreed that the plaintiff may
66 offer in evidence upon said hearing, and any Ap
pellate Court may consider as exhibits the fol
lowing documents or excerpts therefrom, viz.:
(1) Memorandum of Governor Herbert H.
Lehman in connection with his approval of Chap
ter 9 of the Laws of 1940 amending the Civil
Rights Law;
(2) Message of Governor Herbert H. Lehman
to the Legislature, January 3, 1940, in reference
to Industry and Labor;
Stipulation Presenting Issues to Special Term.
23
(3) Proceeding’s of Convention of 1917 of the ^
Railway Mail Association in re adoption of a
resolution for affiliation with the American Fed
eration of Labor, and submission on referendum
to the membership for approval; the form of bal
lot upon such referendum, appearing in the “ Rail
way Post Office” , together with articles and cor
respondence in relation to the question of affilia
tion as contained in the issues of said periodical
for the months of January-December, inclusive, in
the year 1917.
Dated: Sept. 16, 1943. ^
DUGAN & DUGAN,
Attorneys for Plaintiff.
NATHANIEL L. GOLDSTEIN,
Attorney-General,
Attorney for Defendants.
By Henry S. Manley,
Assistant Attorney-General.
---------------------- 69
JUDGMENT APPEALED PROM.
(Same Title.)
The issues raised by the pleadings in the above-
entitled action having duly come on to be heard at
a Special Term of this Court held at the Court
House in the City of Albany on the 24th day of
September, 1943, Justice William H. Murray
presiding, pursuant to the Stipulation of the
parties, that the same should be submitted as
Judgment Appealed From.
24
rjQ though upon a motion by the plaintiff for sum
mary judgment as prayed in the Complaint and
upon a cross-motion by the defendants that the
Complaint be dismissed; and the plaintiff hav
ing appeared therein by Dugan & Dugan, by
Daniel J. Dugan of counsel, and the defendants
having appeared therein by Hon. Nathaniel L.
Goldstein, Attorney-General of the State of New
York, by Orrin G. Judd, Esq., Solicitor-General,
Wendell P. Brown, Esq., First Assistant Attor
ney-General, and Henry S. Manley, Esq., As-
7 j sistant Attorney-General, of counsel; and the
questions involved having been argued orally and
in the Briefs of the respective counsel, and the
Court after due deliberation having ordered that
plaintiff’s motion for judgment in its favor be
granted and that the defendants’ motion to dis
miss the Complaint be denied and that a Declara
tory Judgment in favor of the plaintiff as prayed
in the Complaint be entered accordingly herein.
Now, upon motion of Dugan & Dugan, attor
neys for the plaintiff, it is declared and adjudged
2̂ as follows:
1. That the plaintiff is and was at all the times
stated in the Complaint herein a fraternal bene
fit insurance corporation organized under the laws
of the State of New Hampshire and having its
principal office at the City of Portsmouth in the
State of New Hampshire; and is organized and
established to conduct the business of a fraternal
beneficiary association for the sole benefit of its
members and beneficiaries and not for profit; to
promote closer social relationship among Rail-
Judgment Appealed From.
25
way Postal Clerks, to better enable them to per- 73
feet any‘movement that may be for their benefit
as a class or for the benefit of the Kailway Mail
Service; to provide relief for its members and
their beneficiaries and make provision for the pay
ment of benefits to them in case of death, sickness,
temporary or permanent physical disability either
as a result of disease, accident or old age.
2. That the plaintiff since September 4, 1913
has been authorized to conduct the business of a
fraternal benefit insurance corporation within the
State of New York under the applicable provi- ' I
sions of the Insurance Law of said State'.
3. That plaintiff is not a labor organization
within the meaning or contemplation of Sections
41, 43 and 45 of the Civil Rights Law of the State
of New York nor within the meaning and con
templation of Article 20 of the Labor Law of said
State.
4. That Article III of the By-laws and Con
stitution of the plaintiff which provides as fol
lows: “ Any regular male Railway Postal Clerk 75
or male substitute Railway Postal Clerk of the
United States Railway Mail Service, who is of the
Caucasian race, or a native American Indian,
shall be eligible to membership in the Railway
Mail Association” is not in conflict with the afore
said provisions of such Civil Rights Law and
Labor Law of the State of New York and that
such laws do not apply to the plaintiff, its division
and branch associations, officers or members
within the State of New York,
Judgment Appealed From.
26
5. That applied to the plaintiff, its division
and branch associations, officers or members with
in the State of New York, said provisions of the
Civil Rights Law and Labor Law of the State
of New York are illegal and have no legal force
or effect.
6. That the membership of the plaintiff com
prises regular and substitute male Railway Postal
Clerks of the United States Railway Mail Service
whose appointments and promotions in said Ser
vice are made under and pursuant to the Civil
77 Service Law of the Government of the United
States and that such clerks are not engaged in
private industry.
7. That the Industrial Commissioner of the
State of New York has no legal right nor power
or authority to regulate or control the business
as conducted by the plaintiff within the State of
New York.
8. And it is hereby further ordered, adjudged
and decreed that the Industrial Commissioner of
78 the State of New York, his deputies, officers, rep
resentatives and employees be and they are and
each of them is hereby permanently enjoined from
taking any action or procedure to apply or enforce
the provisions of Sections 41, 43 and 45 of the
Civil Rights Law of the State of New York, and/
or the provisions of Article 20 of the Labor Law of
the State of New York to or against the plaintiff,
its division and branch associations, officers or
members thereof, within the State of New York,
Judgment Appealed From.
27
or of interfering with the plaintiff’s right of selec- 79
tion of its members.
Judgment entered November 24, 1943.
WILLIAM H. MURRAY,
J. 8. C.
W. B. Clarke,
Clerk.
Order Appealed From.
ORDER APPEALED FROM.
At a Special Term of the Supreme Court 80
held in and for tire County of Albany,
at the Court House, in the City of Al
bany, New York, on the 24th day of
September, 1943.
Present: Hon. William H. Murray,
Justice.
(Same Title.)
The plaintiff herein having* brought this action
•against Frieda S. Miller, as Industrial Commis
sioner of the State of New York, and John J. 81
Bennett, Jr., as Attorney-General of the State of
New York, for a declaratory judgment by which
this Court should declare and determine as fol
lows :
1. That Sections 41, 43 and 45 of the Civil
Rights Law of the State of New York and the
provisions of the Labor Law* as now in existence
have no application and do not apply to the plain
tiff, Railway Mail Association, its members and
Division and Branch Associations, and that the
28
g2 Railway Mail Association is not a labor organiza
tion within the meaning or contemplation of such
laws;
2. That if sought to be applied to the plaintiff
herein such laws are in contravention to the Con
stitution of the United States, Article I, Section
8, Subdivision 7, and of Articles Fifth and Four
teenth of the Amendments to said Constitution and
to the provisions of Section 6 of Article 1 of the
Constitution of the State of New York;
(C,f) 3. That this Court declare and determine the
rights of the parties, not herein otherwise specifi
cally asked;
4. And for further and consequential relief
that the Industrial Commissioner of the State of
New York be enjoined from taking action or pro
cedure against the plaintiff or its Division or
Branch Associations within the State of New
York, or the officers or members thereof, and for
such other and further relief as may be legal and
equitable in the premises with costs; and the
84 present defendants having, by an Order of this
Court duly made and entered herein, been sub
stituted in the place and stead of the original de
fendants without prejudice to the proceeding’s
previously had herein; and the defendants having
appeared by Hon. Nathaniel L. Goldstein. Attor
ney-General of the State of New York, and inter
posed a verified Answer admitting all allegations
of the Complaint except that defendants denied
that the definition of “ labor organization” set
forth in paragraph fourteen of the Complaint is
Order Appealed From.
29
applicable for any purpose except Article 20 of o-
of the Labor Law and denied that it is applicable
to the issues involved herein; and likewise denied
that the statutory provision alleged in paragraph
fifteen of the Complaint is applicable to said is
sues ; and further denied each and every allega
tion of paragraph twenty-four of the Complaint
and so much of paragraph twenty-two thereof as
alleges that plaintiff is not a labor organization
within the spirit or contemplation of the Labor
Law or of the Civil Eights Law of the State of
New York, and which said denials raised questions gg
of law only as to the application and legal effect
as to the plaintiff of Sections 41, 43 and 45 of the
Civil Rights Law and of Article 20 of the Labor
Law of the State of New York; and the parties on
the issues of law so raised having entered into a
Stipulation, dated September 16, 1943, to submit
such issues to this Special Term as though upon
a motion by plaintiff for summary judgment as
prayed in the Complaint, and upon a cross-motion
by defendants that the Complaint be dismissed;
and such issues having been accordingly present- 87
ed to the Court; and after hearing Dug'an &
Dugan, as attorneys for the plaintiff, by Daniel
J. Dugan, of counsel, and the Hon. Nathaniel L.
Goldstein, Attorney-General of the State of New
York, by Orrin G. Judd, Esq., Solicitor-General,
Wendell P. Browm, Esq., First Assistant Attor
ney-General, and Henry S. Manley, Esq,, Assistant
Attorney-General, of counsel, for defendants, and
due deliberation being had thereon.
Order Appealed From,
30
Now, upon reading and filing the Summons and
Complaint, the Answer and said Stipulation, and
upon motion of Dugan & Dugan, attorneys for
the plaintiff, it is hereby
ORDERED, that plaintiff’s motion for judg
ment in its favor be and the same hereby is grant
ed ; and it is further ordered that defendants ’ mo
tion to dismiss the Complaint be and the same
hereby is denied and that a declaratory judgment
in favor of the plaintiff as prayed in the Com
plaint be entered accordingly herein.
Enter:
WILLIAM H. MURRAY,
Justice of the Supreme Court.
Opinion of Mr. Justice Murray.
OPINION OF MR. JUSTICE MURRAY.
(Same Title.)
(Supreme Court, Albany County Special Term,
September 24, 1943)
(Justice William H. Murray presiding)
Appearances:
Dugan and Dugan, Esqrs., Attorneys for Plain
tiff. (Daniel J. Dugan, Esq., of Counsel.)
lion. Nathaniel L. Goldstein, Attorney-General,
Attorney for Defendants. (Orrin G. Judd, Esq.,
Solicitor General, Wendell P. Brown, Esq., First
Assistant Attorney-General and Henry S. Manley,
Esq., Assistant Attorney-General, of Counsel.)
31
MEMORANDUM gj
MURRAY, J.:
This action is by plaintiff for a summary de
claratory judgment, and a countermotion by de
fendants for a dismissal of the complaint. No
question's of fact are involved. The issues are of
law. Plaintiff is a membership fraternal bene
ficiary corporation organized in the year 1898
under the laws of the State of New Hampshire, at
which time the corporate name was National As
sociation of Railway Postal Clerks. The present ^
name of plaintiff was assumed by it September 21,
1904. The Certificate of Incorporation states
that: “ The object for which this corporation is
established is to conduct the business of a fraternal
beneficiary association for the sole benefit of its
members and beneficiaries and not for profit; to
promote closer social relationship among railway
postal clerks; to better enable them to perfect any
movement that may be for their benefit as a class
or for the benefit of the railway mail service; to
provide relief for its members and their bene-
ficiaries and make provisions for the payment of
benefits to them in case of death, sickness, tem
porary or permanent physical disability, either as
a result of disease, accident or old age.’
Both New Hampshire and New Y7ork States
have recognized and approved plaintiff’s Articles
o f Incorporation and by-laws to the effect that it
has the right to conduct a fraternal insurance
business within such States. Membership in
plaintiff is restricted to regular male Railway
Opinion of Mr. Justice Murray.
32
Postal Clerks or male substitute Railway Mail
Postal Clerks of the United States Railway Mail
Service, who are of the Caucasian race or are na
tive American Indians. There are approximately
twenty-two thousand (22,000) members, classified
either as general or non-beneficiary or as bene
ficiary or full members. Ninety-nine (99%) per
cent of the members are beneficiary or full mem
bers, and upon death of such a member through
external, violent and accidental means, moneys
are paid by plaintiff to their designated bene-
q~ ficiaries. Appointments and promotions in the
Railway Mail Service are made under and pur
suant to the Civil Service Laws of the United
States.
There are Division and Branch Associations of
plaintiff in various states of the United States,
and within the State of New.York, there are es
tablished and maintained thirteen (13) Branch
Associations. Certain officers and members of a
Branch Association of the Second Division in the
City of New York have challenged the right of
96 plaintiff to insist on observance of Article III of
its Constitution that only persons of the Caucasian
race or native American Indians be admitted to
membership. The Attorney-General of the State
of New York has advised the Industrial Commis
sioner of the State of New York that plaintiff is
a labor organization, and that Article III of its
Constitution is invalid and unenforceable within
the State of New York. That plaintiff has no
valid or legal right to deny to any applicant, other
wise duly qualified, membership by reason of race,
color or creed.
Opinion of Mr. Justice Murray.
33
The opinion of the Attorney-General is predi- 97
hated upon Section 43 of the Civil Eights Law
(Chapter 9, Laws of State of New York, 1940) as
follows:
“ Discrimination hy labor organizations
prohibited. As used in this section, the term
‘ labor organization’ means any organization
which exists and is constituted for the pur
pose, in whole or in part, of collective bar
gaining, or of dealing with employers con
cerning grievances, terms or conditions of
employment, or of other mutual aid or pro- 9.3
tection. No labor organization shall here
after, directly or indirectly, by ritualistic
practice, constitutional or by-law prescrip
tion, by tacit agreement among its members,
or otherwise, deny a person or persons mem
bership in its organization by reason of his
race, color or creed, or by regulations, prac
tice or otherwise, deny to any of its members,
by reason of race, color or creed, equal treat
ment with all other members in any designa
tion of members to any employer for employ- 99
ment, promotion or dismissal by such em
ployer.”
Also, under Section 41, Civil Eights Law (amend
ed by Chapter 9, Laws of State of New York, 1940
and amended further by Laws of 1941 and 1942).
Section 45 of the Civil Eights Law added by
the Laws of the State of New York, 1942, pro
vides :
“ Powers of administration vested in in
dustrial commissioner. The industrial com-
Opinion of Mr. Justice Murray.
34
Iqq missioner may enforce tlie provisions of sec
tions forty-two, forty-three and forty-four of
this chapter. For this purpose he may use
the powers of administration, investigation,
inquiry, subpoena, and hearing vested in him
by the labor law; he may require submission
at regular intervals or otherwise of informa
tion, records and reports pertinent to dis
criminatory practices in industries.”
Defendants contend that plaintiff is a labor
organization, because of the provisions contained
101 in its Articles of Incorporation, in its Constitu
tion, and, because since the year 1917, plaintiff has
been a member organization in the American Fed
eration of Labor, having accepted a Certificate of
Affiliation from such Federation of Labor and
having contributed to the expenses of such or
ganization, and further by participating in its con
ventions and other activities.
Plaintiff emphatically denies it is a labor or
ganization in fact or in law measured, either by
the terms of its charter, its laws or by the nature
of the service and work its members perform.
Plaintiff maintains that the Labor Law of the
State of New York, Chapter 31 of the Consoli
dated Laws of the State of New York, Section 715
specifically exempts and excludes plaintiff from
the category of a labor organization even if it be
held that plaintiff is such a body.
Such law of immunity is as follows:
“ The provisions of this article shall not
apply to the employees of any employer who
Opinion of Mr. Justice Murray.
35
concedes to and agrees with the board that
such employees are subject to and protected
by the provisions of the national labor rela
tions act or the federal railway labor act or
. to employees of the state or of any political
or civil subdivision or other educational or
religious associations or corporations.”
Defendants assert that the status of plaintiff
is defined clearly by the provisions of Section 43
of the Civil Rights Law, and that such statute is
valid and applicable to it. Plaintiff insists that
Sections 41, 43 and 45 of the Civil Rights Law
alone have no application to it, but are in pari
materia with other sections of the Labor Law
and all should be construed together. That the
new provisions of the Civil Rights Law were
designed to implement the provisions of the Labor
Law dealing with the same subject. Thus con
strued, the statutes and its subdivisions clearly
demonstrate a specific intent to exclude employees
of the State from, applications to them of the Civil
Rights Law, particularly Section 43.
105
Actions for declaratory judgments are proper
where the legality or meaning of a statute or of a
ruling made by an administrative official is in dis
pute and no question of fact involved. (Dun &
Bradstreet, Inc. v. City of New York, 276 N. Y.
198; Socony-Vacuum Oil Co. v. City of New York,
247 App. Div. 163; affd. 272 N. Y. 668.) The pur
pose of a declaratory judgment is to determine
disputed jural questions when a genuine con
troversy exists and when such a judgment will
serve a practical end in determining and stabiliz-
Opinion of Mr. Justice Murray.
36
2Qg mg an uncertain or disputed jural question, either
as to present or prospective obligations. (New
York Operators v. State Liquor Authority, 285
N. Y. 272; James v. Alderton Dock Yards, 256
N. Y. 298; Sartorious v. Cohen, 249 N. Y. 31;
Brownell v. Board of Education, 239 N. Y. 369.)
The basic fundamental element presented for
determination is whether plaintiff is a labor or
ganization. Section 43 of the Civil Rights Law,
in part, specifically provides that:
“ No labor orgamsation shall hereafter di-
rectly or indirectly * * * deny a person ur
persons membership in its organization by
reason of his race, color or creed or by regula
tions, practice or otherwise, deny to any of
its members by reason of race, color or creed,
equal treatment with all other members in
any designation of members to any employer
for employment, promotion or dismissal by
such employer.” (Consolidated Laws, 1940,
Civil Rights Law, Article 4, Section 43.)
(Italics mine.)
108 • • „The 'term labor organization is defined in Sec
tion 43 of the Civil Rights Law in exactly the same
words, language and phraseology as is used in
Section 701, subdivision 5 of the Labor Law (Con
solidated Laws, 1937, Article 20) which is: “ That
a labor organization means any organization
which exists and is constituted for the purpose, in
whole or in part, of collective bargaining, or of
dealing with employers concerning grievances,
terms or conditions of employment, or of other
mutual aid or protection.”
Opinion of Mr. Justice Murray.
37
What is collective bargaining! Some light is jqq
cast upon the meaning and implications of this
significant phrase by a statement of some of the
recognized evils which flow from refusal to bar
gain collectively as set forth in Section 700 of the
Labor Law as follows:
“ When some employers deny the right of
employees to full freedom of association and
organization, and refuse to recognize the
practice and procedure of collective bargain
ing, their actions lead to strikes, lockouts and
other forms of industrial strife and unrest ̂ j q
which is inimical to the public safety and wel
fare, and frequently endanger public health. ’
Collective bargaining broadly defined is an
agreement between an employer and a labor union
which regulates the terms and conditions of em
ployment with reference to hours of labor, wages,
and deals also with strikes, lockouts, walkouts,
arbitration, shop conditions, safety devices, the
enforceability and interpretation of such agree
ment and of numerous other relations existing be
tween employer and employee. ' 11
Plaintiff has only such rights and powers as are
expressly granted it by its charter or implied as
are necessary in the exercise of its corporate fran
chise. A proposition which is beyond dispute and
generally recognized is that a corporation cannot
enter into or bind itself by a contract prohibited
by its charter.
“ Corporations are artificial creations ex
isting by virtue of some statute and organized
for the purposes, defined, in their charters.
Opinion of Mr. Justice Murray.
38
;j -j 9 * * * A corporation necessarily carries its
charter wherever it goes, for that is the law
of its existence.” (Jennison v. Citizens Sav
ings Bank, 122 N. Y. 135, at page 140.)
“ Wherever a corporation goes for busi
ness it carries its charter, and the charter is
the same abroad that it is at home.” (Relfe v,
Bundle, 103 U. S. 226.)
“ Whatever disabilities are placed on the
corporation at home it retains abroad, and
whatever legislative control it is subjected to
10 at home must be recognized and submitted to
by those who deal with it elsewhere.” (Mc-
Clement v. Order of Foresters, 222 N. Y. 470,
at page 480.)
When the State of New York through its De
partment of Insurance examined the Articles of
Incorporation and the certificates and other evi
dence of the insurance contract issued by plaintiff
to its members and conferred upon it authority to
transact insurance business within the State of
New York, it determined then and there by such -
114 decision both as a matter of fact and law that
plaintiff was a beneficial insurance society and
not a labor organization.
Section 154, subdivision 1, of the Insurance Law
states:
“ No policy of life insurance, industrial life
insurance, group life insurance, accident or
health insurance, group or blanket accident
or health insurance or non-cancellable dis
ability insurance, no fraternal benefit cer
tificate, and no annuity or pure endowment
Opinion of Mr. Justice Murray.
39
contract or group annuity contract shall be
issued or delivered m this state unless a copy
of the form thereof shall have been filed with
the superintendent and approved by him as
conforming to the requirements of this chap
ter and not inconsistent with law.” (Italics
mine.)
Membership in plaintiff is confined strictly to
persons who pass United States Civil Service ex
aminations for the position of Railway Mail Clerk.
The primary purpose of Civil Service laws and
rules is to promote the good of the public service.
The underlying principle of such law is to afford
to everyone who has the necessary qualifications
.an equal opportunity of securing appointment.
(People -v. Kearney, 164 N. Y. 64; Matter of
Mendelson v. Finegan, 168 Misc. 102; affd. Men-
delson v. Kern, 278 N. Y. 568.)
Civil Service employees of the United States
are protected from summary removal except for
cause by Section 652 of the Classified Civil Ser
vice Code-Title 5, which is as follows:
“ Removals from classified civil service only
for cause. No person in the classified civil
service of the United States shall be re
moved therefrom except for such cause as
will promote the efficiency of said service and
for reasons given in writing, and the person
whose removal is sought shall have notice
of the same and of any charges preferred
against him, and be furnished with a copy
thereof, and also be allowed a reasonable time
for personally answering the same in writing;
Opinion of Mr. Justice Murray.
40
j I g and affidavits in support thereof; but no ex
amination of witnesses nor any trial or hear
ing shall be required except in the discre
tion of the officer making the removal; and
copies of charg*es, notice of hearing, answer,
reasons for removal, and of the order of re
moval shall be made a part of the records of
the proper department or office, as shall also
the reasons for reduction in rank or compen
sation; and copies of the same shall be fur
nished to the person affected upon request,
] iq and the Civil Service Commission also shall,
upon request, be furnished copies of the same.
# # # y ?
Not only must charges be preferred, but they
must be based on substantial matters. To justify
removal the charges must be made in good faith
and not as a mere pretext for removal. Against
unjust discharge, employees have recourse to the
courts for redress, review and reinstatement in
their positions. They are shielded by law from the
anger and temper of arrogant, dictatorial and dis-~
120 agreeable superiors, who, to vent their spleen or
otherwise, prefer fanciful and unsubstantial
charges. No such safeguards surround the in
dustrial worker. When discharged, he is dis
charged, and that is the end of the matter. The
courts are not open to him for relief.
To tolerate or recognize any combination of
Civil Service employees of the Government as a
labor organization or union is not only incom
patible with the spirit of democracy, but incon
sistent with every principle upon which our Gov-
Opinion of Mr. Justice Murray.
41
eminent is founded. Nothing- is more dangerous j2 (
to public welfare than to admit that hired servants
of the state can dictate to the Government the
hours, the wages and conditions under which they
will carry on essential services vital to the wel
fare, safety and security of the citizen. To admit
as true that Government employees have power
to halt or check the functions of Government, un
less their demands are satisfied, is to transfer to
them all legislative, executive and judicial power.
Nothing would be more ridiculous.
. t O O
The reasons are obvious which forbid accept- ^
ance of any such doctrine. Government is form
ed for the benefit of all persons, and the duty of
■all to support it is equally clear. Nothing is more
certain than the indispensable necessity of govern
ment, and equally true, that unless the people sur
render some of their natural rights to the Gov
ernment it cannot operate. Much as we all rec
ognize the value and the necessity of collective
bargaining in industrial and social life, nonethe
less, such bargaining is impossible between the IOO
Government and its employees, by reason of the
very nature of Government itself. The formidable
and familiar weapon in industrial strife and war
fare—the strike—is without justification when
used against the Government. When so used, it is
rebellion against constituted authority.
Plaintiff is not only not a labor organization
within the terms of its charter, but it does not ex
ist nor is it constituted for the purpose in whole
or in part of collective bargaining. The mere fact
that the American Federation of Labor issued to
Opinion of Mr. Justice Murray.
42
Opinion o f Mr. Justice Murray.
124 plaintiff a Certificate of Affiliation, in no manner
repeals, rescinds or amends the charter g-ranted
plaintiff to transact insurance business. The ac
ceptance by plaintiff of such Certificate of Affilia
tion was an ultra vires act not within the powers
conferred on plaintiff by the State of New Hamp
shire, and is of no force or effect.
Collective bargaining has no place in govern
ment service. The employer is the whole people.
It is impossible for administrative officials to
bind the Government of the United States or the
125 State of New York by any agreement made be
tween them and representatives of any union.
Government officials and employees are governed
and guided by laws which must be obeyed and
which cannot be abrogated or set aside by any
agreement of employees and officials.
President Franklin H. Roosevelt in clear, def
inite and precise language declares that militant
tactics have no place in the functions of any or
ganization of Government employees as follows:
“ Upon employees in the Federal service
rests the obligation to serve the whole peo
ple, whose interests and welfare require
orderliness and continuity in the conduct of
Government activities. This obligation is
paramount.
Since their own services have to do with
the functioning of the Government, a strike
of public employees manifests nothing less
than an intent on their part to prevent or ob
struct the operations of government until
their demands are satisfied. Such action.
43
looking toward the paralysis of government 127
by those who have sworn to support it, is un
thinkable and intolerable.” (Letter written
to Luther C. Steward, President of National
Federation of Federal Employees.)
Section 43 of the Civil Rights Law creates no
new civil remedy. Any person who violates any
of its provisions is guilty of a misdeameanor. It
must be strictly construed. (People v. Bene, et al.,
288 N. Y. 318.) The purpose and intent of the
statute is that “ organized labor” must not dis
criminate as to membership in labor unions by rea- 1 8̂
son of race, color or creed. The purpose of Sec
tions 41, 43 and 45 is penal. They do not provide
for civil remedies. These sections were not en
acted for the purpose of compelling a fraternal
beneficiary insurance association to admit as mem
bers every person regardless of race, color or
creed.
Tested by the charter of plaintiff, the approval
of the State of New York, that plaintiff is a
fraternal beneficiary society, the type, kind and ̂
character of the employment of the members of
plaintiff, the New York State Labor Relations
Act and the Civil Rights Law construed together,
the demonstrated fact that Civil Service employ
ees of the United States have no right or author
ity to bargain collectively, the conclusion is un-
escapable that plaintiff is not a “ labor organiza
tion” within the purview of, Section 43 of the Civil
Rights Law. To hold otherwise would be to sanc
tion control of governmental functions not by laws
but by men. Such policy if followed to its logical
Opinion of Mr. Justice Murray.
44
jgQ conclusion would inevitably lead to chaos, dicta
tors and the annihilation of representative gov
ernment.
Judgment in accordance herewith is granted
plaintiff.
Submit order.
Dated: Troy, New York, November 4th, 1943.
Stipulation Waiving Certification.
131 STIPULATION WAIVING CERTIFICATION.
(Same Title.)
IT IS HEREBY STIPULATED AND
AGREED that the within printed record consists
of true and correct copies of the notice of appeal,
complaint, answer, stipulation presenting issues
to Special Term, judgment appealed from, order
appealed from and opinion of Mr. Justice Murray,
all of which are now on file in the office of the.
Clerk of the County of Albany, and that certifica
tion of said record and each and every part there
of is hereby expressly waived.
Dated: December . . . . , 1943.
NATHANIEL L. GOLDSTEIN,
Attorney for Defend ants-Appellants.
DUGAN & DUGAN,
Attorneys for Plaintiff-Respondent.
To be argued by
WENDELL P. BROWN.
upturn? (ta rt
OF T'HE
STATE OF NEW YORK.
A p p e l l a t e D ivision— T hird D epartment.
R ailw ay M ail A ssociation,
Plaintiff-Respondent,
against
E dward S. C orsi, as Industrial Commis
sioner of the State of New York, and
N athan iel L. G oldstein, as Attorney
General of the State of New York,
Defendcmts-Appellants.
BRIEF FOR APPELLANTS.
Pursuant to an opinion rendered by Mr. Justice
Murray on November 4, 1943, at Albany Special
Term, the order and judgment which are appealed
from have granted to the Association a declara
tory judgment as prayed in the complaint, most
notably declaring and determining:
(1) That Civil Rights Law §43 and certain
related provisions forbidding discrimination
“ by reason of race, color or creed” do not
apply to the Association, and that it is not a
“ labor organization” within the meaning of
those provisions; and
(2) That such provisions if applicable are
unconstitutional.
2
The Statute Involved.
Civil Rights law §43 was enacted by chapter 9
of the Laws of 1940, and is as follows:
“ §43. Discrimination by labor organiza
tions prohibited. As used in this section, the
term ‘ labor organization’ means any organ
ization which exists and is constituted for the
purpose, in whole or in part, of collective
bargaining, or of dealing, with employers
concernings grievances, terms or conditions
of employment, or of other mutual aid or
protection. No labor organization shall here
after, directly or indirectly, by ritualistic
practice, constitutional or by-law prescrip
tion, by tacit agreement among its members,
or otherwise, deny a person or persons mem
bership in its organization by reason of his
race, color or creed, or by regulations, prac
tice or otherwise, deny to any of its mem
bers, by reason of race, color or creed, equal
treatment with all other members in any de
signation of members to any employer for
employment, promotion or dismissal by such
employer. ’ ’
Section 41, which was amended by the same
chapter and has been further amended in 1941
and 1942, provides for the penalties. Section 45,.
added in 1942, vests certain powers of administra
tion in the Industrial Commissioner.
Facts.
The basic facts in the case are undisputed (ex
cepting a few denials mentioned below) and are
set forth in the complaint. The stipulation be
tween the parties (fols. 54-67) deals with the
mechanics of submitting the issues to the courts-
and lists certain documentary materials to be con
sidered.
3
The Association is a New Hampshire corpora
tion, made up of white male members of the Rail
way Postal Service. It has branch organizations
which operate in New York State (fols. 12-16).
The Association’s declared purposes and actual
activities are set forth in Point II of this brief.
As is argued in Points I and II, we consider it
clearly established that the Association fulfills
all three of the alternative functions listed in the
definition of a “ labor organization” in Civil
Rights Law §43, namely:
“ collective bargaining,” or
“ dealing with employers concerning griev
ances, terms or conditions of employment,”
or
“ other mutual aid or protection.”
The Association’s Racial Restriction upon
Membership.
For many years the Association’s Constitu
tion has contained in Article III the following re
striction upon its membership, which clearly of
fends the statute if the Association is a “ labor
organization ’ ’ :
“ Any regular male Railway Postal Clerk or
male substitute Railway Postal Clerk of the
United States Railway Mail Service, who is
of the Caucasian race, or a native American
Indian, shall be eligible to membership in
the Railway Mail Association.”
Likewise, its application form has as part of
its first question, immediately after blanks for
the applicant’s name and age: “ My race or color
i s .............................” (Item “ g ” in stipulation,
fol. 62).
4
The fact that its discrimination policy is de
liberate, long-continued and well-known, is shown
by some of the other literature specified in the
stipulation, particularly item e, “ Handbook of
American Trade U n i o n s 1936 edition, being
Bulletin No. 618 of U. 8. Dept, of Labor, and item
i, “ The Labor Movement in a Government Indus
try,” by Sterling D. Spero, a book published in
1924 and republished in 1927 (fpls. 59, 63). These
texts will be referred to more specifically herein
after.
The Present Suit.
This suit was commenced on or about Decem
ber 28, 1942, by service of the summons and veri
fied complaint upon the then Attorney General
and Industrial Commissioner.
The complaint sets forth the facts concerning
the organization of the plaintiff, its racial restric
tions, the unwillingness of its New York branch
to be bound by the racial restrictions in view of
their violation of the Civil Rights Law, and the
threats of the Industrial Commissioner under the
advice of the Attorney General to enforce the
Civil Rights Law provisions against the Associa
tion. Judgment is prayed declaring that the As
sociation is not a “ labor organization,” that if it
is considered such an organization within the
Civil Rights Law the application of that statute
to the Association would be unconstitutional, and
for an injunction restraining the enforcement o f
the statute.
The answer admits all the allegations o f
the complaint except certain conclusions of law
5
respecting the definition of a “ labor organiza
tion” and hence the status of the Association,
the unconstitutionality of the statute and the ap
plicability of certain provisions of the Labor Law.
The stipulation has submitted the issues to the
courts, ‘ ‘ as though upon a motion by the plain
tiff for summary judgment as prayed in the Com
plaint, and upon a cross-motion by the defendants
that the Complaint be dismissed” (fol. 55).
The Opinion Below.
The decision below granting judgment for the
plaintiff was based on three main grounds: First,
that the definition of “ labor organization” in §43
of the Civil Eights Law was limited by the pro
visions of §715 of the Labor Law, which excludes
public employees from the provisions of the State
Labor Relations Act; second, that the Associa
tion is not a “ labor organization” because such
an organization cannot exist among public em
ployees; and third, that the application of the
Civil Eights Law to the Association would be an
unconstitutional interference with the operations
of the United States Postoffice.
Mr. Justice Murray noted that the parties were
in disagreement as to whether the definition of a
“ labor organization” in Civil Eights Law §43 was
self-sufficient, or was to be read in pari materia
with the definition in Labor Law §701, subsection
5 (fols. 102-104). Although he did not discuss
the point specifically, it is apparent that his de
cision adopted the latter method of interpreta
tion (fol. 129). The two definitions are identical
(with the immaterial exception of a “ company
6
union ’ ’ which is appended to the Labor Law defin
ition), but one significance the trial court evi
dently inferred from reading the two laws to
gether was somehow to make applicable for pres
ent purposes the following provision of Labor
Law §715:
“ The provisions of this article shall not ap
ply to the employees of any employer who
concedes to and agrees with the board that
such employees are subject to and protected
by the provisions of the national labor rela
tions act or the federal railway labor act or
to employees of the state or of any political
or civil division or other agency thereof, or
to employees of charitable, educational or
religious associations or corporations.”
Another significance the trial court inferred
from reading the two laws together, and from
looking only at their references to “ collective
bargaining” (apparently assuming no separate
meaning for their references to “ dealing with
employers” ), was to draw from Labor Law §700
a conclusion that “ collective bargaining” was a
process inseparably related to strikes and other
incidents not to be associated with employment
by a governmental employer (fols. 109-110).
He attached significance also to the assumed fact
that the State Insurance Department has recog
nized the Association as a beneficial Insurance so
ciety, saying that this was a determination “ as a
matter of fact and law,” that the Association was
“ not a labor organization” (fob 114).
As to the fact that the Association has been a
member of the American Federation of Labor
since 1917, Mr. Justice Murray volunteered the
conclusion that this affiliation was ultra vires■
7
(fol. 124). Inasmuch, as he did not support this
conclusion by citations from New Hampshire law
or any other, and no such proposition was sug
gested by the Association’s brief, its basis is un
certain.
He pointed to the civil service protection en
joyed by railway mail clerks, which is not avail
able to industrial workers (fols. 117-120).
He said that to recognize any body of civil
service employees as a labor organization would
be “ incompatible with the spirit of democracy”
and “ dangerous to public welfare,” etc. (fols.
120-130).
Summary of Argument.
I. The Labor Law provisions are inapplic
able to the present action.
II. The Association is a “ Labor Organiza
tion” within the definition in Civil Eights
Law §43.
III. Civil Eights Law §43 is constitutional.
POINT I.
The Labor Law provisions are inapplicable
to the present action.
In the first place, it should be noted that Labor
Law §715 has no application to the Association
even though it were to be read in pari materia
with the Civil Eights Law provisions, contrary
to the subsequent argument of this Point. The
section reads as follows:
8
“ The provisions of this article shall not ap
ply to the employees of any employer who
concedes to and agrees with the board that
such employees are subject to and protected
by the provisions of the national labor rela
tions act or the federal railway labor act or
to employees of the state or of any political
or civil division or other agency thereof, or
to employees or charitable, educational or re
ligious associations or corporations.”
It is apparent from the language of Labor Law
§715 that it is not intended to affect the scope of
provisions of the Civil Eights Law\ It commences
with a reference to “ the provisions of this arti
cle,” which clearly limits its scope to Article 20
of the Labor Law. Moreover, the fact that its
application depends upon an agreement between
the employer and the State Labor Relations
Board, as noted above, indicates that it is not
intended to affect the Civil Eights Law, with
which that Board has no function.
Secondly, the Association is composed of em
ployees of the United States, or of its Postoffice
Department, so obviously they do not fall within
any of the categories unless that related to one
of the two federal acts. But as to that category,
even if railway mail clerks were subject to and
protected by the provisions of one of the acts,,
which it is believed they are not*, it does not ap
pear that the employer has agreed with the State
Labor Relations Board that the employees are
subject to the federal act, and it has been held
that such an agreement is essential to the exemp
tion. Davega City Radio v. State Labor Rela
tions Roard, 281 N. Y. 13.
* The NLRA excludes the United States from its definition o f
“employer”' in §2(2), and the FRLA has no application.
9
Thirdly, the history of the anti-discrimination
legislation shows that when it was first consid
ered it was intended to make it an amendment to
Labor Law Article 20, hut there was objection,
and the Legislature deliberately made it a sepa
rate and independent statute in the Civil Eights
Law.
By chapter 858 of the Laws of 1937 there was
created a “ Temporary Commission on the Condi
tion of the Colored Urban Population.” Its first
report was Legislative Document No. 63 of 1938,
and its second report was Legislative Document
No. 69 of 1939. The number one bill sponsored
by each report was to amend the definition of
“ labor organization” now found in Labor Law
§701 subdivision 5, by providing that it should
not include any group which discriminated as to
membership because of race, color or creed.
The significant fact that the legislation even
tually enacted to meet the evil complained of in
these reports was not that bill, or any other re
lated to the Labor Law, and the inference from
these matters of legislative history that the legis
lation enacted was not to be read as part of the
Labor Law, will be considered below.
Another significance of the Commission’s re
ports is that they clearly negative any claim that
the Legislature intended to exclude the Associa
tion from the scope of its legislation. In listing
the discriminatory practices towards the Negro
group the Commission’s reports dealt especially
with those by labor unions (1938 report pp. 22-23,
1939 report pp. 45-46) and for those referred io
the “ Handbook of American Trade-Unions,” 1936
10
edition, issued by the United States Bureau of
Labor Statistics, stating that i t :
“ lists eighteen international unions which
exclude Negro membership by constitutional
provision.”
The Commission’s reports stated that it ad
dressed inquiries to those unions, and most of
them answered and said that their restrictive
policies were still in force.
There is no difficulty in selecting from the
“ Handbook of American Trade Unions,” 1936
edition, the eighteen international unions which
exclude Negro membership by constitutional pro
vision, as mentioned by the Commission, or de
termining that the association was one of them.
At pages 37-38 the Handbook (which is item “ e”
in the stipulation herein, fol. 59) says:
“ The American Federation of Labor has
since its inception declared for the organiza
tion of all workers without regard to ‘ race,
creed, color or sex.’ At the same time some
of the most important and powerful organiza
tions affiliated with the federation specify
that applicants shall be white * * * The Na
tional Alliance of Postal Employees was or
ganized for colored railway-mail clerks who
were refused membership in the Railway
Mail Association * #
A summary or chart of qualification for mem
bership, as fixed by constitutions of the trade-
unions, appears at pages 40-48 of the Handbook,
the Association appearing at page 44 as admitting
only members of the white race. At pages 310-
311 the Handbook gives detailed information
about the Association, saying that since 1917 it
has been “ the only organization for white work-
11
ers in the jurisdiction,” meaning white railway
mail clerks.
Returning now to the 1938 and 1939 reports of
the Temporary Commission on the Condition of
the Colored Urban Population, not only did each
report of the Commission indicate by its refer
ence to the Handbook that the Association was
a factor in the wrong to be redressed, but each
report devoted several pages to the special prob
lem of discrimination against Negroes in public
employment, and recommended legislation di
rected to it. ( 1938 report pp. 28-39, 1939 report
pp. 49-61).
In 1938 the bill recommended by the Commis
sion, to deprive labor organizations guilty of dis
crimination from the benefits of the State Labor
Relations Law as previously mentioned, was in
troduced by Senator Mahoney and Assemblyman
Andrews and failed to be reported in either house
of the Legislature. In 1939 the same bill was in
troduced by Senator Perry (in the Assembly Mr.
Burrows had the same bill), passed both houses
without amendment, and was vetoed by Governor
Lehman on June 8,1939. The Governor’s memor
andum stated that the bill was disapproved be
cause it would complicate administration of the
Labor Law provisions.
“ The purpose of the bill cannot be too highly
commended. * * * Well-grounded fears have
been expressed by many that this bill if
approved would go far toward destroying the
essential rights of organized labor.”
In the Governor’s Annual Message to the Leg
islature on January 3, 1940, under the heading
“ Right of Equality,” the following recornmenda-
t:on was made:
12
“ While not to the same extent found else
where, discrimination does exist here in the
State of New York. Such practice is par
ticularly hateful when it results in denying
anyone the right to work, to acquire property
or to make use of facilities available to the
general public. Where peop'e are denied even
a single right to which they are lawfully en
titled, I believe that it is our common duty
to correct the situation. Unjust discrimina
tion is another subject on which there can be
no disagreement. Regardless of party, we all
look with profound distaste upon distinctions
based on race, color or creed.
“ The Labor Law forbids utility companies
to discriminate in employment. The same is
true in the educational system. This sound
principle I recommended be extended to all
business affected with the public interest
and also to membership in all labor unions
and labor organisations. I urge that the
State do everything in its power to elimi
nate the vicious practice of discriminations.
We sorely need to be reminded that princi
ples of democracy are vital, living guides to
everyday human conduct.” (Italics added.)
Assemblyman Andrews again introduced the
bill which had failed of enactment in the two pre
ceding years (A. Int. No. 175, Pr. 175) but it died
in Labor Committee. Senator Perry introduced
the amendment to the Civil Rights Law which is
now involved (S. Int. 181, Pr. 181; Assemblyman
Flynn had the companion bill). It passed rapidly
through the Legislature without amendment and
was approved by the Governor on February 14,,
1940. The Governor’s memorandum upon sign
ing the bill said that it carried out the recom
mendation in his Annual Message.
It is submitted upon all the foregoing matters;
of legislative history in 1938-1940, not only that
13
the discrimination by the Association was part of
the wrong intended to be redressed, but that the
legislation enacted was deliberately made an in
dependent statute in the Civil Eights Law, un
connected with the provisions of Article 20 of the
Labor Law. The latter conclusion is reenforced
by the language of the 1940 enactment, contrast
ed with the Labor Law provisions. This legisla
tion is not intended to be read m pari materia..
with the Labor Law provisions. On the contrary
as to this legislation the correct rule of interpre
tation is the one applied in Matter of City of
Brooklyn, 148 N. Y. 107, 111-112, and stated as
follows in McKinney, Statutes (1942 edition)
page 282:
“ If a statute is complete in itself it may be
inferred that the Legislature intended that it
should not be construed in connection with
other acts; and, if such is the case, other
statutes though relating to the same general
subject will not be considered in pari materia
with it or permitted to affect its construc
tion. ’ ’
Since §43 of the Civil Eights Law contains its
own express definition of “ labor organization”
and is complete in itself, it may not be inferred
that the Legislature intended to import into it
the definition contained in §701 of the Labor Law
or the exceptions contained in §715 of the Labor
Law. The primary purpose of §715 of the Labor
Law is to prevent public employees from bringing
a State department or a municipality before the
State Labor Relations Board to answer for un
fair labor practices. Nothing in its purpose or
language suggest that the Legislature intend
ed to permit discrimination on account of race
14
color or creed within labor organizations formed
by public employees.
It is respectfully submitted, upon the three rea
sons dealt with in this Point, that the Labor Law
provisions are inapplicable to the present action,
and that Mr. Justice Murray erred in holding to
the contrary.
POINT II.
The Association is a “labor organization"
within the definition in Civil Rights Law § 43.
The reason, to be inferred from the Commis
sion’s references to the Handbook wherein the
Association’s discriminatory policy is discussed,
for supposing that the Association was one of the
specific organizations against which this legisla
tion was directed, need not be repeated.
Under this Point attention will be given to the
language of Civil Rights Law §43, and the facts
showing that the Association is a “ labor organ
ization” within the statutory language.
The definition is as fallows i
“ The term ‘ labor organization’’ means any
organization which exists and is constituted
for the purpose, in whole or in part, of col
lective bargaining, or of dealing with em
ployers concerning grievances, terms or con
ditions of employment, or of other mutual aid
or protection.”
The Association was incorporated in 1898 in the
State of New Hampshire. Originally it was the
National Association of Railway Postal Clerks,
its name having been changed to its present form.
15
in 1904. Always the statement of purposes in its
Charter has read as follows:
“ The object for which this corporation is
established is to conduct the business of a
fraternal beneficiary association for the sole
benefit of its members and beneficiaries and
not for profit; to promote closer social rela
tionship among Railway Postal Clerks; to
better enable them to perfect any movement
that may be for their benefit as a class or for
the benefit of the Railway Mail Service; to
provide relief for its members and their ben
eficiaries and make provisions for the pay
ment of benefits to them, in case of death,
sickness, temporary or permanent physical
disability, either as a result of disease, acci
dent or'old age.” (page 1 of printed pam
phlet, item “ a ” in stipulation, emphasis
added).
The same statement of purposes is found in
Article II of its Constitution (page 4).
Article VII prescribes the following duties for
its Industrial Secretary:
“ To collect and compile useful data relative
to wage standards and working conditions ir.
the Industrial Field and Postal Service and
other subjects which may be of benefit in
promoting the welfare of Railway Postal
Clerks.
“ To assist in the presentation of grievances
pertaining to service conditions and endeavor
to secure adjustment of such through admin
istrative action.
“ To act as the representative of members of
the Railway Mail Association before the
United States Employees’ Compensation
Commission” (page 11).
The ritual for opening an Association meeting
includes a recital that the membership is pledged
to “ the betterment of service conditions” (page
43).
16
Item “ b ” mentioned in the stipulation, a pam
phlet entitled ‘ ‘ The Railway Mail Association and
the Railway Postal Clerk,” printed by the As
sociation, without date but apparently soon after
1930, recites the achievements of the Associa
tion, “ for the improvement of the service and the
conditions of employment therein.”
“ The activity of the Association is directed
along two distinct lines, promoting the wel
fare of railway postal clerks by improving
conditions under which they work, and pro
viding* benefits for disability and death due
to accidental means” (page 1).
Pages 2 and 3 of the pamphlet describe the ac
complishments of the Association in 1900, 1907
and 1912 along the lines of increased compensa
tion, and in 1912 the securing of repeal by Con
gress of the so-called “ Gag Rule.” (Pages 4-7 is
a chronological summary of benefits secured in
the period 1900-1930, and pages 8-9 list current ef
forts. At pages 13-14 the pamphlet concludes
with an injunction to attend branch meeting, be
cause :
“ The Association has brought to every rail
way postal clerk many material benefits. Did
you ever contemplate just where you would
be, financially, and in the matter of working
conditions, if there were no Association?
Reforms always come as the result of de
mands from the workers. If better condi
tions are worth securing, they must conm
as result of organized effort. * * * Just note
the many accomplishments listed herein, and
then contemplate the many additional mil
lions of dollars brought to the pockets o f
railway postal clerks each year by the efforts
of the Association.”
The “ Railway Post Office” is the official maga
zine of the Association, and for many years be-
17
fore his death in 1943 Mr. Henry W. Strickland
was its editor, as well as the Association’s Indus
trial Secretary. In its issue for August 1940 (Vol.
42, p. 15) is an article by Mr. Strickland entitled
like the pamphlet last quoted, and of similar na
ture, except that it covered the years after 1930
.as well as before. It closed with the following
exhortation, of peculiar interest to Negro work
ers in the Railway Mail Service:
“ Only through collective action have work
ers ever improved wage and working stand
ards. And it is particularly true today that
the worker either in industries or the govern
ment service who is not a member of his
group organization is merely an unheard
voice crying in the wilderness.”
Quotation after quotation might be taken from
the editorials, articles and news items in the As
sociation’s official magazine, to prove its con
cern on behalf of better pay and better working
conditions for its members, and its specific ac
tivities to that end.
Reference has already been made to the official
bulletion of the U. S. Department of Labor, its
“ Handbook of American Trade Unions,” (1936
edition, wherein the Association is classified as a
union. An authoritative book of 1942 which gives
it the same classification, is “ How Collective Bar
gaining Works,” a publication of the Twentieth
Century Fund, page 961.
Since 1917 the Association has been a member
organization in the American Federation of La
bor, acting under a charter from it, contributing
to its expenses and participating in its annual
conventions and other activities.
18
The Charter or “ certificate of affiliation ’ ’ is
sued on December 22, 1917, over the seal of the
A. F. L. and the signatures of Samuel Gompers
and other members of its Executive Council (Item
“ h ” in the stipulation) refers to the Association
as a “ union,” and the purpose of its affiliation as
a “ thorough organization of the trade, and a more
perfect Federation of all trades and labor
unions.. ’ ’
At the 1941 Convention of the Association, held
October 20-25 at St. Paul, reported in the Novem
ber 1941 issue of 11. P. 0. (Yol. 43 p. 23) the fol
lowing resolution was moved and adopted:
“ We desire to express our sincere apprecia
tion to the leadership of the A. F. of L., and
that organization; also to the leaders of the
Post Office Clerks, Letter Carriers, Rural
Letter Carriers, Motor Vehicle employees
and their organizations, for the splendid co
operation with our national officers in secur
ing beneficial legislation; and we sincerely
hope that this spirit of mutual cooperation
will continue to the benefit of all concerned.’ ’
Earlier in the same month the A. F. L. Conven
tion had been held at Seattle, where the Associ
ation was represented by delegates Henry W.
Strickland and L. C. Macomber and they joined
with others in various resolutions, among them
the following:
“ Whereas, The organizations of Government
workers affiliated with the American Feder
ation of Labor have been successful in im
proving standards of employment in the Gov
ernment service, and
“ Whereas, The notable gains would not have-
been possible except for the wholehearted
support and cooperation of the American
Federation of Labor and its affiliates and offi
cers, and
19
“ Whereas, All these unions have recently re
affirmed their allegiance to the American
Federation of Labor; therefore be it
“ Resolved, That the delegates representing
unions of Government workers in this Sixty-
First Convention of the American Federa
tion of Labor and whose names are herein
inscribed do hereby express the gratitude of
themselves and their fellow members to the
American Federation of Labor and its af
filiates.’ ’ (Ex. d to stipulation p. 550).
At page 186 in the same printed volume of pro
ceedings of the 1941 A. F. L. convention is a list
of “ Benefit Services of Standard National and
International Unions for 1940’ ’ ; the Association
is one of a long list, and is credited with 22,865
members.
That list shows that the insurance function of
the Association is one common to many unions.
The exercise of insurance functions in itself is
no reason for saying either that the association is
or is not a labor organization.
Nothing in the record supports the statement
made in the lower court’s opinion that the New
York Insurance Department had conferred au
thority upon the Association to transact insurance
business within the State and thereby determined
that it was “ not a labor organization” (fols. 113-
14). The Insurance Law expressly exempts from
its licensing and other requirements any fraternal
benefit society or membership corporation which
issues insurance solely for the benefits of its mem
bers and their beneficiaries (Insurance Law §§44
(2), 450). (See 1939 Rep. Atty. Gen. 309).
Moreover, the Insurance Law expressly recog
nizes the propriety of combining insurance fea-
20
tures witli a labor organization, by excluding from
its licensing and other requirements:
‘ 1 (a) Organizations of workmen of the same
trade or of several aliied trades maintained
for the purpose of securing by united action
the most favorable conditions as regards
wages, hours and; conditions of labor, and
the protection of their individual rights in the
prosecution of their trade or trades.” (In
surance Law §466 (a)).
Thus, even if the record showed an examination
of the Association’s certificate of incorporation
by the Insurance Department, this would not
prove that it is not a labor organization.
It is significant that 'the Association has two-
classes of membership, beneficiary and non-bene
ficiary, as asserted in paragraph 12 of the com
plaint (fols. 20-21). Presumably if it had no bus
iness except insurance it would have only one
class-, the beneficiary membership. The fact is.
that it has other purposes, even more important,,
carried on for both classes of membership. Its.
'purposes are those of labor organizations gener
ally; any peculiarities it may have relate to its
methods.
The necessity of the insurance feature of the
Association as a form of “ mutual aid or protec
tion” originally arose as a result of the restric
tions on right of action for injuries which might
be sustained through accidents to the trains on
which the members of the Association traveled
(Cf. Martin v. Pittsburgh S L . E. R. Co., 203 U. S.
284, discussed in Point III). For similar reasons
the four National Railway Brotherhoods, which
are certainly labor organizations, also sponsored
insurance plans (Handbook p. 27).
21
In tlie last sentence of paragraph 22 of the com
plaint the Association asserts that its members
have not the right to strike (fol. 39). The answer
admits the truth of that allegation for purposes
of this litigation (fol. 52), although it may be
noted that Mr. Spero in his text entitled “ T'he La
bor Movement in a Government Industry” (sub
titled “ A Study of Employee Organization in the
Postal Service” )* refers to one small strike and
several threats of strikes in the postal service of
this country, and seems to regard the legality
of such action as undetermined (pp. 24, 36-38, 148,
166, 274-279). See also, “ Employee Relations in
the Public Service” (Chicago 1942), a report to
the Civil Service Assembly, pp. 108-120, 219; and
Carol Agger, “ The Government and its Em
ployees,” 47 Yale Law- Jour. 1112, 1130-1131.
However that may be, the right to strike is not
the test of a labor organization. Within the past
two years most unions have pledged themselves
not to strike, but nobody has supposed that this
was a complete surrender by them of the character
of labor organizations.
Under the present statute the test of a labor
organization is the purpose, in whole or in part:
“ of collective bargaining,
or of dealing with employers concerning
grievances, terms or conditions of employ
ment,
or of other mutual aid or protection.”
* Mr. Spero’s text was published in 1924 by George H. Doran
Company, and reissued in 1927 by MacMillan Company. The
preface at page ix acknowledges the author’s indebtedness to
nine persons, o f whom one is Henry W. Strickland, long the
Association’s Industrial Secretary. Page ^ refers to several
other persons, the first of them being Mr. E. J. Ryan, former
president of the Association.
22
The employers of the railway mail clerks are
the officials of the Postoffice Department, or Con
gress and the other branches of the government
itself. The purpose is to obtain from them im
provement of pay and working conditions. The
methods are described by Mr. Spero in Chapter
XVI of his text, pp. 270-274; and see also 280-286,
296-297, 303-304. At page 270 he says:
“ Postal organizations have sought the at
tainment of their objects by direct dealing
with the administrative chiefs and by bring
ing pressure to bear on Congress. Where the
former method was unsuccessful or inade
quate to the remedy sought, they have turned
to the latter. The principal methods, by which
they have sought to influence legislation have
been first, by lobbying and by presenting
their cases to the Congressional committee of
proper jurisdiction; second, by agitation and
publicity through advertising conditions _ in
the local press and through the organization
of mass meetings; third, and seldom, by as ng
their organized political power at the polls;
and fourth, a method becoming less and less
frequent, by playing politics ‘ back home.’
“ Publicity and direct dealing with Congress
have been the methods which have proved
most successful. Though the associations had
long tried to work with and through the De
partment and to influence the legislature _ in
their behalf, through a sympathetic executive-
the method has not been satisfactory. The
development of the postal labor movement
has shown a definite trend away from such
indirection. ’ ’
At pages 258-2591 Mr. Spero describes in some-
detail the method of “ direct dealing with the ad
ministrative chiefs.” Although his text refers,
specifically to negotiations and an agreement en
tered into in 1921, and departed from later in the
23
same year, it appears elsewhere (see, for instance,
an editorial in the “ Railway Post Office,” for Oct.
1940, vol. 42 p. 33) that such conferences and
agreements have become a regular and more de
pendable feature of the collective bargaining or
dealing between the Association and the higher
officials of the postal service. The method de
scribed is as follows:
“ At its [the Association’s] suggestion, its
national executive committee, the division
superintendents, the General Superintendent
of the railway mail service and the Second
Assistant Postmaster General met together in
a series of conferences and discussed a num
ber of important administrative matters af
fecting the interests of the clerks and the ser
vice. Papers presented by the Association’s
representatives, dealing with hours of service,
seniority, promotions, service rating system,
the construction of railway mail cars, etc.,
formed the basis of the discussions. _ A joint
subcommittee of the conference, consisting of
three supervisory officials and three officers of
the Association, drew up formal agreements
affecting hours of service, seniority, promo
tions and terminal and transfer service. These
agreements were approved by the General Su
perintendent and the president of the Railway
Mail Association and submitted to the Sec
ond Assistant in the form of recommenda
tions. That officer had previously assured
the joint conference that ‘ such agreements as
may be reached will be carried out faithfully
by the Department. ’ ’ ’
The Constitution of the Association prescribes
the following specific duties for the Industrial
Secretary, besides collecting and compiling “ data
relative to wage standards and working condi
tions,” “ which may be of benefit in promoting
the welfare of Railway Postal Clerks” :
“ To assist in the presentation of grievances
pertaining to service conditions and endeavor
24
to secure adjustment of such through admin
istrative action.”
“ To act as the representative of members of
the Bailway Mail Association before the
United States Employees’ Compensation
Commission.” (p. 11 of item “ a” in stipula
tion, fol. 57).
Those duties seem to be quite clearly, “ dealing
with employers, concerning grievances, terms or
conditions of employment.” The columns of “ The
Railway Post Office” (the official magazine of the
Association) are constantly filled with reports of
those and similar activities. Summaries of them
such as the pamphlet published by the Associ
ation, item “ b ” in the stipulation, have already
been mentioned.
Repeal of the “ Crag* Rule” by the Lloyd-LaFol-
lette Act of Aug. 24, 1912 (37 Stat. 555) is claimed
as an achievement of the Association (see the
pamphlet last mentioned, pp. 3, 4) but the Spero
text says it was the achievement of others (p. 173)
and) that the Association would not even pass a
resolution of endorsement (p. 174). Whatever
■may be the truth of that matter, now more than
thirty years ago, the Act assures the Association
of the right to appear before Congress without
punishment by the Postoffice Department, and
the documents listed at item “ f ” of the stipula
tion illustrate the fact that it freely avails itself
of that right (fols. 59-62).
Another significance of the Lloyd-LaFollette
Act, in the light o f the events leading up to it
(as to these, see Spero’s text, pp. 96-185) is that
it assures all postal employees, and particularly
railway mail clerks, that they have the right
25
to belong to a labor organization, even though it
be affiliated with the American Federation of
Labor, subject to the one restriction that the affili
ation must not impose an obligation to strike or
be designed to aid a strike of postal employees.
The Act squarely contradicts Mr. Justice Mur
ray’s conclusions that, “ collective bargaining has
no place in government service.” The relevant
language of the Act, originally added to the Post
Office Appropriation Act for 1913, and now found
in 5 LI. S. Code §652, is as follows :
“ Membership in any society, association,
club, or other form of organization of postal
employees not affiliated with any outside or
ganization imposing an obligation or duty
upon them to engage in any strike, or pro
posing to assist them in any strike, against
the United States, having for its objects,
among other things, improvements in the con
dition of labor of its members, including
hours of labor and compensation therefor
and leave of absence, by any person or groups
of persons in said Postal Service, or the
presenting by any such person or groups of
persons of any grievance or grievances to the
Congress or any Member thereof shall not
constitute or be cause for reduction in rank
or compensation or removal of such person
or groups of persons from said service. The
right of persons employed in the civil serv
ice of the United States, either individually
or collectively, to petition Congress, or any
Member thereof, or to furnish information
to either House of Congress, or to any com
mittee or member thereof, shall not be denied
or interfered with.”
The “ Handbook of American Trade-Unions,’ ’
1936 edition, lists at page 301 the National Fed
eration of Federal Employees (unaffiliated), and
at page 303 the American Federation of Govern-
26
ment Employees (affiliated with A. F. L.), both
located at Washington and composed primarily
of employees in the various departments of fed
eral government. Each specifies that the welfare
of the civil employees shall be advanced through
cooperation with government officials, legislation,
creating public sentiment and other legal means,
and that they will not support strikes against
the government. The United Federal Workers
of America (affiliated with C. I. 0.) was formed
in 1937 and is of similar nature. (“ Employee Re
lations in the Public Service,” p. 14). The text
last cited says the A. F. L. printing trades are
strongly organized in the Government Printing
Office (p. 10), and, “ There are at least eighteen
unions of national scope representing govern
ment workers primarily” (p. 9).
The American Federation of Teachers (see p.
298 of Handbook) is a national union which in
1936 claimed 20,000 members, and the Interna
tional Association of Fire Fighters (p. 302 of
Handbook) reported 35,000 members. The Nation
al Association of Master Mechanics and Foremen
of Navy Yards and Naval Stations was a much
smaller group (p. 305 of Handbook). Each of
those was affiliated with the A. F. L. The Hand
book (pp. 306-307) also lists a dozen unions in
the Postal Service besides the Association and the
Alliance.
In passing, it may be noted that many employees
of the State of New York belong either to The As
sociation of State Civil Service Employees of the
State of New York (unaffiliated), or the State
County Municipal Workers of America (affiliated
with the C. I. O.). The propriety of such mem-
27
berships, and the activities of those organiza
tions on behalf of the pay and working conditions
of their members, have had many official recog
nitions, and do net appear to be questioned other
than by the trial court’s opinion herein.
The Transport Workers Union is an aggressive
labor organization composed principally of em
ployees in the municipally-owned New York City
subways, who have civil service status. See as
to it, an article in the Political Science Quarterly
for June 1941, by Arthur W. Macmahan, entitled
“ The New York City Transit System: Public
Ownership, Civil Service and Collective Bargain
ing.” Early in 1943 it obtained substantial wage
increases for its membership without a strike,
and to an accompaniment of discussion as to
whether it possessed the right to strike. The
propriety of its collective bargaining, although
it is affiliated with the C. I. 0., seems not to have
been doubted.
Inasmuch as the trial court’s opinion quoted
an excerpt from President Roosevelt’s letter of
August 16, 1937, to Luther C. Steward, President
of the National Federation of Federal Employees
(fol. 126), apparently intended to support an in
ference against the recognition of such organiza
tions, it should be noted that in that letter the
President expressly stated:
“ Organizations of Government employees
have a logical place in Government affairs.
The desire of Government employees for fair
and adequate pay, reasonable hours of work,
safe and suitable working conditions, devel
opment of opportunities for advancement,
facilities for fair and impartial consideration
and review of grievances, and other objec
tives of a proper employee relations policy,
is basically no different from that of em
ployees in private industry. Organization
on their part to present their views on such
matters is both natural and logical * *
The right of public employees generally to or
ganize was sustained in Matter of Hagan v. Pi
card, 171 Misc. 475, aff’d, 258 App. Div. 771
(1939), where the court held that an associa
tion of employees of the New York City Park De
partment was entitled to approval of its certifi
cate of incorporation, stating (171 Misc. at 476) :
“ I find nothing in the statute which renders
unlawful the organization of public em
ployees for their mutual welfare and benefit.
They have the same right to mutual help and
assistance that other citizens have—and to
group themselves together for that purpose.
Concededly the unincorporated form of or
ganization of public employees is not unlaw
ful. If it were, the units now in existence
would be disbanded by public authorities and
their members prosecuted.”
Upon all the foregoing it is respectfully sub
mitted that the Association is commonly known
and officially listed as a labor union; it is one
of the organizations at which the 1940 legisla
tion was specifically directed; one of its purposes
is dealing with employers concerning grievances,
terms and conditions of employment; and it is a
“ labor organization” within the meaning of
Civil Rights Law §43.
POINT III.
Civil Rights Law § 43 is constitutional.
Mr. Justice Murray cited no authorities in sup
port of his conclusion that the statute, if applic
able to the Association, is unconstitutional.
29
The Association’s brief below argued that point
at length and cited many cases, placing its prin
cipal reliance upon Johnson v. Maryland, 254 U.
S. 51. That case will be discussed hereinafter,
but for the present it is observed that although
it relates to the postal service, it does not relate
to railway mail clerks. In opposition to it are cit
ed two cases which refer to such clerks: Price v.
Pennsylvania R. Co., 113 U. S. 218, and Martin v.
Pittsburgh & L. E. R. Co., 203 U. S. 284.
Nothing in any of the cases cited supports the
conclusion that prevention of discrimination
among voluntary associations of government
workers is an unconstitutional interference with
Federal activities.
The Price case and the Martin case each involv
ed a statute of Pennsylvania which limited the
liability of a railroad, in cases of suits by per
sons employed to work in or about the railroad,
to the recovery they could have if they were em
ployees of the railroad. In each case this statute
had the effect of defeating the recovery.
The Price suit was brought by the widow of a
41 route agent” or railway mail clerk, employed
by the United States, who had been killed in a
railway collision while in discharge of his duties.
In the Martin case the suit was by a railway pos
tal clerk who had been injured in a wreck while
engaged in his duties, and sued the railroad for
his injuries. The following excerpts from the
opinion of Mr. Justice White in the Martin case
indicate the decisions in both cases:
“ Under the settled construction given to the
statute by the Supreme Court of Pennsyl
vania the plaintiff, as a railway postal clerk,
30
was not a passenger and had no greater
rights in the event of being injured in the
course of his employment than would have
had an employe of the railroad company.
“ Was the application of the statute thus con
strued to a railway postal clerk of the United
States, in conflict with the power of Congress
to establish post offices and post roads?
“ In Price v. Pennsylvania Railroad Co., 113
U. S. 218, this question was in effect fore
closed against the plaintiff in error. That
case was brought to this court from a judg
ment of the Supreme Court of Pennsylvania,
96 Pa. St. 258, holding that a railway postal
clerk was not a passenger within the meaning
of the Pennsylvania act, and hence had no
right to recover for injuries suffered by him
in consequence of the negligence of an em
ploye of the company. The Federal ground
there relied upon was substantially the one
here asserted ; that is, the power of the Gov
ernment of the United States to establish
post offices and post roads, and the effect o f
the legislation of Congress and the act o f
the Postmaster General in appointing mail
clerks thereunder. After fully considering
the subject the case was dismissed because
no substantial Federal ground was involved,,
the court saying (113 U. S. 221) :
“ ‘ The person thus to be carried with the
mail matter, without extra charge, is no more
a passenger because he is in charge of the
mail, nor because no other compensation is
made for his transportation, than if he had
no such charge, nor does the fact that he is
in the employment of the United States, and
that defendant is bound by contract with the
Government to carry him, affect the ques
tion. It would be just the same if the com
pany had contracted with any other person
who had charge of freight on the train to car
ry him without additional compensation.
The statutes of the United, States which aur
thorize this employment and direct this serv-
31
ice do not, therefore, make the person so en
gaged a passenger, or deprive him of that
character, in construing the Pennsylvania
statute. Nor does it give to persons so em
ployed any right, as against the railroad com
pany, which would not belong to any other
person in a similar employment, by others
than the United States.’
“ This brings us to the second contention, the
repugnancy of the Pennsylvania statute to
the commerce clause of the Constitution. It
is apparent from the decision in the Price
case, just previously referred to, that in de
ciding that question we must determine the
application of the statute to the plaintiff in
error, wholly irrespective of the fact that at
the time he was injured he was a railway
postal clerk. In other words, the validity or
invalidity of the statute is to be adjudged
precisely as if the plaintiff was at the time
of the injury serving for hire in the employ
of a private individual or corporation.
“ Under the circumstances we have stated,
the case of Pennsylvania Railroad Co. v.
Hughes, 191 U. S. 477, clearly establishes
the unsoundness of the contention that the
Pennsylvania statute in question was void
because in conflict with the commerce clause.
* * #
“ The proposition that the statute denied to
the plaintiff in error the equal protection of
the laws because it ‘ capriciously, arbitrarily,
and unnaturally,’ by the classification made,
deprived railway mail clerks of the rights of
passengers which they might have enjoyed
if the statute had not been enacted, is with
out merit. The classification made by the
statute does not alone embrace railway mail
clerks, but places in a class by themselves
such clerks and others whose employment in
and about a railroad subject them to greater
peril than passengers in the strictest sense.
This general difference-renders it impossible
in reason to say, within the meaning of the
32
Fourteenth Amendment, that the legislature
of Pennsylvania, in classifying passengers in
the strict sense in one class, and those who
are subject to greater risks, including rail
way mail clerks, in another, acted so arbi
trarily as to violate the equal protection
clause of the Fourteenth Amendment.”
(203 U. S. pp. 292-293, 296).
It seems obvious that a law determining the
risks that railway mail clerks assume, as a con
dition of their employment, and the extent to
which injuries to them are recoverable from the
railroads, has a much more direct effect upon the
Postal Service of the United States than a law
forbidding discrimination in union members! up.
Particularly is this so, if we consider the Asso
ciation’s activities as limited to insurance and
social relationships, as urged in some parts of
its brief below. Of course the appellants’ view
of the facts is that the truth about the Associa
tion’s activities is somewhere between the claims
it has made to its membership, of having brought
about every advance in their pay and working
conditions obtained in the past forty years, and
the excessively modest claims now made in its
briefs in this litigation. We are quite willing to
deal with this constitutional question upon the
assumption, which we believe to be true, that the
Association is a bona fide labor organization,
which has achieved some appreciable changes in
the Postal System for the benefit of its members.
It by no means follows that every regulation of
the Association by the State is an unconstitutional
interference with the Postal System.
In Houston v. Hoove, 5 Wheat. 1, the Supreme
Court held, constitutional a statute of Pennsyl-
33
vania inflicting penalties upon members of its
militia who refused to perform Federal service.
At page 34 Mr. Justice Johnson, arguing that a
State may make a violation of a Federal act an
offense under State law also, said:
“ Witness also the crime of robbing the mail
on the highway, which is unquestionably cog
nizable as highway robbery under the State
laws, although made punishable under those
of the United States.”
In United States v. Hart, Pet. C. C., decided
by Mr. Justice Washington at Circuit at about
the same time as the case last cited (1817 and
1820, respectively) and cited with approval by
Mr. Justice Holmes in deciding Johnson v. Mary
land, 254 U. S. 51, 56, it was held that a mail car
rier could be convicted and fined under a Phila
delphia ordinance for driving his carriage reck
lessly through a crowded street. To similar ef
fect is the opinion of the Attorney General of the
United States in 1852 (5 Op. Atty. Gen. 554), like
wise cited with approval, advising the Postmaster
General that carriers of mail on railroads were
not exempt from an ordinance of Jersey City pro
hibiting trains to move through the city at a
speed greater than six miles per hour. See, to
similar effect, dicta in Illinois Central R. Co. v.
Illinois, 163 U. S. 142, 154, and Mississippi R. R.
Com. v. Illinois Central R. Co., 203 U. S. 335, 345.
In United States v. Kirby, 7 Wall, 482, it was held
that a carrier of mails might be arrested and de
tained upon a State indictment for murder, Mr.
Justice Field saying at page 487:
“ Common sense will sanction the ruling we
make, that the act of Congress which punishes
the obstruction or retarding of the passage
of the mail, or of its carrier, does not apply to
a case of temporary detention of the mail
34
caused by the arrest of the carrier upon an
indictment for murder.”
Returning now to the case of Johnson v. Mary
land, 254 U. S. 51, relied upon by the Association,
it is to be noted that the mail carrier whom the
State of Maryland attempted to punish for fail
ure to obtain an operator’s license by submitting
to an examination and paying a fee of three dol
lars, was an employee of the government and was
driving its motor truck with mail from a point in
Maryland to Washington, D. C., when he was ar
rested. No room was left for doubt that there
had been a direct and substantial interference
with the Postal Service. The opinion of Mr. Jus
tice Holmes cited United States v. Hart, supra,
and Commonwealth v. Closson, 229 Mass. 329, 118'
N. E. 653, L. R. A. 1918 C 939, saying:
“ Of course an employee of the United States
does not secure a general immunity from
state law while acting in the course of his
employment. * * * It may well be that, when
the United States has not spoken, the sub
jection to local lawT would extend to general
rules that might affect incidentally the mode
of carrying out the employment—as, for in
stance, a statute or ordinance regulating the
mode of turning at the corners of streets.”
(254 U. S. at p. 56; emphasis added).
But as to the case before it, the opinion said:
“ It seems to us that the immunity of the
instruments of the United States from state
control in the performance of their duties
extends to a requirement that they desist
from performance until they satisfy a state
officer upon examination that they are com
petent for a necessary part of them and pay
a fee for permission to go on. Such a require
ment does not merely touch the Government
servants remotely by a general rule of con-
35
duct; it lays hold of them in their specific
attempt to obey orders and requires qualifi
cations in addition to those that the Govern
ment has pronounced sufficient. It is the
duty of the Department to employ persons
competent for their work and that duty it
must be presumed has been performed.”
(254 U. S. at p. 57; emphasis added).
The distinctions suggested by the emphasized
language in those quotations are well illustrated
by State of Washington v. Wiles, 116 Wash. 387,
199 Pac. 749, 18 A. L. B. 1163. That case, inci
dentally, is much more like Johnson v. Maryland
than is the present case. Wiles had contracted
with the United States to carry mail in Seattle in
motor trucks which he furnished, together with
their operators. He refused to obtain truck li
censes, an information was filed against him and
he was arrested, apparently at a time and place
which did not interfere directly with the carrying
of the mails. The Washington Supreme Court
said, in the final paragraphs of its opinion:
“ While it is true, generally speaking, that a
state may not, by its laws, hamper and inter
fere with the free and orderly performance
of governmental functions, by taxation or
otherwise, yet that interference must be sub
stantial and direct. Every indirect and im
material interference with the conduct of gov
ernment business is not violative of the prin
ciples upon which the Federal government
is founded and performs its duties. The rule
of reason must control in all such questions;
otherwise the states will be greatly hampered
in the conduct of their affairs, without any
corresponding benefit flowing to the national
government.
“ We are confident that the appellant is not,
because of the facts of this case, relieved
from complying with the state statute impos
ing upon him the motor truck license fee.”
36
That decision finds support so far as concerns
its tax aspects, in Graves v. N. Y. ex rel. O’Keefe,
306 U. S. 466, and Alabama v. King & Boozer,
314 U. S. 1, and so far as concerns its regulatory
aspects, in Penn Dairies v. Milk Control Comm’n,
318 U. S. 261.
■ Upon like reason, applicable with stronger rea
son upon the facts of the present case, it is re
spectfully submitted that Civil Rights Law §43 is
not unconstitutional because of its application to
the Association.
FIN ALLY.
The order and judgment below should be
reversed and the complaint dismissed, with
costs.
Albany, December 15, 1943.
Respectfully submitted,
NATHANIEL L. GOLDSTEIN,
Attorney General of the
State of New York,
Attorney for Defendants-Appellants.
Or e ix G. J ijdd,
Solicitor General,
W endell P. B ro w n ,
First Assistant Attorney General,
H en ry S. M anley ,
Assistant Attorney General,
Of Counsel.
BATAVIA T IM E S , LAW PRINTERS-,.
BATAVIA, N ,Y .
impnmtp (Eourt
Of the State of New York
A ppellate D ivision— T hird D epartment
R ailw ay M ail A ssociation,
Plaintiff-Respondent,
against
E dward S. Corsi, as Industrial
Commissioner of the State of
New York, and N athaniel L.
Goldstein, as Attorney Gen
eral of the State of New York,
Defendants-Appellants.
BRIEF FOR THE NATIONAL ASSOCIATION
FOR THE ADVANCEMENT OF COLORED
PEOPLE.
Amicus Curiae.
The N. A. A. C. P. Legal Defense & Educa
tional Fund, Inc., is submitting a brief herein as
amicus curiae because of its interest in the ques
tion raised in this case. The N. A. A. C. P. Legal
Defense & Educational Fund, Inc., is an organi
zation devoted to the furtherance and protection
of the civil rights guaranteed by the Constitution
of the United States. For many years it has sup
ported individuals and groups whose basic rights
were threatened or invaded. Believing that this
case presents an issue of importance to the Negro
race generally, and to all persons interested in
the protection of civil rights, we beg leave to sub
mit the following brief discussion:
2
That the Railway Mail Association is a “ labor
organization” within the definition of the Civil
Rights Law, section 43, has been conclusively
established in the brief of the Attorney General
of the State of New York. In addition to the au
thorities and sources therein cited, we wish to call
attention to the following works:
In Patterns of Negro Segregation, by Professor
Charles S. Johnson, published in 1943 by Harper
and Brothers under a grant in aid by the Carnegie
Corporation of New York, it is stated:
“ Although there are isolated exceptions and
occasional changes in practice, existing labor
unions fall into a broad classification by racial
policy as follows: (1) Labor unions which
exclude all Negroes by special clauses in their
constitutions or rituals: . . . railway mail
clerks” (p. 98; italics supplied).
In an article in the June, 1943, issue of The
Journal of Political Economy, Herbert R. North-
rup, whose book on the Negro and American labor
unions is now in press, Harper and Brothers pub
lishers, says:
“ At least 15 American trade unions spe
cifically exclude Negroes from membership by
explicit provisions in either their constitutions
or rituals. Of these, six . . . are of no great
importance in barring Negroes from jobs,
since none of them has a membership exceed
ing 3,000. Quite different, however, is the
effect of the remaining 9 exclusionist unions,
for they include some of the larger and more
influential orgcmizations in the American
labor movement, namely: . . . the Railway
Mail Association” (pp. 206 and 207; italics
supplied).
3
It is clear from the material cited in the Attor
ney General’s brief and from the above passages
that the plaintiff-respondent is, in the full sense
of the term, a “ labor organization” within the
definition in section 43 of the Civil Rights Law.
That the Labor Law provisions are inapplicable
to the present action is clear from the history of
the Civil Rights Law, section 43. Furthermore,
the latter act contains within itself a definition of
a “ labor organization” . The statute states that
“ as used in this section ( (meaning section 43)), the
term ‘ labor organization’ means any organization
which exists and is constituted for the purpose, in
whole or in part, of collective bargaining, or of
dealing with employers concerning grievances,
terms or conditions of employment, or of other
mutual aid or protection” . By its very terms the
statute excludes the incorporation by reference of
a definition of a “ labor organization” from an
other statute on the basis of the rule of statutory
interpretation relating to legislative acts construed
to be in pari materia. To permit the plaintiff-re
spondent to get out “ from under” section 43 of
the Civil Rights Law by the argument that it is
not a “ labor organization” , is to open the door
to a nullification of the statute in practice.
The question of the constitutionality of section
43 of the Civil Rights Law has been adequately
covered by the brief of the Attorney General.
In view of the public policy on which the statute
is based, it is respectfully submitted that Mr. Jus
tice M tjbray committed legal error when he gave
to the section such narrow construction as to ex
clude from its coverage the Railway Mail Associa
tion. The practices of the Association would be
indefensible at any time, but especially are they
4
so at a time when our country needs every ounce
of manpower in order to defeat the Nazi and
Fascist system, which has as one of its chief tenets
a belief in the superiority of one race over an
other. The exclusion of Negro workers from a
labor organization keeps from jobs men and
women whose energy and industry are essential
to national defense. The Railway Mail Associa
tion, by its policy of exclusion of Negroes solely
because of their color or race, is committing an
act which is against the law, as well as an act
which outrages the basic principles of the demo
cratic pattern of life.
W herefore, it is subm itted that the order and
judgm ent below should be reversed and the com
plaint dism issed.
The City of New York, January 6, 1944.
Respectfully submitted,
E dward R. D udley,
Attorney for N. A. A. C. P. Legal
Defense & Educational Fund, Inc.
New York, New York.
T hurgood M arshall,
Baltimore, Maryland.
M ilton R . K onvitz,
Newark, New Jersey.
W illiam H . H astie,
Washington, D. C.
L eon A. R ansom ,
Columbus, Ohio.
Of Counsel.
L a w y e r s P r e ss , I n c ., 165 William St., N. Y. C.; ’Phone: BEekman 3-2300
J^uprrntr Court of tljr Itottrft States
O ctober T erm , 1944
No. 691
RAILW AY MAIL ASSOCIATION,
Appellant,
v.
EDWARD S. CORSI, as Industrial Commissioner of the
State of New York, et al.
APPEAL FROM THE SUPREME COURT OF THE
STATE OF NEW YORK
Motion for Leave to File Brief as Amicus Curiae
and Brief in Support Thereof
A rthur Garfield H ays,
Counsel for American Civil Liberties
Union, as Amicus Curiae.
W alter Gordon M erritt,
of the New York Bar,
Of Counsel.
Statement 1
I nterest of the A merican Civil L iberties U nion ......-
P oint I— Section 43 of the Civil Rights Law is not
in conflict with any federal power ..........................
P oint II—Section 43 o f the Civil Rights Law is not
in conflict with the Fourteenth Amendment of the
Federal Constitution .......................... ........................
Conclusion ....................................................................................
Table of Cases Cited
Adair v. U. S., 208 U. S. 161 ....... ......... ..........................
Allen Bradley Local, et al. v. Wisconsin Employment
Relations Board, et al., 315 IT. S. 740 ............ —
Buchanan v. Warley, 245 U. S. 60 .................. -..........
Cloverleaf Butter Co. v. Patterson, et al., 315 U. S. 148
Hirabayashi v. U. S., 320 U. S. 81 ........ .......... - ......—16,
James v. Marinship Corporation, California Supreme
Court, December, 1944 ..............................................
Martin v. Pittsburgh & L. E. R. R. Co., 203 U. S.
284 ................................................. .................
Maurer v. Hamilton, 309 U. S. 598 .............................
McDermott v. Wisconsin, 228 U. S. 115 ... ...... ------......
McGoldrick v. Compagnie Generate Transatlantique,
309 U. S. 430 ...................................................-.... -......
New Negro Alliance v. Grocery Company, 303 U. S.
552 .................................................................................
3
3
13
19
7
7
18
10
18
18
12
10
10
14
16
11
PAGE
Penn Dairies, Inc. v. Milk Control Commission of
Pennsylvania, 318 U. S. 261 ....... ........................... 11
Savage v. Jones, 225 U. S. 501 ____________ _____ 10
Smith v. Allwright, 321 U. S. 649 ........ ............. ........ 18
In the Matter of St. Louis Shipbuilding and Steel
Company, No. 62, Jan. 10, 1945 (10 Daily Labor
Rep., Sec. D, 1/15/45) ................... ........ ...... ....... ...... 6
State Farm Mutual Automobile Insurance Company
v. Duell, 323 U. S. , No. 115, October term,
1944 ....................................................... ......................... 14
Steele v. L. & N. R. R. Company, 323 U. S. , Dec.
18, 1944 ..... ...... ....... ........... ................................... ..... 6,18
Terminal Railroad Association of St. Louis v.
Brotherhood of Railroad Trainmen, 318 U. S. 1.... 8
Traux v. Raich, 239 IT. S. 33 ......... ......... ...... ............... 17
Yick Wo v. Hopkins, 118 U. S. 356 ........................... . 18
Statutes Cited
Act of August 24, 1912:
Chap. 389 (37 Stat. 555; 5 U.S.C.A. §652) ........... 3
Alcoholic Beverage Control Law, Section 65................ 16
Civil Rights Law:
Sections 13, 40-45 ................ ........................................ 16
Section 43 .... .......... ................................... .... 2, 3,11,13,15
Civil Service Law, Section 14-c .................... ....... ....... 15
Education Law, Section 36 .................................. ........... 15
Insurance Law, Section 209 ............... ...... - .......... ...... 15
Judiciary Law, Section 467 ................. ............................ 15
Labor Law, Section 220-e ..................... ......................... 15
National Labor Relations Act 29 (U.S.C.A., Section
152 (2)) ............ ............................. ............................. 4
N. Y. Constitution, Article 1, Section II ----------- 15
Penal Law, Sections 514, 515, 700, 701, 1191 ......... 15
Public Housing Law, Section 223 ........................... — 15
Public Service Law, Section 79 ......................... ..... . 15
PAGE
Railway Labor Act (44 Stat. 577, as amended; 45
U.S.C.A. §151) .................. ........... ................... .......... 6
Tax Law, Section 4 ............................ ...... .................... 15
United States Constitution, Fourteenth Amendment..l3,15
War Labor Disputes Act (50 U.S.C.A. App., Sections
1501-1511 ...... .......................................... ..... ............... 4
Authorities and Miscellaneous Cited
Chafee, The Internal Affairs of Associations, 43
Harvard Law Rev. 996 ............................................ 17
Columbia Law Review, Jan. 1945, Vol. 45, No. 1,
pp. 86-90 ..................................................... ................. 13
Executive Orders:
No. 8802, issued June 25, 1941 .............................. . 5
No. 9346, issued May 27, 1943 ................................. 5
Fraenkel, 150 Years of the Bill of Rights, 23 Minne
sota Law Review 719, 733 —........... .................. — 16
Witmer, Civil Liberties and the Trade Unions, 50
Yale Law Journal 621, 624 ..................................... 17
Ill
Hhqmw (tart of tbr Inttrft States
O ctober T erm , 1944
No. 691
------------— «®s-4*^b— -------------
R ailw ay M ail A ssociation,
v.
Appellant,
E dward S. Corsi, as Industrial Commissioner of the
State of New York, et al.
appeal from th e supreme court oe the
STATE OF NEW YORK
Motion for Leave to File Brief as Amicus Curiae
May it Please the Court:
The undersigned, as counsel for the American Civil
Liberties Union, respectfully moves this Honorable Court
for leave to file the accompanying brief in this case as
Amicus Curiae. The consent of the attorney for the
appellee only to the filing of this brief has been obtained.
Special reasons in support of this motion are set out
in the accompanying brief.
March 3, 1945.
A rthur Garfield H ays
Counsel for American Civil Liberties
Union, Amicus Curiae
Ihtpron? (Emtrt of % States
O ctober T erm , 1944
No. 691
R ailw ay M ail A ssociation,
v.
Appellant,
E dward S. Corsi, as Industrial Commissioner of the
State of New York, et al.
appeal from the supreme court of the
STATE OF N E W YORK
BRIEF OF AMERICAN CIVIL LIBERTIES UNION,
AS AMICUS CURIAE
This is an appeal by the Railway Mail Association
from a judgment of the Supreme Court of the State of
New York entered upon the remittitur and final decision
of the Court of Appeals of the State of New York dated
July 19, 1944 (293 N. Y. 315). The appellant Railway
Mail Association (herein called “ plaintiff” ) presents nine
assignments of error (R. 45-46). In brief, the plaintiff
objects to the decision of the Court of Appeals in apply
ing to it §43 of the Civil Rights Law of the State of New
York, forbidding racial discrimination by a labor oigani-
2
zation, and in upholding the constitutionality of said act
as so applied. As the question of interpretation of the
act is not here open to review, the sole question is the
constitutionality of the act as interpreted by the Court of
Appeals.
The plaintiff challenged the validity of the act on two
grounds, one being that as interpreted it constitutes arbi
trary classification and the other being that it is in conflict
with the exercise of federal power.
The plaintiff is a foreign corporation organized under
the laws of the State of New Hampshire, having thirteen
branch associations located in the State of New York. Its
membership is confined to “ any regular male Railway
Postal Clerk or male substitute Railway Postal Clerk of
the United States Railway Mail Service who is of the
Caucasian race or a native American Indian.” These
clerks are civil service employees of the United States
employed through the exercise of the constitutional power
of Congress “ to establish Post offices and post Roads;”
§43 of the Civil Rights Law provides, in part, that
“ No labor organization shall hereafter, directly or in
directly, # * * deny a person or persons membership
in its organization by reason of his race, color or creed
# * * M
The plaintiff brought an action in the State Court for
a declaratory judgment that this law did not apply to it
and that, if applied to it, was beyond the constitutional
power of the State Legislature. The Appellate Division
of the Supreme Court of the State of New York (267
App. Div. 470) and, on appeal, the Court of Appeals of
the State of New York (293 N. Y. 315), both unanimously
held that the act was applicable to the plaintiff and, as
interpreted, was a valid enactment of the state.
3
Interest of the American Civil Liberties Union
The amicus curias herein is a national organization,
many of whose members are residents and citizens of the
State of New York. The object of the American Civil
Liberties Union, as set forth in its charter, is the preser
vation and defense of civil rights. The Civil Liberties
Union has consistently adopted the view that distinctions
in civil rights based on race or nationality are “ by their
very nature odious to a free people whose institutions are
founded upon the doctrine of equality.” It has, there
fore, advocated and supported any reasonable law for
bidding discrimination in civil rights by reason of race,
creed, color or national origin.
POINT I
Section 43 of the Civil Rights Law is not in con
flict with any federal power. 1
1. The federal government has specifically limited
itself in respect to the regulation of unions which may be
joined by government employees.
The Act of August 24, 1912, Chap. 389 (37 Stat. 555;
5 U.S.C.A. §652), after prescribing the procedure by which
civil service employees, such as postal service employees,
may be removed, limits the right of removal on account
of the union status, as follows:
“ Membership in any society, association, club, or
other form of organization of postal employees not
affiliated with any outside organization imposing
an obligation or duty upon them to engage in any
strike, or proposing to assist them in any strike,
4
against the United States, having for its objects,
among other things, improvements in the condition
of labor of its members, including hours of labor
and compensation therefor and leave of absence,
by any person or groups of persons in said Postal
Service, or the presenting by any such person or
groups or [of] persons of any grievance or griev
ances to the Congress or any member thereof shall
not constitute or be cause for reduction in rank or
compensation or removal of such person or groups
of persons from said service. The right of persons
employed in the civil service of the United States,
either individually or collectively, to petition Con
gress, or any Member thereof, or to furnish infor
mation to either House of Congress, or to any com
mittee or member thereof, shall not be denied or
interfered with.”
The plaintiff, in apparent recognition of this Act of
Congress, limits its corporate purposes and activities so
as to include the presentation of grievances without resort
to strikes and collective bargaining.
The National Labor Relations Act (29 U.S.C.A.,
§152(2)) by its terms expressly excludes the United
States or any state, as an employer.
The War Labor Disputes Act (50' U.S.C.A. App.,
§§1501-1511) adopts the same exclusion of government
employees.
It appears, therefore, that the federal government in
enacting laws relative to organized labor, either in time
of war or peace, has excluded government employees ex
cept in so far as it has forbidden the removal of civil ser
vice employees for associating with other members of their
group in the presentation of grievances. It would be dif
ficult to point out any situation where, by implication, at
5
least, the police power of the states in respect to such a
subject was more definitely reserved to the states. Con
gress has deliberately refrained from occupying this field.
2. On the particular subject of racial discrimination
the federal government has declared a definite public
policy as a war-time policy. By Executive Order 8802,
issued June 25, 1941, there was established a Committee
on Fair Employment Practice to eliminate discrimination
in government departments and defense industries, and
by Executive Order 9346, issued May 27, 1943, an amended
order was issued defining the powers and duties of said
Committee. This last order contains the following:
“ Now, T herefore, by virtue of the authority
vested in me by the Constitution and statutes, and
as President of the United States and Commander
in Chief of the Army and Navy, I do hereby re
affirm the policy of the United States that there
shall be no discrimination in the employment of any
person in war industries or in Government by rea
son of race, creed, color, or national origin, and I
do hereby declare that it is the duty of all em
ployers, including the several Federal departments
and agencies, and all labor organizations, in fur
therance of this policy and of this Order, to elimi
nate discrimination in regard to hire, tenure, terms
or conditions of employment, or union membership
because of race, creed, color, or national origin.”
This order also directs that all contracting and sub
contracting agencies of the government of the United
States shall include in their contracts and subcontracts a
provision obligating the contractor not to discriminate
against any employee on account of race or color and a
further provision requiring all departments and agencies
6
of the United States engaged in vocational and training
programs for war production not to engage in such dis
crimination. The Fair Employment Practice Committee
is functioning and seeking to enforce this policy of non
discrimination.
In the Matter of St. Louis Shipbuilding and Steel
Company, No. 62, Jan. 10, 1945 (10 Daily
Labor Rep., sec. D, 1/15/45).
Moreover, the recent decision of this Court in the case
of Steele v. L. & N. B. R. Company, 323 U. S. , Dec.
18, 1944, also makes it clear that the Railway Labor Act
(44 Stat. 577, as amended; 45 U.S.C.A. §151) and the
National Labor Relations Act {supra) create rights and
duties which must be exercised “ without hostile discrimi
nation.” In that case this Court said:
“ Here the discriminations based on race alone are
obviously irrelevant and invidious. Congress plain
ly did not undertake to authorize the bargaining
representative to make such discrimination.”
3. The remoteness of the state law in its effect on the
operation of mail service also deserves special considera
tion.
This state law does not impose any restriction on the
power of the federal government to conduct the postal
service or to employ people for that purpose. It applies
only to self-governing associations of employees which are
free to conduct their own affairs within the limits of law.
Under the constitution of the plaintiff, aliens but not ne
groes are eligible to membership (R. 2), but the federal
government is free to do the opposite—to discriminate
against aliens and to employ negroes. This prohibition of
7
the Civil Rights Law imposed on labor organizations does
not directly affect the operations of the railway mail ser
vice (Adair v. U. 8., 208 U. S. 161), notwithstanding the
fact that the connection is close enough so that Congress
could, if it so desired, enact legislation which would super
sede the application of the state act.
The operations of the mails are no more affected by
this law than they would be by a state law which required
unions to file annual accountings or to elect officers only
by secret ballot. No one would contend that a require
ment by the State of New York that such corporate or
ganizations as the plaintiff be domiciled in that state (R.
3, 19, 23) would be invalid in the absence of federal legis
lation, but such a requirement would be far more drastic
than one requiring such organizations not to engage in
racial discrimination. While it must be conceded that a
law of the State of New York forbidding the employment
of anyone under eighteen years of age could not be ap
plied to the federal government in employing mail clerks
in that state, it does not follow that a state law which
undertook to forbid a union from accepting persons under
eighteen years of age as members would be invalid in the
absence of conflicting federal legislation.
Recent decisions of this Court further show its re
luctance to limit state powers on the ground of conflict
with federal powers where it is possible to reach the con
clusion that the two laws can exist side by side.
In the case of Allen Bradley Local, et al. v. Wisconsin
Employment Relations Board, et al., 315 U. S. 740, this
Court considered the question as to whether a cease and
desist order, issued pursuant to the terms of the state
statute against mass picketing and threats of injury to
employees and picketing of employees’ homes, was in con
8
flict with the National Labor Relations Act. The Court
repeated the statement that it has long insisted that “ an
intention of Congress to exclude states from exerting their
police power must be clearly manifested” , (p. 749) It
held m the particular case that “ Congress has not made
such employee and union conduct as is involved in this
case subject to regulation by the federal Board” (p. 749)
and that “ here, as we have seen, Congress designedly left
open an area for state control” , (p. 750) This Court
added:
“ Since the state system of regulation as con
strued and applied here can be reconciled with the
federal Act and since the two as focussed in this
case can consistently stand together, the order of
the state Board must be sustained under the rule
which has long obtained in this Court.” (p. 751)
In the case of Terminal Railroad Association of St.
Louis v. Brotherhood of Railroad Trainmen, 318 U. S. 1,
the Railroad Association afforded terminal services and
facilities for the sorting and switching of cars, nearly all
of which moved in interstate commerce. The Brotherhood
of Railroad Trainmen complained to the Illinois Com
merce Commission over the failure of the railroad to
provide cabooses for purposes of health, comfort and
protection. The Commission, after appropriate proceed
ings, entered an order requiring the cabooses, and the
railroad contested its validity on the ground that it was
in conflict with federal powers.
In answer to the claim that Congress had occupied
this field by various acts, the Court said (p. 4) :
“ Appellant claims that there had been Con
gressional occupation of the field by virtue of the
9
Boiler Inspection Act, the Safety Appliance Act,
and the Interstate Commerce Act. It is not con
tended, nor do we understand, that these statutes,
by themselves and unimplemented by any action of
the Interstate Commerce Commission, lay down any
requirement that cabooses shall or shall not be used
on any of the runs in question. Nor is it contended
that the Interstate Commerce Commission itself
has sought to make any such requirement. At
least in the absence of such action these acts do
not themselves preclude the state order * *
It was further contended in that case that the order
of the State Commission was in conflict with the Railway
Labor Act, which provided for the settlement of disputes
between carriers and employees, including “ disputes in
volving train and yard-service employees of carriers.”
The Court assumed, without deciding, that the demand for
caboose service and its refusal might constitute a dispute
to be settled pursuant to the terms of the Railway Labor
Act, and said (pp. 6-7) :
“ The question is whether the Railway Labor
Act, so interpreted, occupied the field to the ex
clusion of the state action under review. We
conclude that it does not, and for the following
reasons:
“ The Railway Labor Act, like the National
Labor Relations Act, does not undertake govern
mental regulation of wages, hours or working con
ditions. Instead it seeks to provide a means by
which agreement may be reached with respect to
them. The national interest expressed by those
Acts is not primarily in the working conditions as
such * * *. The federal interest that is fostered
is to see that disagreement about conditions does
not reach the point of interfering with interstate
commerce. * * *
10
“ * * * But we would hardly be expected to
hold that the price of the federal effort to protect
the peace and continuity of commerce has been to
strike down state sanitary codes, health regula
tions, factory inspections, and safety provisions for
industry and transportation. * * * We hold
that the enactment by Congress of the Railway
Labor Act was not a pre-emption of the field of
regulating working conditions themselves and did
not preclude the State of Illinois from making the
order in question.”
In the case of Cloverleaf Butter Co. v. Patterson, et
al., 315 U. S. 148, this Court had before it the question of
the validity of state action in respect to the inspection
and seizure of packing stock butter required for the manu
facture of renovated butter for interstate commerce, and
held that the state regulation was inconsistent with the
federal regulations. The Court said that the test to be
applied “ is the effect of that action upon the national
regulatory policy declared by the federal statute * #
(p. 153) “ It must be clear that the federal provisions
are inconsistent with those of the state to justify the
thwarting of state legislation” , (p. 156) The Court pro
ceeded to illustrate its doctrine by reviewing the cases of
McDermott v. Wisconsin, 228 U. S. 115, and Savage v.
Jones, 225 IT. S. 501, and thus pointed out that a state
and federal law, each dealing with the protection of the
public from fraud and adulteration in the sale of food,
can exist side by side provided that the state law is only
supplementary to, and not in conflict with, the federal
law.
See, also:
Maurer v. Hamilton, 309 IT. S. 598.
11
From what has already been set forth, we think it is
clear that there is no substance to the contention that
employees in the postal mail service are exempt from the
police power of the state merely because they are em
ployed in a service which Congress has the exclusive
power to carry on.
'§43 does not purport to regulate or control the conduct
of railway mail employees as employees but only a policy
of certain associations which they may or may not elect
to join.
An analogous decision illustrating the direct and in
direct effect of state legislation on a federal function, is
found in the case of Penn Dairies, Inc. v. Milk Control
Commission of Pennsylvania, 318 IT. S. 261, where the
state statute regulating the sale of milk was applied to
milk purchased by agencies of the United States Govern
ment. The Court pointed out that a regulation of this
kind which merely imposed added economic burdens on
the government but imposed no direct regulation on it,
was valid, and said:
“ * * * We may assume that Congress, in aid
of its granted power to raise and support armies,
Article 1, '§8, cl. 12, and with the support of the
supremacy clause, Article 6, §2, could declare state
regulations like the present inapplicable to sales to
the government. * * * But there is no clause of
the Constitution which purports, unaided by Con
gressional enactment, to prohibit such regulations,
and the question with which we are now concerned
is whether such a prohibition is to be implied from
the relationship of the two governments established
by the Constitution.
“ We may assume also that, in the absence of
congressional consent, there is an implied constitu-
12
tional immunity of the national government from
state taxation and from state regulation of the
performance, by federal officers and agencies, of
governmental functions.” (p. 269)
See, also:
Martin v. Pittsburgh & L. E. R. R. Co., 203 U. S.
284.
The plaintiff’s contention on this specific point seems
to be reduced to the claim that since Congress has in
effect suffered postal employees to associate for the pre
sentation of grievances, the state is barred from passing
any law applicable to unions to which associations of
postal employees may belong, even though that law in no
way conflicts with the permission given to postal em
ployees to unite in the presentation of grievances. It
seems clear under the authorities already discussed, and
the arguments already presented, that the law is other
wise.
We submit further that the underlying principles which
determine questions of conflict between the federal and
state governments, as set forth in the cases cited herein,
apply with equal force whether we deal with interstate
commerce conducted by private parties or service ren
dered under the power ‘ ‘ to establish post offices.”
To repeat,—the act regulates the conduct of associa
tions within the State of New York and does not in any
way regulate, as such, the conduct of employees of the
postal service. As said in the closing paragraph of the
opinion of the Appellate Division of the State of New
York (R. 32):
“ * * * We see here no attempt on the part
of the state to infringe upon the federal power to
conduct the postal system or handle the mails. The
racial discrimination forbidden by this statute is
too far removed from the operations of the federal
government even though membership in the plain
tiff is limited to railway postal clerks and sub
stitutes. There is no effort on the part of the
state to regulate or interfere with the railway mail
service. Quite the contrary. It is an effort to pre
vent racial and religious discrimination in all labor
organizations operating within the state.”
POINT II
Section 43 of the Civil Rights Law is not in con
flict with the Fourteenth Amendment of the Federal
Constitution.
The opinion of the Court of Appeals states that
“ plaintiff does not challenge the validity of a statute
which would prohibit such discrimination by ‘ labor or
ganizations’ to which the provisions of article 20 of the
Labor Law apply” but does challenge the validity of the
act on the ground that, when considered in connection
with article 20 of the Labor Law, its application to the
plaintiff creates “ arbitrary, capricious and unreasonable
classifications * * (R. 38)
On the question of the validity of this act as against
the charge of arbitrary and unreasonable classification,
this petitioner is not desirous of being heard, because it
seems clear that such question is without merit.*
The question of the inherent power of a state to forbid
discrimination by labor organizations is, we submit, not
before this Court because it was not raised in the court
below.
*See Columbia Law Review, Jan. 1945, Vol; 45, No. 1, pp. 86-90.
14
McGoldrick v. Compagnie Generate Transatlanti-
que, 309 U. S. 430;
State Farm Mutual Automobile Insurance Com-
pamy v. Duett, 323 XJ. S. , No. 115, October
term, 1944.
But in view of the fact that the plaintiff largely aban
dons its contention of arbitrary classification and devotes
itself primarily in Point I of its brief to discussing the
inherent power of the state to deal in general with such
a subject, we are including that point in this brief. Under
this point the plaintiff’s main contention seems to be, in
substance, that the Railway Mail Association is a social
organization and not an economic one comparable to a
trade union and that the power of the Legislature to
regulate labor unions in respect to discrimination does
not extend to such a social organization.
Petitioner submits that the facts do not support such
a contention and that the entire record shows that the or
ganization is predominantly economic. The opinion of the
Court of Appeals finds:
“ The purpose of ‘ mutual aid or protection’ and in
proper case of discussing grievances with their em
ployer and presenting demands or suggestions of
their members as a class is included by plain im
plication in the purposes set forth in the charter.
Indeed, among the duties of the industrial secretary
of the organization, prescribed in its constitution, is
the duty to ‘ assist in the presentation of grievances
pertaining to service conditions and endeavor to
secure adjustment of such through administrative
action.’ ” (R. 35)
In fact, two pages of the Court of Appeals opinion (R.
35-6) proves beyond question that plaintiff is an economic
15
organization identical in many particulars with the usual
type of labor organization. Nor is this fact changed by
the provision in the constitution of the plaintiff providing
for the promotion of closer social relations, for, as is well
known, most labor unions include provisions and activities
which are purely social in character. If plaintiff wishes
the status of a fraternal organization, it should shun the
functions of a labor organization. In dealing with this
point, on page 30 of its brief the plaintiff is in effect at
tempting to reargue the unreviewable conclusion of the
state court that it is a labor organization.
The very fact that the plaintiff seems driven to claim
that its organization is a social one seems to be an implied
recognition of the power of the State Legislature to regu
late racial discrimination by labor organizations, but even
though there were no such implied recognition, we submit
that the authorities make it clear that such power does
exist and its proper exercise does not constitute a viola
tion of the Fourteenth Amendment.
§43 implements the general public policy of the State
of New York in providing for equality of treatment of
rights fundamental and inherent to all citizens. Persons
may not be excluded from restaurants, hotels or other
places of public accommodations on the basis of race,
creed or color and other statutes extend similar protection
in other fields.* These laws have all been enacted under
* N. Y. Constitution, Article 1, Section II.
Alcoholic Beverage Control Law, Section 65.
Civil Rights Law, Sections 13, 40-45.
Civil Service Law, Section 14-c.
Education Law, Section 36.
Insurance Law, Section 209.
Judiciary Law, Section 467.
Labor Law, Section 220-e.
Penal Law, Sections 514, 515, 700, 701, 1191.
Public Housing Law, Section 223.
Public Service Law, Section 79.
Tax Law, Section 4.
16
the police power of the state to protect the public health,
morals, welfare and safety of its citizens and residents.
In the Civil Rights Cases (109 IT. S. 3) the Supreme
Court stated that State Civil Rights Laws were appropri
ate to secure negro equality, and in striking down Congres
sional legislation which forbade discrimination against
negroes in places of public entertainment and transpor
tation such as inns and railroads, the Court said (at p.
17) that the rights of persons aggrieved “ may presum
ably be vindicated by resort to the laws of the State for
redress” . (See Fraenkel, 150 Years of the Bill of Rights,
23 Minnesota Law Review 719, 733). There can be no
doubt, therefore, that legislation protecting a basic civil
right, if reasonable and directed to the elimination of the
particular evil infringing that right, is a valid exercise
of the state’s police powers. The Equal Rights Statutes
existing in 22 states have all been passed on the theory
that freedom from racial or religious discrimination is a
fundamental civil right. (Hirabayashi v. U. 8., 320 U. S.
81).
In the case of New Negro Alliance v. Grocery Com
pany, 303 U. S. 552, where the Court interprets the
Norris-LaGuardia law, it was clearly stated that the right
to protect workers against discrimination, on account of
race or color, was fully as important as the right to pro
tect them against discrimination on account of union affili
ation and, of course, this Court is fully familiar with the
fact that both state and federal governments acting with
in their respective jurisdictions have the right under the
police power to protect union members from such latter
discrimination. In this connection in the Neiv Negro
Alliance case this Court (p. 561) says:
17
“ The desire for fair and equitable conditions of
employment on the part of persons of any race,
color, or persuasion, and the removal of discrimina
tions against them by reason of their race or
religious beliefs is quite as important to those con
cerned as fairness and equity in terms and condi
tions of employment can be to trade or craft unions
or any form of labor organization or association.
Eace discrimination by an employer may reasonably
be deemed more unfair and less excusable than dis
crimination against workers on the ground of union
affiliation. ’ ’
The Supreme Court in many cases has already held
that the right to work and to engage in a profession is a
civil right. In Truax v. Raich, 239 U. S. 33, in outlawing
a state statute which placed restrictions on the right of
aliens to be employed within the state, the court said, at
page 41:
“ It requires no argument to show that the right
to work for a living in the common occupations of
the community is of the very essence of the per
sonal freedom and opportunity that it was the pur
pose of the (14th) Amendment to secure * * *
if this could be refused solely upon the ground of
race or nationality, the prohibition of the denial to
any person of the equal protection of the laws
would be a barren form of words.”
The trade union today in many fields controls the
major source of the supply of labor.*
Whether a particular union exercises such a control
today is immaterial, as society may find it in that position
* See Witmer, Civil Liberties and the Trade Unions, SO Yale Law Journal
621, 624. Cf. Chafee, The Internal Affairs of Associations, 43 Harvard Law
Rev. 996.
IN THE
Supreme Court of the United States
October Term, 1944.
No. 691.
RAILWAY MAIL ASSOCIATION,
Appellant,
against
EDWARD S. CORSI, as Industrial Commissioner of the
State of New York, and NATHANIEL L. GOLDSTEIN,
as Attorney-General of the State of New York,
Appellees.
A ppeal F rom th e S upreme Court op T he State of
N ew Y ork.
APPELLANT’S REPLY BRIEF.
DANIEL J. DUGAN,
Counsel for Appellant.
BATAVIA T IMES, LAW PRINTERS,
BATAVIA, N. Y.
SUBJECT INDEX.
PAGE
Appellant’s Reply Brief................................................... 1
I ..................................................................................... 1
I I ..................................................................................... 10
T able of Cases C ited.
Burks v. Bosso, 180 N. Y. 341........................................... 6
James v. Marinship Corporation, 155 Pac. Rep. 2d
Series 329 ...................................................................... 9
New Negro Alliance case, 303 U. S. 552.......................... 2
S tatute Cited.
Anti-racial Act, chapter 118, Laws of 1945, effective
July 1, Section 126.................... 6
Executive Order No. 9346............................................... 7,8
Executive Order No. 8802............................................... 8
Federal Civil Service Law............................................... 4
Fair Employment Practice Act, Section 4 ..................... 6
H. R. 2232. Report No. 187 from the Committee on
Labor ................................................... *........................ 6
Labor Relations Act of the State of New York............. 7
Lloyd-LaFollette Bill, which became the Act of August
24,1912, c. 389, Section 6, 37 Stat. 555.......................11,12
Morris-LaGuardia A c t ..................................................... 2
Section 43 of Civil Rights Law................................ 5, 6, 7,12
Sections 41 and 45 of Civil Rights Law.......................... 7
Section 11, Article 1 of the Constitution of State of New
York adopted in 1938..................................................... 6
Section 365, Title 5, Executive Departments; R. S. Sec
tions 391, 392, March 5, 1874, c. 46, 18 Stat. 19......... 11
The Fair Employment Practice Committee Order........ 7
II.
M iscellaneous.
page
‘ 1 The Black Worker ” by Spero and Harris................... 4
“ The Labor Movement in a Government Industry” by
Spero, Chapter VII, et seq. .......................................... 12
IN THE
Supreme Court of the United States
O ctober T erm , 1944.
No. 691.
KAILWAY MAIL ASSOCIATION,
Appellant,
against
EDWARD S. OORSI, as Industrial Commissioner of the
State of New York, and NATHANIEL L. GOLDSTEIN,
as Attorney-General of the State of New York,
Appellees.
A ppeal F rom th e S upreme Court of T h e State of
New Y ork.
APPELLAN T’S REPLY BRIEF.
L
This reply brief is filed for the purpose of making com
ment on certain observations contained in the briefs filed
in opposition and to call attention to errors in statements
made therein.
In the brief for the appellees at page 12 the statement
is made: ‘ ‘ The fact that anti-discrimination legislation was
pending in Congress in 1944, adverted to in the appellant’s
2
brief for the purpose of quoting certain arguments made
by opponents of the legislation, * * There was error
in this. The reference is to page 33 of appellant’s brief
where the following statement is ®et forth: “ In the public
hearings held before the House Committee on Labor, wit
ness after witness from various fields of economics, labor
relations, social workers, sociologists, and churchmen, in
dicating their approval of the contemplated legislation,
made the distinction between social rights and economic
rights * *
The briefs in opposition lay stress on the statement that
racial discrimination in employment in industry was a
known evil because it deprived the one discriminated
against of his right to equal opportunity under the law
and affected his economic condition. The appellant has
never raised any issue in this case upon that point and it
is made abundantly clear in its briefs filed with this Court
and in the State Courts.
The trend of the decisions in the 'Courts unmistakably
indicates that such was the evil which legislation sought to
eliminate. All that was decided in the New Negro Alliance
case, 303 U. S. 552, was that the controversy there involved
constituted a labor dispute and that the Federal Court
was without jurisdiction to grant a temporary injunction
under the Morris-LaGuardia Act.
In the case of Williams v. Quill, 277 N. Y. 1, cited by
appellees on page 11 of their brief, the Court found no
evil in a situation created by a collective bargaining con
tract between the employer and a labor union which pro
vided that the employer would not employ any person in
certain groups of workmen who is not or who does not
3
become, within one month after employment, a member of
such labor union, the Court holding such agreement valid
where there was nothing to indicate that any injury was
sought or intended to present employees of such employer
who were not union members. The appellant has no quar
rel with the pronouncement attributed to the Court “ that
legislation might provide the remedy for abuses by labor
organizations’ The position of the appellant here is
that there has not been any abuse of anyone by any act on
its part.
Legislation of the character under review in this case
possesses a public interest but tbe element of public inter
est cannot suffice to deprive the appellant of the right to
conduct its business free from arbitrary, capricious and
unreasonable legislative regulation or classification.
At page 13 of appellees’ brief the contention is advanced
that the appellant’s position is rested upon a narrow view
of the Association’s activities and their effectiveness in
achieving better employment conditions and the argument
is made that “ the mere facts that the Association has not
yet attained a power over the individual employee com
parable with that wielded by some other labor organiza
tions, and that the nature of civil service employment offers
a restraint to the attainment of such power are not suffi
cient’ ’. In reply it may be said that if our government
is to continue to be governed by law and not by men there
will not be given by future legislation any power to the
appellant over the individual government employee com
parable with that wielded by labor organizations in the
field of industry. Civil service employment affords a full
guarantee that such power can never be attained by appel
lant.
4
Kindred argument is presented in the amicus curiae
brief of the National Association for the Advancement of
Colored People. All the trials and tribulations of labor
contentions, strife, conflict and strikes in the field of in
dustry for nearly a century past have been referred to as
creating the basis of evil discrimination in the right of the
individual because of his color to seek employment in order
that he might live, marry and raise a family, acquire prop
erty and enjoy equal privileges of public education to ad
vance his offspring to higher culture and to decent physical
comfort. The briefs are impressively .silent in the revela
tion of any conflict, strife or strike within the ranks of the
Railway Postal Clerks over security and advancement in
their governmental positions. As a matter of fact there
have been none, and none at all by reason of any attempt
on the part of the appellant to frustrate the Federal Civil
Service Law.
This brief at pages 16 and 17 quotes from an article
entitled “ The Black Worker” .by Spero and Harris, and
in justification of its act says: “ Moreover, it is stipulated
in the record that any appellate court may consider as
exhibits offered by defendants” . For the purpose of keep
ing the record straight it should be noted that this article
was not stipulated to be competent evidence but that plain
tiff had reserved the right to object thereto. (R. 13.)
There is nothing in the record to show that the appellant
had any knowledge of or approved the action taken by the
Illinois Branch Association nor that such action of the
branch association had any influence with the appointing
power which resulted to the detriment of the appointee.
It is straining .such circumstance out of all proper mean
ing to give support to the emotional contention that legal
5
injury lias thereby come to any Railway Postal Clerk in
his occupation.
In the brief of the American Civil Liberties Union on
page 6 the statement is made: “ Under the constitution
of the plaintiff aliens hut not negroes are eligible to mem
bership, but the Federal Government is free to do the
opposite—to discriminate against aliens and to employ
negroes” . It is not true that aliens are eligible to mem
bership because an alien cannot enter the classified civil
service and those who enter into membership in appellant’s
organization must, be regular or substitute male Railway
Postal Clerks whose citizenship is implicit in the classifica
tion. The insinuation intended by this passage consequent
ly has nothing to support it.
The amici curiae briefs continue the argument as to
the labor organization as an institution in the field of in
dustry possessing the power of control by the exercise of
economic pressure over the individual not affiliated with
the labor movement. They ignore the distinction vital in
the case at bar between the economic and the social condi
tion. The manifestly unreasonable economic attitude dis
played by the labor organizations in the cases cited and
relied on growing out of the strife for economic rights in
the industrial field of labor relations furnish neither prece
dent nor authority for the correct decision in the case at
bar.
Section 43 although made part of the Civil Rights Law
is neither a definition nor a declaration of civil rights. The
section prohibits labor organizations from denying mem
bership because of race, color or creed. The consequences
of a violation were liability to criminal prosecution and to
6
a civil 'action to recover a penalty. The omission to confer
such civil right has been recognized in new and impending
legislation. The so-called Anti-racial Act, chapter 118, the
Laws of 1945, effective July 1, Sejction 126, is as follows:
“ Opportunity for employment without discrimination a
civil right. The opportunity to obtain employment without
discrimination because of race, creed, color or national
origin is hereby recognized as. and declared to be a civil
right” . While the Fair Employment Practice Act now
pending in the Congress by Section 4, declares that the
right to work free from discrimination is an “ immunity”
of the citizens of the United States, which shall not be
abridged by any Federal or State agency. (H. R. 2232. Re
port No. 187 from the Committee on Labor.)
When the act which constituted Section 43 was approved
by the Governor no reference was made in his accompany
ing memorandum to Section 11 of Article 1 of the Constitu
tion of the State of New York adopted in 1938 providing
among other things that no person shall, because of race,
color, creed or religion, be subjected to any discrimination
in his civil rights.
It is the natural right of every person to seek employ
ment but it is not the natural right of everyone to seek
membership in appellant’s organization. The State may
declare or define civil rights to include privileges or op
portunities which arise out of natural rights. When the
State extends civil rights which impinge upon the; natural
or civil rights of others, the acts constituting the extension
are strictly construed. (Burks v. Bosso, 180 N. Y. 341.)
While no reference was made in the Governor’s Memo
randum to the new clause in the State Constitution, direct
7
reference was made to the, Labor Relations Acts “ recently
written on the statute books of State and Nation” . It
was the strife in labor relations arising out of the indus
trial system which was the evil that the State intended
to eliminate. It was unreasonable and arbitrary for the
State to make the assumption that there is no difference in
labor relations between the .field of industry and employ
ment in government service; and to classify Federal
Government workers and their labor organizations1 in the
same category with the employee in industry amounted to
arbitrary regulation and discrimination.
No benefit ensued to the Railway Postal Clerk by virtue
of the Labor Relations Act of the State of New York either
in the procurement of his employment or in the security
of its continuance. These factors were established by the
Federal Government. The case at bar calls for a con
sideration of Section 43 and the related (Sections 41 and 45
and whatever may be the national policy reflected in the
setting up of the1 Fair Employment Practice 'Committee,
pursuant to executive Order No. 9346 it has no bearing up
on the effect of the Civil Rights Sections herein presented.
The Fair Employment Practice Committee Order was an
executive directive designed to encourge full participa
tion in the war effort, to get all available manpower into
the war industries for the successful prosecution of the
war and its foundation was rested upon the declaration
that there should be no discrimination in the employment
of any person in war industries solely by reason of race,
creed, color or national origin, and in furtherance of the
declared policy and of the Executive Order “ to elimi
nate discrimination in regard to hire, tenure, terms or
conditions of employment or union membership, because
of race, creed, color or national origin,” the Executive
8
Order recited ithat there is evidence that available and
needed workers havei been barred from employment in
industries engaged in war production solely by reason of
their race, creed, color or national origin, to the detri
ment of the prosecution of the war, the workers’ morale
and national unity and declared the intention of the
President to reaffirm the policy of the United States that
there shall be no discrimination in thei employment of
any person in war industries or in government by rea
son of race, creed, color or national origin and that it shall
be the duty of all employers including the several Federal
departments and agencies, and all labor organizations
in furtherance of this policy and of this Order to elimi
nate discrimination in regard to hire, tenure, terms of
employment, or union membership because of race, creed,
color or national origin.
The mandate of the Order is contained in the follow
ing paragraphs thereof:
“ 1. All contracting agencies of the Government
of the United States shall include in all contracts
hereafter negotiated or renegotiated by them a pro
vision obligating the contractor not to discriminate
against any employee or applicant for employment
because of race, creed, color, or national origin and
requiring him to include a similar provision in all
subcontracts.
“ 2. All departments and agencies of the Govern
ment of the United States concerned with vocational
and training programs for war production shall take
all measures appropriate to assure that such pro
grams are administered without discrimination be
cause of race, creed, color, or national origin.” (Exe
cutive Order No. 9346.)
The earlier Executive Order, No. 8802, indicates the
fundamental purpose that there shall be no disorimina-
9
tion in the employment of workers in defense industries
or government because of race, creed, color, or national
origin and declared in furtherance of said policy and of
the Order that it is the duty of employers and of labor
organizations to provide for full and equitable participa
tion of a l workers in defense industries without discrimi
nation because of race, creed, color, or national origin.
James v. Marinship Corporation, 155 Pac. Rep. 2d Series
329, was an action arising out of labor relations in the
field of industry where a labor union having a closed shop
contract with the employer denied membership to workers
in the craft because they were negroes. The negroes
were forced out of employment and deprived of the op
portunity to work whereby they suffered in their civil
rights and sustained legal injury for which redress was
sought in the action. The decision rested upon this funda
mental point, the Court saying:
“ In our opinion, an arbitrarily closed or partially
closed union is incompatible with a closed shop. Where
a union has, as in this case, attained a monopoly of
the supply of labor by names of closed shop agree
ments and other forms of collective labor action,
such a union occupies a quasi public position similar
to that of a public service business and it has cer
tain corresponding obligations. It may no longer
claim the same freedom from legal restraint enjoyed
by golf clubs or fraternal associations. Its asserted
right to choose its own members does not merely re
late to social relations; it affects the fundamental
right to work for a living. See Newman, The Closed
Union and the Right to work (1943), 43 Col. L. Rev.
42, 44; Northrup, Organized Labor and the Negro
(1944), 238-239; Chaffee, The Internal Affairs of
Associations (1930), 43 Harv. L. Rev. 993, .1021-1023;
Mintz, Trade Union Abuses (1932), 6 St. John’s L.
Rev. 272, 274-276; (1941) 40 Mich. L. Rev. 310.”
10
The question presented in the ease, at bar was not passed
upon by the California Court, which at page 342 of its
opinion says:
“ Under the circumstances1 of this case, it is unneces
sary to determine whether or not the union, in absence
of a closed shop agreement, would be required to open
its doors to ail qualified employees.”
The appellant is conscious of the- fact that 'this cause
comes to the Court at a critical time when the emotions
aroused by agitation are apt to run high and assumptions
are drawn in exaggeration; when, economic welfare is the
goal of all and propaganda is all agog over proposed legis
lation to curb discrimination in employment because of
race, creed, color, national origin, or ancestry. In signing
the so-called anti-racial bill, -passed by the Legislature of
the State of New York, Governor Dewey is reported to
have said:
“ It must not be understood that the state is here
attempting to impose itself as arbiter of s-ocial or per
sonal likes or dislikes. By this act the .State declares
the simple principle that in employment there shall be
no discrimination by reason of race, creed, color or
national origin. It expresses the rule that must be
fundamental in any free society—that, no man shall be
deprived of the chance to earn his bread by reason of
the circumstances of his birth.”
Whore in this record does less appear?
II.
These briefs cite cases from this Court dealing with the
dual powers of the Federal and State Governments under
the Interstate Commerce Clause where separate powers
exist within State borders when local law within the police
11
power may not conflict witlr federal regulation or where, in
the absence of federal regulation, the local law may not be
an obstruction or hindrance to interstate commerce. But
as has been pointed out in appellant’s brief the post office
and post roads clause is comprehensive and exclusive and
the validity of the local law is not a question of degree of
the interference or regulation but rests on the question of
the power of the State to make it at all.
Before entering upon his duties every Railway Postal
Clerk and all persons employed in the postal service are
required to take and subscribe to the following oath:
“ I, A. B., do hereby solemnly swear (or affirm, as
the case may be,) that I will faithfully perform all the
duties required of me and abstain from everything
forbidden by the laws in relation to the establishment
of post offices and post roads within the United States;
and that I will honestly and truly account for and pay
over any money belonging to the said United States
which may come into my possession or control; and I
also further swear (or affirm) that I will support the
Constitution of the United States; so help me God.”
(Section 365, Title 5, Executive Departments; R. S.
Sections 391, 392, March 5, 1874, c. 46, 18 Stat. 19.)
The hearings before the Congressional Committees in
relation to the Lloyd-LaFollette Bill, which became the Act
of August 24, 1912, c. 389, Section 6, 37 Stat. 555, gave a
dismal history of the cumulative grievances of workers in
the postal service generally and particularly in the division
of the Railway Mail Service. These grievances covered
every factor in the postal employment such as working
conditions, hours, salary adjustments and promotions and
furnished a sordid revelation as to the “ gag” rules adopted
by the Post Office Department on many occasions from time
to time which in order to limit and oppose the right of the
postal employee to improve his condition placed unreason
12
able restriction upon bis right of expression and his right,
individually and collectively, to petition to the Congress
for redress of his grievances. Such redress in a measure
came from the enactment of the Lloyd-LaFollette Bill. (See
“ The Labor Movement in a Government Industry” by
Spero, Chapter VII, et seq.)
It is respectfully submitted in conclusion that this should
conclusively establish that the activities of the Railway
Postal Clerk in relation to his duties and service have been
immunized against the regulation imposed by Section 43
of the Civil Rights Law of the State of New York.
March, 1945.
DANIEL J. DUGAN,
Counsel for Appellant.
IN THE
i>upmur Court of thr Imtrii i>tatrs
OCTOBER TERM, 1944
NO. 42
M. CLAUD SCREWS, FRANK EDWARD JONES,
AND JIM BOB KELLEY, Petitioners
II-
ude Screws, F42—M. Claude Screws, Frank Edward
Jones and Jim Bob Kelly, petrs., v. United
States. Motion for leave to file brief of
the National Association for the Advance
ment of Colored People as amicus curiae
granted.
V .
UNITED STATES OF AMERICA
O N W R IT OF C E R T IO R A R I TO T H E U N IT E D ST A T E S C IR C U IT COURT
OF A P P E A L S FO R T H E F IF T H C IR C U IT
MOTION FOR LEAVE TO FILE BRIEF
AS AMICUS CURIAE
W illiam H. H astie,
T hurgood M arshall,'
L eon A. R ansom ,
Counsel for National
Association for the Advancement of
Colored People, Amicus Curiae.
E dward D udley,
of Counsel.
Printed by Law Reporter Printing Co., 518 Fifth St., Washington, D. C.
CITATIONS
Cases:
Page
Ex -parte Yarbrough 110 U. S. 651-------------------------- 4
Guinn v. United States 238 U. S. 347----------------------- 4
Hague v. C. I. 0. 307 U. S. 496------------------------------- 3
In re Quarles 158 U S. 532------------------------------------- 4
Logan v. United States 144 U. S. 263--------------------- 4
United States v. Classic 313 U. S. 123--------------------- 4
United States v. Illinois Central R. H. 303 U. S. 239-— 5
United States v. Mosely 238 U. S. 383----------------------- 4
United States v. Murdock 290 U. S. 389-------------------- 5
Statutes:
Section 19 of Criminal Code---------------------------------- 3
Section 20 of Criminal Code---------------------------------- 2
Congressional Material:
Cong. Globe, 39th Congress, 1st Session----------------- 4
Miscellaneous:
Flack, The Adoption of the Fourteenth Amendment- 3
IN THE
Qlmtrt of % lotted States
OCTOBER TERM, 1944
NO. 42
M. CLAUD SCREWS, FRANK EDWARD JONES,
AND JIM BOB KELLEY, Petitioners
v.
UNITED STATES OF AMERICA
OH W RIT OP CERTIORARI TO TH E UNITED STATES CIRCUIT COURT
OP APPEALS POR TH E F IF T H CIRCUIT
MOTION FOR LEAVE TO FILE BRIEF
AS AMICUS CURIAE
To the Honorable, the Chief Justice of the United States
and the Associate Justices of the Supreme Court of the
United States:
The undersigned, as counsel for and on behalf of the
National Association for the Advancement of Colored
People, respectfully move this honorable Court for leave
to file the accompanying brief in this case as amicus curiae.
The National Association for the Advancement of Colored
People is a nation-wide membership organization which
has for the past thirty-five years continuously advocated
full citizenship rights for all American citizens. This As
sociation works for the protection of the civil rights guai-
anteed by the Constitution and laws of the United States.
For many years it has supported and assisted individuals
and groups whose basic civil rights have been threatened
or invaded. We believe that the issues presented in this
case and especially those raised in oral argument before
this honorable Court are of importance to the Negro race
generally, and to all persons interested in the protection
of civil rights.
As will appear in greater detail hereinafter, Section 20
of the Criminal Code and companion legislation constitute
the basic statutory implementation of the Fourteenth
Amendment and other civil rights guarantees of the Na
tional sovereign. It was believed prior to the oral argument
herein that the validity of Section 20 of the Criminal Code
was clearly established by adjudications of this Court.
However, interrogation of counsel at oral argument of
this case revealed substantial questions concerning the
validity of this important statute.
It is for the purpose of presenting written argument
addressed to the questions thus raised that this motion is
filed.
The Solicitor General on behalf of the United States has
consented to the filing of this brief. A request to counsel
for petitioners, Screws et al, that he also consent, remains
unanswered.
W illiam H. H astie,
T hurgood M arshall,
L eon A. R ansom ,
Counsel for National
Association for the Advancement of
Colored People, Amicus Curiae.
E dwabd D udley,
of Counsel.
IN THE
Bupvmt (Emtrt of % llnxtib States
OCTOBER TERM, 1944
NO. 42
M. CLAUD SCREWS, FRANK EDWARD JONES,
AND JIM BOB KELLEY, Petitioners
v.
UNITED STATES OF AMERICA
ON W RIT OF CERTIORARI TO TH E UNITED STATES CIRCUIT COURT
OF APPEALS FOR T H E F IF T H CIRCUIT
OPINIONS BELOW
The majority and dissenting opinions in the Circuit Court
of Appeals (R. 217-227) and the concurring opinion of
Judge Waller on petition for rehearing (R. 232) are re
ported in 140 F. (2) 662.
JURISDICTION
The judgment of the Circuit Court of Appeals was en
tered on January 14, 1944 (R. 227), and a petition for re
hearing (R. 228-231) was denied on February 18, 1944
(R. 232). The petition for a writ of certiorari was filed on
March 18,1944, and was granted on April 24, 1944 (R. 236).
The jurisdiction of this Court is invoked under Section
240 (a) of the Judicial Code, as amended by the Act of
2
February 13, 1925. See also Eules X I and X III of the
Criminal Appeals Eules promulgated by this Court on
May 7, 1934.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The Fourteenth Amendment to the Constitution provides
in pertinent part:
Section 1. * * * No State shall make or enforce any
law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
# * * * * *
Section 5. The Congress shall have power to en
force, by appropriate legislation, the provisions of this
article.
Section 20 of the Criminal Code (18 U.S.C. 52) provides:
Whoever, under color of any law, statute, ordnance,
regulation, or custom, willfully subjects, or causes to
be subjected, any inhabitant of any State, Territory, or
District to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution
and laws of the United States, or to different punish
ments, pains, or penalties, on account of such inhabitant
being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens, shall be
fined not more than $1 ,000, or imprisoned not more than
one year, or both.
QUESTION PRESENTED
The argument in this brief is directed to the question
3
raised during oral argument of this case: Is Section 20
so vague and indefinite as to be unconstitutionalf
STATEMENT OF THE CASE
The case has been fully stated in the Brief for the United
States filed herein.
ARGUMENT
During oral argument in this case question was raised
whether or not certain language in Section 20 of the Crimi
nal Code, viz: “ Whoever, . . . wilfully subjects, or causes
to be subjected any inhabitant of any State, Territory, or
District to the deprivation of any rights, privileges, or im
munities secured or protected by the Constitution and laws
of the United States,” is so vague and indefinite as to cause
the statute to be invalid.
Section 20 of the Criminal Code is a part of the second
Civil Rights Act1 which was passed to enforce the provisions
of the Fourteenth Amendment, pursuant to the authority
of the fifth section of the amendment.i 2 Other provisions
of the second Civil Rights Act further protecting basic Civil
rights contain language similar to Section 20.
Section 19 of the Criminal Code3 punishes two or more
persons who conspire to injure, oppress, threaten or in
timidate any citizen “ in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or
laws of the United States.”
These statutes form the bulwark of protection for the
basic civil rights guaranteed by the Constitution and laws
of the United States. Although originally conceived for
the protection of the,recently freed Negroes they were en
acted for the protection of all citizens regardless of color.4
i May 31, 1870, 16 Stat. 140; April 9, 1866, sec. 2, 14 Stat. 27.
-H ague v. C.I.O 307 O.S. 496, 510 (1939) See A so: T h e Adoption
of the Fourteenth Amendment by Flack (1908), pp. 219, 223, 227.
s May 31, 1870, C. 116, sec. 6, 16 Stat. 141.
4 See Cong. Globe Congress, 1st Session, pp. 211, 598, 601.
4
Among the federal rights protected by these statutes are:
freedom from discriminatory registration practices ;3 right
to vote in congressional elections ;4 right to vote and to have
votes counted in primary elections which are integral parts
of the election machinery of the states;5 right of one in
custody of United States Marshall to be protected against
lawless violence;6 right to inform federal authorities of
violations of federal laws and to be protected in giving such
information.7
If Section 20 is declared to be uonconstitutional by reason
of vagueness, then it necessarily follows that Section 19
is also unconstitutional because of the similarity of the
language of these sections. This would destroy the only
criminal sanctions for the protection of many of the basic
civil rights of citizens of the United States. Congress in
tended that the rights of citizens guaranteed by the Con
stitution and laws, not the subject of specific criminal sanc
tions, should also be protected. Thus, Congress enacted
Sections 19 and 20 in language no more general than that
used in other criminal statutes set forth in the Supplemental
Memorandum For the United States filed herein.
It has been the experience of the National Association for
the Advancement of Colored People that, beyond the re
ported cases, the deterrent effect of these criminal statutes
is very great and of utmost importance. Congress in its
wisdom anticipated the danger that in many places unpopu
lar minorities, Negroes in particular, would find no effec
tive protection for their civil rights save through Federal
legislation. Public officers, of ill will, undeterred by any
strong local opinion favorable to the civil rights of minori
ties, would in many instances be wholly unrestrained from
* G u in n v . U . S . 238 U. S. 347 (1915)
4 E x p a r t e Y a r b r o u g h 110 U. S. 651 (1884)
V . S . v. M o s e ly 238 U. S. 383 (1915)
<r> U . S . v . C la s s ic 313 U. S. 123 (1937)
6 See L o g a n v . U . S . 114 U. S. 263 (1892)
7 I n r e Q u a r le s 158 U. S. 532 (1895)
the invasion of vital constitutional civil rights hut for these
criminal sanctions.
Examined in the setting of the foregoing considerations
of public policy and social interests, Section 20 stands as a
valid and reasonable form of criminal statute. If a chal
lenge to its validity is to have rational basis it must be
predicated either upon some difficulty of intelligible and
systematic application of the statute or upon some unfair
ness to the accused resulting from lack of specificity in
defining the offense. The latter difficulty arises where a
statute leaves the dividing line, between lawful and unlawful
behavior to conjecture.
Several limitations are significant in relieving Section 20
of the Criminal Code of the objection of undue generality.
First, the statute is limited to behavior “ under color of
state law.” The meaning of this phrase and the area of
applicability which it defines have been stated clearly and
succinctly by this Court: “ Misuse of power, possessed
by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law, is
action taken ‘under color o f ’ state law.” See United States
v. Classic, supra.
Second, and even more important for present purposes,
the prohibition of the statute is expressly limited to wilful
misconduct. Wilfulness has properly and characteristically
been given restrictive judicial interpretation in the con
struction of statutes defining crimes. “ The word—when
used in a criminal statute—generally means an act done
with a bad purpose— ; without justifiable excuse— ; stub
bornly, obstimately, perversely—.” See United States v.
Murdoch, 290 TJ. S. 389, -394. Compare United States v.
Illinois Central R. R-, 303 U. S. 239. Here the word “ wil
fully” may well be given the effect of limiting the applica
tion of Section 20 to cases in which the conduct complained
of is so reprehensible in character that its intentional per
petration evinces a design to do evil and an intention to
6
inflict injury without justification or excuse. Finally, within
the area of applicability as thus restricted there is the
further restriction that such: wilful misconduct must be
directed at and must in fact accomplish the deprivation of
some, right secured or protected by the Constitution and
laws of the United States. .
The three foregoing limitations: (1) action under color
of state law, (2) wilful misconduct and'(3) consequent in
vasion of a federally protected right, adequately restrict
the statute and define the crime. They make the meaning
of the statute intelligible and its application systematic.
The limitation to wilful misconduct is particularly im
portant when consideration is given to the problem of
fairness to the accused. The wrongdoer who indulges in
reprehensible and intentionally injurious conduct—in this
case a mortal battery of a prisoner—is not in position to
complain that he is without sufficient information as to
whether the consequence of his misbehavior are within the
general categories of injury stated in Section 20. It is
certainly not unreasonable that one so misconducting him
self should bear the risk of punishment if his misconduct
infringes any federally protected right and thus comes
within the area of Federal cognizance. Fairness to him
is accomplished by limiting criminality to conduct which
he must know to be wrong. Comprehensive protection of
civil rights is achieved by defining the prohibited conse
quences of such misconduct broadly. The statute is thus
fair, intelligible and adapted to serving a large public
and social purpose.
7
CONCLUSION
It is respectfully submitted that the affirmance of the
judgment below will achieve real justice in the case at
bar and at the same time reaffirm the validity of a statute
which is vital to the protection of fundamental civil rights.
Respectfully submitted,
E dward D udley,
of Counsel.
W illiam H. H astie,
T hurgood M arshall,
L eon A. R ansom,
Counsel for National
Association for the Advancement of
Colored People, Amicus Curiae.
IK THE SUPREME COUIT GF THE UNITED STATES
OCTOBER TERM, lM*
M, CLAUD SCKEtfS, PRANK EDWARD JOKES,
.AID JIM soa KELLEY, FBTITXQKKRS
v .
UNITED STATES OF AMERICA
OK WRIT OF CEfiTXORALI TO TM OHITLD STATES CIRCUIT
COURT OF APPEALS FOR THE FIFTH CZECH IT
SUPPLEMENTAL MSMQJdLKDCM FOR THE UNITED STATES
IH THE SUFRKNK COURT OP TEE UNITED STATES
OCTOBER TERM, 19U*
M. CLAUD SCREAK, PRANK EDWARD JONES,
AND JIM HOB KELLEY, PSTITIONSRS
UNITED STATES OF AMERICA
OH WRIT OP CERTIORARI TO THE UNXI1D STATES CIRCUIT
COURT OP APPEALS FOR TUB FIFTH CIRCUIT
SUPPLEMENTAL MEMORANDUM FOR THE UNITED STATES
In connection with the question whether Section 20 of the
Criminal Code is so vague and indefinite as to be unconstitutional
we wish to call the Court’ s attention to the following cases in
whioh the quoted statutory provision* have been upheld*
Cage
Chaplinascy v . Mew Hampshire.
315 U»S. 568, 573- 57I .
United states v . Pagan,
3il* u .s . 513 .
Gorin v. United States,
312 tr.8. 19, 23-28.
Statutory Provision
State Statute* nN© person shall
address anv offensive, derisive or
annoying word to any other person
who is lawfully in any street or
other public place * * <* « *
Section li+5 of the Revenue Act
of 1932. a6 u .e .c . 11+5*
"Any perscm who w illfu lly attempts
in any manner to evade or defeat any
tax imposed by this t i t le or the
payment thereof, sh all, in addition
to other penalties provided by law,
be guilty of a felony * <* * . n
Espionage Act of June 15, 1917,
50 U.8.C . 3 1 ,
"See. 1(a) whoever, for the purpose
of obtaining information respecting
the national defense with intent or reason
Cass Statutory Provision
to believe that the information to be
obtained la to be used to the injury of
the United States, or to the advantage
of any foreign nation * * *j or (b)
whoever for the purpose aforesaid and
with like intent or reason to believe,
copies, takes, cakes, or obtains * * *
any sketch, photograph, photographic
negative, blue print, plan, nap, model,
instrument, appliance, document, writing,
or note of anything connected with the
national defense/ ♦ '»' "« .w
Section 2 .r (a) '"Whoever {with like
intent J * ♦ • eataemni oates • * « t©
any foreign government * * * any docu
ment, writing * ♦ * or information
relating to national defense shall be
punished * * *'
State Statutei Psychopathic personality
means "the existence in any person of
such oonditioae of emotional in stab ility ,
or impulsiveness of behavior, or laok of
customary standards of good Judgment, or
failure to appreciate the consequences of
his aota, or a combination of such con
ditions, as to render such person irrespons
ible for hia conduct with respect to sexual
matters and thereby dangerous to other
parsons.” (Construed by the state court
as including persons who by ”a habitual
course of misconduct is sexual -setters"
have evidenced "an utter lack of power
to control their sexual impulses and
who, as a result, are lik ely to attack or
otherwise in flic t injury, lo ss , pain or
other evil on the objects of their
uncontrolled and uncontrollable d esire .")
ileblett v . carpenter. State Statute! "in any proceeding under
305 U.S. 2J7, JOS-JOJ* this a rtic le , the ccesmioeioner, as
conservator • * * may * e * mutualise
or reinsure the bueinese of" an insurance
eonpany ’*or ~<mxer~" into rehabilitation
agreements.
Kay v. United States. >03 U.S.
1. 8-9* Borne Owners* Loan Aot, 12 U.&.C.
"bo person * * * shall direotiy or
indirectly s o lic it , contract for, charge
or receive any fee , charge or other con
sideration from any person applying to
the corporation for a loan, whether bond
or cash except ordinary feee authorised
and required by the corporation for services
actually rendered for examination and
perfection of t i t le , appraisel and like
necessary services. "
Minnesota v. Probate Court.
309 U.S. 270,~27£
- 2 -
c * » « Statutory Provision
Old bearoorn Co. v. Seagram State Statutei "Ho contract relating
Coro., 299 U.S. W . ~ m to the sale or resale of a coiar.odity
----- which bears, oar the label or content
of which bears, the trade mark, brand
or name of the produoer or owner of
such commodity and which Is In fair
and open competition with commodities
of the same general class * *
Sprolea v. dInford. 266 U.S,
3 7 1 ,3 9 5 .
State Statutet "I t shall be unlawful
and oonstitute a aledemeanor for any
person to drive [specified vehicles]
* * *1 provided the Department * * «
is hereby granted authority to rant
permits [for specified vehicles] * * *|
provided, that any haul, or hauls made
under suoh permits shall be made by .the
shortest practicable route> * * *.
Bandini Co* v. Superior Court*
28U U.S. 6, 16.
State Statute > *Th« unreasonable waste
of natural gas * * * is hereby declared
to be opposed to the public Interest
and is hereby prohibited sad declared
to be unlawful.*
United States v. Wurebach, Federal Corrupt Practices Act,
280 U.S. 596“ 399. 18 U.S.C. 200» " I t is unlawful for
any Senator or Representative * * *
to clreotly car indirectly s o lic it ,
receive, or be in any manner concerned
in so lic itin g ©r receiving, any
assessment, subscription, or contribu
tions for any p o litica l purpose whatever
m *
State Statute! It is the duty of
the state entomologist "upon the
request in writing of ten or more
reputable free holders of any county
or magisterial d istr ic t, to make a
preliminary investigation of the
locality • * * to ascertain i f any
cedar tree or trees * * * oonstitute a
menace to the health of any apple
orchard In said To'w lity*
Whitney v. California. 27k U.S. State Statute* "The tens * criminal
357, 3o0, 368- 369. .... syndicalism’ as used in this act is
hereby defined as any doctrine or
precept advocating, teaching or
aiding and abetting the commission
of arias, sabotage (which word is
hereby defined ae meaning w ilful
and malicious physical damage or
injury to physical property), or
unlawful methods of terrorism as a
moans of accomplishing a change in
industrial ownership or control, or
effecting any politioal change.”
f i l le r v . achoene. 2% U.S.
272, 277, 276, 281.
case Statutory Provision
United States v . Alford. Section 53 of the Criminal Cod*, as
amended by Section 6 of the Act of
June 25, 1910, 36 Stmt. 8551
"Whoever shall build a fire In or near
any forest, timber, or other inflasraable
material upon the public domain * * •
shall be fined not more than one thousand
dollars, or imprisoned not more than one
year, or both ."
Miller v. Oregon. 273 u»8.
&571 see z f k v X . at 5.
Mygrade rovislon Co. v.
Sherman. aS& Q."s. L97.
pOl-503.
State Statute1 "Every per® an operating
a motor vehicle on the public highways
of this state shall [not] drive the
same * * * at a rate of speed that
w ill endanger the property of another.
or the l i f e or limb of alayVerson.*8*
State Statutet Any person who with
intent to defraud* "* * * se lls or
exposes for sale any meat * * * and
fa lsely represents the same to be
tosher, tar as having bees prepared
under and of a product or products
sanctioned by the Orthodox Hebrew
religious requirements}1 "• V ’*w" is guilty
of a misdemeanor.
Levy Leasing Co. v . Siegel.
258u.s.at5 . 21*9-250.
Oaaechevarria v, Idaho.
'M u .s . 3i*3. 3te71E e.
M iller v . S tra h l. 239 TJ.S.
LaL. L32. UST.
Fox v. ..ashlngton. 236 U.S.
273. 277-278.
State Statutes "I t shall be a defense
to an action [by a landlord] that such
rent (demanded] is unjust and unreasonable
and that the agreement under which the
same is sought to be recovered is
oppressive. " '''
State Statute! "Any person owning
or having charge of sheep, who herds,
graces, or pastures the same, or permits
or suffers th# same to be herded,
grased or pastured, on any cattle
ran&o previously occupied by cattle ,
or upon any range usually occupied by
any oattle grower * * * is guilty of
a misdemeanor} • • •"
State Statute 1 "* * * It shall be
the duty of .very proprietor, or
keeper of such hotel or lodging house,
in oase of fire therein to give notice
of same to a l l guests and inmates thereof
st once and to do a ll in their power to
save such fasts' and 'inmates.
State Statute! "Every person who shall
w ilfu lly print, publish, ed it, issue or
knowingly circulate, s e l l , distribute or
display any book, paper, document, or
written or printed matter, in any fora,
advocating, encouraging or Inciting, or
having a tendency to encourage or Incite
tiio commission of any crime, breaoh of
the peace or act of violenoe, or which
shall tend to encourage or advocate
disrespect for law or for any court
or oourts of justice shall be guilty of
a gross misdemeanor."
- k
£*£• Statutory Provision \
Mas
- m
t v . United States,
U.S. 575. 375-37^1 »•« *l*o
Standard Oil Co. v. United
States, 221 U.H. 1, W *
Sherman not (15 U.S.C. l ) t
"Every contract, combination in the
fora of trust or otherwise, or
oonspiraoy, in [unreasonable or
undue[ restraint of trade or c garnerce
among the several states, or with
foreign nations, is hereby declared
to be i l le g a l ."
Comparei
United states i . S site i, Section 57 of the Criminal Code,
211 O T 570, 595-595. 10 U.tS.G, 88» " I f two or more
persons conspire * * * to defraud
the United states in any manner or
for any purpose * * * each of the
parties to suoh oonspiraoy" shall be
fined or imprisoned.
For a more extensive statement of the Government's views
on the question of vague and indefinite statutory language the Court
ie respectfully referred to the brief for the United States, pp. 63-91 ,
in Gorin v. Uni-ed States, ho. 07. October Tern 19^0, where this
question has been fu lly treated.
Respectfully submitted,
OCTOBER 19U*.
CHARLES FAffl,
Solicitor General.
5
No. 4 2
October Term, 1944
M. Claud Screws, Prank E dward Jones, and
Jim Bob K elley, petitioners
,V v v. ,
U nited States of A merica
O N W R I T O F C E R T I O R A R I T O T H E U N IT E D S T A T E S C IR C U IT
C O U R T O F A P P E A L S F O R T H E F I F T H C IR C U IT
BRIEF FOR THE UNITED STATES
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I N D E X
Opinions below______________________________________________ 1
Jurisdiction__________________________________________________ 1
Constitutional and statutory provisions involved--------------------- 2
Questions presented__________________________________________ 3
Statement__________________________1------------------------------------- 3
The indictment__________________________________________ 4
The evidence------------------------- 6
The charge______------------------------------ — --------- - --------------- 11
Summary of argument_______________________________________ 14
Argument____________________________________________________• 21
I. The indictment and the proof were sufficient to sustain
the convictions____________________________________ 21
A. The petitioners willfully deprived Hall of rights
secured to him by the Fourteenth Amend
ment______________________________________ 22
B. The petitioners acted under color of law--------- 45
II. Section 20, as applied here, is not so vague and indefinite
as to be unconstitutional__________________________ 52
Conclusion___________ T---------------------------------------------------------- 55
Appendix_____________________________ 56
CITATIONS
Cases:
A sh cra ft v. T enn essee, 322 U. S. 143--------------------------------- 24
B a n d in i C om p a n y v. S u p er io r Court, 284 U. S. 8-------------- 54
B a n k o f C olum bia v. O kely, 4 Wheat. 235------------------------- 23
B a rn ey v. B oa rd o f R a p id T ran sit C om m issioners, 38 Misc.
549___________________________________ 38
B a rn ey v. C ity o f N ew Y ork, 193 U. S. 430------------------------ 17,
34, 35, 36, 37, 38, 39, 40
B a rn ey v. C ity o f N ew Y ork , 39 Misc. 719, affd., 83 App.
Div. 237______________________________________________ 38
B ea l v. M is so u r i P a c ific R . Co., 312 U. S. 45------------------- 39
B row der v. U nited States, 312 U. S. 335-------------------------- 51
B uchalter v. N ew Y ork , 319 U. S. 427------------------------— 23
B u rfo rd v. S u n O il C o., 319 U. S. 315----------------------------- 40
B u rn s v. G eorgia, 80 Ga. 544------------------------------------------- 25, 26
C atlette v. U nited S tates, 132 F. (2d) 902-------------------------- 44
C entral K en tu ck y G as Co. v. R a ilroa d C om m ission , 290
U. S. 264-------------------------- 40
Chicago, B u rlin g ton and Q u in cy R . R . Co. v. Chicago, 166
U. S. 226______________________________________________ 31
612216—44----1
Page
(i)
II
C hicago v. F ieldcrest D a ir ie s , 316 U. S. 168----------------------- 40
C iv il R igh ts C ases, 109 U. S. 3------------------------------------- 22, 28, 31
C ochran v. K a n sa s , 316 U. S. 255------------------------------------- 31
C u lp v. U nited S tates, 131 F. (2d) 93--------------------------------21, 44
C uya hoga P o w er Co. v. A k ro n , 240 U. S. 462------- ----------- 31
D ou gla s v. Jeann ette , 319 U. S. 157---------------------------------- 40
F id e lity a n d D ep o s it C o. v. T a foya , 270 U. S. 426------------- 31
G reat L a k es D redge & D ock Co. v. H u ffm a n , 319 U. S. 293__ 40
G u in n v. U nited S tates, 238 U. S. 347------------------------------ 42, 53
H a g u e v. C. I . 0 . , 307 U. S. 496_________________________ 31,41
H od ges v. U nited S tates, 203 U. S. 1---------------------------------- 22
H om e T el. & T el. C o. v. L os A n g eles , 227 U. S. 278___ 31,32,38
H o p k in s v. S outhern C a lifo rn ia T eleph on e C o., 275 U. S.
393_________ __________________________________________ 31
Io w a -D es M o in es B a n k v. B ennett, 284 U. S. 239--27, 31, 33, 37, 38
L o g a n v. U nited S tates, 144 U. S. 263------------------------------- 24, 53
L o o n ey v. C rane Co., 245 U. S. 178----------------------------------- 27
M atth ew s v. R odgers, 284 U. S. 521----------------------------------- 40
M ille r v. Oregon, 273 U. S. 657----------------------------------------- 54
M ille r v. Strahl, 239 U. S. 426______________ - ____________ 54
M is so u r i ex rel. G a in es v. Canada, 305 U. S. 337--------------- 31
M o o d y v. G eorgia , 120 Ga. 868------------------------------------------ 25, 26
M o o n e y v. H olohan , 294 U. S. 103------------------------------------- 24, 31
M o o re v. D em p sey , 261 U. S. 86---------------------------------------- 24
M o sh er v. C ity o f P h o en ix , 287 U. S. 29----------------------------- 31
M o tes v. U nited S tates, 178 U. S. 458-------------------------------- 53
N a sh v. U nited S tates, 229 U. S. 373--------------------------------- 54
N ea l v. D elaw are, 103 U. S. 370---------------------------------------- 31
N ix o n v. C ondon, 286 U. S. 73------------------------------------------ 31
O’ C on n or v. G eorgia, 64 Ga. 125__________________________ 26
P en n sy lv a n ia v. W illia m s, 294 U. S. 176--------------------------- 40
P o w ell v. F id elity & D ep os it Co., 45 Ga. App. 88--------------- 26
P y le v. K a n sa s, 317 U. S. 213------------------------------------------- 31
* Q uarles and B utler, I n re, 158 U. S. 532---------------------------- 53
R a ilroa d C om m ’n v. P u llm a n C o., 312 U. S. 496---------------- 39, 40
R a ilroa d C om m ’ n v. R ow a n & N ich ols O il C o., 310 U. S. 573_ 40
R a ym on d v. C hicago T raction Co., 207 U. S. 20------------------31, 38
S n ow d en v. H ughes, 321 U. S. 1------------------------------ 31, 34, 35, 36
S p ielm a n M o to r S ales Co. v. D odge, 295 U. S. 89--------------- 39
S terlin g v. C onstan tin , 287 U. S. 378--------------------------------- 31
S tra ud er v. W est V irg in ia , 100 U. S. 303--------------------------- 24
U n ited S tates v. B u n tin , 10 Fed. 730--------------------------------- 49
U nited S tates v. C lassic, 313 U. S. 299------ 5, 19, 22, 44, 45, 51, 52
U nited S tates v. C ohen G rocery Co., 255 U. S. 81----------------20, 53
U nited S tates v. H a rris, 106 U. S. 629------------------------------- 22
U nited S tates v. M o sley , 238 U. S. 383-------------------- 41, 44, 51, 53
U nited S tates v. M u rd ock , 290 U. S. 389---------------------------- 44
Cases—Continued. Page
I l l
U nited S tates v. P ow ell, 212 U. S. 564____________________ 23
U nited S tates v. R agen , 314 U. S. 513------------------------------- 53
U nited S tates v. S aylor, 322 U. S. 385-------------------------------- 53
U n ited S tates v. S tone, 188 Fed. 836_______________ :______ 49
U n ited S tates v. Sutherland, 37 F. Supp. 344______________ 44
U nited S tates v. T rierw eiler, 52 F. Supp. 4___________ ____ 44
U nited S tates v. W addell, 112 U. S. 76________ :__________ 53
U nited S tates v. W u rzba ch , 280 U. S. 396_______________54
V irg in ia , E x parte, 100 U. S. 339______________ 16, 17, 27, 28, 30
V irg in ia v. R ives, 100 U. S. 313__________________________ 22
W a tson v. B u ck , 313 U. S. 387___________________________ 40
W estern U n ion T elegraph Co. v. A n d rew s, 216 U. S. 165___ 27
Y arbrough , E x parte, 110 U. S. 651_______________________ 53
Y ou n g , E x parte, 209 U. S. 123___________________________ 27, 31
Constitutions and Statutes:
United States Constitution, Fourteenth Amendment:
Section 1_________________________________________ __ 2
Section 5_____________________________________ 2
Georgia State Constitution, Article I:
Section 2-103--------------------- 25
Section 2-109_________________________________ 25
Civil Rights Act of April 9, 1866, 14 Stat. 27:
Section 2_________________________ 21,41,42,43
Section 3______________________________________ 47
Act of May 31, 1870, 16 Stat. 140, § 17___________________ 42,43
Act of April 20, 1871, 17 Stat. 13, § 3__ . ________ 47
Act of March 1, 1875, 18 Stat. 336 (8 U. S. C. 44)_ 27
Act of March 4, 1909, 35 Stat. 1092, c. 321, § 20____ 43
Criminal Code:
Section 19 (18 U. S. C. 51)____________________ 20, 52
Section 20 (18 U. S. C. 5 2 ) . . , . 2, 14, 18, 19, 20, 21, 22, 41, 43
Section 37 (18 U. S. C. 88)____________________ 6
28 U. S. C. 371__________________________________________ 18,36
R. S. § 5510_____________________________________________ 43
Ga. Code Ann., secs. 105-1301, et seq ., 24-2801, 24-2804,
24-2805, 24-2813, 24-2811, 89-418____________________ 26, 30
Miscellaneous:
1 Anderson on S heriffs , § 120------------------------------------------- 25
Cong. Globe, 39th Cong., 1st sess., pp. 211, 598, 599-------- 42, 45
Cong. Globe, 41st Cong., 2d sess., pp. 1536, 3480, 3658,
3690, 3807-3808, 3881_________________________________ 41, 42
Department of Justice:
Circular No. 3356:
Supplement 1, issued May 21, 1940______________49, 56
Supplement 2, issued April 4, 1942______________ 49, 56
Supplement 3, issued November 3, 1943------------- 49, 57
Cases—Continued. Page
IV
Miscellaneous— Continued. Page
Flack, T he A d o p tio n o f the F ourteen th A m en d m en t (1908) 41
Hearings before the subcommittee of the Committee on
Appropriations, House of Representatives:
76th Cong., 1st sess., Department of Justice Appro
priation Bill for 1940______________________________ 48, 49
76th Cong., 3d sess., Department of Justice Appro
priation Bill for 1941------------------------------------------------ 48
77th Cong., 2d sess., Department of Justice Appro
priation Bill for 1943-------------------------------------------- 48
Isseks, J u r isd ic tio n o f the L ow er F ed era l C ourts to E n jo in
U n a u th orized A c t io n o f S tate O fficials, 40 Harv. L. Rev.
969------ 39’ 41
S. 365, 41st Cong., 2d sess-------------------------------------------- 42
tk tfo M States
October Term, 1944
No. 42
M. Claud Screws, F rank Edward Jones, and
Jim B ob K elley, petitioners
v.
U nited States oe A merica
O N W R I T O F C E R T IO R A R I T O T H E U N IT E D S T A T E S C IR C U IT
C O U R T O F A P P E A L S F O R T H E F I F T H C IR C U IT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The m ajority and dissenting opinions in the
C ircuit Court o f Appeals (R . 217-227) and the
concurring opinion o f Judge W aller on petition
fo r rehearing (R . 232) are reported in 140 F.
(2d ) 662.
JU RISD ICTIO N
The judgm ent o f the Circuit Court o f Appeals
was entered on January 14, 1944 (R . 227), and a
petition fo r rehearing (R . 228-231) was denied on
February 18, 1944 (R . 232). The petition fo r a
(i)
2
w rit o f certiorari was filed on M arch 18,1944, and
was granted on A p ril 24, 1944 (R . 236). The
jurisdiction o f this Court is invoked under Sec
tion 240 (a ) o f the Judicial Code, as amended by
the A ct o f February 13, 1925. See also Rules X I
and X I I I o f the Criminal Appeals Rules prom ul
gated by this Court on M ay 7, 1934.
CO N STITU TION AL A N D ST A TU T O R Y PROVISION S
IN V O LV E D
The Fourteenth Amendment to the Constitution
provides in pertinent p a r t :
Section 1. * * * No State shall make
or enforce any law which shall abridge the
privileges or immunities o f citizens o f the
U nited States; nor shall any State deprive
any person o f life , liberty, or property,
without due process o f la w ; nor deny to any
person within its jurisdiction the equal p ro
tection o f the laws.
52)
Section 5. The Congress shall have power
to enforce, by appropriate legislation, the
provisions o f this article.
Section 20 o f the Criminal Code (18 U . S. C.
p rov ides :
\\ W hoever, under color o f any law, statute,
ordinance, regulation, or custom, w illfu lly
subjects, or causes to be subjected, any in
habitant o f any State, Territory, or D istrict
to the deprivation o f any rights, privileges,
or immunities secured or protected by the
3
Constitution and laws o f the United States,
or to different punishments, pains, or
penalties, on account o f such inhabitant
being an alien, or by reason o f his color, or
race, than are prescribed fo r the punish
ment o f citizens, shall he fined not more
than $1,000, or imprisoned not more than
one year, or both. ' 1
QUESTIONS PRESENTED
The petitioners, police officers o f the State o f
Georgia, arrested a Negro on a warrant charging
him with theft o f a tire, and unjustifiably beat him
to death.
(1 ) Does their action constitute an offense
punishable under Section 20 o f the Criminal
Code?
(2 ) Is Section 20, as applied here, so vague and
indefinite as to be unconstitutional?
STATEM EN T
The petitioners— Screws, the sheriff o f Baker
County, Georgia, a position which he had held fo r
seven years (R . 36,168) ; Jones, a policeman in the
city o f Newton, Georgia (R . 3 6 ) ; and Kelley, a
special deputy designated by Screws to assist
Jones in making the arrest involved here (R . 170,
177)—- were convicted on October 7, 1943, in the
D istrict Court o f the United States fo r the M iddle
D istrict o f Georgia, on counts 2 and 3 o f a three-
count indictment returned against them in that
court on A p ril 10, 1943 (R . 2-9, 10). Count 1 o f
4
the indictment (R . 2 -4 ) , which charged a violation
o f Section 19 o f the Criminal Code (18 IT. S. C.
51 ), was dismissed by the court upon demurrer
(R . 24). Count 2 (R . 4 -6 ) charged the peti
tioners with violating Section 20 o f the Criminal
Code (18 U. S. C. 52 ), and count 3 (R . 6 -9 )
charged them with conspiring to violate Section
20, contrary to Section 37 o f the Crim inal Code
(18 IT. S. C. 88). Each petitioner was sentenced
to a total o f three years ’ im prisonm ent and pay
ment o f a $1,000 fine (R . 11-15 ). U pon appeal to
the Circuit Court o f Appeals fo r the F ifth Circuit,
their convictions were affirmed (R . 217-223).
Judge Sibley dissented (R . 223-227).
The petitioners assigned as error in the court
below (R . 214) only the overruling o f their
dem urrer to counts 2 and 3 o f the indictment and
the denial o f their m otion, at the conclusion o f
all the evidence, fo r a directed verdict. The
questions presented, therefore, relate solely to the
sufficiency o f those counts o f the indictment, to
gether with the p roo f adduced at the trial, to
sustain the convictions.
The Indictment.
Count 2 (R . 4 -6 ) charged that on January 29
and 30, 1943, Screws and Jones, aided and abetted
by Kelley, arrested Robert Hall, a N egro citizen o f
the U nited States and o f the State o f Georgia,
brought him to the well in fron t o f the courthouse
at Newton, Georgia, and there unlaw fully and
5
w rongfully beat him about his head with a black
jack and w ith their fists, thus causing his death.
I t was further alleged that the petitioners acted
under color o f the laws, statutes, ordinances, reg
ulations, and customs o f the State o f Georgia,
Baker County, and the m unicipality o f Newton,
Georgia, and that they deprived H all o f the fo l
low ing rights, privileges, and immunities secured
to him and protected by the Fourteenth Am end
ment o f the federal Constitution: to he secure
in his person and to be immune from illegal
assault and battery ; not to be deprived o f liberty
and life w ithout due process o f law ; not to be
denied equal protection o f the law s; not to be sub
jected to different punishments, pains, and penal
ties by reason o f his race or color than are pre
scribed fo r the punishment o f other citizens;
to be tried, by due process o f law, upon the
charge on which he had been arrested, and, i f
found guilty, to be sentenced and punished in
accordance with the laws o f the State o f Georgia.1
1 In United States v. Classic, 313 U. S. 299, 327, this Court
held that Section 20 of the Criminal Code authorizes the
punishment of two distinct offenses: (1) willfully subject
ing any inhabitant to the deprivation of rights secured by
the Constitution; and (2) willfully subjecting any inhabi
tant to different punishments on account of his alienage,
color, or race, than are prescribed for the punishment of
citizens. The petitioners do not contend that count 2 charges
these two different offenses and hence is duplicitous. It
is evident that the allegation that a different punishment
was inflicted upon Hall because he was a Negro was merely
612216— 41 - 2
6
Count 3 (R . 6 -9 ) charged that, in violation o f
Section 37 o f the Crim inal Code (18 U. S. C. 88),
the petitioners conspired to commit the offense
described in count 2, and that in furtherance o f
this conspiracy they committed specified overt
acts.
The Evidence.
The evidence supporting these allegations o f
the indictment m ay be summarized as fo llow s :
H all was a young Negro, about 30 or 31 years
old at the time o f his death, who lived on a farm
near Newton in B aker County, Georgia (R . 35 -
36, 38). In December 1942, Jones had taken
H a ll ’s pistol and given it to Screws (R . 36-37, 41 -
42 ). W hen Screws refused to return the gun,
H all appealed to the local grand ju ry (R . 40).
Screws told the grand ju ry that he was going to
keep the pistol until a judge ordered him to re
turn it, and that i f “ any o f these damn negroes”
carried pistols, he would take them away (R . 4 0 -
41 ). The grand ju ry concluded that there was no
relief they could give H all (R . 40 ). W hen
Screws persisted in his refusal to return the pis-
a specific enumeration of one of the rights guaranteed
by the Fourteenth Amendment alleged to have been denied
him, i. e., the equal protection of the laws. The case
was tried on the theory that only one offense was involved,
namely, willful deprivation of rights secured by the
Constitution. Consequently, no question is here presented
as to the sufficiency of the indictment and the proof to sup
port a conviction of the second offense punishable under
Section 20.
7
tol, H all retained counsel who wrote Screws re
questing return o f the gun. This letter was
received by Screws on January 29, 1943. (R . 43 -
44, 176, 194-195.) There was evidence that, fo l
low ing receipt o f this letter, Screws in the early
evening o f January 29 entered the W hites ’ filling
station in Newton, and stated that he wanted
someone to accom pany him, “ that he was going
to go and get the black SB and going to kill him,
that he had lived too long then” (R . 46). A w it
ness testified: “ H e walked in and asked me did I
have any guts and I told him yes, a little bit and
he said well I am going to get Bobby H all and
I told him no I couldn ’t afford to go * * * ”
(R . 50). Later that evening at a local barroom
at which Screws and the two other petitioners
were drinking (R . 50-57), the barkeeper, because
Screws had been drinking, exhorted him not to go
through with the proposed arrest that night
(R . 52-53).
Shortly after midnight, while Screws waited at
the well in fron t o f the Newton courthouse, Kelley
and Jones, at Screw s’ direction, drove in Screw s’
car to H a ll ’s home (R . 65, 170).2 Jones roused
H all from bed, asserting that he had a warrant
fo r his arrest charging him with theft o f a tire
2 Earlier in the evening Kelley had driven to Hall’s home
and under the pretense of seeking Hall, who was a mechanic,
to repair his car, had ascertained that Hall had not yet re
turned from work (R. 58).
8
(R . 59 ).3 W hile H all was dressing, Jones, with
his gun drawn (R . 74), recalled that H all had been
before a grand ju ry in an effort to recover his
pistol and had been to see a lawyer (R . 59-60).
Jones, noticing a shotgun behind H a ll’s bed, took
the gun, unloaded it, and told H all that he would
keep it until H all returned (R . 59, 60, 71). H all
was taken to the car, handcuffed, and placed in the
rear seat (R . 61, 71, 74, 170) ; the shotgun was
placed in the fron t seat between K elley and Jones
(R . 71, 72, 74).
W hen the car arrived at the courthouse square
the sheriff was w aiting fo r them at the well in
fron t o f the courthouse (R . 71). Screws opened
the door and ordered H all to get out (R . 65).
W hen H all alighted from the car, all three peti
tioners began beating him with their fists and a
solid-bar blackjack about eight inches long and
weighing two pounds (R . 66, 72, 75, 76, 81, 171).
H all was soon knocked to the ground, and there-
3 The validity of the warrant was questioned at the trial
by the testimony of a handwriting expert employed by the
F. B. I. who stated that the warrant was written at least in
substantial part by Screws (R. 125-132, 147-148). Screws
stated to an agent of the F. B. I. that he did not know who
had written the warrant (R. 68) or who had entered it on
the docket, that he did not recognize the handwriting appear
ing on its face, and that he had not written it or made the
docket entry (R. 69). Neither George Durham, who al
legedly procured the warrant, nor the justice of the peace
who was supposed to have issued the warrant, was called as
a witness.
9
after fo r a period o f at least from 15 to 30 minutes
the petitioners continued to pummel him (R . 80-
82, 83-84, 85-87, 89-92, 94-95, 98-99, 99-101).
W itnesses testified that the petitioners were loud
and profane (R . 83, 89, 90, 94—95, 97), and were
heard to cry frequently, “ hit him again, damn
him, hit him again” (R . 84, 87, 90, 94). The
blows administered to H all could be heard in
nearby houses (R . 86-87, 89, 90). Twenty or
thirty minutes after the beating began a shot was
fired in the courtyard, and thereafter the noise
subsided (R . 84, 86, 88-89, 90, 94-95, 98, 100).
K elley and Jones then dragged H all feet first
from the well through the courthouse yard into
the ja il (R . 86, 102, 103-104, 105). There they
threw him on the floor, dying, his hands still
in cuffs (R . 102, 104 ,105,107). Jones returned to
the ja il about 15 or 20 minutes later and removed
the handcuffs from the unconscious man (R . 103,
105, 107). Soon thereafter Screws called an am
bulance and H all was removed to a hospital (R .
171), where he died within an hour (R . 111).4
A fte r the killing Screws told an P. B . I . agent
that he had known H all all his life and had had
4 The attending physician testified that Hall’s death was
due to blows on the right side of his skull (E. 111). The un
dertaker testified that Hall was unrecognizable when first
brought to him (R. 112), that the skin on his chest and other
parts of his body was scraped off, that his right ear was
mutilated, and that his head was crushed (R. 113-114).
10
trouble w ith him fo r two years; that H all was a
“ biggety negro, that he considered him self to be
a leader among the colored people in the com
m unity” (R . 64; see also R . 177). Shortly after
H all died, Kelley, upon being told o f his death,
stated that “ it was just another negro dead” (R .
48).
The petitioners’ defense at the trial was that
H a ll’s death resulted from his violent resistance
when he was directed by Screws to get out o f the
car after it arrived in the courthouse square.
Screws testified as follow s (R . 171) :
I opened the door and I said “ A ll right,
Bobby, get ou t” and I noticed he w asn’t
in any hurry to get out but when he, when
I did see him come out, I saw some
thing com ing out ahead o f him like that
(indicating) and I discovered it was a g u n ;
and he said “ Y ou damn white sons— ” and
that is all I remember what he said. B y
that time I knocked the gun up like that and
the gun fired off; right over m y head; and
when it did he was on the ground by then
and me and K elley and Jones ran into him
and we all were scuffling and I was beating
him about the face and head with m y fist.
I knew Jones had a blackjack and I told him
to hit him and he hit him a lick or two and
he d idn ’t seem to weaken and I said “ H it
him again.” W hen he fell to the ground,
we d idn ’t hit him on the ground. * * *
I would be afraid to say how long it was
before he was beaten to where he quit
11
resisting us or quit trying to assault me
because in a time like that you would be a
poor judge o f time, I tbink.
The Charge.
The trial court instructed the ju ry as follows
with respect to the law ful powers o f arresting
officers (R . 207-208, 211-212) :
Now, gentlemen o f the jury, I charge you
that an officer, like the sheriff or any arrest
ing officer, has certain rights and only cer
tain rights in connection with a prisoner in
his custody under arrest. I am going to
read you two statements from the Supreme
Court o f this state, the Georgia Supreme
Court, about what sheriffs can do legally.
In this case it says— and this is the Supreme
Court o f Georgia— “ There was no error in
charging that an officer cannot suffer him
self to he overcome by any opprobrious
words or abusive language while he is act
ing as a minister o f the law. H e cannot
chastise his prisoner fo r insolence, that is to
say, fo r being uppity. H e cannot yield to
his passion and take the administration o f
punishment into his own hands, but can only
use such force as is necessary to make the
arrest effectual.”
In another case, the Court o f Appeals
this is instead o f the Supreme Court, said
that is the Georgia Court o f A ppeals: “ The
act o f an arresting officer in holding in
custody a person whom he has arrested fo r
violation o f the law is an act done by virtue
12
o f his office. I t is the duty o f an arrest
ing officer, who has a person under arrest
fo r a violation o f law, to refrain from un
law fully assaulting or killing the prisoner.”
So, under the holdings o f our own ap
pellate Courts, I charge you that legally a
sheriff or other officers would have no right
to assault and beat or kill a prisoner, no
matter what the prisoner said. That is
what the Supreme Court o f Georgia says,
that the sheriff acting as a m inister o f the
law who arrests a man and has him in his
custody cannot strike him or beat him or
kill him legally, no matter what the prisoner
says.
So, if these defendants, without its being
necessary to matte the arrest effectual or
necessary to their own personal protection,
beat this man, assaulted him or killed him
while he was under arrest, then they would
be acting illegally under color of law, as
stated by this statute, and would be depriv
ing the prisoner of certain constitutional
rights guaranteed, to him by the Constitu
tion of the United States and consented to
by the State of Georgia.
I charge you, in that connection, that an
arresting officer does have the right to use
such force as is necessary in order to make
the arrest, i f he has a legal process under
which to make the arrest. A sheriff who
has legal process to make an arrest, has
a warrant, has a right to make tlyit arrest
and he has a right to use such force, but
13
only such force, as is necessary in order
to make the arrest and over and above that
he has no right to impose any sort o f pun
ishment on his prisoner.
I charge you that the sheriff or other
officer, i f he had a prisoner under legal
arrest and it became necessary in order
to prevent the prisoner from killing the
sheriff or other officer or doing him serious
bodily harm, would have a right to use
such force as was necessary to prevent it.
That is all the right that arresting officers
have in connection with imposing punish
ment on a prisoner.
* * * * *
I said to you, gentlemen o f the jury, that
i f an officer has a prisoner under arrest and
it becomes necessary, in order to prevent
the killing o f the officer by the prisoner or
the inflicting o f serious bodily harm upon
him, that the officer would have a right to
use such force as would be necessary to
prevent the in ju ry or the killing to him
self, but only that much force and no more.
I charge you in that connection that in this
ease you will determine from the evidence
what the situation was around the well dur
ing that occurrence that you have heard
about, what things have been proved, in
your opinion. Get what the exact situation
actually was and if from that situation as
you find it to be, you think that the officers
could reasonably conclude under those cir
cumstances that it was necessary to do what
612216- 44- -3
14
they did do to prevent in ju ry or death to
themselves, then they would have a right
to do it but they would have the right only
to do what they thought under the circum
stances was absolutely necessary in order
to prevent in ju ry or death to themselves.
[Ita lics added.]
SU M M A R Y OF AR G U M E N T
Section 20 o f the Crim inal Code makes it pun
ishable fo r anyone, acting under color o f law,
w illfu lly to deprive any person o f rights, priv
ileges, or immunities secured or protected by the
Constitution and laws o f the U nited States. The
offense includes two elements: w illfu l deprivation
o f rights secured by the Constitution, and action
taken under color o f law. W e believe that the
indictment and the supporting p roo f are sufficient
to sustain the petitioners’ convictions under Sec
tion 20, and that the statute, as applied here, is
not so vague and indefinite as to be unconstitu
tional.
I
The evidence showed that the petitioners w ill
fu lly deprived H all o f rights secured to him by
the Fourteenth Amendment, particularly the right
not to be deprived o f life without due process
o f law. Since the Fourteenth Amendment pro
tected H all against state and not individual action,
the Government was required to show not only
that the rights o f which he was deprived were
15
secured to him by the Constitution, but also that
such deprivation was the act o f the State.
There can be little doubt that the rights o f
which H all was deprived by the petitioners, acting
in the name o f and fo r the State, were secured
to him by the Fourteenth Amendment. The ju ry ’s
verdict establishes that the petitioners’ assault
upon H all was neither “ necessary to make the
arrest effectual or necessary to their own per
sonal protection” (R . 208). I f due process o f
law requires that no man be condemned to death
upon evidence procured from him through vio
lence or coercion, it is an a fortiori conclusion
that a State may not take his life without even
affording him a trial. Due process o f law fo r
bade, therefore, that H all be deprived o f his life
unless he were tried and convicted o f a crime
punishable by death, and in accordance with pro
cedures com plying with the requirements o f funda
mental fairness and justice.
W e believe that, fo r purposes o f determining
criminal liability under Section 20, the acts o f
the petitioners are referable to the State. I t
may be conceded that the petitioners’ conduct, as
charged in the indictment and found by the jury,
was in violation o f state law. I t is submitted,
nevertheless, that the question whether conduct
constitutes state action fo r purposes o f applying
the criminal sanctions o f Section 20 is not to be
determined merely by inquiring whether the State
16
has authorized the particular acts involved. To
speak o f state action is, o f course, to em ploy an
abstraction. A State itself never acts : it acts, and
can act, only through individuals purporting to
act on its behalf, legislators, judges, executive
and administrative officers. W hether acts o f its
officers are to be im puted to a State has been
made to depend, generally speaking, upon the
purpose fo r which such determination is sought
to be made.
W hile the setting in which it is here presented
may be novel, the question itself is not new. The
contentions which the petitioners make in this
ease were unsuccessfully pressed upon this Court
as early as 1879, only eleven years after the adop
tion o f the Fourteenth Amendment, in E x parte
Virginia, 100 U . S. 339. The Court there held
(100 U. S. at 347) : “ W hoever, by virtue o f public
position under a State government, deprives an
other o f property, life, or liberty, w ithout due
process o f law, or denies or takes away the equal
protection o f the laws, violates the constitutional
inh ib ition ; and as he acts in the name and fo r the
State, and is clothed with the State’s power, his
act is that o f the State.” H ere, as in E x parte
Virginia, the petitioners were not and did not pur
port to be acting as private individuals; they did
not attempt to show at the trial that they were
seeking to satisfy their personal fee lin gs ; the trial
court was not requested to charge the ju ry that
17
the petitioners should be acquitted if their m o
tives in assaulting H all were o f a personal nature*
The petitioners contended at the trial that the
death o f H all occurred during the perform ance o f
their official duties as arresting officers, and that
they acted only to meet his forcible resistance to
arrest. The petitioners acted in the name o f and
fo r the State, and were clothed with the powers
o f the State— powers which they did not possess
and could not exercise as private individuals.
They were acting in their capacity as police
officers sheltered by the protective authority o f the
State. Here, no m ore than in E x parte Virginia,
the petitioners cannot avoid the penalties imposed
by federal law fo r the infringem ent o f federal
rights by claim ing that they were responsible
fo r the manner in which they discharged their
duties only to the State whose officers they were
and whose law they were bound to enforce.
E x parte Virginia does not stand alone; it is
m erely the first in a series o f decisions establish
ing that action by state officers does not lose its
character as state action merely because unau
thorized by the State. The petitioners’ reliance
upon Barney v. City of New York, 193 U. S. 430,
and similar cases, is misplaced. The considera
tions which m ay be persuasive in leading towards
refusal o f federal jurisdiction in civil suits, where
the p laintiff has a choice o f forums and where the
bringing o f suit in a state court affords the State
18
an opportunity to correct or redress the wrong
done in its name, are w holly inapplicable to fed
eral crim inal proceedings in which the federal
Government is seeking to vindicate a federal right
which can be asserted only in the federal courts.
Unlike civil suits to redress infringem ents o f civil
rights, crim inal prosecutions under Section 20 can
be brought only in federal courts. 28 U . S. C. 371.
The federal Government is powerless to initiate
any proceedings in the state courts which might
enable the highest court o f the State to confirm or
disavow the acts o f subordinate state officials.
This is particularly true where the victim has suf
fered the loss o f life , which obviously cannot be
restored to him. I f , as in this case, officers, acting
in the name o f and fo r the State take a m an ’s life
without due process o f law, no other officers o f the
State, jud icia l or otherwise, can ever have the
opportunity to correct or undo the wrong done in
its name. The denial o f his constitutional right
not to be deprived o f life w ithout due process o f
law was irrevocably effected when H all was un
justifiably beaten to death by the petitioners.
Its legislative history supports the construction
o f Section 20 as applicable to deprivations o f con
stitutional right made by subordinate state offi
cials, acting in the name o f and fo r the State, even
though not authorized by it. I f the provision were
to be lim ited to the actions expressly authorized
19
by state law, the statute would have only the most
trivial scope— particularly in view o f the require
ment that deprivations o f constitutional right be
“ w illfu l.” W here an action is based upon an
explicit direction o f state law, a mistake o f law
m ay well negate the element o f willfulness. There
is no justification in its legislative history fo r thus
reducing the scope o f the statute which, in the
clearest and most unequivocal language, was de
signed to confer broad federal protection upon
the enjoym ent o f basic constitutional rights.
There can be no doubt that the petitioners’
actions were taken under color o f state law. They
acted in their capacity as state law-enforcement
officers; they did not purport to be acting as pri
vate individuals not endowed with the authority
o f the State. Since they were acting in the per
form ance o f their official duties, it is immaterial
that they m ay have exceeded their authority.
“ Misuse o f power, possessed by virtue o f state law
and made possible only because the wrongdoer is
clothed with the authority o f state law, is action
taken ‘ under color o f ’ state law .” United States
v. Classic, 313 U. S. 299, 326.
I I
Section 20, as applied here, is not so vague and
indefinite as to be unconstitutional. This Court
has held in United States v. Classic, supra, at
328-329, that the comprehensive character o f the
2 0
rights protected by Section 20 does not subject
the statute to constitutional infirmities. M ore
over, the validity o f Section 19 o f the Criminal
Code (18 U . S. C. 51), which punishes conspira
cies to in jure a citizen in the exercise “ o f any
right or privilege secured to him by the Consti
tution or laws o f the U nited States,” has re
peatedly been upheld. In United States v. Cohen
Grocery Co., 255 U. S. 81, 89, principally relied
upon by Judge Sibley in his dissenting opinion in
the court below, a conviction was held unconstitu
tional where the statute le ft open “ the widest
conceivable inquiry, the scope o f which no one
can foresee and the result o f which no one can
foreshadow or adequately guard against” and
where “ to attempt to enforce the section would
be the exact equivalent o f an effort to carry out
a statute which in terms m erely penalized and
punished all acts detrimental to the public
interest when unjust and unreasonable in the
estimation o f the court and ju ry .”
The comprehensiveness o f Section 20 is o f a
different order. I t was natural that Congress, in
seeking to protect all rights secured by the Consti
tution, should not undertake to catalogue every
federally protected right. The possibility that in
circumstances not here presented there m ay be
difficulty in determining whether there has been
such a deprivation o f constitutional right as to
come within the penalties o f Section 20 is no
21
reason fo r doubting the validity o f the statute in
cases where its applicability is clear.
ARG U M EN T
Since the petitioners complain only that the
trial court erred in overruling their demurrer to
counts 2 and 3 o f the indictment and in denying
their motion, at the conclusion o f all the evi
dence, fo r a directed verdict, the questions before
the Court are whether those counts o f the indict
ment and the supporting p roo f are sufficient to
sustain the convictions under Section 20 o f the
Crim inal Code (18 U. S. C. 52 ),5 and whether
the statute, as applied here, is so vague and in
definite as to be unconstitutional.
I
THE INDICTMENT AND THE PROOF WERE SUFFICIENT
TO SUSTAIN TH E CONVICTIONS
Section 20 o f the Criminal Code, which is de
rived from § 2 o f the Civil Rights A ct o f A pril 9,
1866, 14 Stat. 27, punishes anyone who, acting
under color o f law, w illfu lly deprives any person
o f any rights, privileges, or immunities secured or
5 Count 3, the conspiracy count, depends for its validity
upon count 2. If the latter count is sustained, it is clear that
an agreement among the petitioners to accomplish the of
fense proscribed by Section 20 is a conspiracy under Section
37 of the Criminal Code. Culp v. United States, 131 F. (2d)
93, 99 (C. C. A. 8). The jury’s finding in this respect, which
is unchallenged by the petitioners, is amply supported by the
evidence summarized in the Statement, supra, pp. 6-ll.
2 2
protected by tbe Constitution and laws o f tbe
U nited States. “ The generality o f the section,
made applicable as it is to deprivations o f any
constitutional right, does not obscure its m eaning
or im pair its force within the scope o f its appli
cation, which is restricted by its terms to depriva
tions which are w illfu lly inflicted by those acting
under color o f any law, statute and the like.”
United States v. Classic, 313 U. S. 299, 328-329.
W e submit that both elements o f the offense pun
ishable by Section 20, namely, (a ) w illfu l depriva
tion o f rights secured by the Constitution, and (b )
action taken im der color o f law, are present in
this case.
A. T H E PETITIONERS W IL L F U L L Y DEPRIVED H A L L OF RIGHTS
SECURED TO H IM B Y TH E FOU RTEENTH A M E N D M E N T
Count, 2 o f the indictment alleged, inter alia,
that the petitioners w illfu lly deprived H all o f the
follow ing rights secured to him by the Fourteenth
Am endm ent: not to be deprived o f life without
due process o f law ; and to be tried, upon the
charge on which he had been arrested, by due
process o f law, and i f found guilty, to be sen
tenced and punished in accordance with the laws
o f the State o f Georgia (E . 4 -6 ) . Since the
Fourteenth Amendment protects these rights
against state, and not individual, action, Vir
ginia v. Rives, 100 U. S. 313, 318; United States v.
Harris, 106 U. S. 629, 639-640; Civil Rights Cases,
109 U. S. 3 ; Hodges v. United States, 203 U. S.
23
1 ; United States v. Powell, 212 U. S. 564, the
Government was required to establish not only
that the rights o f which H all was deprived were
secured by the Fourteenth Amendment, but also
that such deprivation was the act o f the State o f
Georgia.
Assum ing fo r the moment that the acts o f the
petitioners were the acts o f the State— an assump
tion whose validity we shall presently attempt to
demonstrate— there can be little doubt that the
rights o f which H all was deprived were secured
to him by the Fourteenth Amendment. The
Amendment explicitly forbids the taking o f life
or liberty without due process o f law. The
breadth o f the protection afforded by the due
process clause in this class o f cases is evidenced
by a recent statement o f the Court: “ The due
process clause o f the Fourteenth Amendment re
quires that action by a state through any o f its
agencies must be consistent with the fundamental
principles o f liberty and justice which lie at the
base o f our civil and political institutions, which
not infrequently are designated as ‘ the law o f the
land ’ .” Buchalter v. New York, 319 U. S. 427,
429, and cases there cited. Compare Mr. Justice
Johnson in Bank of Columbia v. Okely, 4 Wheat.
235, 244: “ As to the words from Magna
Charta * * *, after volumes spoken and written
with a view to their exposition, the good sense o f
mankind has at length settled down to this: that
they were intended to secure the individual from
24
the arbitrary exercise o f the powers o f govern
ment, 'unrestrained by the established principles o f
private rights and distributive justice .” A nd see
Strauder v. W est Virginia, 100 U. S. 303, 310:
“ The Fourteenth Amendment makes no attempt
to enumerate the rights it designed to protect. It
speaks in general terms, and those are as com
prehensive as possible. Its language is prohibi
to ry ; but every prohibition implies the existence
o f rights and immunities, prom inent among which
is an im m unity from inequality o f legal protec
tion, either fo r life, liberty, or property .”
The ju r y ’s verdict establishes that the peti
tioners’ assault upon H all was neither “ necessary
to make the arrest effectual or necessary to their
own personal p rotection” (R . 208). I f due proc
ess o f law commands that no m an be con
demned to death upon evidence procured from
him through violence or coercion, see Ashcraft v.
Tennessee, 322 H. S. 143, 155, and cases cited, it
is an a fortiori conclusion that a State m ay not
take his life w ithout even affording him a trial.
C f. M ooney v. Holohan, 294 U . S. 103; Moore v.
Dem psey, 261 H . S. 86. Due process o f law
clearly forbade, therefore, that H all be deprived
o f his life unless he were tried and convicted o f
a crime punishable by death, and in accordance
with procedures com plying with the requirements
o f fundam ental fairness and justice. Cf. Logan
v. United States, 144 H. S. 263, 294.
25
W e are thus brought to the principal question
in the case : are the acts o f the petitioners to be
ascribed to the State o f G eorgia1? W hatever
answer m ay be given fo r purposes not here rele
vant, it is submitted that, fo r purposes o f deter
m ining responsibility under Section 20, the ques
tion is to be answered in the affirmative. W e
m ay concede, at the outset, that the petitioners’
conduct, as charged in the indictment and found
by the jury, was in violation o f Georgia law. As
the trial court charged the ju ry (R . 207), it is
the law o f Georgia (as it is generally, see 1 A n
derson on Sheriffs, § 120) that “ an officer to keep
the peace cannot suffer himself to be overcome
by opprobrious words or abusive language while
acting as a m inister o f the law, armed with legal
power, and exerting it over a prisoner; he can
not chastise his prisoner fo r insolence; he can
not yield to his passions, and take the admin
istration o f punishment, as it were, into his own
hands.” Burns v. Georgia, 80 Ga. 544, 548;
M oody v. Georgia, 120 Ga. 868. In addition
to forbidding the deprivation o f life, liberty, or
property without due process o f law (A rt. I,
§ 2 -103 ), the Constitution o f the State o f Georgia
expressly provides that no person shall be “ abused
in being arrested, while under arrest, or in prison”
(A rt. I, § 2 -1 0 9 ). The petitioners’ violation o f
their legal duty as arresting officers might con
ceivably have been punished criminally under
26
Georgia law as an assault and battery (see Burns
v. Georgia, and M oody v. Georgia, supra), as man
slaughter (see O ’Connor v. Georgia, 64 Ga. 125),
or as murder. I f H a ll ’s death were found to have
been caused by the petitioners’ criminal acts, his
w idow or children could, under the Georgia
w rongful death statute, recover from them the
“ fu ll value” o f his life. Ga. Code Ann., §§ 105-
1301 et seq. The State requires its sheriff to
post bonds in the sum o f $10,000, conditioned
upon the fa ith fu l perform ance o f their duties
(Ga. Code Ann., § 24-2805) ; and such bond is
“ fo r the use and benefit o f every person who is
in jured * * * by any w rongful act com m it
ted under color o f his office” (Ga. Code Ann.,
§ 89-418; see Powell v. Fidelity d? Deposit Co., 45
Ga. A pp . 88).
W e submit, however, that the question whether
the petitioners’ conduct constituted state action
fo r purposes o f applying the penal sanctions o f
Section 20 is not to be determined m erely by in
quiring whether the State has authorized the
particular acts involved. T o speak o f state action
is, o f course, to em ploy an abstraction. A State
itself never a cts : it acts, and can act, only
through individuals purporting to act on its be
half, legislators, judges, executive and adminis
trative officers. W hether acts o f its officers are
to be imputed to a State has been made to depend,
generally speaking, upon the purpose fo r wdiich
27
such determination is sought to be made. Thus,
in cases such as E x parte Young, 209 U. S. 123;
W estern Union Telegraph Co. v. Andrews, 216
U. S. 165; and Looney v. Crane Co., 245 U. S.
178, suits to enjoin state officers from enforcing
allegedly unconstitutional statutes have been held
not to be suits against the State in violation o f
the Eleventh Amendment, even though the offi
cers ’ actions were regarded as state action under
the Fourteenth Amendment. See Iowa-Des
Moines Bank v. Bennett, 284 U. S. 239, 246, n. 5.
W hile the setting in which it is here presented
m ay be novel, the question itself is not new. The
contentions which the petitioners make in this
case were pressed upon this Court as early as
1879, only eleven years after the adoption o f the
Fourteenth Amendment, in E x parte Virginia,
100 IT. S. 339. That case arose under the A ct
o f M arch 1, 1875, 18 -Stat. 336 (8 U. S. C. 44),
which provided that no citizen should be disquali
fied fo r service as a ju ror in any court, federal or
state, on account o f his race, color, or previous
condition o f servitude; and punished any officer
or other person charged with the selection o f
jurors who should exclude any citizen fo r such
cause. A judge o f the State o f V irginia was
indicted in a federal district court fo r violation
o f the statute, and was taken into custody. A p
plications to this Court fo r a writ o f habeas
corpus were made by him and the State. Since
28
the law o f V irg in ia authorized no discrim inations
based upon race, color, or previous condition o f
servitude, its A ttorney General contended at the
bar o f this Court that “ the State had done its
duty, and had not authorized or directed that
county judge to do what he was charged with
having done; that the State had not denied to
the colored race the equal protection o f the law s;
and that consequently the act o f Cole [the judge]
must be deemed his individual act, in contra
vention o f the w ill o f the State.” H arlan, J.,
dissenting in the Civil Bights Cases, 109 IJ. S. 3,
58. This Court, nevertheless, denied the appli
cations and sustained the validity o f the statute
as an exercise o f Congress’s powers under the
Fourteenth Amendment (100 U. S. at 346-347) :
They [the prohibitions o f the Fourteenth
Am endm ent] have reference to actions o f
the political body denominated a State, by
whatever instruments or in whatever modes
that action m ay be taken. A State acts by
its legislative, its executive, or its judicial
authorities. It can act in no other way.
The constitutional provision, therefore,
must mean that no agency o f the State, or
o f the officers or agents by whom its powers
are exerted, shall deny to any person within
its jurisdiction the equal protection o f the
laws. W hoever, by virtue o f public posi
tion under a State government, deprives
another o f property, life , or liberty, with
out due process o f law. or denies or takes
29
away the equal protection o f the laws, vio
lates the constitutional inhibition; and as
he acts in the name and fo r the State, and
is clothed with the State’s power, his act
is that o f the State. This must he so, or the
constitutional prohibition has no meaning.
Then the State has clothed one o f its agents
with pow er to annul or to evade it.
M r. Justice F ie ld ’s dissenting opinion, concurred
in by M r. Justice Clifford, insisted that: “ I f Con
gress could, as an appropriate means to enforce
the prohibition [o f the due process clause o f the
Fourteenth Am endm ent], prescribe criminal
prosecutions fo r its infraction against legislators,
judges, and other officers o f the States, it would
he authorized to fram e a vast portion o f their
law s; fo r there are few subjects upon which legis
lation can be had besides life, liberty, and prop
erty ” (100 U. S. at 366). Only to the dissenting
Justices, however, was it clear that “ fo r the man
ner in which he [the county judge] discharges
this duty [o f selecting jurors] he is responsible
only to the State whose officer he is and whose
law he is bound to en force” (id., at 349).
In the case at bar the petitioners were not and
did not purport to be acting as private individ
uals; they did not attempt to show at the trial
that they were seeking to satisfy personal feel
ings towards H a ll; the trial court was not re
quested to charge the ju ry that the petitioners
should be acquitted i f their motives in assaulting
612216— 44—
30
H all were o f a personal nature. As has been
noted (supra, p. 10), the petitioners contended at
the trial that the death o f H all was incidental to
perform ance o f their official duties as ariesting
officers, and that they acted only to meet his fo r
cible resistance to arrest. H ere, as in E x parte
Virginia, the petitioners acted in the name o f and
fo r the State, and were clothed with the powers
o f the State— powers which they did not possess
and could not exercise as private individuals. The
State o f Georgia has by statute endowed its
sheriffs w ith the power and duty o f executing
warrants. Ga. Code Ann., §§ 24—2801, 24—2804,
24-2813. A nd sheriffs are em powered to appoint
deputies to assist in the perform ance o f their
duties. Ga. Code Ann., § 24-2811. Screws as
sheriff, Jones as a local policeman, and K elley
as a special deputy designated to aid Jones in
executing the warrant fo r the arrest o f H all, were
acting in their capacity as police officers sheltered
by the protective authority o f the State. Here,
no m ore than in E x parte Virginia, the petitioners
cannot avoid the penalties im posed by federal law
fo r the infringem ent o f federal rights by claiming
that they were responsible fo r the manner in
which they discharged their duties only to the
State whose officers they were and whose law they
were hound to enforce.
E x parte Virginia does not stand alone; it is
m erely the first in a long series o f decisions estab-
31
lishing that action by state officers does not lose its
character as state action merely because unauthor
ized by the State. See Neal v. Delaware, 103
U. S. 370, 397; Civil Bights Cases, 109 U. S. 3,
15-18 ; Chicago, Burlington and Quincy B. B . Co.
v. Chicago, 166 U. S. 226, 233-234; jRaymond v.
Chicago Traction Co., 207 U. S. 20, 35-37; E x
parte Young, 209 U. S. 123; Home Tel. & Tel.
Co. v. Los Angeles, 227 TJ. S. 278, 288-289; Cuya
hoga Poiver Co. v. Akron, 240 U. S. 462; Fidelity
and Deposit Co. v. Tafoya, 270 U. S. 426, 434;
Hopkins v. Southern California Telephone Co.,
275 U. S. 393, 398; Iowa-Des Moines Bank v.
Bennett, 284 IT. S. 239, 245-246; Nixon v. Condon,
286 IT. S. 73, 89; Mosher v. City of Phoenix, 287
IT. S. 29; Sterling y. Constantin, 287 IT. S. 378,
393; M ooney v. Holohan, 294 IT. S. 103; Missouri
ex rel. Gaines v. Canada, 305 IT. S. 337, 342;
Hague v. C. I. ()., 307 IT. S. 496, 512; Cochran v.
Kansas, 316 IT. S. 255; P yle v. Kansas, 317 U. S.
213; Snowden v. Hughes, 321 IT. S. 1.
In H om e Tel. A Tel. Co. v. Los Angeles, 227 IT.
S. 278, suit was brought in a federal district
court to enjoin officials o f the city o f Los Angeles
from enforcing a city ordinance fixing telephone
rates alleged to be confiscatory and in violation o f
the Fourteenth Amendment. The defendants as
serted that i f the rates were confiscatory, they
would also violate the due process clause o f the
state constitution and hence could not be regarded
32
as state action within the Fourteenth Amendment.
M r. Chief Justice W hite, speaking fo r a unani
mous Court, rejected this contention in unequiv
ocal language (227 U. S. at 287) :
* * * the proposition relied upon pre
supposes that the terms o f the Fourteenth
Amendment reach only acts done by State
officers which are within the scope o f the
pow er conferred by the State. The propo
sition hence applies to the prohibitions o f
the Amendment the law o f principal and
agent governing contracts between indi
viduals and consequently assumes that no
act done by an officer o f a State is within
the reach o f the Amendment unless such
act can be held to be the act o f the State
by the application o f such law o f agency.
In other words, the proposition is that the
Amendment deals only with the acts o f
state officers within the strict scope o f the
public powers possessed by them and does
pot include an abuse o f power by an officer
as the result o f a wrong done in excess o f
the power delegated. H ere again the set
tled construction o f the Amendment is that
it presupposes the possibility o f an abuse
by a state officer or representative o f the
powers possessed and deals with such a con
tingency. I t provides, therefore, fo r a case
where one who is in possession o f state
power uses that power to the doing o f the
wrongs which the Amendment forbids even
although the consummation o f the wrong
may not be within the powers possessed i f
33
the commission o f the wrong itself is ren
dered possible or is efficiently aided by the
state authority lodged in the wrongdoer.
That is to say, the theory o f the Amend
ment is that where an officer or other repre
sentative o f a State in the exercise o f the
authority with which he is clothed misuses
the power possessed to do a wrong forb id
den by the Amendment, inquiry concerning
whether the State has authorized the wrong
is irrelevant and the Federal judicial power
is competent to afford redress fo r the wrong
by dealing with the officer and the result o f
his exertion o f power.
The point was regarded as so settled in 1931,
when Iowa-Des Moines Bank v. Bennett, 284 U.
S. 239, was decided, that M r. Justice Brandeis,
also the spokesman fo r a unanimous Court, was
able to state the proposition in axiomatic terms
(284 U. S. at 245 -246):
* * * The prohibition o f the Four
teenth Amendment, it is true, has reference
exclusively to action by the State, as dis
tinguished from action by private indi
viduals. Virginia v. Rives, 100 U. S. 313,
318; United States v. Harris, 106 U. S.
629, 639. B ut acts done “ by virtue o f a
public position under a State Government
* * * and in the name and for the
State,” E x parte Virginia, 100 U. S. 339,
347, are not to be treated as i f they were
the acts o f private individuals, although in
doing them the official acted contrary to
34
an express command o f the state law.
W hen a state official, acting under color o f
state authority, invades, in the course o f
his duties, a private right secured by the
federal Constitution, that right is violated,
even i f the state officer not only exceeded
his authority but disregarded special com
mands o f the state law. * * • *
The petitioners contend, nevertheless, that
their acts are not referable to the State unless
authorized by the legislature or confirm ed by
the highest court o f the State. Their chief reli
ance is placed upon the concurring opinion o f
Mr. Justice F ran kfurter in Snowden v. Hughes,
321 U . S. 1, 13, and Barney v. City of New York,
193 IT. S. 430. In the Snowden case a suit fo r
damages was brought in a federal district court
against members o f a state election board fo r
refusing to certify the p laintiff as a candidate
fo r the state legislature, thus allegedly denying
him the equal protection o f the laws. The dis
trict court dismissed the suit upon the ground
that, since the com plaint showed that the state
officers had fa iled to p erform duties im posed
upon them by state law, their failure to certify
the plaintiff was not state action and hence no
rights secured to the plaintiff by the Fourteenth
Amendment had been infringed. The Circuit
Court o f A ppeals fo r the Seventh Circuit affirmed
on the same ground (132 F. (2d ) 476), on the
authority o f the Barney case. The judgm ent was
35
affirmed by this Court, however, on the ground
that the com plaint failed to allege a purposeful
discrim ination based upon race or color, and
hence the right asserted by the plaintiff was not
secured by the equal protection clause o f the
Fourteenth Amendment. 321 IT. S. 1. Mr. Jus
tice Rutledge concurred in the result, and Mr.
Justice Douglas and Mr. Justice M urphy dis
sented. In a separate concurring opinion Mr.
Justice F rankfurter expressed his agreement
with the court below in its holding that Barney
v. City of New York was controlling. The action
o f the state board, admittedly in defiance o f state
law, could not, in the opinion o f Mr. Justice
Frankfurter, “ be deemed the action o f the State,
certainly not until the highest court o f the State
confirms such action and thereby makes it the law
o f the State.” 321 U. S. at 17. The m ajority
o f the Court found it unnecessary to consider
whether the defendants’ conduct constituted state
action within the meaning o f the Fourteenth
Amendment. Speaking fo r the m ajority, Mr.
C hief Justice Stone stated that the authority o f
the Barney case had been “ so restricted by our
later decisions * * * that our determination
m ay be more properly and more certainly rested
on petitioner’s failure to assert a right o f a
nature such as the Fourteenth Amendment pro
tects against state action .” 321 U. S. at 13.
In our view the question fo r decision in the
present ease m ay be distinguished from that pre-
36
sented in Snowden v. Hughes and Barney v. City
of New York. B oth o f the latter cases involved
civil suits brought in the federal courts to redress
illegal acts o f state officers allegedly in violation
o f the Fourteenth Amendment. A s precisely
stated by M r. Justice F rankfurter in his con
curring opinion in the Snowden case (321 TJ. S.
at 16), the question in such cases “ is not whether
a rem edy is available fo r such an illegality, but
whether it is available in the first instance in a
federal court.” W e submit that the considera
tions which m ay he persuasive in leading towards
refusal o f federal jurisd iction in civil suits,
where the p laintiff has a choice o f forum s and
where the bringing o f suit in a state court affords
the State an opportunity to correct or redress
the w rong done in its name, are w holly inap
plicable to federal crim inal proceedings in which
the federal Government is seeking to vindicate a
federal right which can be asserted only in the
federal courts. Unlike civil suits to redress in
fringem ents o f civil rights, crim inal prosecutions
under Section 20 can be brought only in the fed
eral courts. 28 U. S. C. 371. The federal G ov
ernment is powerless to initiate any proceedings
in the state courts which m ight enable the highest
court o f the State to confirm or disavow the acts
o f subordinate state officials. This is particularly
true where the victim has suffered the loss o f life,
which cannot, o f course, be restored to him. I f ,
37
as in this case, officers, acting in the name o f and
fo r the State, take a m an’s life without due
process o f law, no other officers o f the State,
executive, legislative, or judicial, can ever have
the opportunity to correct or undo the wrong
done in its name. The denial o f H a ll’s consti
tutional right not to Ibe deprived o f life without
due process o f law was irrevocably effected when
he was unjustifiably beaten to death by the peti
tioners. Neither his life nor his constitutional
right could be restored by any proceeding insti
tuted under the aegis o f the State, whether jud i
cial or otherwise.
Barney v. City of Neiv York, whatever its cur
rent vitality, is not controlling here. “ The ques
tion there decided,” as stated by Mr. Justice
Brandeis in Iowa-Des Moines Bcmk v. Bennett,
284 U. S. 239, 246, “ was that the lower federal
court had properly dismissed a bill in equity since
it appeared upon its face that the act complained
o f was forbidden by the state legislation.” Suit
was brought in a federal circuit court to enjoin
New Y ork City, and its transit officials, from pro
ceeding with the construction o f a subway, on the
ground that such action would deprive the plain
tiff o f property without due process o f law. The
asserted deprivation o f rights secured by the
Fourteenth Amendment was based solely, how
ever, upon the allegation that the state officials
failed to com ply with the state statute in chang-
38
ing plans fo r the construction o f the railw ay with
out obtaining the approval required by the statute.
In earlier proceedings in the state courts it had
been held that, although the construction was with
out legal authority, the plaintiffs should be left
to their remedies at law. Barney v. Board of
Rapid Transit Commissioners, 38 M isc. 549;
Barney v. City of New York, 39 Misc. 719, affirmed,
83 A pp . D iv. 237. The circuit court dismissed the
bill fo r want o f jurisdiction, and this Court a f
firmed. The opinion o f M r. Chief Justice Puller
is ambiguous, however, with respect to the precise
grounds o f the decision. H is assertion (193 U. S.
at 437), as a general proposition, that—
* * * the bill on its face proceeded on
the theory that the construction o f the
easterly tunnel section was not only not
authorized, but was forbidden by the legis
lation, and hence was not action by the
State o f New Y ork within the intent and
m eaning o f the Fourteenth Amendment,
and the Circuit Court was right in dis
missing it fo r want o f jurisdiction * * *
is, as has already been observed, inconsistent with
later decisions o f this Court, particularly Raymond
v. Chicago Traction Co., 207 TJ. S. 20, 3 7 ; H om e
Tel. (& Tel. Co. v. Los Angeles, 227 U. S. 278,
294; and Iowa-Des Moines Bank v. Bennett, 284
U. S. 239, 246. The Chief Justice continued, how
ever, as follow s (193 TJ. S. at 437-438):
Controversies over violations o f the laws
o f New Y ork are controversies to be
39
dealt w ith by the courts o f the State.
Com plainant’s grievance was that the law
o f the State had been broken, and not a
grievance inflicted by action of the legisla
tive or executive or judicial department o f
the State; and the principle is that it is
fo r the state courts to remedy acts o f state
officers done without the authority o f or
contrary to state law.
This language suggests that the Barney case
may properly he regarded as but an application
o f the principle, more fu lly developed in later
decisions, that a federal court o f equity may, in
the exercise o f its sound discretion, decline to
intervene in purely local controversies involving
only questions o f state law which should, in the
first instance at least, be litigated in the state
courts. See Isseks, Jurisdiction of the Lower
Federal Courts to Enjoin Unauthorized Action
of State Officials, 40 H arv. L. Rev. 969. The de
cisions o f this Court, particularly in recent years,
“ reflect a doctrine o f abstention appropriate to
our federal system whereby the federal courts,
‘ exercising a wise discretion,’ restrain their au
thority because o f ‘ scrupulous regard fo r the
rightful independence o f the state governments’
and fo r the smooth working o f the federal jud ici
ary .” Railroad Comm’n v. Pullman Co., 312 U. S.
496, 501. Thus, federal courts have declined to
enjoin state criminal prosecutions, Spielman
M otor Sales Co. v. Bodge, 295 U. S. 89, 95; Beal
40
v. Missouri Pacific E . Co., 312 17. S. 45, 49;
W atson v. Buck, 313 U . S. 387, 401; Douglas v.
Jeannette, 319 U . S. 157; to interfere with the
collection o f state taxes, Matthews v. Rodgers,
284 IT. S. 521; Great Lakes Dredge <£ Dock Co.
v. Huffman, 319 IT. S. 293; to appoint a receiver
to manage the affairs o f an insolvent state bank,
when the State had entrusted liquidation to a state
agency, Pennsylvania v. Williams, 294 IT. S. 176;
to interfere w ith a state agency’s establishment
o f local utility rates, Central Kentucky Gas Co. v.
Railroad Commission, 290 U. S. 264, 271; or to
intervene in controversies found to involve the
shaping o f state administrative policy, Burford v.
Sun Oil Co., 319 IT. S. 315. W here a definitive
ruling by a state court upon a doubtful question
o f state law m ight avoid decision o f serious con
stitutional questions, a federal court adhering to
the basic principle that substantial constitutional
questions should be decided only when no alterna
tives are open, m ay stay the federal suit in order
to enable the parties to litigate the state question
in the state courts. Railroad Comm’n v. Pullman
Co., 312 U. S. 496; Railroad Com m ’n v. Roivan
& Nichols Oil Co., 310 IT. S. 573, 311 IT. S. 614-
615; Chicago v. Fieldcrest Dairies, 316 U . S. 168.
W hatever the im plications which m ay be drawn
from the Barney case as a self-im posed judicial
lim itation on the jurisdiction o f the federal courts
in civil cases, its authority upon the existence o f
41
state action vel non, fo r purposes o f invoking the
penal sanctions o f Section 20, can no longer be ac
cepted. As a commentator has said, its sugges
tion that the defendants were not acting fo r the
State “ is unmistakably erroneous. The Board o f
B apid Transit Commissioners was acting on be
half o f the state o f New York. There was state
action. State officials did act. A ny other con
clusion is a metaphysical denial o f the actual
facts .” Isseks, supra, at 972.
Our conclusion that Section 20 is to he con
strued as applicable to deprivations o f constitu
tional right made by subordinate state officials,
acting in the name o f and fo r the State, even
though not authorized by it, is fortified by the
legislative history o f the provision. Section 20
was enacted to enforce the Fourteenth Amend
ment. See Cong. Globe, 41st Cong., 2d sess., pp.
1536, 3480, 3658, 3690, 3807-3808, 3881; Flack,
The Adoption of the Fourteenth Amendment
(1908), pp. 219, 223, 227. See also Hague v.
C. I. O., 307 TJ. S. 496, 510; United States v.
M osley, 238 U. S. 383, 387, 388. Its precursor
was § 2 o f the Civil Bights A ct o f A pril 9, 1866,
14 Stat. 27.6 Senator Trumbull, chairman o f the
6 “That any person who, under color of any law, statute,
ordinance, regulation, or custom, shall subject, or cause to be
subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by this act, or
to different punishment, pains, or penalties on account of
such person having at any time been held in a condition of
42
Senate Judiciary Committee which reported the
bill which eventually became the 1866 Act, stated
that its purpose was “ to protect all persons in the
U nited States in their civil rights, and furnish
the means o f their vindication .” Cong. Globe,
39th Cong., 1st sess., p. 211. H e also stated that
“ The bill applies to white men as well as black
m en.” Id., p. 599.
Section 2 o f the Civil R ights A ct o f 1866 was
amended fou r years later. On February 24, 1870,
Senator Stewart introduced a bill (S . 365, 41st
Cong., 2d Sess.), § 2 o f which became § 17 o f the
A ct o f M ay 31, 1870, 16 Stat. 140. H e stated
(Cong. Globe, 41st Cong., 2d sess., p. 1536) that
the bill “ extends the operation o f the civil rights
bill, which is well known in the Senate and to the
country, to all persons within the jurisdiction o f
the U nited States.” A s.finally adopted, the pro
vision read as fo llow s:
That any person who, under color o f any
law, statute, ordinance, regulation, or cus
tom, shall subject, or cause to be subjected,
any inhabitant o f any State or Territory
to the deprivation o f any right secured or
protected by * * * this act, or to d if
ferent punishment, pains, or penalties on
slavery or involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, or
by reason of his color or race, than is prescribed for the pun
ishment of white persons, shall be deemed guilty of a
misdemeanor, and, on conviction, shall be punished by
fine * *
43
account o f such person being an alien, or
by reason o f his color or race, than is pre
scribed fo r the punishment o f citizens, shall
be deemed guilty o f a misdemeanor, and, on
conviction, shall be punished by fine not
exceeding one thousand dollars, or im pris
onment not exceeding one year, or both, in
the discretion o f the court.
M inor changes in phraseology were introduced by
the revisers in 1874,7 and the draftsmen o f the
Criminal Code o f 1909.s So far as its substance is
concerned, however, Section 20 is descended from
§ 2 o f the Civil Rights A ct o f 1866, as amended
by § 17 o f the 1870 Act.
7 R. S. § 5510: “Every person who, under color of any law,
statute, ordinance, regulation, or custom, subjects, or causes
to be subjected, any inhabitant of any State or Territory to
the deprivation of any rights, privilegs, or immunities, se
cured or protected by the Constitution and laws of the United
States, or to different punishments, pains, or penalties, on
account of such inhabitant being an alien, or by reason of his
color or race, than are prescribed for the punishment of citi
zens, shall be punished by a fine of not more than one thou
sand dollars, or by imprisonment not more than one year,
or by both.”
8 Act of March 4,1909,35 Stat. 1092, c. 321, § 20: “Whoever,
under color of any law, statute, ordinance, regulation, or cus
tom, willfully subjects, or causes to be subjected, any inhab
itant of any State, Territory, or District to the deprivation
of any rights, privileges, or immunities secured or protected
by the Constitution and laws of the United States, or to dif
ferent punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color, or race,
than are prescribed for the punishment of citizens, shall be
fined not more than one thousand dollars, or imprisoned not
more than one year, or both.”
44
A s the Chief Justice observed in the Classic
case (313 U. S. at 328, n. 10), “ W hile the legisla
tive history indicates that the immediate occasion
fo r the adoption o f § 20, like the Fourteenth
Amendment itself, was the more adequate protec
tion o f the colored race and their civil rights,
it shows that neither was restricted to the pur
pose and that the first clause o f § 20 was in
tended to protect the constitutional rights o f all
inhabitants o f the states.” I f Section 20 were to
be lim ited to cases in which the actions o f the
state officers were expressly authorized by state
law, the statute would have only the most trivial
scope— particularly in view o f the requirement
that deprivations o f constitutional right be “ w ill
fu l .” W here an action is based upon an explicit
direction o f state law, a mistake o f law m ay well
negate the element o f willfulness. Cf. United
States v. Murdoch, 290 U. S. 389. There is no
justification in its legislative history fo r thus re
ducing the scope o f the statute which, in the clear
est and most unequivocal language, was designed
to confer broad federal protection upon the en
joym ent o f basic constitutional rights. See Cat-
lette v. United States, 132 F. (2d ) 902 (C . C. A .
4 ) ; Culp v. United States, 131 F . (2d ) 93 (C . C.
A . 8 ) ; United States v. Trierweiler, 52 F . Supp.
4 (E . D. 111.) ; United States v. Sutherland, 37
F . Supp. 344 (N . D. G a.) Cf. M r. Justice Holmes
in United States v. M osley, 238 U. S. 383, 388.
45
B. T H E PETITIONEES ACTED UNDER COLOR OF LAW
I f , as we have attempted to show, the peti
tioners’ conduct constituted state action within
the m eaning o f the statute, there can be no doubt
that their acts were done under color o f law.
The petitioners acted in their capacity as state
law-enforcem ent officers; they did not purport to
he acting as private individuals not endowed with
the authority o f the State. Since they were act
ing in the perform ance o f their official duties, it
is im m aterial that they m ay have exceeded their
authority. “ Misuse o f power, possessed by v ir
tue o f state law and made possible only because
the w rongdoer is clothed with the authority o f
state law, is action taken ‘ under color o f ’ state
law .” United States v. Classic, 313 II. S. 299,
326, and cases cited.
To sustain the construction we place upon Sec
tion 20 would not im ply that every transgression
o f duty by a state official would be prosecuted
crim inally in the federal courts. Similar fears
were expressed— unjustifiedly, as the subsequent
history o f the statute shows— when § 2 o f the
Civil R ights A ct o f 1866 was being debated.
Senator Garrett Davis o f Kentucky said (Cong.
Globe, 39th Cong., 1st sess., p. 598) that “ this
short bill repeals all the penal laws o f the
States. * * * The cases o f offense and mis
demeanor that in these respects the honorable
46
Senator’s bill would bring up every day in the
United States would be as numerous as tbe pass
ing minutes. Tbe result would be to utterly sub
vert our G overnm ent; it would be w holly incom
patible with its principles, with its provisions, or
with its sp irit.”
That the dangers envisaged by Senator Davis
never were realized is attributable to the explicit
provisions o f the statute itself, as well as its
adm inistration in conform ity with the basic ob
jectives sought to be attained by Congress. T ou r
conditions must be met before the penal sanctions
o f Section 20 can be invoked: (1 ) there must be
deprivation o f a right secured by the Constitu
tion or laws o f the U nited States, or subjection
o f an inhabitant o f the U nited States to different
punishments on account o f his alienage, color, or
race, than are prescribed fo r the punishment o f
citizens; (2 ) where the right consists o f being
secure against unconstitutional state action, the
deprivation must be referable to a State; (3 ) the
action must be taken under color o f la w ; and (4 )
it must be w illful.
Im plicit in the adm inistration o f the statute
has been the assumption that, even though rights
secured by the federal Constitution are involved,
the prim ary vindicator o f those rights must con
tinue to be the State itself. W hile Congress was
acting to safeguard constitutional rights, there is
no evidence that Congress contem plated that the
47
States would be derelict or im potent in protecting
such rights. On the contrary, Congress was con-
plem enting existing machinery fo r the enforce
ment o f constitutional rights. I t was providing
additional sanctions fo r the deprivation o f con
stitutional rights, and not substituting federal
fo r state sanctions. This legislative policy is to
be found in several provisions o f the early civil
rights acts. Section 3 o f the A ct o f A pril 9,
1866, 14 Stat. 27, gave the federal district courts
jurisdiction o f “ all causes, civil and criminal,
affecting persons who are denied or camiot en
force in the courts or judicial tribunals o f the
State or locality where they may be any o f the
rights secured to them by the first section o f this
act * * A nd Section 3 o f the A ct o f
A p ril 20, 1871, 17 Stat. 13, 14, provided that
where the constitutional rights o f any group o f
persons were violated, “ and the constituted au
thorities o f such State shall either be unable to
protect, or shall, from any cause, fa il in or refuse
protection o f the people in such rights, such facts
shall he deemed a denial by such State o f the
equal protection o f the laws * *
Effective safeguards assure enforcement o f Sec
tion 20 in accordance with the policy im plicit in
its language and history:
(1 ) Congressional supervision o f the policies
pursued by the Department o f Justice has been
careful and thorough. Particularly in recent
48
years, the staffing and activities o f the Civil Eights
Section have annually been given close scrutiny.9
A n y extension o f the statute beyond its proper
limits could be terminated through withdrawal o f
the funds necessary to make such increased ac
tivity possible.
(2 ) Prosecutions o f all cases under the statute
must be brought in the district in which the crime
was committed. The judge and the prosecutor
are citizens o f the state in which the trial is held.
The grand jurors, i f the prosecution is instituted
by indictment, reside within the judicia l district,
and the petit jurors within the division. The na
ture o f prosecutions under Section 20 is such that
the jurors are usually made aware o f the im plica
tions with regard to alleged federal interference
with state law enforcem ent— an awareness which
is often sharpened by the arguments o f defense
counsel (as in the case at bar, see R . 204-206).
(3 ) The Departm ent o f Justice has established
a policy o f strict self-lim itation with regard to
prosecutions under the civil rights acts. W hen
violations o f such statutes are reported, the D e
partm ent requires that efforts be made to en-
9 See, e. g., Hearings before the Subcommittee of the Com
mittee on Appropriations, House of Representatives, 76th
Cong., 1st sess., on the Department of Justice Appropriation
Bill for 1940, pp. 58 and 59; 76th Cong., 3d sess., Hearings,
Department of Justice Appropriation Bill for 1941, pp. 65
and 66 ; 77th Cong., 2d sess., Hearings, Department of Jus
tice Appropriation Bill for 1943, pp. 63 and 64.
49
courage state officials to take appropriate action
under state law.10 T o assure consistent observ
ance o f this policy in the enforcement o f the
civil rights statutes, all United States Attorneys
have been instructed to submit cases to the D e
partment fo r approval before prosecutions or in
vestigations are instituted.11 The number o f pros
ecutions which have been brought under the civil
rights statutes is small. No statistics are available
with respect to the number o f prosecutions prior
to 1939, when a special Civil Rights Section was
established in the Department o f Justice. Only
two cases during this period have been reported:
United States v. Buntin, 10 Fed. 730 (C. C. S. D.
O h io), and United States v. Stone, 188 Fed. 836
(D . M d.) Since 1939, the number o f complaints
received annually by the Civil Rights Section has
ranged from 8,000 to 14,000, but in no year have
prosecutions under both Sections 20 and 19, its
com panion statute, exceeded 76. In the fiscal
year 1943, fo r example, 31 fu ll investigations o f
alleged violations o f Section 20 were conducted,
and three cases were brought to trial. In the
10 Testimony of Assistant Attorney General McMahon be
fore the Subcommittee of the Committee on Appropriations
of the House of Kepresent atives at Hearings on the Depart
ment of Justice Appropriation Bill for 1940, p. 59; Supple
ments 2 and 3 to Department Circular No. 3356 (Appen
dix, infra, pp. 56-58).
11 Supplements 1, 2 and 3 to Circular No. 3356 (Appendix,
infra, pp. 56-58).
50
follow ing fiscal year there were 55 such investi
gations, and prosecutions were instituted in 12
cases.
Complaints o f violations are often submitted
to the D epartm ent by local law enforcem ent
officials who fo r one reason or another m ay feel
themselves powerless to take action under state
law. I t is prim arily in this area, namely, where
the official position o f the wrongdoers has appar
ently rendered the State unable or unwilling to
institute proceedings, that the statute has come
into operation. Thus, in the case at bar, the So
licitor General o f the A lbany Circuit in the State
o f Georgia, which included B aker Comity, testified
(R , 42) : “ There has been no com plaint filed with
me in connection with the death o f B obby H all
against Sheriff Screws, Jones, and Kelley. As
to whom I depend fo r investigation o f matters
that come into m y Court, I am an attorney, I am
not a detective and I depend on evidence that is
available after I come to Court or get into the
case * * *. The sheriffs and other peace o f
ficers o f the com munity generally get the evidence
and I act as the attorney fo r the state. I rely on
m y sheriffs and policemen and peace officers and
private citizens also who prosecute each other to
investigate the charges that are lodged in C ourt.”
The Government recognizes that this is the first
case brought before this Court in which Section
20 has been applied to deprivations o f rights
51
secured by the Fourteenth Amendment. But here,
as in United States v. Classic, 313 IT. S. 299, 324,
“ I t is no extension o f the criminal statute * * *
to find a violation o f it in a new method o f in
terference with the right which its words protect.
F or it is the constitutional right, regardless o f the
method o f interference, which is the subject o f
the statute and which hi precise terms it protects
from in ju ry and oppression.” A nd compare
Browder v. United States, 312 XL S. 335, 339-
340: “ Old laws apply to changed situations. The
reach o f the act is not sustained or opposed by the
fact that it is sought to bring new situations
under its terms. W hile a statute speaks from its
enactment, even a criminal statute embraces every
thing which subsequently falls within its scope.”
T o adapt the words o f Mr. Justice Holmes in
United States v. M osly, 238 U. S. 383, 388: Just
as the Fourteenth Amendment was adopted with
a view to the protection o f the colored race but
has been found to be equally important in its
application to the rights o f all, Section 20 had a
general scope and used general words that have
become most im portant now. Even i f we cannot
interpret the past by the present, we must not al
low the past so fa r to affect the present as to
deprive the people o f the United States o f the
general protection which on its face the statute
most reasonably affords.
52
I I
SECTION 2 0 , AS APPLIED HERE, IS NOT SO VAGUE AND
INDEFINITE AS TO BE UNCONSTITUTIONAL
In his dissenting opinion in the court below (R .
223-227), Judge Sibley expressed the view that
Section 20 is unconstitutional because the phrase
“ rights, privileges and immunities secured and
protected by the Constitution and laws o f the
U nited States” is unduly vague and indefinite;
and that the statute provides “ no ascertainable
standard o f guilt, and the right to be precisely
inform ed o f the things to be charged as crimes
is not practically preserved” (R . 224, 225). The
petitioners have made no such contention either
here or in the courts below. But. Judge S ib ley ’s
challenge to the validity o f a statute whose consti
tutionality has been assumed since its enactment
in 1866 merits an answer.
In United States v. Classic, 313 U . S. 299, 328-
329, it was held that the comprehensive character o f
the rights protected by Section 20 does not subject
the statute to constitutional infirm ities: “ The gen
erality o f the section, made applicable as it is to
deprivations o f any constitutional right, does not
obscure its meaning or im pair its force within the
scope o f its application, which is restricted by its
terms to deprivations which are w illfu lly inflicted
by those acting under color o f any law, statute and
the like .” This Court has repeatedly upheld the
validity o f Section 19 (18 U. S. C. 51) which
53
punishes conspiracies to injure a citizen in the
exercise “ o f any right or privilege secured to him
by the Constitution or laws o f the United States.”
See E x parte Yarbrough, 110 U. S. 651; United
States v. Waddell, 112 U. S. 76; Logan v. United
States, 144 U. S. 263; In re Quarles and Butler, 158
U. S. 532; M otes v. United States, 178 U. S. 458;
Guinn v. United States, 238 U. S. 347; United
States v. M osley, 238 U. S. 383; United States v.
Saylor, 322 U. S. 385. In United States v. Cohen
Grocery Co., 255 U. S. 81, 89, upon which Judge
Sibley principally relied, a conviction was held un
constitutional where the statute left open “ the
widest conceivable inquiry, the scope o f which no
one can foresee and the result o f which no one can
foreshadow or adequately guard against” and
where “ to attempt to enforce the section would be
the exact equivalent o f an effort to carry out a stat
ute which in terms m erely penalized and punished
all acts detrimental to the public interest when un
just and unreasonable in the estimation o f the
court and ju r y .”
W e submit that the comprehensiveness o f Sec
tion 20 is o f a different order. Cf. United States
v. Hagen, 314 U. S. 513, 523. I t was natural that
Congress, in seeking to protect all rights secured
by the Constitution, should not undertake to cata
logue every federally protected right. An at
tempt to do so would probably have led to more
54
vagueness and indefiniteness than is inherent in
the form o f the statute chosen by Congress. This
Court long ago recognized that the ideal o f com
plete specificity must yield to the practical re
quirements o f legislation. Miller v. Strahl, 239
U. S. 426, 434; Bandini Company v. Superior
Court, 284 U. S. 8, 18; Miller v. Oregon, 273 IT. S.
657. The possibility that in circumstances not
here presented there m ay be difficulty in determ in
ing whether there has been such a deprivation o f
constitutional right as to come within the penalties
o f Section 20 is no reason for doubting the valid
ity o f the statute in cases where its applicability
is clear. The enforcem ent o f almost every statute
involves an inevitable frin ge o f uncertainty and
doubt: “ * * * the law is fu ll o f instances
where a m an ’s fate depends upon his estimating
rightly, that is, as the ju ry subsequently estimates
it, some matter o f degree.” Nash v. United States,
229 U. S. 373, 377. “ W henever the law draws a
line there w ill be cases very near each other on
opposite sides.” United States v. Wurzbach, 280
IT. S. 396, 399.
55
CONCLUSION
I t is respectfully submitted that tbe petitioners
were properly convicted and that the decision
below should be affirmed.
Charles F ahy,
Solicitor General.
Tom C. Clark,
Assistant Attorney General.
Robert S. Erdahl,
V ictor W . R otnem,
Special Assistants to the Attorney General.
I rving S. Shapiro,
Attorney.
October 1944.
A P P E N D I X
E xtracts from departm ental circulars
1. Supplement 1 to Circular No. 3356, issued
M ay 21, 1940:
* * * This memorandum is intended
fo r the assistance o f U nited States A t
torneys and their staffs in responding to
complaints and in supervising investiga
tions o f alleged violations o f Federal law
in civil liberties matters. Because o f the
im portance o f unified and consistent legal
theory and prosecution policy in this field,
it is requested that no indictments under
18 U. S. C. §§ 51, 52 be presented without
clearance from the Department.
2. Supplement 2 to Departm ent Circular No.
3356, issued A p ril 4, 1942:
The existence o f w ar must not be per
m itted to serve as an excuse fo r the op
pression o f any racial, religious, economic,
or political group. Y ou are directed to
em ploy every facility available to your o f
fices to secure the cooperation o f state and
local officials to prevent and rectify situa
tions constituting a threat to the Federally
secured civil rights herein discussed. In
the interest o f consistency and uniform ity
in the conduct o f investigations, the policy
o f directing all original complaints to the
Civil R ights Section o f the Crim inal D i
vision fo r clearance and instruction before
(56)
57
embarking on a fu ll investigation will be
continued. No investigation or prosecution
o f these cases should be commenced through
the offices o f the United States Attorneys
without Departmental sanction and because
o f the im portance o f maintaining con
sistent legal theory in these cases, it is
requested that proposed indictments be
submitted to the Department fo r considera
tion before undertaking prosecutive action.
3. Supplement 3 to Circular No. 3356, issued
November 3, 1943:
The Departm ent does not desire to in
stitute wholesale prosecutions against over-
zealous public officials who have deprived
others o f their religious freedom by the un
constitutional application o f leaflet dis
tribution ordinances or by persisting in the
enforcem ent o f com pulsory flag salute ex
ercise regulations against school children
whose consciences forb id their participa
tion. Prosecutive action should be re
served fo r those cases where that remains
the only means o f alleviating the situation.
W hen, therefore, complaints o f interfer
ences with religious liberty by state officials
are called to your attention, you are re
quested to contact the appropriate, respon
sible state officials, pointing out to them
the possibility that their actions may in
volve a denial o f constitutional guarantees
and seek their cooperation to the end that
the activities complained o f may be avoided.
I t is felt that most o f the difficulties involv
ing alleged state interference with religious
freedom can be avoided through the prompt
mediation o f the United States Attorneys
with the local authorities by letter o f per
sonal conference.
58
Y ou are requested to continue to advise
the Departm ent o f all complaints com ing to
you regarding alleged violations o f Sections
51 and 52, T itle 18, U nited States Code,
and to in form the Departm ent o f the re
sults o f your efforts to prevent interfer
ence w ith religious freedom in accordance
with the procedure suggested above.
U. S. GOVERNMENT PRINTING OFFICEt 1*44
V
i
im pnw dourt nf tljp Htttttfi States
O ctober T eem , 1944
No. 1208
CLARA I. MAYS,
Petitioner,
v.
WILLIAM T. BURGESS, et al.,
Respondents.
I n T he
PETITION FOR RECONSIDERATION OR REHEARING
AND REASONS THEREFOR
J ames A. Cobb,
Geobge E. C. H ayes,
L eon A. R ansom,
W illiam H. H astie,
all of Washington, D. C.,
Attorneys for Petitioner.
Spottswood W . R obinson III,
Richmond, Va.,
T hijrgood M arshall,
New York, N. Y.,
Of Counsel
Printed by Law Reporter Pig. Co., 618 6th St., Washington, D. C.
INDEX
Page
Petition fox' Rehearing_______________________________ 1
Jurisdiction __________________________________ 1
Reasons Relied Upon:
I. Denial of certiorari here must leave the law of
the District of Columbia on an issue of great im
portance settled not according to the independent
judgment of the Court of Appeals but through
misapprehension that controlling views have here
tofore been expressed by this Court____________ 2
II. The constitutional issues presented are substan
tial and should be disposed of only after full argu
ment and consideration on their merits_________ 3
III. The granting of certiorari here would be consist
ent with similar action by this Court in cases in
volving issues of local concern in the District of
Columbia_____________________________________ 4
IY. The demonstrable consequences of racial zoning
by restrictive covenants are so grave in the Dis
trict of Columbia and throughout the country
that this Court should not refuse to adjudicate
the issue as here presented------------------------------- 7
Conclusion ------------- 15
CITATIONS
Cases Page
American Federation of Labor v. Swing, 312 U. S. 321__„_ 4
Best v. District of Columbia, 291 U. S. 411 (Cert, granted
290 U. S. 619)_____________________________________ 5
Cantwell v. Connecticut, 310 U. S. 296_________________ 4
Corrigan v. Buckley, 271 U. S. 323____________________ 2
District of Columbia v. Murphy, 314 IT. S. 441 (Cert.
granted 313 U. S. 556)_____________________________ 4
District of Columbia v. Pace, 320 IT. S. 698____________ 6
Harmon v. Tyler, 273 IT. S. 688________________________ 3
Loughran v. Loughran, 292 U. S. 216 (Cert, granted
290 IT. S. 621)_____________________________________ 5
Tyler v. Harmon, 158 La. 439,104 So. 200______________ 3
M iscellaneous M aterials
Blandford, John J., Jr., Administrator of National Hous
ing Agency, Public Address, Columbus, Ohio, October
2, 1944 _____________ _____________________________ 9
Citizens Committee on Race Relations, Race Relations
in the Nation’s Capital, First Annual Report of Citi
zens Committee on Race Relations, August 26, 1944.___ 8
Kahen, Validity of Anti-Negro Restrictive Covenants;
a Reconsideration of the Problem (1945), 12 IT. of Chi.
L. Rev. 198________________________________________ 4
Klutznick, Public Housing Charts Its Course, Survey
Graphic, January 1945_____________________________ 10
Lee, Dr. Alfred M., Statement as reported in the Michi
gan Chronicle, May 9, 1945__________________________ 11
McGovney, Racial Residential Segregation by State
Court Enforcement of Restrictive Agreements, Cove
nants or Conditions in Deeds Is Unconstitutional
(1945), 33 Calif. L. Rev. 5__________________________ 4
Weaver, Racial R estr ictiv e Housing Covenants, 30
Journ. of Land and Public Utility Economics (1944),
pp. 183, 190________________________________________ 14
Woofter, Negro Problem in Cities (1928), pp. 73, 95___ 10
1st T h e
•S’ltpn'tttT (Emtrt nt tin llrnt^ States
O ctober T erm , 1944
No. 1208
CLARA I. MAYS,
Petitioner,
v.
WILLIAM T. BURGESS, et al,
Respondents.
PETITION FOR A RECONSIDERATION OR
REHEARING
To the Honorable, the Chief Justice and the Associate Jus
tices of the Supreme Court of the United States:
Comes now the petitioner herein and presents this peti
tion for a reconsideration or rehearing and for the vacating
of the judgment of this Court denying her Petition for a
Writ of Certiorari to the Court of Appeals for the District
of Columbia.
JURISDICTION
The judgment of this Court herein prayed to be recon
sidered was entered on the 28th day of May, 1945. This
petition for a reconsideration or rehearing is filed within
twenty-five days from May 28,1945, in accordance with Rule
33 of this Court.
REASONS FOR PETITION
I. Denial of certiorari here must leave the law of the
District of Columbia on an issue of great importance settled
not according to the independent judgment of the Court
of Appeals but through misapprehension that controlling
views have heretofore been expressed by this court.
In this case below, two of the three Justices of the Court
of Appeals for the District of Columbia, Chief Justice
Groner and Justice Edgerton, were sharply and irreconcil
ably divided on the question whether law and public policy
permit the enforcement of racial restrictive covenants
against persons not party thereto. Therefore, the vote of the
third member of the Court, Justice Miller, became decisive
on an important issue which had not theretofore been ad
judicated in the District of Columbia. Justice Miller’s brief
concurring opinion was in the following language:
“ The Supreme Court and this Court have established
the law for the District of Columbia as it is set out in
the majority opinion and ive are bound to follow it. The
considerations urged by Justice Edgerton are per
suasively presented. If proper weight was not given to
them in the earlier decisions and if present-day condi
tions do not justify the position then taken, it has been
within the power of Congress to change the law, during
all the intervening years. If judicial reinterpretation
of the law is notv in order, it is the function of the Su
preme Court, as the highest Court of the District of
Columbia, so to advise us.” (R. p. 41.) (Italics added.)
Thus, although the contention of Justice Edgerton ap
pealed to the reason and judgment of Justice Miller, his
erroneous belief that the Supreme Court—apparently in
Corrigan v. Buckley—had sanctioned a doctrine so broad
as to cover this case prevented him from exercising that
judgment and impelled him to follow his mistaken interpre
tation of views heretofore expressed by this Court. Upon
3
such a determination a precedent of great importance now
rests and an issue of tlie largest public significance becomes
decisively adjudicated, so that the ever substantial barrier
of stare decisis compromises its reexamination. This barrier
is made all the more substantial here because the refusal
of this Court to review this decision can and will be construed
as meaning that the Court of Appeals is correct in reasoning
that Corrigan v. Buckley is controlling in this case. It is
significant and petitioner believes it appropriate for this
Court to consider that within hours after the denial of cer
tiorari in this case the action of the Court was broadcast
over the radio and was headlined and featured as front page
news in the Washington daily papers. The fact, rather than
the substance of such comment, indicates the large jmblic
significance of any disposition of this case. The peculiar
combination of circumstances here creates a situation in
which a matter of great moment is permitted to become set
tled law without any such exercise of appellate judgment
upon the merits of the controversy as the system of appellate
review contemplates. It is submitted that this anomalous sit
uation in itself should persuade this Court to reconsider its
denial of certiorari.
II. The constitutional issues presented are substantial
and should be disposed of only after full argument and
consideration on their merits.
Without repeating the argument in petitioner’s brief, it is
urgently requested at this time that the Court consider the
relation of its decision in Harmon v. Tyler, 273 U. S. 688, in
validating an ordinance prohibiting sale or lease of property
to Negroes in any “ community or portion of the city
except on the written consent of a majority of the persons
of the opposite race inhabiting such community or portion
of the city” (Tyler v. Harmon, 158 La. 439, 104 So. 200) to
the present case where the courts of the District of Columbia
are setting aside such a sale because of an agreement for
merly made by certain inhabitants of the community.
4
These two situations should he compared in the light of
the doctrine of American Federation of Labor v. Siring, 312
U. S. 321, and Cantwell v. Connecticut, 310 U. S. 296, that
judge-made rules of substantive law like statutes may con
stitute state action within the meaning of the constitutional
restraints applicable to the state. Here the judge-made, and
thus state created, rule of property enforced against persons
who never agreed to such a restriction is the equivalent of
the state created and enforced restriction which this Court
invalidated in the Harmon case. Certainly such apparent
inconsistency merits judicial review in this Court.
The substantial chax'acter of this constitutional question
and the outline of the arguments with reference thereto
have been presented in petitioner’s brief (pp. 22-23). It is
a coincidental but significant commentary upon the sub
stantial character of these issues and their current impor
tance throughout the country that since the preparation of
petitioner’s brief, the same constitutional issues have been
the subject of serious and responsible analyses in two of our
leading national legal periodicals. See McGovney, Racial
Residential Segregation by State Court Enforcement of Re
strictive Agreements, Covenants or Conditions in Deeds is
Unconstitutional (1945) 33 Calif. L. Rev. 5; Kahen, Validity
of Anti-Negro Restrictive Covenants; A Reconsideration
of the Problem (1945) 12 IT. of Chi. L. Rev. 198. These
articles not only indicate the substance and importance of
the constitutional arguments against restrictive covenants,
but also how nation-wide misconception of Corrigan v. Buck-
ley has distorted the law in this area.
III. The granting of certiorari here would be consistent
with similar action by this Court in cases involving issues
of local concern in the District of Columbia.
In District of Columbia v. Murphy, 314 IT. S. 441 (1941),
this Court granted certiorari (313 U. S. 556) to review a de
termination of the United States Court of Appeals for the
5
District of Columbia as to wbat constitutes domicile in the
District of Columbia under common law principles. The is
sue arose under a local tax law applicable solely to tbe Dis
trict and tbe only controverted question was whether the
taxpayer had acquired a domicile in the District. It is diffi
cult to imagine a controversy more localized in significance
or a legal issue more plainly involving only a simple common
law determination. This court granted certiorari “ because
of the importance of the questions involved.” (314 U. S.
at 449.)
It cannot be more important to people residing in the Dis
trict of Columbia to have the Supreme Court expound the
principles under which the domiciliary status of immigrants
should be determined than to have the validity of ghetto
creating, health impairing, crime breeding racial zoning
considered and, after full argument, adjudicated by the Su
preme Court.
Perhaps the most extreme recent case in which this Court
has exercised discretionary review of a District of Columbia
decision is Best v. District of Columbia, 291 U. S. 411 (1934),
certiorari granted, 290 U. S. 619. The question there was
simply whether the facts stated in the opening statement of
plaintiff’s counsel in a tort claim for negligent injury
brought the case within the tort doctrine of “ attractive
nuisance.” This Court seems to have deemed the outlining
of the scope of the attractive nuisance doctrine in the Dis
trict of Columbia a matter of sufficient moment for the
granting of certiorari. The incalculably greater moment of
the issues now presented is too apparent to require argu
ment.
Again, in Loughran v. Loughran, 292 U. S. 216 (1934),
certiorari granted, 290 U. S. 621, an issue solely of local law
was reviewed. Without reaching any constitutional issue,
this Court undertook to determine whether as a mixed mat
ter of conflict of law principle and interpretation of the local
divorce laws, a foreign marriage, after a District of Colum
bia divorce prohibiting remarriage, gave dower rights in
6
real property located in tlie District of Columbia. Tlie ques
tion was the effect of a marriage upon property rights in
the District of Columbia. Yet, it is submitted that more per
sons are likely to be affected and more seriously, and issues
of larger public concern with reference to property rights
are involved here where racial restrictive covenants are
elevated to the status of property rights running with the
land and made binding upon the world, than in the Loughran
decision as to the dower rights of certain re-married di
vorcees in the District of Columbia.
Even this Court’s most recent statement of reluctance
to review District of Columbia decisions of exclusively local
character is made in a case where the policy was disre
garded, although the controversy was of only local concern.
See District of Columbia v. Pace, 320 U. S. 698, 702 (1944).
Thus, even apart from the national significance of the
issues here, within the policy heretofore manifest in grant
ing certiorari to the Court of Appeals for the District of
Columbia on local matters, this Court can, with propriety
and consistency, review the judgment of which petitioner
complains.
Beyond this, however, it is to be emphasized that the ques
tion of equity jurisprudence and property law here involves
housing, a prime necessity of life, and depends for its solu
tion upon a question of public policy to which the Constitu
tion and laws of the United States furnish the guide and
key. (See Petitioner’s Brief herein, 11, 15-18.) Such a mat
ter, even in its local aspect in the District of Columbia is so
tied in with national law and policy as to merit decision by
this Court.
7
IV. The demonstrable consequences of racial zoning by re
strictive covenants are so grave in the District of Columbia
and throughout the country that this Court should not re
fuse to adjudicate the issue as here presented.
While the wide extent and serious consequences of racial
restrictions upon the ownership and use of housing were
discussed in the dissenting opinion below (R. pp. 45-47) and
outlined in petitioner’s brief (pp. 16-17) here, the matter is
so grave that a more detailed presentation seems appropri
ate at this time. The use of racial restrictive covenants has
spread to the extent that Negroes in the major cities of the
nation are restricted to insufficient space to allow for decent
living and normal expansion. The result is excessive crowd
ing of dwellings and congestion of neighborhoods with con
sequent deterioration, blight and slums, with the universally
known baneful effects upon the economic, social and moral
structure of not only the Negro segment of the population,
but also of the entire community. .
The United States Census of 1940 examines the character
istics of 19 million urban dwellings. The census classifies a
dwelling as overcrowded if it is occupied more than 1%
persons per room. On this basis 8 percent of the units occu
pied by whites are classified in tlie 1940 census as over
crowded, while 25 per cent of those occupied by non-whites
are so classified. In Baltimore, Maryland, Negroes comprise
20 percent of the population yet are constricted in 2 percent
of the residential areas. In the Negro occupied second and
third wards of Chicago, the population density is 90,000
per square mile, exceeding even the notorious overcrowding
of Calcutta.
A similar situation exists in Washington where the Negro
population has doubled since 1930. The 1930 Census showed
132,068 Negroes in the District of Columbia. The generally
accepted present estimate of the Negro population is be
tween 250,000 and 275,000. And while the increase in the
white population has been cushioned in some measure by
8
the development of new areas in the District of Columbia
and nearby Maryland and Virginia, the Negro continues to
be restricted, largely under the impact of restrictive cove
nants, to intolerably overcrowded ghettos. Indeed, demoli
tion of public buildings and roads and a limited slum clear
ance program without attendant development of new areas
available for Negro occupancy have tended to constrict the
Negro population of to-day within an even smaller area
than that already overcrowded by a population half as large
in 1930. So serious are these strictures that although Con
gress directed the closing of all Washington alley dwellings
by 1944, this period has already been twice extended because
the super saturated Negro areas and restrictions upon other
areas leave no alternatives but to permit the alley dwellers
to remain where they are or put them in the streets. There
can be no relief for this situation so long as racial covenants
place artificial yet impassable boundaries around the exist
ing areas of Negro occupancy.
The local situation in* 1944 is thus summarized in “Race
Relations in the Nation’s Capital” , Annual Report of Citi
zens Committee on Race Relations:
“ The housing situation is so bad as to rank as the No.
1 social problem of the community—
“ The problem has been aggravated by a tendency to
condemn slums without providing equivalent housing
facilities for the Negro tenants thus evicted. It has been
further complicated by a tendency on the part of gov
ernment officials to tear down Negro dwellings to make
possible the erection of government buildings without
making any provision whatever for the Negro residents
thus deprived of a place to live. * * * And it is still
further complicated by what may be the most serious
factor of all, the scarcity of new land in the District
for Nergo homes and a tendency on the part of white
citizens to resist the movement of Negroes into what
they consider to be their areas. The result is that the
Negroes are squeezed tighter into a few little ‘ islands’
within the District, and the squeezing process threatens
9
even to squeeze out these islands and drive the Negroes
beyond the limits of the District of Columbia. This poses
a social problem of the greatest magnitude and diffi
culty, and no solution is yet in sight.”
Competent professionals working in the housing field re
peatedly have pointed out the social cost and public injury
which resulted from these restrictions. Thus, John J.
Blandford, Jr., Administrator of the National Housing
Agency, speaking in Columbus, Ohio, on October 2, 1944,
had this to say:
“I do not need to tell you of the difficulties we en
countered even after we could establish the need of
migrating Negro war workers. We met troubles from
the start of the war housing job, but they were multi
plied every time we tried to build a project open to
Negroes. These difficulties—of site selection, of obtain
ing more ‘living space’—were deep-rooted and had to
be overcome, one by one. And delays only made more
desperate the plight of both those who migrated to take
war jobs and those already living in war industry
centers.
“ The average citizen knows generally that restric
tions on Negroes abound, just as he knows slums abound
in our major cities. But does he know that, as in those
cities, there’s hardly a decent piece of land a Negro
can build on in his own home town ? Does he know that
new living space is imperative because the pî esent lim
ited spaces are crowded to the point that disease and
crime ultimatelv will be bred there—if it doesn’t already
exist? Does he know how the concentration of war in
dustries has affected the lives of Negroes who have
lived a few blocks away from his own home for years
now crowded together as never before—or the newcom
ers who have been forced upon them ? A ell, if not, the
facts must be told and told again as facts about his
home town—not of cities far away.
“ The core of the housing problem of Negroes is, ot
course, more living space.”
10
To the same effect is the comment of the Commissioner,
Federal Public Housing Authority, Philip M. Klutznick, in
his article, Public Housing Charts Its Course, published in
Survey Graphic for January, 1945:
“ But the minority housing problem is not one of
buildings alone. More than anything else it is a matter
of finding space in which to put the buildings. Large
groups of these people are being forced to live in tight
pockets of slum areas where they increase at their own
peril; they are denied the opportunity to spread out into
new areas in the search for decent living.
“ The opening of new areas of living to all minority
groups is a community problem. And it is one of nation
al concern.”
This is not a new situation, but it is becoming more ag
gravated from year to year. As far back as 1928 one of the
most discerning writers in this field clearly pointed out what
was happening and its social dangers:
“ Congestion comes about largely from conditions
over which the Negroes have little control. They are
crowded into segregated neighborhoods, are obliged to
go there and nowhere else, and are subjected to vicious
exploitation. Overcrowding saps the vitality and the
moral vigor of those in the dense neighborhoods. The
environment then, rather than hereditary traits, is a
strong factor in increasing death-rates and moral dis
orders. Since the cost of sickness, death, immorality and
crime is in part borne by municipal appropriations to
hospitals, jails and courts, and in part by employers’
losses through absence of employees, the entire com
munity pays for conditions from which the exploiters
of real estate profit.” Woofter, Negro Problem In
Cities (1928) at 95.
It is also widely recognized that these anti-social cove
nants are not characteristically the spontaneous product of
the community will, but rather result from the pressures
and calculated action of those who seek to exploit for their
11
own gain residential segregation and its consequences. This
process has been aptly described by Woofter, op. cit. supra
at 73:
“ The riots of Chicago were preceded by the organi
zation of a number of these associations (neighborhood
protective associations); and an excellent report on
their workings is to he found in The Negro in Chicago,
the report of the Chicago Race Commission. The en
deavor of such organizations is to pledge the property
holders of the neighborhood not to sell or rent to
Negroes, and to use all the possible pressures of boy
cott and ostracism in the endeavor to hold the status of
the area. They often endeavor to bring pressure from
banks against loans on Negro property in the neighbor
hood, and are sometimes successful in this.
‘ ‘ The danger in such associations lies in the tendency
of unruly members to become inflamed and to resort to
acts of violence. Although they are a usual phenomenon
when neighborhoods are changing from white to Negro
in northern cities, no record was found in this study
where such an association had been successful in stop
ping the spread of a Negro neighborhood. The net re
sults seem to have been a slight retardation in the rate
of spread and the creation of a considerable amount of
bitterness in the community.” Cf. Embree, Brown
Americans (1943) at 34 reporting 175 such organiza
tions in Chicago alone. James M. Haswell, in a featured
article in the Detroit Free Press for March 17, 1945,
estimates 150 such organizations are functioning in
Detroit.
The same thesis with reference to the City of Detroit was
recently elaborated by Dr. Alfred M. Lee, Professor of
Sociology at Wayne University:
“ Emphasizing overcrowding and poor housing as
one of the major causes of racial disturbances, Lee
declared that in his opinion real estate dealers and
agents have been doing more to stir up racial antag
onisms in Detroit than any other single group. _
“ ‘ These men (real estate dealers),’ Lee said, ‘ are
12
the ones who organize, promote and maintain restric
tive covenants and discriminatory organizations. I am
convinced that once it is possible to break the legality
of these covenants, a great deal of our troubles will
disappear.’ As reported in The Michigan Chronicle
for May 9, 1945.”
In somewhat more legalistic analysis, such concert and
agreement on area restrictions, supported by the courts,
create conditions of monopoly and restraint of trade with
reference to the essential commodity of housing. In an
artificially restricted market the Negro not only finds hous
ing scarce, he also gets less housing value for his dollar
than the unrestricted white citizen who can trade in a free
market. The following table extracted from the 1940 Census
is a comparison of whites and non-whites paying identical
rents in the District of Columbia and showing how much
worse housing the non-wliites get for the same money.
DISTRIBUTION IN RENTAL VALUE GROUPS AND RELATIONSHIP BETWEEN RENTAL GROUPS AND CONDITION OF
DWELLINGS, BY RACE OF OCCUPANTS, FOR THE DISTRICT OF COLUMBIA.1
All Occupied Units Substandard Dwelling Units2
Percentages of Total Units Occu-
Estimated Monthly
Rental Value
White Non-White Number pied by Respective Racial Groups
Number Distri- Distri- Number White Non- White Non- Ratio between
bution bution White White Percentages
All Occupied Units
Reporting State of
Plumbing and Repairs 124,194 100.0 100.0 36,853 15,683 14,860 12.6 40.3 3.2
Under $5 91 .1 .3 99 46 87 50.5 87.9 1.7$ 5 - $9 168 .1 1,7 635 116 616 69.0 97.0 1,4
$10 - $14 592 .5 8.4 3,111 478 2,874 80.7 90.4 1.1$15- $19 1,427 1.1 11.3 4,164 1,094 3,404 76.7 81.7 1.1$20 - $24 3,386 2.7 12.1 4,444 2,320 3,171 68.5 71.4 1.0$25 - $29 5,305 4.3 12.6 4,640 2,695 2,276 50.8 49.1 1.0$30 - $39 20,388 16.4 21.3 7,848 5,075 1,576 24.9 20.1 1.2$40 - $49 24,901 20.1 15.9 5,854 2,095 514 8.4 8.8 1.0$50 - $59 23,039 18.6 8.8 3,245 930 205 4.0 6.3 1.6$60 - $74 19,881 16.0 5.2 1,932 465 98 2.3 2.2$75 - $99 13,884 11.2 1.8 672 238 32 1.7 4.8 2.8$100 and Over 11,132 8.9 .6 209 131 7 1.2 3.3 2.8
’SOURCE: Sixteenth Census of the United States, Vol. I ll, Housing, “Characteristics by Monthly Rent or Value," Tables A-2, A-3, and A-5a
-Units needing major repairs or with plumbing deficiencies.
14
In August 1944 tlie conservative Journal of Land and
Public Utility Economics published this commentary on the
characteristic economic pattern of artificial over valuation
in the “ Negro market” as controlled by residential seg
regation.
“ There are no conclusive studies of the influence of
Negro occupancy upon property values. There is, how
ever, strong evidence in everyday observations to sup
port Moron’s contention that ‘ smart real estate dealers
have encouraged Negroes to move into old white neigh
borhoods where property values have begun to de
crease. In the change of settlement the same houses
automatically acquire a higher resale value or com
mand higher rentals; while, in the case of rent prop
erty, the assessed valuation for tax purposes continues
to decrease as if there had been no reversal of the
income trend. ’ The owners in a transitional area have
a monopoly on the available supply; this means * * *
that the selling price is usually above the market value
prior to Negro occupancy. * # * In American cities
the Negro has become a handy dumping ground for
obsolescent property. * * * These families usually
pay excessive prices for houses which have become
obsolete * * * .” See Weaver, Racial Restrictive
Housing Covenants, 30 Journal of Land and Public
Utility Economics (1944), 183, 190.
It is difficult to conceive of an economic and social situa
tion involving more critical issues of public welfare or in
which it is more important that the intervention of inferior
courts to perpetuate and extend a grave evil should be re
viewed by this Court.
Better homes make for a better type of citizen, and the
development of the highest possible type of citizen is a
principal concern of the state. As good homes are vacated
for better homes a process of civic development occurs. The
citizen by means of industry and thrift works and aspires
to acquire a better home and ultimately the best for his
family. This process in a free market and a prosperous
15
economy should eventually eradicate substandard living
conditions which are not merely a rebuff to our civic pride,
but a positive menace both to public health and safety.
To permit white citizens by agreement among themselves
to deprive colored citizens of their rightful participation in
this process would be gravely hurtful to the public welfare
and at the same time would stimulate antipathy existing be
tween the races. Those of the dominant race afflicted with
race prejudice would become more arrogant and more op
pressive in their consciousness and exercise of power, while
the unfortunate victims would lose faith and hope in the
protection and force of the supreme law of the land, the
impartial administration of justice by our courts, the con
science of the dominant race and the righteousness of the
nation. It would undoubtedly produce a situation of ever-
increasing contempt for the weak on the part of the strong
and more bitter hatred of the strong on the part of the weak.
No more important question can be presented to this
Court. The direct interest of one-third of the population
of the District of Columbia, and more than fifteen million
citizens of the country at large, is at stake, and with it the
basic welfare of all.
In their effort to rise from slavery to equality with their
fellow men, colored citizens are everywhere met by the
effort to keep them down, and to deny them that equal
opportunity which the Constitution secures to all. If they
can be forbidden to live on their own land, they can be
forbidden to work at their own trade. If this is possible,
the prejudice against which the wrnr amendments were
framed to defend the colored people triumphs over them,
and the amendments themselves become dead letters.
CONCLUSION
Petitioner believes that this case presents both a sub
stantial question of equity jurisprudence and a substantial
constitutional contention not heretofore adjudicated by this
16
Court, and that this case involves interests of the greatest
public concern. It is submitted that final disposition of
such a matter should not be by summary denial of certiorari
without full argument or consideration of the issues on their
merits. For the foregoing reasons petitioner respectfully
urges that a rehearing be granted and that the judgment
of May 28, 1945, denying certiorari be set aside.
Respectfully submitted,
J ames A. Cobb,
George E. C. H ayes,
L eon A. R ansom ,
W illiam H . H astie,
Attorneys for Petitioner.
S pottswood W . R obinson I I I ,
T hurgood M arshall,
Of Counsel
*
fib i
Ai^VfecP
(/f S'Wk f W v
y
©ntteb States' Court of Appeals (\J.VQ..
DISTRICT OF COLUMBIA
No. 8831
Clara I. Mays, et al ., appellants,
W illiam T. Burgess, et al., appellees.
Appeal from the District Court of the United States for the
District of Columbia.
Argued November 14, 1944. Decided January 29, 1945.
Mr. James A. Cobb, with whom Mr. George E. C. Hayes was on the
brief, for appellant Mays. Mr. Reuben Bonnett was on the brief for
appellant Consolidated Properties, Inc.
Mr. Henry Gilligan for appellees.
Before Groner, C. J., and Miller and Edgerton, JJ.
GRONER, C. J .: The case involves the validity of a deed of sale
to a house and lot in the City of Washington. The appeal is from a
judgment of the District Court setting aside the deed and enjoining
appellant Mays from the use and occupancy of the property. The
suit arose out of a covenant under seal which recites that—
“ Whereas the said parties hereto desire, for their mutual bene
fit, as well as for the best interests of the said community and
neighborhood, to improve in any legitimate way and further the
interests of said community and neighborhood;
“ Now, Therefore, in consideration of the premises and the
sum of five dollars each to the other in hand paid, the paities
hereto do hereby mutually agree, promise and covenant, each with
the other and for their respective heirs and assigns, that no part
of the land now owned by the parties hereto, a more definite de
scription of said property being given after the respective signa
tures hereto, shall ever be used or occupied by, or sold, conveyed,
leased, rented or given to Negroes or any person or persons of
the Negro race or blood. This covenant shall run with the land
and bind the respective parties hereto, their heirs and assigns,
for the period of twenty-one years from and after the date of
these presents;”
The covenant is dated September 1, 1925, is signed by three of the
four plaintiffs, and is recorded in the land records of the District of
Columbia, and accordingly has about a year and seven months to run
o
2
before expiration by its terms. Appellant Mays, on February 17,
1944, purchased the property known as 2213 First Street, Northwest,
from one Jane Cook, presumably a white person, and described as a
“ straw” party, who in turn had purchased it from appellant, Con
solidated Properties, Inc., expressly for reconveyance to Mays.
The District Court found the facts to be that the grantor in the
deed to Cook is a Delaware Corporation, engaged in the purchase
and sale of real estate in the District of Columbia, and that the
grantee Mays, who purchased through Cook, is a citizen of the United
States and a colored person; that the plaintiffs in the suit, who are
the appellees here, are white persons and the owners of homes in the
same block on First Street, between Adams and W Streets, Northwest;
that appellant Mays purchased the property with actual as well as
constructive notice of the restrictive covenants, and that all of the adja
cent area for six blocks on First Street is likewise covered by similar
covenants and is occupied exclusively by persons of the white race.
Based on these findings, the District Court adjudged the covenant to
be valid and enforceable.
On this appeal it is argued that the judgment should be reversed,—
(1 ) because the character of the neighborhood has so changed as to
render the original purpose unenforceable; (2 ) the covenant con
stitutes an undue and unlawful restraint on alienation; (3) the cove
nant is not binding on the appellants, who are the successors in interest
of the original covenantors, because of lack of privity; and (4) it is
contrary to public policy and violates the Constitution of the United
States, particularly the Fifth and Fourteenth Amendments and Sec
tion 1 of the Thirteenth Amendment and the statutes enacted there
under, particularly R. S. 1977, 1978 and 5508.
The case has been well briefed and well argued, and we have given
it our best consideration; but we are unable to find anything in the
points we are asked to consider which we have not heretofore con
sidered and decided adversely to appellants’ contentions. As long
ago as 1924, in the case of Corrigan v. Buckley, 55 App. D. C. 30,
299 Fed. 899, we were called on to decide as to the constitutional valid
ity of an identical covenant, and likewise whether such a covenant
should be declared to be against public policy. We held in favor of
the validity of the covenant and against the claim that its provisions
were contrary to public policy. On appeal to the Supreme Court,1
it was held that neither the constitutional nor statutory questions
relied on as grounds for the appeal had any substance or color of
merit, or afforded jurisdictional basis for the appeal. In the inter
vening twenty years the question under similar facts has arisen in at
least five additional cases ;1 2 and in the last named of these, the Hundley
case, which was decided less than two years ago, we said that, in view
of the consistent adjudications by this court that a covenant against
Negro ownership or occupation is valid and enforceable in equity by
way of injunction, it must now be conceded to be the settled law in
this jurisdiction. This is also true in Maryland, where as recently as
1 C orrigan v. BucTdey, 271 TJ. S. 323.
2 T o rrey v. W o lfe s , 56 App. D. C. 4, 6 F . (2 d ) 702; R ussell v. W a llace , 58 App.
D. C. 357, 30 F. (2 d ) 981, cer t, den ied 279 U. S. 871; Cornish v. O ’D on ogh ue,
58 App. I). C. 359, 30 F (2 d ) 983, cert, den ied , 279 U. S. 871; G rady v. Garland.
67 App. D. C. 73, 89 F. (2 d ) 817, cer t, den ied . 302 U. S. 694; H u n d ley v. G oerw itz,
77 XJ. S. A pp. D. C. 48, 132 F . (2 d ) 23.
3
1938 the Court of Appeals of that State in Meade v. Dennistone, 173
Md. 295, 196 Atl. 330, after discussing all the questions argued here,
reached the same conclusion announced by us in Corrigan v. Buckley,
supra. Unless, therefore, we are prepared to reverse and annul all
that we have said on this subject, and to destroy contracts and titles
to valuable real estate made and taken on the faith of our decisions,
it follows that the only question now open for discussion is whether,
under the rule announced in Hundley v. Gorewitz, supra, the purpose
of the restrictive condition has failed by reason of a change in the
character of the neighborhood, so that its enforcement would impose
a hardship rather than a benefit upon those who were parties to its
terms. In the last mentioned case we said:
“ This exception to the rule is applicable in the case of a cove
nant such as we have here when, in the natural growth of a city,
property originally constructed for residential purposes is aban
doned for homes of more modern construction in more desirable
locations, for a serious decline in values would follow unless the
way was open either for use of the property for business purposes
or for the housing needs of a lower income class. And it is also
applicable where removals are caused by constant penetration
into white neighborhoods of colored persons. For in such cases
to enforce the restriction would be to create an unnatural barrier
to civic development and thereby to establish a virtually unin
habitable section of the city. Whenever, therefore, it is shown
that the'purpose of the restriction has been frustrated and that
the result of enforcing it is to depreciate rather than to enhance
the value of the property concerned, a court of equity ought not
to interfere.”
Applying this statement of the rule to the facts in this case, it is
easily seen from the trial court’s finding of facts that at this time
no such change or transformation in the character of the property
has occurred.3 No colored people occupy any property in the particu
lar block with which we are concerned, nor in the block adjacent
thereto on First Street in either direction. Indeed, there is no colored
occupancy on First Street from T Street north to the Soldiers’ Home
Grounds, nor on or to the east of First Street for several blocks,
although in blocks to the west of First Street, and separated by an
alley, there has been extensive colored penetration. And it may be
that in a short time this penetration will reach the territory we are
discussing, since, as we were told at the argument, the restrictive
3 ‘ ‘ The area adjacent to the property here in question is residential in char
acter, consisting o f row houses, a few business houses and several churches. All
o f F irst Street, Northwest, on both sides, from Ehode Island Avenue north to
Channing Street, consisting o f six city blocks (Channing Street being the most
northerly street developed) is occupied solely by persons o f the White race, all
o f said blocks being under Eestrictive Agreements or deed covenants prohibiting
the ownership, use or occupancy by Negroes. An aetion is pending covering 2
lots in the 2100 block o f First Street, N. W ., the Agreement expiring November
1, 1944. A ll o f the intersecting streets from First Street eastward to Lincoln
Eoad, south to the North side o f T Street, and lvest to First Street, Northwest,
including also North Capitol Street, are likewise solely occupied by persons o f
the W hite r&ee and under similar Eestrictive Agreements or deed covenants;—
a total o f approxim ately one thousand homes, churches and business properties.
“ The area west o f First Street and Ehode Island Avenue, N. W . is occupied
almost exclusively by persons o f the Negro race or blood, * * * ”
4
covenant on the adjoining block expired November 1, 1944, and the
same doubtless may be said of the block in which appellant Mays’
purchase was made, when the covenant as to it expires a little more
than a year from now. But for the present it is enough to say that
First Street, between U and Adams, and the neighboring properties
eastward are an unbroken white community of nearly a thousand
homes, under restrictive agreements, most of which are still in effect.
From this it is clear the rule in the Hundley case as to change in the
character of the neighborhood is not now applicable here. From
this it follows that the judgment below was in all respects correct.
In this disposition of the case we have again carefully considered
the argument that the covenant, if otherwise valid, constitutes an
undue and unlawful restraint on alienation. It is quite true as to
this point that, following the old case of Mandlebawm v. McDonnell,4
there are to be found cases in two or three of the States which hold
void any and all restraints on alienation, but the doctrine in these
cases has been consistently denied in this and in other jurisdiction,5 6
and the weight of authority, is opposed to the doctrine. Thus, in the
Colorado Springs case,0 involving a covenant against the use of land
for the sale of intoxicating liquors, the Supreme Court said:
“ Repugnant conditions are those which tend to the utter sub
version of the estate, such as prohibit entirely the alienation or
use of the property. Conditions which prohibit its alienation to
a particular person or for a limited period or its subjection to
particular uses are not subversive to the estate—they do not
destroy or limit its alienable or inheritable character.”
The case we have comes clearly under the latter portion of this
classification. However, it is said that the covenant does not run with
the land because it was not included in a conveyance, i.e., between
parties in privity, and since none of the defendants in this suit were
parties to the original covenant, they are not bound thereby. Thus,
a distinction is sought to be drawn between a covenant contained in a
conveyance made by the parties thereto and one made by the agree
ment of persons owning separate parcels of adjoining property. But
the distinction is without legal effect, for it confuses covenants
enforceable at law with those which give rise to rights enforceable
in equity.7 This was recognized by the Maryland Court of Appeals
in the case of Meade v. Dennistone, supra.
In the case we have the parties, as they declared, contracted for
their mutual benefit and in the interests of the neighborhood not to
permit their land to be sold to, or used by, persons of the Negro race,
4 29 Mich. 78, 18 Am. Rep. 61
5 Corrigan v. Buchley, supra; Torrey v. Wolfes; supra; Bussell v. Wallace, supra;
Hundley v. Gorewitz, supra; Queensborougli Laud Co. v. Cazeaux, 136 La. 724, 67
So. 641; Koehler v. Bowland, 275 Mo. 575, 205 S. W . 217; Chandler V. Ziegler
(C o l.), 291 P. 822.
6 Cowell v. Colorado Springs Co., 100 U. S. 55.
7 Tiffany, Beal Property, 3d Ed., §§ 858, 862; Meade V. Dennistone, supra; cf.
Trustees of Columbia College V. Lynch, 70 N. Y . 440, 38 N . Y . Supp. 878, 880;
Bryan v. Grosse, infra; Godman v. Bradley, 201 Mass. 361, 87 N. E. 591; Cotton
v. Creese, 80 N. J. Eq. 540, 85 Atl. 600; Erichsen V. Tapert, 172 Mich. 457, 138
N . W . 330. See also Cl a r k , Co v e n a n t s a n d I n t e r e s t s R u n n in g w it h L an d
(1 929 ), e. V I , The Banning of Equitable Bestrictions.
5
and made this covenant binding upon their heirs and assigns. The
form of the covenant is immaterial and it is not necessary it should
run with the land. “ A personal covenant or agreement will be held
valid and binding in equity on a purchaser taking the estate with
notice. It is not binding upon him merely because he stands as an
assignee of the party who makes the agreement, but because he has
taken the estate with notice of a valid agreement concerning it which
he cannot equitably refuse to perform.” Bryan v. Grosse, 155 Cal.
132, 99 P. 499. And likewise in Codman v. Bradley,8 it was said:
“ It is plain from the language of the indenture that the parties
intended a restriction upon each of the five lots in favor of the
owners of lots 176 and 177, and their heirs and assigns, which
should be for the benefit of the lots, whoever might be the owners
of them. It is equally plain that equity will enforce such a re
striction. It is not important to determine whether the instru
ment created a legal estate in the five lots, or precisely what legal
estate is created, if any. It created a. right enforceable in equity
against all persons taking with notice of it, actual or constructive,
and this equitable right is in the nature of an easement, even
if it rests on no broader principle than that equity will enforce
a proper contract concerning land, against all persons taking
with notice of it. [Citing cases.] In the present case it plainly
appears that the intention of the parties was that their respec
tive promises should be for the benefit of the promisees as owners
of the neighboring land, and of subsequent owners of these lots.
Such a promise may always be enforced in equity by an owner.”
As stated before, rights created by covenants such as these have
been so consistently enforced by us as to become a rule of property
and within the accepted public policy of the District of Columbia.
_ Little need now be said on the subject of that policy. The proposi
tion is not new and was unsuccessfully urged in the Corrigan case,
supra, in this court and in the Supreme Court. And nothing is sug
gested now that was not considered then. The Constitution is the
same now as then, and we are cited to no new public laws, nor indeed
to any other course or practice of Government officials, which the
private action of the original owners of the block in question contra
venes. And the public policy of a State of which courts take notice
and to which they give effect must be deduced—in the main—from
these sources. Surely it may not—properly—be found in our per
sonal views on sociological problems. As to the District of Columbia,
we must take judicial notice of the fact that separate schools are
established for the white and colored races; separate churches are
universal and are approved by both races; and that in the present
local housing emergency, large amounts of public and, perhaps also,
of private funds have been expended in the establishment of homes
for the separate use of white and colored persons. And these accepted
practices are not intended to and should not be considered to imply
the inferiority of either race to the other.
That the broad social problem, of which the question in the instant
case is but one aspect, is both serious and acute, no thoughtful person
will deny. That its right solution in the general public interest calls
8 201 Mass. 361, 87 N. E. 591.
6
for the best in statesmanship and the highest in patriotism is equally
true. But it is just as true that up to the present no law or public
policy has been contrived or declared whereby to eradicate social or
racial distinctions in the private affairs of individuals. And it should
now be apparent that if ever the twro races are to meet upon mutually
satisfactory ground, it cannot be through legal coercion or through
the intimidation of factions, or the violence of partisans, but must
be the result of a mutual appreciation of each other’s problems, and
a voluntary consent of individuals. And it is to this end that the
wisest and best of each race should set their course.
Affirmed.
MILLER, Associate Justice, concurring: The Supreme Court and
this Court have established the law for the District of Columbia as
it is set out in the majority opinion and we are bound to follow it.
The considerations urged by Justice Edgerton are persuasively pre
sented. If proper weight was not given to them in the earlier decisions
and if present-day conditions do not justify the position then taken,
it has been within the power of Congress to change the law, during
all the intervening years. If judicial reinterpretation of the law is
now in order, it is the function of the Supreme Court, as the highest
Court of the District of Columbia,1 so to advise us.
EDGERTON, J., dissenting: I think the decision of the court is
wrong for several reasons.
(1 ) I think this case is within the settled principle that when an
agreement which restricts the use of real property can no longer
serve its purpose it is not enforceable in equity. The parties to the
agreement obviously wished to maintain the value of their properties
and doubtless also wished to live in an exclusively white neighbor
hood. Enforcement today of this agreement made many years ago
will accomplish neither purpose.
The agreement was made in 1925 by owners of all the houses and
lots in the 2200 block of First Street N. W. Like the rest of First
Street this block runs north and south. Most if not all of the prop
erty immediately west of this block, and for a considerable distance
beyond, is occupied by Negroes. Six consecutive blocks on First
Street, including the 2200 block and the blocks immediately north
and south of it, were occupied by white persons and were subject to
restrictive agreements at the time of the trial in the District Court.
So was, and apparently still is, a considerable area immediately east
of these six blocks. But the 2100 block on First Street, which is
immediately south of the 2200 block, ceased on November 1, 1944 to
1 D. C. Code (1940) § 11-101: “ The judicial power in the District shall be
vested in— First. In ferior courts, namely, municipal court, juvenile court o f the
D istrict o f Columbia, and the police court; and Second. Superior courts, namely,
the D istrict Court o f the United States fo r the District o f Columbia, the United
States Court o f Appeals fo r the District o f Columbia, and the Supreme Court
of the United States. (M ar. 3, 1901, 31 Stat. 1190, ch. 854, $ 2 ; Mar. 19, 1906,
34 Stat. 73, ch. 960; Feb. 17, 1909, 35 Stat. 623, ch. 134; June 7, 1934, 48
Stat. 926, ch. 426; June 25, 1936, 49 Stat. 1921, ch. 8 0 4 .)” [Italics supplied]
7
be covered by an agreement. When this suit was tried two houses
in the 2100 block had already been sold to colored persons and suits
regarding them were pending. The restrictive agreement with respect
to the 2200 block itself will expire on September 1, 1946 and obviously
will not be renewed. All of the property in the 2200 block is now
more valuable for sale to Negroes than to white persons. There is
ample testimony to that effect and there is no dispute about it. Beal
estate dealers testified that the houses in this block are worth about
$7500 for sale to white purchasers and about $10,000 for sale to
colored purchasers. Appellants’ house had been vacant for some
time, and a white person had offered $7500 for it, when appellant
Mays bought it for $9,950. Performance of the restrictive agreement,
instead of maintaining the value of property in the 2200 block, will
actually depress it. The court should not enforce the agreement and
defeat its most obvious purpose.
This is the more clearly true because enforcement of the agreement
will not accomplish its other purpose. Since (1) the area immediately
west of the 2200 block is largely occupied by colored people; (2 ) the
block immediately south of the 2200 block is no longer restricted, and
colored people have begun to buy homes there; (3) the 2200 block
itself will cease to be restricted next year; (4) property in this block
is more valuable to colored purchasers than to white purchasers; and
(5 ) as a witness testified without dispute, the “ trend” in the neigh
borhood is toward colored ownership and occupancy; it is evident
that the neighborhood has lost the exclusively white character which
the agreement sought to preserve, and that enforcement of the agree
ment during the short remainder of its life will not restore that
character. As we said in Handley v. Gorewitz, ‘ ‘ The trend is unmis
takable, its effect is apparent, and . . . to grant an injunction enforc
ing the covenant would merely depreciate all the property in the
block without accomplishing the purpose which originally impelled
its making, while to deny an injunction will leave all of the proper
ties with a value commensurate to the conditions as they now exist.
In these circumstances the equities require that we refuse injunctive
relief and leave the parties to such remedies as they may have at law. ’ 1 11
(2) The effect of an injunction upon appellant Mays and her
family must be considered. The family consists of appellant herself,
a government employee; three sisters who are employed in Washing
ton; and four nieces who attend school there. A house which they
formerly rented was sold and they had to move. They had to break
up their family, store their furniture, and rent rooms in various
places until they bought the house in suit. According to appellant’s
undisputed testimony she “ accepted this proposition because of an
absolute lack of other available properties.” To force her and her
family to leave their home during the present acute housing emer
gency will subject them to very great hardship. It will probably
compel them again to separate and rent such rooming space, if any,
as they can find, and it may compel some of them to leave the District
of Columbia and its vicinity. The chances are much against their
being able, without months of search, to find a single house or apart
ment here that will accommodate them as a family.10 None of the
1 77 TJ. S. App. D. C. 48, 50, 132 F. 2d 23.
la N ote 15 infra.
8
eases on which the court relies, in which agreements against
sales to Negroes were enforced, involved any circumstance even re
motely resembling this, In accordance with the familiar principle
of “ balancing equities,” the fact that an injunction will cause extreme
hardship to the defendant without commensurate benefit to the plain
tiff is in itself a sufficient reason for denying an injunction.
(3) The restriction in suit, though it is recorded, was not created
by and does not appear to be incorporated in any conveyance. It
was created by a special contract among the owners of some 32 houses
and lots. None of the appellants was a party to that contract. None
of them has ever agreed to be bound by it. Whether they should be
required to conform to this contract which they never made involves
more than the balancing of particular equities. It involves a question
of general policy. The question is not whether the operators of a
public or private housing development,2 or other persons, may volun
tarily select their tenants or their purchasers on the basis, among
other things, of color. The question is whether a person who wishes
to sell his house to a Negro and has contracted to do so, and has never
contracted not to do so, should be prevented by a court from perform
ing his contract because one of his predecessors in title once contracted
with other property-owners that their property should not be sold to
Negroes. Since housing is a necessity of life, as an original question
a contract of 32 property-owners that they and their successors will
not sell houses to Negroes would seem to stand on much the same
plane as a contract of 32 grocers that they and their successors will
not sell food to Negroes.3 The ultimate purpose of the combination
was the advantage of its members, but its immediate purpose was to
withhold a necessity from many persons by limiting the capacity of
owners to transfer their property. As an original question, the contract
in suit would seem to be an unreasonable restraint on alienation and
plainly contrary to public policy. The Committee on Negro Housing
of the President’s Conference on Home Building and Home Owner
ship said in its Report in 1932: “ Segregation . . . has kept the Negro-
occupied sections of cities throughout the country fatally unwhole
some places, a menace to the health, morals and general decency of
cities, and ‘plague spots for race exploitation, friction and riots.’ ” 4
It would seem clear, as an original question, that a court of equity
would have nothing to do with such a contract unless to prevent its
enforcement or performance.
(4) The decided cases do not clearly answer the question of policy
on which, apart from the particular equities, this case turns. As
long ago as 1917 the Supreme Court held in the Buchanan case that
racial zoning of streets, by statute or ordinance, was unconstitu
tional.5 The Court held in 1926, in the Corrigan case, that an injunc
tion to prevent a party to a contract like the one before us from
conveying in breach of his contract did not violate the Constitution
2 ' ‘ Much o f the recent public housing is interracial in theory and increasingly
so in fact, notably in Los Angeles, Pittsburgh, and Chicago. ’ ’ Edwin R. Embree,
Race Relations Balance Sheet, p. 9 ; reprinted from Review for the Two-Tear
Period, 1942-1944, o f the Julius Rosenwald Eund.
3 A t least i f it be assumed that the motive o f the grocers, as o f the property-
owners, is to exclude Negroes from their neighborhood.
4 pp. 45, 46.
5 Buchanan v. Warley, 245 U. S. 60.
9
or the laws of the United States.6 But the Court had no occasion to
decide, and it expressly refrained from deciding, whether or not a
contract of this sort was “ void because contrary to public policy”
or was “ of such a discriminatory character that a court of equity
will not lend its aid by enforcing the specific performance of the
covenant.” The Supreme Court has never decided whether this sort
of contract is enforceable against anyone.
It would seem to be unsound policy for a court, in the exercise of
its equitable discretion, to enforce a privately adopted segregation
plan which -would be unconstitutional if it were adopted by a legisla
ture. Moreover the Supreme Court has recently said that “ discrim
inations based on race alone are obviously irrelevant and invidious. ’ ’ 7
That case dealt with contracts between employers and a union which
represented employees. The Court held that “ Congress plainly did
not undertake to authorize the bargaining representative to make such
discriminations. ’ ’ For the current fiscal year Congress has authorized
expenditure of $500,000 by the President’s Committee on Fair Em
ployment Practice.8 9 Congress is the authoritative exponent of the
public policy of the District of Columbia. I can see no sufficient dis
tinction, from the point of view of policy, between discrimination in
employment and discrimination in housing.
It is true that in 1924, in Corrigan v. B u c k le y this court restrained
a party to a contract like the one before us from making a convey
ance in violation of his contract. And this court has enforced cove
nants in deeds, of like tenor, against subsequent owners of the land
who, as far as appears, were not parties to the deeds.10 * It does not
follow that a mere contract like the one before us, against selling land
to Negroes, is enforceable against a subsequent owner of the land who
has notice of the contract but is not a party to it.11 Whether it is
so enforceable is a question which this court has never had occasion
to decide until now.
6 Corrigan v. Buckley, 271 U. 8. 323, 332.
7 Steele v. Louisville Nashville Railroad Co. et al., U. S. , Dec. 18,
1944. In a concurring opinion Mr. Justice Murphy said: ‘ ‘ The Constitution
voices its disapproval whenever economic discrimination is applied under authority
o f law against any race, creed or color. 7’
8 This Committee was created by the President in 1941 and reconstituted in
1943. Exec. Order No. 9346, May 27, 1943.
9 55 A pp. D. C. 30, appeal dismissed, 271 U. S. 323.
10 e.g., Torrey v. Wolfes, 56 App. D. C. 4, 6 P. 2d 702.
n Traditionally a covenant does not “ run with the lan d” so as to be enforce
able at law against subsequent purchasers unless there is some “ priv ity ’ ’ between
the parties to the covenant, as in the case o f grantor and grantee or lessor and
lessee. T iffany, Real Property, 3d ed., § 851. I t is true that, despite the absence
o f “ privity , ” contracts between neighboring landowners which regulate only
the use o f land and make no attempt to impose restraints on its alienation have
been enforced in equity against subsequent purchasers with notice. Thus in
Castleman v. Avignone, 56 App. D. C. 253, a contract with respect to a building
line was enforced against a purchaser. Cf. Tiffany, Real Property, 3d ed., § 858.
But no case has been called to our attention in which any court, on any theory,
has enforced against anyone but a contracting party a contract like the one in
suit, which attempts to create a restraint on alienation and is not embodied in a
deed or lease. In Meade v. Dennistone, 173 Md. 295, 196 A. 330, the contract
which was enforced against purchasers forbade use o f land by Negroes but did
not forbid transfer to Negroes. The contract before us forbids both use and
transfer. In my opinion neither prohibition should be enforced.
10
There is a substantial difference between the policy of enforcing
against subsequent owners a restraint on alienation created by a
deed and the policy of enforcing against them a restraint on aliena
tion created only by a contract. If the restraint can be created only
by a deed, that fact provides a substantial limitation on its spread;
but if neighboring landowners, by merely making and recording a
contract, may impose a restraint on alienation which is enforceable
against subsequent landowners, unlimited quantities of land may
rapidly be subjected to the restraint. By holding that such a restraint
may be imposed in such a way this court is not simply following
precedent. It is adding an unfortunate extension to an unfortunate
doctrine.
(5) Quite aside from the fact that our Corrigan decision was
probably unsound when it was rendered,12 and the fact that it would
not cover this ease even if general conditions in the District of Colurn?
bia had remained the same, I think it is quite inapplicable today
because general conditions have not remained the same. It was a
decision on a question of policy. Questions of policy have no mean
ing in a vacuum but relate to particular situations. The housing
situation in the District of Columbia has changed since 1924.
Although the first World War created a temporary housing emer
gency, by 1924 the Supreme Court was prepared to take judicial
notice of the fact that the emergency had ceased.13 It is a matter of
common knowledge that the emergency is now acute14 and that the
shortage of decent housing, or any housing, for Negroes is particu
larly acute.15 We cannot close our eyes to wliat is commonly known.
12 When Mr. Justice Rutledge was a member o f this court he expressly re
served his opinion on the question whether covenants against selling land to
Negroes were valid. Hundley v. Gorewitz, 77 IT. S. App. D. C. 48, 50, 132 F.
2d 23.
13 Chastleton Cory. v. Sinclair, 264 IT. S. 543, 548-549 (1924).
it The Rent Control A ct o f the District o f Columbia provides: “ I t is hereby
found that the national emergency and the national-defense program (1 ) have
aggravated the congested situation with regard to housing accommodations exist
ing at the seat o f government; . . . (3 ) have rendered or will render ineffective
the normal operations o f a free market in housing accomm odations; and (4 ) are
making it increasingly difficult fo r persons whose duties or obligations require
them to live or work in the District o f Columbia to obtain such accommodations
. . . ” 55 Stat. 788; D. C. Code, 1940, Supp. I l l , § 45-1601; December 2, 1941.
15 ‘ ‘ The already overcrowded N egro quarters had to squeeze in the newcomers.
The results here must be seen to be believed. N ot only houses have been sub
divided, but small rooms . . . have been partitioned with cardboard to absorb
more tenants . . . W hat can, fo r instance, our very competent Health Depart
ment do about it? The only thing it can do is put the tenants on the street be
cause there is not, and has not been for six months, a single available Negro
dwelling in W ashington, except a few fo r inmigrant war workers . . . The
crowding in the slums o f the District has also been intensified by the fa ct that
not only housing but the areas form erly occupied by Negroes have decreased.”
Agnes E. Meyer, Negro Housing: Capital Sets Record for United States in Un
alleviated Wretchedness of Slums. W ashington Post, Feb. 6, 1944, Sec. II , p. 1.
11 The present war housing program . . . seems to provide adequately for
white, in-migrant war workers. In fa ct there may be a surplus o f immediately
needed dwellings fo r white in-migrant war workers. I t does not provide, how
ever, fo r residents o f the D istrict o f Columbia who are not in-migrant war work
ers. F or Negroes . . . it does not provide adequately even in terms o f in-migrant
war workers. So there should be an increase in the allocation o f dwellings for
Negroes . . . The need is urgent and that need will continue.” Annual Report
o f the National Capital Housing Authority fo r the fiscal year ended June 30,
1943, p. 7.
11
The conditions in which many of the 187,000 Negroes in the District
of Columbia have long been obliged to live are now worse than ever.
Since restrictive contracts and covenants are among the factors which
The follow ing quotations are from Investigation o f the Program o f the N a
tional Capital Housing A uthority: Hearings before a Subcommittee o f the Com
mittee on the District o f Columbia, United States Senate, 78th Congress, 2d
Session, on S. Ees. 184 and S. 1699 (1944) :
‘ ‘ Housing conditions among Negroes, as it relates to the war effort, is a
critical social and economic problem in W ashington . . . ” Part 2, p. 208. Prom
Resolution o f the W ar Housing Center Advisory Committee, December 1943.
‘ 11 have a negro maid wrho has five little children. Her husband makes $30
a week and she does day work, at about $4 or $4.25 a day. She lives in one
room with those five children . . .1 have called every place in this city and I
cannot get a place for her to live .” Part 3, p. 447. Statement o f Mrs. Leslie
B. W right, Executive Secretary, Northwest Citizens' Council, Washington, D. C.,
and Member o f the Legislative Committee o f the Federation o f W om en’s Clubs:
M arch 10, 1944.
li *4 • • Prom the inform ation gained by the U Street Council about 2 months
ago, it was shown that there were no apartments and houses available for Negro
residents.” Part 3, p. 775. Statement o f M arjorie Baltimore, U Street Neigh
borhood Council, W ashington, D. C.; April 5, 1944.
“ • • • I am a member o f the advisory committee on the W ar Housing Center
here . . . There are one-bedroom apartments to be found. There are prac
tically no dwelling units available for larger families . . . speaking o f white
families, and none whatever where there is one bedroom, or more, fo r Negro
fam ilies.” Part 3, p. 782. Statement o f Arthur Stein, President, United Fed
eral W orkers o f A m erica; A pril 6, 1944.
“ It is generally recognized that there are practically no vacancies today for
the N egro citizen o f any income level in Washington. Hundreds o f Negro war
workers and resident families, evicted through no fault o f their own, are sep
arated and doubled up in already overcrowded dwellings . . . The widespread
use of restrictive covenants in the District constitutes a distinctive feature which
distinguishes the housing problem o f Negroes from that o f all other racial
groups. Confined by these intangible but almost impregnable barriers, Negroes
. . . are discriminated against in the housing market by being thus barred
from bidding in the open market for hom es.” Part 4, pp. 1110-1111. Statement
o f Mrs. Robert G. McGuire, Chairman, Emergency Committee on Housing in
M etropolitan W ashington; M ay 19. 1944.
“ (1) The Negro population o f the area has rapidly increased;
(2 ) Various developments, such as roads, public buildings, housing projects,
etc., have reduced the areas heretofore open to Negro occupancy;
(3 ) There is evidence o f actual reduction in the number o f dwelling units
available to N egroes.” Part 4, p. 1129. Interim Report o f the Study Subcom
mittee o f the Emergency Committee on Housing in Metropolitan W ashington;
M ay 19, 1944.
“ The main reason why Negroes have not moved from these congested areas
into more adequate neighborhoods is the widespread use o f covenants, agreements,
and neighborhood resistance to the occupancy by Negroes o f undeveloped and
developed areas. The effect o f these restrictions has been to limit artificially
the housing market fo r Negroes and cause them to pay higher prices fo r the
same or less value and services. This feature makes the housing problem o f
Negroes distinctive from that o f any other racial group .” Part 4, p. 1137. State
ment o f Mrs. Pauline R. Coggs, Executive Secretary o f The Urban League and
Chairman o f the Research Committee o f the Emergency Committee on Housing
in M etropolitan W ashington; May 19, 1944.
“ Since 1940 . . . there has been intensive overcrowding even among the com
paratively well-to-do . . . Even in 1934 . . . there was a shortage o f low-rental
and moderate rental dwellings. This situation was especially acute among the
Negroes . . . Recently the assistance given by the Federal Housing Administra
tion has somewhat relieved the situation in the higher-rental brackets. But the
completion o f only 97 houses in lower-rental brackets . . . is not very encourag
ing. ” Part 5, p. 1404. Concluding statement and summary by John Ihlder,
Executive Officer, National Capital Housing Authority; Oct. 5, 1944.
In the entire Hearings, I have found no statements which substantially con
trovert those which I have quoted. There are many others to similar effect.
12
limit the supply of housing for Negroes and thereby increase its price,
it cannot be sound policy to enforce them today, whatever may have
been true in 1924.
In order to work people must live within reach of their work, and
in order to work effectively they must live in some degree of comfort.
Requiring Negroes, to live according to their common color instead
of their individual capacities hampers the war effort by interfering
with their employment. Congress has declared in the Rent Control
Act of the District that it is “ the policy of the Congress during the
existing emergency to prevent . . . practices relating to housing ac
commodations in the District of Columbia which may tend to increase
the cost of living or otherwise impede the national-defense program.16
“ Race restriction agreements, undertaking to do what the state can
not, must yield to the public interest in the sound development of the
whole community. ” 17
16 55 Stat. 788; D. C. Code, 1940, Supp. I l l , § 45-1601; Dec. 2, 1941.
11 Traynor, J., concurring, in Fairchild V. Maines, Cal. , 151 P. 2d 260,
269 (1944).
IN THE
Supreme Court of tfje Umteb States
October T erm , 1944.
No.
Clara I. M ats, Petitioner,
v.
W illiam T. B urgess, F rances E. B urgess, H. P.
Gu MBRECHT, AGNES B. M uLARKEY, M aRY
C. Carleton, Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA AND BRIEF IN SUP
PORT THEREOF.
J ames A. Cobb,
Washington, D. C.
George E. C. H ayes,
Washington, D. C.
L eon A. R ansom,
Washington, D. C.
W illiam H. H astie,
Washington, D. C.,
Attorneys for Petitioner.
S pottswood W. R obinson, III,
Richmond, Ya.
T hurgood M arshall,
New York, N. Y.
Of Counsel.
Press of Byron S. Adams, Washington, D. C.
♦
INDEX FOE PETITION.
S um m ary S tatement op the M atter I nvolved............... 2
1. The Suit and the Parties Thereto........................ 2
2. Theory and Factual Basis of the Suit................. 2
J u r is d ic t io n ................................................................................. 3
Question P resented ............................................................... 4
S easons E elied on for A llowance of the W r it ............ 4
Conclusion ................................................................................. 6
INDEX FOE BEIEF.
Opinion op C ourt B e l o w ....................................................... 7
J urisdiction ................................................................................. 7
S tatement of the Case ......................................................... 8
E rrors B elow E elied U pon H ere ..................................... 8
A rgument .................................................................................... 8
I. The Court of Appeals has given improper con
struction and effect to the decision of this
Court in Corrigan v. Buckley.......................... 8
II. The decision below is a departure from correct
principles of equity jurisprudence in a mat
ter of large public concern.............................. 13
A. Applicable principles of equity jurispru
dence .......................................................... 14
B. Controlling factors of public policy adverse
to the enforcement of racial restrictive
covenants .................................................. 15
C. Additional equitable considerations in this
case not involved in restrictive covenant
cases heretofore adjudicated and relied
upon below ................................................ 18
III. Judicial enforcement of the covenant in ques
tion is violative of the Constitution and
Page
11 Index Continued.
Page
laws of the United States in that the judi
ciary does that which it prohibits _ the
legislature to do, and that it gives judicial
sanction to private action which is crim
inal under the laws of the United States 22
A. The right to take and hold property is pro
tected by the Constitution and laws of the
United States.............................................. 22
B. The Government through the courts below
has been the effective agent in depriving
the petitioner of her property................. 24
C. The covenant in question is a criminal con
spiracy, unenforceable in the courts of
the United States .................................... 29
Conclusion ....................................................................... 33
TABLE OF CASES.
American Federation of Labor v. Swing, 312 U. S. 321 12
Beasley v. Texas & Pacific Ry., 191 U. S. 492............. 14
Block v. Hirsch, 256 U. S. 135........................................ 16
Buchanan v. Warley, 245 U. S. 60..................... 4,17, 24, 25
Burke v. Kleinman, 277 111. App. 5 19 ............................. 21
City of Richmond v. Deans, 37 F. (2d) 712................. 23
Corrigan v. Buckley, 271 U. S. 323......................... 4,9,10
Corrigan v. Buckley, 55 App. D. C. 30, 299 Fed. 899. 12,19
Downes v. Bidwell, 182 U. S. 244.................................. 23
Ex Parte Reeves, 121 Fed. 848........................................ 32
Fox v. Gardner, 21 Wall. 475.......................................... 32
Gandolfo v. Hartman, 49 Fed. 181............................. 28,31
Geofroy v. Riggs, 133 -U. S. 258...................................... 23
Grosman v. Union Trust Co., 228 Fed. 610................... 32
Hansberry v. Lee, 311 U. S. 32........................................ 11
Harmon v. Tyler, 273 U. S. 668................................ 11,23
Hundley v. Gorewitz, 77 App. D. C. 48, 132 F. (2d) 23. 9
Kennett v. Chambers, 14 How. 38................................. 29, 30
Lakos v. Saliaris, 116 F. (2d) 440................................ 32
Lappin v. District of Columbia, 22 App. D. C. 68........ 23
Lee v. Boise Development Co., 21 Ida. 461, 122 Pac. 851 32
Lee v. Hansberry, 372 Lll. 369, 24 N. E. (2d) 37.......... 21
Meade v. Dennistone, 173 Md. 295, 196 Atl. 330.......... 20
Page
Neild v. District of Columbia, 71 App. D. C. 306, 110
P. (2d) 246 ................................................................. 23
Porter et al. v. Barrett et al., 233 Mich. 373, 206 N. W.
532; L.E.A. 1916B, 1208, 1209; 9 A.L.R. 120 et seq. 32
Bussell v. Wallace, 58 App. D. C. 357, 30 F. (2d) 981___19
Slaughter-House Cases, 16 Wall. 36............................ 32
Stewart v. Cronan, 105 Colo. 393, 98 Pac. (2d) 999___ 21
Texas & Pacific By. v. Marshall, 136 U. S. 393............. 15
The Fri, 154 Fed. 333.................................................... 32
The Spartan, 25 Fed. 44................................................ 32
Torrey v. Wolfes, 56 App. D. C. 4, 6 F. (2d) 702......... 19
United States v. Morris, 125 Fed. 322........................ 30
Ward v. Maryland, 12 Wall. 418.................................
Wayt v. Patee, 205 Calif. 46, 269 Pac. 660.................... 19
STATUTES.
D. C. Emergency Rent Act of 1941 (55 Stat. 788)....... 16
Judicial Code, Section 240 (28 U. S. C., Sec. 347(a)) 3,7
United States Code, Title 8, Section 42.................... 17,23
United States Code, Title 18, Section 5 1 ..................... 29
OTHER AUTHORITY CITED.
Gelliorn, Contracts and Public Policy (1935). 35 Col.
L. Rev. 678 ......................................... „ .....................
Index Continued. iii
18
IN THE
Supreme Court of tJje Hmteb States
O ctober T erm, 1944.
No.
Clara I. M ays, Petitioner,
v.
W illiam T. B urgess, F rances E. B urgess, H. P.
GrUMBRECHT, AGNES B. M uLARKEY, M aEY
C. Carleton, Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA.
To the Honorable, the Chief Justice of the United States
and the Associate Justices of the Supreme Court of
the United States:
Petitioner, Clara I. Mays, one of the appellants below,
respectfully prays that a writ of certiorari issue to review
a judgment of the United States Court of Appeals for the
District of Columbia (R. 48) which affirmed a final judg
ment for the respondents, plaintiffs in the original suit, in
the District Court of the United States for the District of
Columbia (R. 26).
2
A.
SUMMARY STATEM ENT OF THE M ATTER
INVOLVED.
1. The Suit and the Parties Thereto.
This proceeding originated as a suit in equity against
the petitioner and her immediate predecessors in title for
the purpose of setting aside a deed to petitioner because
of the provisions of a contract between one of the petition
er’s remote predecessors in title and certain neighboring
land owners, including three of the respondents and a
predecessor in title of the remaining respondent.
Petitioner is a Negro. Prior to the present suit she pur
chased and became the occupant of an improved parcel of
residential property in the District of Columbia, described
as Number 2313 First Street, Northwest. She is the holder
of record title to the property in fee simple and occupies it
as her home. Her grantors and immediate predecessors in
title were named as co-defendants in the suit. In this action,
the respondents sought and obtained a decree setting aside
the deed and conveyance to the petitioner and enjoining her
from ownership, use and occupancy of the said premises.
2. Theory and Factual Basis of the Suit.
The essential facts are undisputed. On or about Septem
ber 1, 1925, the owners of thirty-two parcels of land con
stituting one city block and located on the east and west
sides of First Street, Northwest, between Adams and W
Streets, in the District of Columbia, subscribed to a con
tract under seal, providing in its essential parts as follows:
“ The parties hereto do hereby mutually agree, prom
ise and covenant, each with the other and for their
respective heirs and assigns, that no part of the land
now owned by the parties hereto, a more definite de
scription of said property being given after the respec
tive signatures hereto, shall ever be used or occupied
by, or sold, conveyed, leased, rented or given to
3
Negroes or any person or persons of the Negro race
or blood. This covenant shall run with the land and
bind the respective parties hereto, their heirs and as
signs, for the period of twenty-one years from and
after the date of these presents.” (R. 4.)
This contract was not a part of or incidental to any con
veyance of land. It was recorded in the Land Records of
the District of Columbia. Petitioner’s property, the sub
ject-matter of the present dispute, is within the area which
the contract purports to restrict.
One of petitioner’s remote predecessors in title signed
the contract. Petitioner purchased the property with
knowledge of the existence of the contract. Petitioner has
occupied the premises continuously since February 21,1944.
The area in which the property is located is residential
in character. However, most of the parcels covered by the
contract in question are no longer occupied by the signa
tories to the instrument, but are now used as apartment
buildings and rooming houses (R. 31). The property in
this area has a greater monetary sale value to colored pur
chasers than to white purchasers (R. 31). The con
tiguous areas to the south and west are unrestricted and
contain numerous parcels owned and occupied by Negroes
(R. 25).
B.
JURISDICTION.
The jurisdiction of this Court is invoked under Section
240 of the Judicial. Code (28 U. S. Code, Sec. 347 (a)).
The judgment sought to be reviewed was entered in the
Court of Appeals on January 29, 1945. Petitioner’s appli
cation for a rehearing was denied on February 16, 1945.
The opinion of the Court of Appeals is filed as part of the
Record herein (R. 36) but is not yet officially reported.
4
0.
QUESTION PRESENTED.
Under the Constitution and laws of the United States and
consistent with the public policy of the United States and
the principles of equity jurisprudence may a court of the
United States enjoin a Negro from the use and occupancy
of her home and set aside a conveyance to her, solely be
cause of a contract by a remote predecessor in title, to
which neither the Negro purchaser nor her grantor was
party, purporting to prohibit the disposition of that prop
erty to or its occupancy by Negroes?
D.
REASONS RELIED ON FOR ALLOW ANCE OF
THE WRIT.
1. The Circuit Court of Appeals for the District of Co
lumbia has given improper construction and effect to the
decision of this court in Corrigan- v. Buckley, 271 U. S. 323.
2. This case presents a question of general importance
which should be, but has not been settled by this Court;
namely, whether landowners in the District of Columbia
may, by their contract not incorporated in any instrument
of conveyance, restrain successors in the chain of title from
sale or other dispositions of the land to members of the
Negro race, and thus exclude Negroes from the future use,
occupancy or ownership thereof, because of their race or
color.
3. This case presents a question of substance relating to
the Constitution and laws of the United States; namely,
whether a racial restriction on alienation and acquisition
of land which, under the decision of this Court in Buchanan
v. Warley, 245 U. S. 60, would be unconstitutional if im
posed by a legislature, may be imposed by judicial action
upon a grantor and a grantee, who have not consented to
such restriction.
Each of the foregoing questions was seasonably and
properly raised in the District Court and in the Court of
Appeals for the District of Columbia, and was considered
and decided adversely to the petitioner herein in both of
said courts. However, of the three Justices who heard the
appeal, only one, Chief Justice Groner, concluded that peti
tioner’s contentions were unsound. Justice Edgerton, in a
dissenting opinion, agreed with all of the contentions upon
which this petition is predicated. Justice Miller, while con
curring with the result reached by the Chief Justice, based
his concurrence upon stare decisis, expressly recognized the
merit of Justice Edgerton’s dissent, and stated that “ if
judicial reinterpretation of the law is now in order, it is the
function of the Supreme Court, as the highest Court of the
District of Columbia, so to advise us.”
In support of the foregoing grounds of application your
petitioner submits herewith the accompanying brief setting
forth in detail the precise facts and arguments applicable
thereto. Petitioner further states that this application is
filed in good faith and not for purposes of delay.
6
CONCLUSION.
Wherefore, it is respectfully submitted that this petition
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the District of Colum
bia should be granted.
J ames A. Cobb,
Washington, D. C.
George E. C. H ayes,
Washington, D. C.
L eon A. R ansom ,
Washington, D. C.
W illiam H . H astie,
Washington, D. C.,
Attorneys for Petitioner.
S pottswood W. R obinson, III,
Richmond, Va.
T htirgood M arshall,
New York, N. Y.
Of Counsel.
7
IN THE
Supreme Court of the Winittb States
October T erm , 1944.
No.
Clara I. M ays, Petitioner,
v.
W illiam T. B urgess, F rances E. B urgess, H. P.
GrUMBRECHT, AGNES B. M uLARKEY, M ary
C. Carleton, Respondents.
BRIEF IN SUPPORT OF PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA.
OPINION OF COURT BELOW.
The opinion of the United States Court of Appeals for
the District of Columbia is not yet officially reported but
is printed in the record filed in this cause (B. 36).
JURISDICTION.
The jurisdiction of the Court is invoked under Section
240(2) of the Judicial Code (28 IT. S. Code Sec. 347 (a)).
The date of the judgment in this case is January 29, 1944
8
(R. 48). Petition for rehearing was filed within the time
provided by the Rules of the United States Court of Ap
peals for the District of Columbia and was denied on Feb
ruary 16, 1945 (R. 49).
STATEM ENT OF THE CASE.
The statement of the case and a statement of the salient
facts from the record appear in the accompanying petition
for certiorari. Any necessary elaboration of the facts will
be-made in the course of the argument.
ERRORS BELOW RELIED UPON HERE.
In enjoining a Negro from the use and occupancy of her
home and in setting aside a conveyance to her solely be
cause O'f a contract by a remote predecessor in title purport
ing to prohibit future disposition of that property to or its
occupancy by Negroes, the Court of Appeals erred in that:
I. Improper construction and effect have been given to
the decision of this Court in Corrigan v. Buckley.
II. Principles controlling equitable discretion have been
violated in a matter of large public concern.
III. The judicial arm of government has imposed racial
restrictions which may not under the Constitution and laws
of the United States be imposed by a legislature.
ARGUMENT.
I .
The Court of Appeals Has Given Improper Construction
and Effect to the Decision of This Court in Corrigan
v. Buckley.
The decision below and all other cases in this jurisdiction
holding that the courts have the power to effectuate racial
restrictive covenants are based upon Corrigan v. Buckley,
55 App. D. C. 30, 299 Fed. 899; appeal denied 271 U. S. 323.
In the case a't bar, Chief Justice Groner stated:
9
“ we are unable to find anything in the points
we are asked to consider which we have not heretofore
considered and decided adversely to appellants’ con
tentions. As long ago as 1924, in the case of Corrigan
v. Buckley, 55 App. D. C. 30, 299 Fed. 899, we were
called on to decide as to the constitutional validity of
an identical covenant, and likewise whether such a
covenant should be declared to be against public policy.
We held in favor of the validity of the covenant and
against the claims that its provisions were contrary to
public policy. On appeal to the Supreme Court, it was
held that neither the constitutional nor statutory ques
tions relied on as grounds for the appeal had any sub
stance or color of merit, or afforded jurisdictional basis
for the appeal * *
The concurring opinion by Mr. Justice Miller in the in
stant case relied upon Corrigan v. Buckley, and at the same
time cast doubt upon the soundness of its conclusions:
“ The Supreme Court and this Court have estab
lished the law for the District of Columbia as it is set
out in the majority opinion, and we are bound to follow
it. The considerations urged by Mr. Justice Edgerton
are persuasively presented. If proper weight was not
given to them in the earlier decisions and if present-
day conditions do not justify the position then taken,
it has been within the power of Congress to change the
law, during all the intervening years. If judicial re
interpretation of the law is now in order, it is the func
tion of the Supreme Court, as the highest Court of the
District of Columbia, so to advise us.’ ’
Another typical generalization predicated upon Corrigan
v. Buckley appears in Hundley v. Gorewits, 77 App. D. C.
48, 132 F. (2d) 23:
“ * * * it must now be conceded that the settled law in
this jurisdiction is that such covenants as this are valid
and enforceable in equity by way of injunction. Corri
gan v. Buckley, 55 App. D. C. 30, 299 Fed. 899. * * * ”
1 0
In passing it is noted that almost every state decision
dismisses the question in the same uncritical fashioh, citing
Corrigan v. Buckley as the leading case.
All of these cases, including the decision below, miscon
strue Corrigan v. Buckley, which was decided in this Court
solely on the question of jurisdiction to entertain an appeal
under Section 250 of the Judicial Code, and in the Court
of Appeals upon the postulation of a fallacy.
The facts in the case of Corrigan v. Buckley are these:
Mrs. Corrigan, a white woman, and Mr. Buckley, a white
man, were parties to a restrictive agreement. Mrs. Corri
gan subsequently entered into an agreement to sell to Mrs.
Curtis, a colored woman. Buckley filed suit in equity for
specific performance of the agreement against Mrs. Corri
gan. The court entered judgment against Mrs. Corrigan,
forbidding her to sell to Mrs. Curtis. The case was ap
pealed to the Supreme Court of the United States 'under
the provisions of Section 250 of the Judicial Code. The
Supreme Court dismissed the case for want of jurisdiction
in these words:
“ And, while it was further urged in this Court that
the decree of the courts below in themselves deprived
the defendants of their liberty and property without
due process of law, in violation of the Fifth and Four
teenth Amendments, this contention likewise cannot
serve as a jurisdictional basis for the appeal. Assum
ing that such a contention, if of a substantial character,
might have constituted ground for an appeal under
paragraph 3 of the Code provision, it was not raised by
the petition for the appeal or by any assignment of
error, either in the Court of Appeals or in this Court;
and it is likewise lacking in substance.
“ It results that, in the absence of any substantial
constitutional or statutory question giving us jurisdic
tion of this appeal under the provisions of Sec. 250 of
the Judicial Code, we cannot determine upon the merits
the contentions earnestly pressed by the defendants in
this Court that the indenture is not only void because
contrary to public policy, but is also of such a discrim
inatory character that a court of equity will not lend
11
its aid by enforcing the specific performance of the
covenant. These are questions involving a considera
tion of rules not expressed in any constitutional or
statutory provision, but claimed to be a part of the
common or general law in force in the District of
Columbia; and, plainly, they may not be reviewed
under this appeal unless jurisdiction of the case is
otherwise acquired.
“ Hence, without a consideration of these questions,
the appeal must he, and is dismissed for want of juris
diction.” (Italics added)
So it is crystal clear that this Court did not and could not
determine upon the merits of the case, and especially
whether these discriminatory covenants were against pub
lic policyD Such question^ could only be considered if the
Court had acquired jurisdiction and had examined the case
on its merits. The Court did not consider the question of
legal restraint on alienation of land. No question arose
concerning a.covenant running with the land since the suit
was between two parties to a contract. There is not yet
any decision of this Court on the merits of these questions,
but it is significant that some time later, in the case of Har
mon v. Tyler, 273 U. S. 668, the Supreme Court reversed
the judgment of a Louisiana case where the segregation
of colored people was attempted by means of powers of sale
in deeds and instruments. It is also' significant that the
Supreme Court of the United States granted certiorari in
the case of Hansherry v. Lee, 311 U. S. 32 when it might
have dismissed the case under the rule that ordinary res
adjudicata is a matter of local law which is left
to state courts for their decision. Nevertheless, in Hans
herry v. Lee, the case was reviewed and reversed without
remandment.
While the Corrigan decision contains an intimation by
way of dictum that no substantial constitutional question is
presented by the facts of that case, it is to be remembered
that this Court was not then eommitteed to the doctrine
that common law determinations of courts can constitute
/
1 2
reviewable violations of the due process clause. But the
Court is now committed to that doctrine. American Federa
tion of Labor v. Swing, 312 U. S. 321.
Moreover, the constitutional question urged but not de
cided in the Corrigan case, whether due process is denied
when a party to a restrictive covenant is prevented from
breaking his promise not to sell to Negroes, is very differ
ent from the question here—whether a court denies due
process when it makes such an agreement binding on per
sons who were strangers to the contract. This was recog
nized by Mr. Justice Edgerton, who, in his dissent below,
said:
“ It is true than in 1924 in Corrigan v. Buckley, this
court restrained a party to a contract like the one be
fore us from making a conveyance in violation of his
contract. # * * It does not follow that a mere contract
like the one before us, against selling land to Negroes,
is enforceable against a subsequent owner of the land
who has notice of the contract but is not a party to it.
Whether it is so enforceable is a question which this
court has never had occasion to decide until now. * * *
The majority opinion does not and consequently, on
analysis, the concurring opinion does not contend that
the Supreme Court has determined either the question
of particular equities or the question of general policy
on which this case turns. If, as the majority say, de
cisions of our court have determined these questions
adversely to appellants, we should overrule the de
cisions. We cannot turn the Supreme Court’s power
of review into a duty or our duty of reinterpreting the
law into a privilege.”
Next to be considered is the decision of Corrigan v.
Buckley in the Court of Appeals. Mr. Justice Van Orsdel,
speaking for the court, said:
“ * * * The constitutional right of the Negro to ac
quire, own, and occupy property does not carry with
it the constitutional power to compel sale and convey
ance to him of any particular private property. The
individual citizen, whether he be black or white, may
13
refuse to sell or lease his property to any particular
individual or class of individuals. The State alone
possesses the power to compel a sale or taking of pri
vate property and that only for public use.” (Italics
added) (55 App. D. C. at 31.)
The court had to postulate that hypothetical state of
facts and pose a question not in issue to reach its decision.
Such a statement is worse than an inverted manner of
stating the issues involved; it is utterly without founda
tion in fact, or reasoning in logic. The use of such devise
upon which to base a decision showrs how- far afield the
court had to go and the twisting of facts to achieve a result
which is utterly contrary to the plain intent of the Fifth
and Fourteenth Amendments, and Sections 1977 and 1978
of the Revised Statutes enacted by the Congress to secure
the rights of property to Negroes. There was no question of
compelling white persons to sell or rent to Negroes; the
question was whether such covenants could be judicially
enforced against a party thereto, who despite the covenant
wished to sell his property to a Negro.
It must be concluded, therefore, that the issues now be
fore the courts are not decided in Corrigan v. Buckley, nor
is there any significant indication of how they should be
decided.
II.
The Decision Below is a Departure From Correct Principles
of Equity Jurisprudence in a Matter of Large Public
Concern.
A proper exercise of equitable discretion in the light of
the anti-social character of the contract here involved and
the large actual and potential injury to important public
and community interests to be anticipated from the grant
ing of respondents’ prayers should have led the courts
below to refuse to set aside the conveyances under which
petitioner holds title and possession.
14
A. Applicable Principles of Equity Jurisprudence.
The question of the effect to be given to a racial restric
tive agreement purporting to prevent, not only the parties
thereto, but their remote successors in title as well, from
selling particular land to Negroes lies within the area
where equity properly refuses to intervene if an examina
tion of all relevant circumstances, including the position
of the parties, the interests of the community and the
fundamental policies of the state, shows that the granting
of specific redress would be inconsistent with the exercise
of sound and reasoned discretion.
A valuable and instructive analogy is presented by those
cases in which this Court has concluded that agreements
of railroads to maintain certain facilities in a particular
place should not be enforced in equity against the contract
ing railroad or a successor in title. In such a case, Beasley
v. Texas & Pacific By., 191 U. S. 492, 498, Mr. Justice
Holmes, speaking for a unanimous court, said:
“ Whether a railroad station shall be built in a cer
tain place is a question involving public interests.
Assuming that a contract like the present is valid as a
contract, and making the more debatable assumption
that the burden of the contract passed to a purchaser
with notice, it does not follow that such a contract will
be specifically enforced. Illegality apart, a man may
make himself answerable in damages for the happen
ing or not happening of what event he likes. But he
cannot secure to his contractor the help of the court
to bring that event to pass, unless it is in accordance
with policy to grant that help. 'To compel the specific
performance of contracts still is the exception, not the
rule, and courts would be slow to compel it in cases
where it appears that paramount interests will or even
may be interfered with by their action. It has been
intimated by this court that a covenant much like the
present should not be enforced in equity, and that the
railroad should be left at liberty to follow the course
which its best interests and those of the public de
mand. . . . I f it appears that an injunction would be
15
against public policy, the court properly may refuse
to be made an instrument for such a result, whatever
the pleadings. . . . The very meaning of public policy
is the interest of others than the parties and that in
terest is not to be at the mercv of the defendant alone.”
(at 497, 498.)
The decision in the Beasley case was foreshadowed by lan
guage in an earlier opinion involving a similar situation,
Texas S Pacific By. v. Marshall, 136 U. S. 393, where the
Court said:
‘ ‘ But we are further of opinion that if the contract
is to be construed as the appellant insists it should be
construed (so that the proposed removal of facilities
would be a breach) it is not one to be enforced in
equity. . . . Both the public convenience and the best
interests of the railroad would be sacrificed to a con
tract which is perpetual . . . It appears to us that if
the City of Marshall has under such a contract a rem
edy for its violation, it is much more consonant with
justice that the injury suffered by the city should be
compensated by a single judgment in an action at law',
and, the railroad be placed at liberty to follow the
course which its best interests and those of the public
demand, (at 405)
It is petitioner’s contention that the present case in
volves analogous considerations and should be approached
by a court of equity in the same way.
B. Controlling Factors of Public
Policy Adverse to the Enforcement
of Racial Restrictive Covenants.
The following considerations, in application of the fore
going principles to this case, should have been, but were
not, given decisive effect by the courts below.
1. The enforcement of racial restrictive contracts in this
and in similar cases must actually and potentially cause
serious harm to the community by depriving its Negro
16
citizens of adequate housing and confining them to small
and increasingly congested areas to the detriment of their
white neighbors as well as themselves. Mr. Justice Holmes’
observation that “ housing is a necessary of life” (Block
v. Hirsh, 256 U. S. 135, 156 (1921)), states a self evident
truth. Equally apparent is the accuracy of the statement
quoted by Mr. Justice Edgerton, dissenting in this case,
that “ Segregation . . . has kept the Negro-occupied sec
tions of cities throughout the country fatally unwholesome
places, a menace to health, morals and general decency of
cities, and ‘ plague spots for race exploitation, friction and
riots’ ” . (E. 42.) The critical overcrowding of Washing
ton and the even more critical overcrowding of the re
stricted Negro-occupied areas of the city are also
notorious facts. Congress has recognized the local situa
tion in the District of Columbia Emergency Eent Act of
1941 (55 Stat. 788) which contains the following legisla
tive finding:
“ It is hereby found that the national emergency and
the national-defense program have aggravated the
congested situation with regard to housing accommo
dations existing at the seat o f government . . . and are
making it increasingly difficult for persons whose
duties and obligations require them to live or work in
the District of Columbia to obtain such accommoda
tions. ’ ’
The even greater stricture upon Negroes is illustrated by
the evidence in the present case which shows that until
petitioner and her family moved into a “ white” area, thus
precipitating the present suit, they had found it impossi
ble to assemble under one roof and had been forced to live
apart from each other in several rooming places. (E. 33.)
Further documentation of the dangerous conditions exist
ing in the overcrowded “ colored” sections of Washington
appears in the margin of Justice Edgerton’s dissenting-
opinion. (E. 45-46.) It is a matter of greatest public
concern that the health and safety of the community are
17
thus being jeopardized and the heavy burden of taxa
tion made even heavier by creating and maintaining breed
ing places of disease and crime. When a court, as in this
case, enforces a racial restrictive covenant and by so doing
sanctions any and all similar covenants now existing or to
be executed in the future, the discretionary power of equity
is being exercised to perpetuate and extend a grave social
evil. Such action belies both the name and the historic
function of equity.
2. Fundamental national policies expressed in the Con
stitution and laws of the United States are offended by the
contract in the present case. In Buchanan v. Warley, 245
U. S. 60 (1917) this Court decided that legislation imposing
residential segregation upon the Negro deprives the land-
owner of property without due process of law. When a
private contract is specifically enforced by a court so as to
impose an equivalent restriction upon persons not party
to the contract, government has created a rule of judge-
made law equally as effective and equally as objectionable
as the legislation condemned in Buchamm v. Warley. The
constitutionality of such judicial action is challenged in a
subsequent section of this brief. But even before the issue
of constitutionality is reached, it is clear that the constitu
tional prohibition against legislation must at least reflect
national policy against the abuse of the discretionary
power of the chancellor to accomplish the same result.
National policy is even more explicitly formulated in
Section 42 of Title 8 of the United States Code:
“ All citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed
by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.”
The significance of such legislation upon the exercise of
judicial discretion in dealing with contracts inconsistent
with public policy, thus authoritatively declared, has been
stated by one commentator in the following language:
18
“ . . . the courts will refuse to enforce a contract, not
‘ because it is illegal’ or because the legislature ‘ in
tended that a person making such a contract be pun
ished’, but because they have satisfied themselves, in
the light of what has been indicated to them by legis
lative bodies, at home or abroad, the contract is
against public policy. . . . the courts should frown upon
contracts which, though not touching a penal statute,
involve other conduct which has been inveighed
against by the legislature. What is suggested is not
an extension of the scope of judicial disapprobation
of contracts, for at all times the courts have freely
declared that non-criminal agreements might be against
public policy and consequently unenforcible. What is
urged, again, is merely that legislative judgments
should he used as indicators of the occasion for em
ployment of the common law rule governing the valid
ity of contracts.” (Italics added.) Gelhorn, Contracts
and/Public Policy (1935) 35 Col. L. Eev. 678, 691-2.
3. Additional equitable considerations arise out of facts
not common to all restrictive covenant cases but present
here. These will be considered in the immediately follow
ing sub-section of this brief, wherein the situation pre
sented by this case is distinguished from those presented
by other adjudicated cases, including those relied upon by
the majority in the opinion below, in the general field of
restrictive covenants.
C. Additional Equitable Consideration in This
Case Not Involved in Restrictive Covenant Cases
Heretofore Adjudicated and Relied Upon Below.
The courts below have decided that it is proper for a
court of equity to set aside a conveyance made to a Negro
by a landowner who wishes thus to dispose of his property,
solely because some former owner of the estate promised
his neighbors that the property would not be sold to Ne
groes. Such precise statement of the issue is of special
importance here because it reveals that this case presents,
not only the question whether equity should ever enforce
19
racial restrictive covenants, but also considerations of
equitable consequence favorable to the petitioner which
have not been decided by this court, or the courts of the
District of Columbia, or any state court of last resort. The
situations heretofore adjudicated will be classified and
their essential dissimilarity to the present case pointed out.
1. This case is unlike those in which relief has been
sought against a covenantor who has broken his promise
not to sell to Negroes. Such a breach of contract by a
promisor was the matter in issue in the Distinct of Colum
bia decisions upon which the majority have relied as well
as in several state decisions. E.g., Corrigan v. Buckley,
55 App. D. C. 30, 299 Fed. 899, appeal dismissed 271 U. S.
323; Russell v. Wallace, 58 App. D. C. 357, 30 F. (2d)
981, cert, denied 279 U. S. 871; Wayt v. Patee, 205 Calif.
46, 269 Pac. 660. Petitioner contends that even in these
cases, equity should recognize public policy adverse to such
agreements as outweighing the policy of making covenant
ors generally keep their bargains. But where courts of
equity have enforced such agreements, the argument has
prevailed that the policy of holding promisors to their
bargains was the stronger and controlling policy. Here,
however, no one has broken a promise. The considerations
of public policy against racial restrictive covenants can
be considered and given controlling effect without competi
tion with any countervailing policy.
2. Also distinguishable are the cases which present the
issue whether racial restrictive covenants incorporated in
conveyances may run with the land. E. g .: Torrey v. Wolfes,
56 App. D. C. 4, 6 F. (2d) 702, also relied upon by the
court below. While such covenants in deeds should be
denied enforcement in equity for the reasons heretofore
stated and applicable to all such covenants, an additional
consideration of great importance is presented when an
attempt is made to achieve the same result by a simple
contract. The practical probability of covenants in deeds
20
achieving widespread exclusion of Negroes from a com
munity is much less than the danger and likelihood of this
result if a simple contract is permitted to run with the land.
The normal occasions for conveyances are infrequent and
the formal procedures involved are forbidding to the aver
age citizen. But the device of a simple contract or a series
of such contracts lends itself to easy and informal restric
tion of great areas or even an entire community. Pressure
of bigoted agitators, the abdication of judgment in the
hysteria of a passing period of racial tension, the insistence
of one’s neighbors that he join with the majority in a
neighborhood agreement, all of the psychological factors
which lead to capricious and unconsidered mob action,
operate effectively to induce the landowner to sign such
an agreement. No apparent burden is imposed upon the
signer, no substantial change of position is required, no
work is entailed. Only the signing of his name on a simple
agreement is required. It is surely not the function of
equity to make thus easy of accomplishment a restraint on
alienation which will bind future owners as well' as the
unreflecting signer.
3. Decisions involving only restrictions upon use are also
to be distinguished from the present restriction upon sale
to Negroes. Even where equity has been willing to enforce
restrictions on use of land it has not followed that sale
might likewise be restricted. Free user is but one incident
of ownership. It is substantially less restraint on alien
ation to cut off this one incident of ownership than to pre
vent transfer of title itself. Courts sustaining restrictions
on use have sharply distinguished such restrictions from
restraints on sale. Thus, in Meade v. Dennistone, 173 Md.
295, 196 Atl. 330, a case upon which the opinion
below relies, the court was at pains to make this distinction
saying, the rules against restraints on alienation were
only intended to make conveyancing free and unrestrained
and have nothing to do with use and occupancy” (italics
added).
21
4. The research of counsel has revealed only three cases
involving (a) a contract not in a conveyance, (b) restricting
sale and ownership and (c) enforced to prevent voluntary
sale to a Negro by an owner not party to the contract.
One of these, Lee v. Hcmsberry, 372 111. 369, 24 N. E. (2d)
37, was reversed by this Court (311 U. S. 32) with
out decision upon the issue here involved. No further
proceedings to enforce the covenant in that case appear
of record. The second case, that upon which the Illinois
decision in Lee v. Hansberry was predicated, is Burke v.
Kleinman, 277 111. App. 519. The records of the Superior
Court of Cook County show that the original decree in
that case was set aside on it having been revealed that the
litigation was fraudulent and collusive.
The third and last decision is Stewart v. Cronrn, 105
Colo. 393, 98 Pac. (2d) 999. However, in that case
a Negro purchaser was the moving party seeking affirma
tive action by a court of equity to quiet his title as clouded
by a restrictive contract. The court refused to grant
relief. The defendants did not file a cross-bill. Hence, the
actual decision is in no way inconsistent with a refusal of
equity to act on the petition of a covenantor seeking affir
mative relief by way of enforcement of a covenant.
It follows that there is no authoritative precedent in the
reported decisions, federal or state, which is not distin
guishable from the present situation. Thus, the decision
of the court below does not follow any established rule of
law. The reluctance of courts to upset settled rules of
property law is not a factor in this case. Even the erro
neous doctrines under which restrictive covenants have
been enforced at times in distinguishable situations have
not been applied to upset the titles of Negro landowners in
such a case as is now before this Court.
22
III.
Judicial Enforcement of the Covenant in Question is Viola
tive of the Constitution and Laws of the United States
in That the Judiciary Does That Which It Prohibits
the Legislature to do, and That It Gives Judicial Sanc
tion to Private Action Which is Criminal Under the
Laws of the United States.
When the Government through its courts enforces the
type of restrictive covenant herein complained of, it is
governmental action proscribed by the Constitution of the
United States.
A. The Right to Take and Hold Property
is Protected by the Constitution and Laws
of the United States.
The right to take and hold property is one of the funda
mental and inherent rights and privileges guaranteed by
the Constitution of the United States:
“ The citizens of each state shall be entitled to all
the privileges and immunities of citizens in the several
States.” Article IV, Sec. 2.
“ * * * No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any
person of life, liberty, or property without due process
of law.” Amendment XIV. Sec. 1.
“ No person shall * * * be deprived of life, liberty or
property without due process of law. * * * Amend
ment V.
While this Court has carefully refrained from attempting
to enumerate the several privileges and immunities, it has
always recognized the right to acquire, hold, use and dis
pose of property, both real and personal, as one of those
rights.* See Ward v. Maryland, 12 Wall. 418, 430; The
Slaughterhouse Cases, 16 Wall. 36.
23
Whether the right to acquire and hold property is a right
inherent in state or federal citizenship is beside the point
in this case. Whichever it may be, it is guaranteed safety
from attack by either the state or federal government
under the quoted provisions of the Constitution. See
Buchanan v. Warley, supra-, Harmon v. Tyler, 273 U. S.
668; City of Richmond v. Deans, 37 Fed. (2d) 712, aff’d
281 U. S. 704.
That the bulwark of these constitutional protections is
thrown about the residents of the District of Columbia
equally with the citizens of the several states is abundantly
clear from Lappin v. District of Columbia, 22 App. D. C.,
68, and Neild v. District of Columbia, 71 App. D. C. 306,
110 Fed. (2d) 246. Moreover this Court has repeatedly
held that for the purposes of interpretation and appli
cation of the provisions of the Constitution, the District
of Columbia is to be treated as one of' the States
of the Union. Downes v. Bidwell, 182 U. S. 244; Geofroy
v. Riggs, 133 U. S. 258. It follows then that the prohibi
tions of the Fourteenth Amendment apply to governmental
action in and by the District of Columbia. But if there
be any doubt of this, the prohibitions of the Fifth Amend
ment achieve the same result so far as the national gov
ernment is concerned.
To make certain that there be no misapprehension about
the national policy on this important problem, Congress
has not been content to rely upon the protection afforded
in the basic framework of the Government. Instead, in
order to clearly demonstrate the purpose of the people of
the United States that there should be no restrictions
placed upon the right of a citizen to acquire and hold
property, national legislation was enacted, which makes the
right of acquisition of property one that is protected by
the laws of the United States as well as the Constitution.
In 1866, the following provision was enacted:
“ All citizens of the United States shall have the
same right, in every State and Territory, as is enjoyed
24
by white citizens thereof, to inherit, purchase, lease,
sell, hold and convey real and personal property.”
U. S. Code, Tit. 8, Sec. 42; R. S. 1798.”
i
The constitutionality of this section has never been
challenged.
From the foregoing- it must, therefore, be inevitably
concluded that the right of the petitioner to acquire, hold
and use real property in the District of Columbia is an in
herent privilege and immunity of her citizenship.
B. The Government Through the Courts
Below Has Been the Effective Agent in
Depriving the Petitioner of Her Property.
This proposition is the legitimate and logical conse
quence of the unanimous decision of the Court in Buchanan
v. Warley, 245 U. S. 60. There it was attempted, by legis
lation in the form of a city ordinance, to forbid colored
persons from occupying houses as residences or places of
abode, or public assembly, on blocks where the majority
of the houses were occupied by white persons for those
purposes, and in like manner forbidding white persons
when the conditions as to occupancy were reversed, and
which based the interdiction upon color and nothing more.
Here the judgments of the District Court and the Court of
Appeals, District of Columbia have forbidden Consolidated
Properties, Inc., from selling to Mrs. Mays, a colored per
son, and Mrs. Mays from buying a house in the residential
district of Washington solely because she is of Negro
race or blood, and have permanently enjoined Mrs. Mays
from taking title to this property, from using, occupying,
or disposing of it. (R. 27)
The question that was to be determined in Buchanan v.
Warley was thus stated by Mr. Justice Day, page 75:
‘ ‘ The concrete question here is: May. the occupancy,
and, necessarily, the purchase and sale of property of
which occupancy is an incident, be inhibited by the
25
State, or by one of its municipalities, solely because
of the color of the proposed occupant of the prem
ises!”
In the course of the discussion of this proposition, it
was said:
“ Property is more than the mere thing which a person
owns. It is elementary that it includes the right to
acquire, use, and dispose of it. The Constitution pro
tects these essential attributes of property. Holden
v. Hardy, 169 IT. S. 366, 391. Property consists of the
free use, enjoyment, and disposal of a person’s acqui
sitions without control or diminution save by the law
of the land. 1 Blackstone’s Commentaries (Coolev’s
Ed.), 127.”
After referring to the authorities and statutes cited by
him, Mr. Justice Day very appropriately asked—
“ In the face of these constitutional and statutory
provisions, can a white man be denied consistently
with due process of law, the right to dispose of his
property to a purchaser by prohibiting the occupation
of it for the sole reason that the purchaser is a person
of color intending to occupy the premises as a place of
residence?” (at 78)
He answered by saying:
“ The statute of 1866, originaly passed under sanc
tion of the Thirteenth Amendment, 14 Stat. 27, and
practically re-enacted after the adoption of the Four
teenth Amendment, 16 Stat. 144, expressly provided
that all citizens of the United States in any State shall
have the same right to purchase property as is enjoyed
by white citizens. Colored persons are citizens of the
United States and have the right to purchase property
and enjoy and use the same without laws discrimin
ating against them solely on account of color. Hall v.
DeCuir, 95 U. S. 485, 508. These enactments did not
deal with the social rights of men, but with those fun
damental rights in property which it was intended to
secure upon the same terms to citizens of every race
and color, (at 78).
26
The final paragraph of the opinion states the deliberate
conclusion of this Court:
“ We think this attempt to prevent alienation of the
property in question to a person of color was not a
legitimate exercise of the police power of the State,
and is in direct violation of the fundamental law
enacted in the Fourteenth Amendment of the Consti
tution preventing State interference with property
rights except by due process of law. That being the
case the ordinance cannot stand.”
We have, therefore, the solemn pronouncement of this
tribunal that it was not within the legislative power of the
State, or any of its instrumentalities, to forbid Consoli
dated Properties, Inc., from selling the house to Mrs. Mays,
or the latter from purchasing and occupying it.
For the reasons considered in Buchanan v. Warley, it
would have been beyond the legislative power to have
enacted that a covenant in the precise terms of that in
volved in the present ease should be enforceable by the
courts by suit in equity and by means of a decree of
specific performance, an injunction, and proceedings for
contempt for failure to obey the decree. It seems incon
ceivable that, so long as the legislature refrains from
passing such an enactment, a court of equity may, by its
command, compel the specific performance of such a
covenant, and thus give the sanction of the judicial depart
ment of the Government to an act which it was not within
the competency of its legislative department to authorize.
But in this case the courts below have gone further.
They have not required that parties perform their con
tracts. They have by judicial action created a rule of
property and have made that rule binding upon persons
who have not agreed to it. In such circumstances it must
be entirely clear that the Government and only the Govern
ment is the effective force depriving the petitioner of her
property.
27
We cannot emphasize too strongly that the immediate
consequence of the decrees now under review is to bring
about that which the legislative and executive departments
of the Government are powerless to accomplish. It would
seem to follow that by these decrees the petitioner has been
deprived of liberty and property, not by individual, but
by governmental action. These decrees have all the force
of a statute. They have behind thdm the sovereign power.
It is not Burgess, the respondent, but the sovereignty,
which speaks through the court, that has issued a mandate
to the petitioner which prevents Consolidated Properties,
Inc. from selling, leasing or giving its property to Mrs.
Mays, and the latter from acquiring and occupying the
property, simply because she is of the Negro race or blood.
In rendering these decrees, the courts which have pro
nounced them have functioned as the law-making power.
It is they who are seeking to effectuate the policy of racial
segregation based on color. They have virtually announced
to all colored persons: “ You shall not inherit, purchase,
lease, sell or hold real property for the acquisition of which
you have entered into a contract, simply because you are
of the Negro race or blood.” They have told those of the
white race who have entered into a covenant such as is
referred to in the decree:,“ You shall not sell, lease, or give
your property to any person of the Negro race or blood.”
They have practically declared: “ If the owners of property
in a particular locality, however extensive its area may be,
see fit to agree on such a policy of segregation, these courts,
sitting in equity, may by their decrees enforce such a policy,
even if it be conceded that they would be prohibited from
doing so by the decision of the Supreme Court of the
United States if the legislative branch of the Government
had established a like policy.”
To test the incongruity of such a situation, let us suppose
that after the decision in Buchanan v. Warley, the Common
Council of the City of Louisville had adopted an ordinance
permitting the residents of the same districts which were
28
affected by the ordinance which this Court had declared
unconstitutional, to enter into a covenant in the precise
terms of that which the courts below have enforced in this
case, would it not at once havb been said that it was an
intolerable invasion of the Constitution as interpreted by
this Court. But that is exactly what has been done in the
present case by the adjudications which are now here for
review.
Or let us suppose, that after the rendition of these de
crees, Consolidated Properties, Inc., standing on its consti
tutional rights, had executed a deed of the premises here
in question to Mrs. Mays, and the latter had proceeded to
occupy them. At that point the exercise by the court of
its power to enforce its decrees through the medium of
contempt proceedings, would be the most extreme form of
governmental action employed to enforce the policy of
racial segregation based on color, in violation of the letter
and spirit of the Constitution as interpreted in Buchanan
v. Warley.
Such inconsistency between legislative and judicial
action was the subject of the following comment in
Gandolfo v. Hartman, 49 Fed. 181:
“ It would be a very narrow construction of the con
stitutional amendment in question and of the decisions
based upon it, and a very restrictive application of the
broad principles upon which both the _ amendment and
the decisions proceed, to hold that, while the State and
municipal legislatures are forbidden to discriminate
against the Chinese in their legislation, a citizen of the
State may lawfully do so by contract, which the Courts
may enforce. Such view is, I think, entirely inadmis
sible. Any result inhibited by the Constitution can no
more be accomplished by contract of individual citi
zens than by legislation, and the court should no more
enforce the one than the other. * * * But the principle
governing the case is, in my opinion, equally applicable
here, where it is sought to enforce an agreement made
contrary to the public policy of the government, and
in violation of the principles embodied in its Constitu
tion. Such a contract is absolutely void and should not
29
be enforced in any Court, certainly not in a court of
equity of the United States.” (at 182, 183)
Compare: Kennett v. Chambers, 14 How. 38.
Therefore, it is respectfully submitted that the enforce
ment of these covenants by a court is governmental action,
which is prohibited by the Constitution of the United
States. It is the enforcement of such covenants by judicial
officers which violates the Constitution, not the mere
making of the agreement by the private land owners.
C. The Covenant in Question is a
Criminal Conspiracy, Unenforceable in
the Courts of the United States.
The foregoing argument has demonstrated that the
right to acquire, use and occupy land, as well as the right
to dispose thereof, is one that is protected by both the Con
stitution and the laws of the United States. (Se e : Buchanan
v. Warley, supra.) Congress has protected this right by
making it a felonious conspiracy to injure or oppress peti
tioner in the exercise thereof. * Section 51 of Title 18 of
the United States Code provides:
“ If two or more persons conspire to injure, oppress,
threaten or intimidate any citizen in the free exercise
or enjoyment of any right or privilege secured to him
by the Constitution or laws of the United States, or
because of his having so exercised the same—they shall
be fined not more than $5,000 and imprisoned not more
than ten years, and shall, moreover, be thereafter
ineligible to any place of honor, profit, or trust created
by the Constitution or laws of the United States.”
There is no doubt that a written agreement, solemnly
executed, and recorded as a deed, by a group of property
owners to the effect that a person shall be deprived of his
constitutional right to acquire and use property solely
because of his race and color, is evidence of the highest
order that there has been effected, between the signatories
thereto a conspiracy to deprive the person affected of a
30
right secured to him by the Constitution and laws of the
United States.
The specific question at bar has been passed upon by a
Federal District Court in Arkansas. In the case of United
States v. Morris, 125 Fed. 322, after showing that by virtue
of the Thirteenth Amendment, Congress had the power to
enact this legislation regarding the acts of individuals, the
court proceeded to discuss the validity of an indictment of
certain defendants who had conspired to keep Negroes
from the right to lease and cultivate private lands. In an
elaborate and scholarly review of the history of the Act,
the court came to the conclusion that a mere agreement
to keep Negroes out of lands was the very type of act pro
hibited by the legislation, and concluded:
“ That the rights to lease lands—are fundamental
rights inherent in every citizen, is indisputable; and a
conspiracy by two or more persons to prevent Negro
citizens from exercising these rights because they are
Negroes is a conspiracy to deprive them of a privilege
secured to them by the Constitution and the laws of the
United States, within the meaning of Section 5508,
Rev. St. U. S. (U. S. Comp. St. 1901, p. 3712) ” (at 331)
From this argument only one conclusion can be deduced
—the covenant in question constitutes a conspiracy to vio
late the laws and the Constitution of the United States.
May a federal court, acting as an arm of the federal govern
ment, lend its aid to the enforcement of a criminal agree
ment to deprive a citizen of one of her privileges or immu
nities of citizenship? Only one answer can be given to this
question, and this Court has unmistakably given that
answer, when, speaking through Chief Justice Taney in
Kennett, et al. v. Chambers, 14 How. 38, it said:
“ The question is—whether such a contract, made at
that time, within the United States, for the purposes
stated in the contract and the bill of complaint, was a
legal and valid contract, and such to entitle either
party to the aid of the courts of justice of the United
States to enforce its execution—
31
. ‘.‘ for as the sovereignty resides in the people, every
citizen is a portion of it, and is himself personally
bound by the laws which the representatives of the
sovereignty may pass—within the scope of their dele
gated authority—. It is his own personal compact as
a portion of the sovereignty in whose behalf it is
made. And he can do no act, nor enter into any agree
ment to promote or encourage revolt or hostilities
against the territories of a country with which our
government is pledged by treaty to be at peace, with
out the breach of his duty as a citizen, and the breach
of the faith pledged to the foreign nation. And if he
does so he cannot claim the aid of a court of justice to
enforce it;—our own freedom cannot be preserved
without obedience to our own laws, nor social order
preserved if the judicial branch of the government
countenanced and sustained contracts made in viola
tion of the duties which the law imposes—.” (at 49,50)
(Italics added)
The position here taken by Chief Justice Taney has
never been questioned. In fact, it cannot be questioned
except by revolution. The signatories to the covenant at
bar are likewise parties to Article IV, and Amendments V
and XIV of the Constitution and to Sections 41, 42, Title
8, United States Code and Section 51, Title 18, United
States Code. They obviously contradict each other and can
not stand together. The lesser indignity, the private agree
ment, must yield to the paramount authority of their public
compact. Any other conclusion is to say that not only will
this Court permit respondents to deny their solemn adher
ence to the Constitution and laws of the United States, but
at the same time give their criminal agreement in violation
thereof the sanction of a rule of property.
Speculation is unnecessary. The courts of the United
States have already spoken on the matter. It has been
unanimously held that conspiracies such as here involved
cannot be enforced through the medium of the very agencies
designed to protect citizens in their privileges and imuni-
ties. The leading case is Gandolfo v. Hartman, 49 Fed. 181.
32
There the court held that a covenant restricting the lease of
property to others than those of the Chinese race was:
“ * * * contrary to public policy of the government, in
violation of a principle embodied in its constitution.
Such a contract is absolutely void and should not be
enforced in any court—certainly not in a court of
equity of the United States. (Italics added)
The principle announced there has been consistently ad
hered to. Federal courts have repeatedly refused to
enforce contracts which embody provisions violative of our
Constitution or laws. See: Fox v. Gardner, 21 Wall. 475;
The Spartan, 25 Fed. 44; Ex Parte Reeves, 121 Fed. 848;
The Fri, 154 Fed. 333; Grossman v. Union Trust Co., 228
Fed. 610; Lakos v. Saliaris, 116 Fed. (2d) 440. State
courts have taken similar views of the problem. See: Lee
v. Boise Development Co., 21 Idaho 461, 122 Pac. 851; Por
ter et al. v. Barrett et al., 233 Mich. 373, 206 N. W. 532;
L. R. A. 1916B, 1208,1209 ; 9 A. L. R. 120, et seq. The rules
of the common law are too well known to require any cita
tions. Individuals never have had the right of absolute free
dom of contract in the sense that judicial recognition and
enforcement of their private agreements may be had when
such agreements run counter to the general welfare and
the public policy of the sovereign. Usurious, gambling,
immoral contracts ar all illustrative of the principle that
the courts will not lend their aid to the enforcement of such
agreements.
As is said in Ex parte Reeves, supra, to enforce the
rights contended for here by the respondents would be to
allow the very guardian of our liberties to do that indi
rectly which they have in solemn form and under highest
sanction sworn they would not do directly. The jewel of
consistency may not be so tarnished—at least not at the
hands of a Federal Court sitting in equity. The right here
asserted by petitioner is not hers alone—it is the right of
Americans—to preserve the fundamental liberties of all
against the tyranny of a temporary majority. Jones, J.,
33
foresaw this in Ex parte Reeves, supra, when he said:
(at 856)
“ Is it only the claim of a private individual which is
here involved?-—The principle here involved affects the
rights of millions of parents in this land. The matter
is one of highest public concern, in comparison with
which the insignificance-of the individual or his incon
venience sinks out of sight. Who determines what is
to “ the interest of the public? What are the souces
to which we may resort to ascertain what is public
policy, and what it requires?” Assuredly, only the
will of the people, as declared in the law of the lan̂ 1
CONCLUSION.
Wherefore, it is respectfuly submitted that writ of cer
tiorari should issue from this Court to the United States
Court of Appeals for the District of Columbia.
Respectfully submitted,
J ambs A. Cobb,
George E. C. H ayes,
L eon A. R ansom,
W illiam H. H astie,
Attorneys for Petitioner.
S pottswood W. R obinson III,
T htjbgood M arshall,
Of Counsel.
.