Buchanan v. Warley Decision

    THE DECISION OF THE U. S. SUPREME COURT
IN THE

LOUISVILLE SEGREGATION CASE
(Buchanan vs. Warley 245 U. S. 60.)

ARGUED IN THE SUPREME COURT OB' THE 
UNITED STATES APRIL 11, 1916, AND RE-ARGUED 
APRIL 27, 1917. THE UNANIMOUS DECISION OF 

THE COURT WAS HANDED DOWN
No v e m b e r ' s, 1917

WITH FOREWORD BY

ARTHUR B. SPINGARN
CHAIRMAN OF THE LEGAL COMMITTEE OF 
THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE

PUBLISHED APRIL, 1926 BY THE 
NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE 
FIFTH AVENUE NEW YORK CITY

tested



FOREWORD

Sporadic attempts to legalize enforced residential 
segregation have never been uncommon, but it was not 
until the second decade of this century that there appeared 
an apparently organized attempt to prohibit by legislation 
the free scope of colored people in the purchase and occu­
pancy of homes. Until then, the matter had been generally 
left to the process of natural group cohesion, aided more 
or less by economic pressure and public opinion, with an 
occasional more sinister influence.

Commencing about 1910, a wave of residential segrega­
tion laws swept the country, city after city in the southern 
and border states passed ordinances, the purpose and effect 
of which were to keep colored people from invading the 
areas which had hitherto been restricted to white residents. 
All of these ordinances prohibited whites from living in 
colored districts and on their face purported to protect 
colored people as well as white, but, of course, no one for 
a moment believed that they were anything but the initial 
step in an attempt to create Negro Ghettos throughout the 
United States, with the inevitable crowding, poor lighting 
and worse sanitation, and the resultant higher delinquency 
and crime rates, greater infant mortality and higher death 
rates, from tuberculosis and the other infectious and con­
tagious diseases, together with all the other attendant evils 
which inevitably result from adverse environment.

More than a dozen cities, among them Baltimore, Md., 
Dallas, Texas, Asheville, N. C., Richmond, Va., St. Louis, 
Mo., and Louisville, Ky., within a year passed such ordi­
nances ; these differed in detail but all aimed at the same 
result. The constitutionality of a number of these were 
tested and generally were upheld by the State Courts.



The National Association for the Advancement of 
Colored People, convinced of their unconstitutionality and 
illegality, made a careful test of the ordinance passed in 
Louisville, Ky., and carried the case to the Supreme Court 
of the United States. The case was argued on behalf of 
the Association by its President, Mr. Moorfield Storey, and 
resulted in a unaminous decision in its favor, which is the 
decision printed in this pamphlet. This case established 
the principle for all time, that in the United States, no state, 
city or village can by law prohibit colored men or women, 
because of their color, from purchasing any real property 
they may be able to buy and from occupying any property 
they can buy or rent.

It does not make any difference what form a statute 
or law or ordinance may take. If its purpose is to restrict 
the occupancy or purchase and sale of property, of which 
occupancy is an incident, solely because of the color of the 
proposed occupant or purchaser of the premises, that stat­
ute, law or ordinance is illegal, unconstitutional and void.

This is the law of the land, proclaimed by the highest 
tribunal of the United States and any decision by any other 
court, state or federal, which does not follow the law there 
laid down is illegal and wrong. If a segregation ordinance 
or statute is passed in your city or state, it is illegal. Its 
legality should be tested in the courts, and though the de­
cision may at first be adverse, if the case is carried to the 
Supreme Court of the United States and is properly pre­
pared and argued, that court will ultimately declare the 
statute or ordinance illegal and unconstitutional under the 
doctrines enunciated in Buchanan vs. Warley here 
reprinted.

ARTHUR B. SPINGARN, 
Chairman of Legal Committee, 
National Association for the 
Advancement of Colored People



Supreme Court of the United States

Mr. Justice Day delivered the opinion of the Court.

Buchanan, plaintiff in error, brought an action in the 
Chancery Branch of Jefferson Circuit Court of Kentucky 
for the specific performance of a contract for the sale of cer­
tain real estate situated in the City of Louisville at the 

' corner of 37th Street and Pflanz Avenue. The offer in 
writing to purchase the property contained a proviso:

“ It is understood that I am purchasing the above 
property for the purpose of having erected thereon a 
house which I propose to make my residence, and it is 
a distinct part of this agreement that I shall not be 
required to accept a deed to the above property or to 
pay for said property unless I have the right under the 
laws of the State of Kentucky and the City of Louisville 
to occupy said property as a residence.”

No. 33 —  October Term, 1917

245 U. S. 60

Charles H. Buchanan, 

Plaintiff in Error

William Warley

vs.

In Error to the 
Court of Appeals 
of the State of 

Kentucky.

November 5, 1917

This offer was accepted by the plaintiff.



6

To the action for specific performance the defendant 
by way of answer set up the condition above set forth, 
that he is a colored person, and that on the block of which 
the lot in controversy is a part, there are ten residences, 
eight of which at the time of the making of the contract 
were occupied by white people, and only two (those 
nearest the lot in question) were occupied by colored 
people, and that under and by virtue of the ordinance of 
the City of Louisville, approved May 11, 1914, he would 
not be allowed to occupy the lot as a place of residence.

In reply to this answer the plaintiff set up, among other 
things, that the ordinance was in conflict with the Four­
teenth Amendment to the Constitution of the United 
States, and hence no defense to the action for specific per­
formance of the contract.

In the court of original jurisdiction in Kentucky, and 
in the Court of Appeals o f that State, the case was made 
to turn upon the constitutional validity of the ordinance. 
The Court of Appeals of Kentucky, 165 Ky. 559, held the 
ordinance valid and of itself a complete defense to the 
action.

The title of the ordinance is : “ An ordinance to prevent: 
conflict and ill-feeling between the white and colored 
races in the City of Louisville, and to preserve the public’ 
peace and promote the general welfare by making 
reasonable provisions requiring as far as practicable, the 
use of separate blocks for residences, places of abode, and 
places of assembly by white and colored people respect­
ively.”

By the first section of the ordinance it is made unlaw­
ful for any colored person to move into and occupy as a 
residence, place of abode, or to establish and maintain as



7

a place of public assembly any house upon any block 
’upon which a greater number of houses are occupied as 
residences, places of abode, or places of public assembly 
%y white people than are occupied as residences, places 
of abode, or places of public assembly by colored people.

Section 2 provides that it shall be unlawful for any 
white person to move into and occupy as a residence, 
place of abode, or to establish and maintain as a place of 
public assembly any house upon any block upon which a 
greater number of houses are occupied as residences, 
places of abode or places of public assembly by colored 
people than are occupied as residences, places of abode 
or places of public assembly by white people.

Section 4 provides that nothing in the ordinance shall 
affect the location of residences, places of abode or places 
of assembly made previous to its approval; that nothing 
contained therein shall be construed so as to prevent the 
occupancy of residences, places of abode or places of 

.^assembly by white or colored servants or employees of 
occupants of such residences, places of abode or places 
of public assembly on the block on which they are so 

Employed, and that nothing therein contained shall be 
construed to prevent any person who, at the date of the 
passage of the ordinance, shall have acquired or possessed 
th| right to occupy any building as a residence, place of 
abode or place of assembly from exercising such a right; 
th’at nothing contained in the ordinance shall prevent the 
owner of any building, who when the ordinance became 
effective, leased, rented, or occupied it as a residence, 
place o f abode or place of public assembly for colored 
persons, from continuing to rent, lease or occupy such 
residence, place of abode or place of assembly for such 
persons, if the owner shall so desire; but if such house



8

should, after the passage of the ordinance, be at any time 
leased, rented or occupied as a residence, place of abode 
or place of assembly for white persons, it shall not there-, 
after be used for colored persons, if such occupation' 
would then be a violation of Section One of the ordinance ;* 
that nothing contained in the ordinance shall prevent the 
owner of any building, who when the ordinance became 
effective, leased, rented or occupied it as a residence, 
place of abode, or place of assembly for white persons 
from continuing to rent, lease or occupy such residence, 
place of abode or place of assembly for such purpose, if 
the owner shall so desire, but if such household, after the 
passage of the ordinance, be at any time leased, rented or 
occupied as a residence, place of abode or place of assem­
bly for colored persons, then it shall not thereafter be 
used for white persons, if such occupation would then be 
a violation of Section Two thereof.

The ordinance contains other sections and a violation 
of its provisions is made an offense.

The assignments of error in this court attack the ordi­
nance upon the ground that it violates the Fourteenth 
Amendment of the Constitution of the United States, iî  
that it abridges the privileges and immunities of citizens 
of the United States to acquire and enjoy property, takeiS 
property without due process of law, and denies equal 
protection of the laws.

The objection is made that this writ of error should be dis­
missed because the alleged denial of constitutional rights 
involves only the rights of colored persons, and the plaintiff 
in error is a white person. This court has frequently held 
that while an unconstitutional act is no law, attacks upon the 
validity of laws can only be entertained when made by those 
whose rights are directly affected by the law or ordinance



9

in question. Only such persons, it has been settled, can be 
heard to attack the constitutionality of the law or ordinance. 
But this case does not run counter to that principle.

The property here involved was sold by the plaintiff in 
error, a white man, on the terms stated, to a colored man; 
the action for specific performance was entertained in the 
court below, and in both courts the plaintiff’s right to have 
the contract enforced was denied solely because of the effect 
of the ordinance making it illegal for a colored person to oc­
cupy the lot sold. But for the ordinance the state courts 
would have enforced the contract, and the defendant would 
have been compelled to pay the purchase price and take a 
conveyance of the premises. The right of the plaintiff in er­
ror to sell his property was directly involved and necessari­
ly impaired because it was held in effect that he could not sell 
the lot to a person of color who was willing and ready to 
acquire the property, and had obligated himself to take it. 
This case does not come within the class wherein this court 
has held that where one seeks to avoid the enforcement of 
a law or ordinance he must present a grievance of his own, 
and not rest the attack upon the alleged violation of an­
other’s rights. In this case the property rights of the plain­
tiff in error are directly and necessarily involved. See 
Truax v. Raich, 239 U. S. 33, 38.

We pass then to a consideration of the case upon its 
merits. This ordinance prevents the occupancy of a lot in 
the City of Louisville by a person of color in a block where 
the greater number of residences are occupied by white 
persons; where such a majority exists colored persons are 
excluded. This interdiction is based wholly upon color; 
simply that and nothing more. In effect, premises situated 
as are those in question in the so-called white block are



10

effectively debarred from sale to persons of color, because 
if sold they cannot be occupied by the purchaser nor by him 
sold to another of the same color.

This drastic measure is sought to be justified under the 
authority of the State in the exercise of the police power. 
It is said such legislation tends to promote the public peace 
by preventing racial conflicts,; that it tends to . maintain 
racial purity; that it prevents the deterioration of property 
owned and occupied by white people, which deterioration, 
it is contended, is sure to follow the occupancy of adjacent 
premises by persons of color.

The authority of the State to pass laws in the exercise 
of the police power, having for their object the promotion 
of the public health, safety and welfare is very broad as has 
been affirmed in numerous and recent decisions of this court. 
Furthermore the exercise of this power, embracing nearly 
all legislation of a local character is not to be interfered 
with by the courts where it is within the scope of legislative 
authority and the means adopted reasonably tend to accom­
plish a lawful purpose.' But it is equally well established 
that the police power, broad as it is, cannot justify the 
passage of a law or ordinance which runs counter to the 
limitations of the Federal Constitution; that principle has 
been so frequently affirmed in this court that we need not 
stop to cite the cases. "

The Federal Constitution and laws passed within its 
authority are by the express terms of that instrument made 
the supreme law of the land. The Fourteenth Amendment 
protects life, liberty, and property from invasion by the 
states without due process of law. Property is more than 
the mere thing which a person owns. It is elementary that 
it includes the right to acquire, use and dispose of it. The



11

Constitution protects these essential attributes of property. 
Holden v. Hardy, 169 U. S. 366, 391. Property consists of 
the free use, enjoyment, and disposal of a person’s acquisi- 

'% tions without control or diminution save by the law of the 
land. 1 Blackstone’s Commentaries, (Cooley’s Ed.) 127.

True it is that dominion over property springing from 
ownership, is not absolute and unqualified. The disposition 
and use of property may be controlled in the exercise of the 
police power in the interest of the public health, conveni­
ence, or welfare. Harmful occupations may be controlled 
and regulated. Legitimate business may also be regulated 
in the interest of the public. Certain uses of property may 
be confined to portions of the municipality other than the 
resident district, such as livery stables, brickyards and the 
like, because of the impairment of the health and comfort 
of the occupants of neighboring property. Many illustra­
tions might be given from the decisions of this court, and 
other courts, of this principle, but these cases do not touch 
the one at bar.

The concrete question here is: May the occupancy, and
necessarily, the purchase and sale of property of which oc­
cupancy is an incident, be inhibited by the states, or by one 
of its municipalities, solely because of the color of the pro- 

" s posed occupant of the premises? That one may dispose 
of his property, subject only to the control of lawful enact­
ments curtailing that right in the public interest, must be 

v conceded. The question now presented makes it pertinent 
to enquire into the constitutional right of the white man to 
sell his property to a colored man, having in view the legal 
status of the purchaser and occupant.

Following the Civil War certain amendments to the Fed­
eral Constitution were adopted, which have become an inte­
gral part of that instrument, equally binding upon all the



12

states and fixing certain fundamental rights which all are 
bound to respect. The Thirteenth Amendment abolished 
slavery in the United States and in all places subject to their 
jurisdiction, and gave Congress power to enforce the 
Amendment by appropriate legislation. The Fourteenth 
Amendment made all persons born or naturalized in the 
United States, citizens of the United States and of the states 
in which they reside, and provided that no state shall make 
or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States, and that no 
state shall deprive any person of life, liberty, or property 
without due process of law, nor deny to any person the 
equal protection of the laws.

The effect of these amendments was first dealt with by 
this court in The Slaughter House Cases, 16 Wallace 36.
The reasons for the adoption of the amendments were elabo­
rately considered by a court familiar with the times in 
which the necessity for the amendments arose and with the 
circumstances which impelled their adoption. In that case 
Mr. Justice Miller, who spoke for the majority, pointed out 
that the colored race, having been freed from slavery by 
the Thirteenth Amendment, was raised to the dignity of . 
citizenship and equality of civil rights by the Fourteenth 
Amendment, and the states were prohibited from abridging 
the privileges and immunities of such citizens, or depriving t 
any person of life, liberty, or property without due process 
of law. While a principle purpose of the latter Amendment | 
was to protect persons of color, the broad language used 
was deemed sufficient to protect all persons, white or black, 
against discriminatory legislation by the states. This is 
now the settled law. In many of the cases since arising 
the question of color has not been involved and the cases 
have been decided upon alleged violations of civil or prop-



13

erty rights irrespective of the race or color of the complain­
ant. In The Slaughter House Cases it was recognized that 
the chief inducement to the passage of the amendment was 
the desire to extend Federal protection to the recently 
emancipated race from unfriendly and discriminating leg­
islation by the states.

In Strauder v. West Virginia, 100 U. S. 303, this court 
held that a colored person charged with an offense was de­
nied due process of law by a statute which prevented colored 
men from sitting on the jury which tried him. Mr. Justice 
Strong, speaking for the court, again reviewed the history 
of the Amendments, and among other things, in speaking 
of the Fourteenth Amendment, said:

“It (the Fourteenth Amendment) was designed to 
assure to the colored race the enjoyment of all the 
civil rights that under the law are enjoyed by white 
persons, and to give to that race the protection of the 
general government, in that enjoyment, whenever it 
should be denied by the States. It not only gave citi­
zenship and privileges of citizenship to persons of color 
but it denied to any State the power to withhold from 
them the equal protection of the laws, and authorized 
Congress to enforce its provisions by appropriate leg­
islation * * * It ordains that no State shall make or 
enforce any laws which may abridge the privileges or 
immunities of citizens of the United States * * * It 
ordains that no State shall deprive any person of life, 
liberty, or property without due process of law, or deny 
to any person within its jurisdiction the equal protec­
tion of the laws.

“ What is this but declaring that the laws in the 
States shall be the same for the black as for the white, 
that all persons, whether colored or white, shall stand



14

equal before the laws of the States, and, in regard to 
the colored race, (for whose protection the Amend- |
ment was primarily designed) that no discrimination 
shall be made against them by law because of their t
color? * * *

“ The Fourteenth Amendment makes no attempt to 
enumerate the rights it designs to protect. It speaks in 
general terms and those are as comprehensive as pos­
sible. . Its language is prohibitory; but every prohibi­
tion implies the existence of rights and immunities, 
prominent among which is an immunity from inequal- 
ty of legal protection either for life, liberty or property.

Any state action which denies this immunity to a col­
ored man is in conflict with the Constitution.”

Again this court in Ex parte Virginia, 100 U. S. 339, 347, 
speaking of the Fourteenth Amendment, said:

“ Whoever, by virtue of public position under a State 
Government, deprives another of property, life or lib­
erty, without due process of law, or denies or takes ,
away the equal protection of the laws, violates the con­
stitutional inhibition; and as he acts in the name and 
for the State and is clothed with the State’s power, }
his act is that of the State.”

In giving legislative aid to these constitutional provisions 
Congress enacted in 1866, Chap. 31, Sec. 1, 14th Stat. 27, 
that:

“ 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.”



15

And in 1870, by Chap. 114, Sec. 16, 16th Stat. 144, that:
“ All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­
fit of all laws and proceedings for the security of per­
sons and property as is enjoyed by white citizens, and 
shall be subject to like punishment, pains, penalties, 
taxes, licenses and exactions of every kind, and no 
other.”

In the face of these constitutional and statutory provi­
sions, 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 ?

The statute of 1866, originally passed under sanction of 
the Thirteenth Amendment, 14 Stat. 27, and practically re­
enacted after the adoption of the Fourteenth Amendment, 
16 Stat. 144, expressly provided that all citizens of the 
United States in any state shall have the same right to pur­
chase 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 discriminating 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. 
Civil Rights Cases, 109 U. S. 3, 22. The Fourteenth 
Amendment and these statutes enacted in furtherance of 
its purpose operate to qualify and entitle a colored man to



16

acquire property without state legislation discriminating 
against him solely because of color.

The defendant in error insists that Plessy v. Ferguson, 
163 U. S. 537, is controlling in principle in favor of the 
judgment of the court below. In that case this court held 
that a provision of a statute of Louisiana requiring rail­
way companies carrying passengers to provide in their 
coaches equal but separate accommodations for the white 
and colored races did not run counter to the provisions of 
the Fourteenth Amendment. It is to be observed that in 
that case there was no attempt to deprive persons of color 
of transportation in the coaches of the public carrier, and 
the express requirements were for equal though separate 
accommodations for the white and colored races. In 
Plessy v. Ferguson, classification of accommodations was 
permitted upon the basis of equality for both races.

In the Berea College Case, 211 U. S. 45, a state statute 
was sustained in the courts of Kentucky, which, while 
permitting the education of white persons and Negroes in 
different localities by the same incorporated institution, 
prohibited their attendance at the same place, and in this 
court the judgment of the Court of Appeals of Kentucky 
was affirmed solely upon the reserved authority of the 
legislature o f Kentucky to alter, amend, or repeal charters 
of its own corporations, and the question here involved 
was neither discussed nor decided.

In Carey v. City of Atlanta, 143 Ga. 192, the Supreme 
Court of Georgia, holding an ordinance, similar in principle 
to the one herein involved, to be invalid, dealt with Plessy 
v. Ferguson and The Berea College Case, in language so 
apposite that we quote a portion of it.

“ In each instance the complaining person was afford­
ed the opportunity to ride, or to: attend the institutions



17

of learning, or afforded the thing of wnatever nature 
to which in the particular case he was entitled. The 

S’ most that was done was to require him as a member of
 ̂ a class to conform with reasonable rules in regard to

the separation of the races. In none of them was he 
denied the right to use, control, or dispose of his prop­
erty, as in this case. Property of a person, whether 
as a member of a class or as an individual, cannot be 
taken without due process of law. In the recent case of 
McCabe v. Atchison, etc., Ry. Co., 235 U. S. 151, where 
the court had under consideration a statute which al­
lowed railroad companies to furnish dining-cars for 
white people and to refuse to furnish dining-cars al­
together for colored persons, this language was used in 
reference to the contentions of the attorney-general; 
‘This argument with respect to volume of traffic seems 
to us to be without merit. It makes the constitutional 
right depend upon the number of persons who may be 
discriminated against, whereas the essence of the con­
stitutional right is that it is a personal one.’

“ The effect of the ordinance under consideration was 
not merely to regulate business or the like, but was to 

I destroy the right of the individual to acquire, enjoy,
i and dispose of his property. Being of this character
* , it was void as being opposed to the due-process clause

' of the constitution.”

ks

That there exists a serious and difficult problem arising 
from a feeling of race hostility which the law is powerless 
to control, and to which it must give a measure of consider­
ation, may be freely admitted. But its solution cannot be 
promoted by depriving citizens of their constitutional 
rights and privileges.



18

As we have seen, this court has held laws valid which 
separated the races on the basis of equal accommodations 
in public conveyances, and courts of high authority have 
held enactments lawful which provide for separation in the 
public schools of white and colored pupils where equal priv­
ileges are given. But in view of the rights secured by the 
Fourteenth Amendment to the Federal Constitution such 
legislation must have its limitations, and cannot be sus­
tained where the exercise of authority exceeds the re­
straints of the Constitution. We think these limitations are 
exceeded in laws and ordinances of the character now be­
fore us.

It is the purpose of such enactments, and, it is frankly 
avowed it will be their ultimate effect, to require by law, 
at least in residential districts, the compulsory separation 
of the races on account of color. Such action is said to be 
essential to the maintenance of the purity of the races, al­
though it is to be noted in the ordinance under consideration 
that the employment of colored servants in white families 
is permitted, and nearby residences of colored persons not 
coming within the blocks, as defined in the ordinance, are 
not prohibited.

The case presented does not deal with an attempt to pro- 
I hibit the amalgamation of the races. The right which the | 

J ordinance annulled was the civil right of a white man to dis­
pose of his property if he saw fit to do so to a person of color \ 
and of a colored person to make such disposition to a white 

, person.

It is urged that this proposed segregation will promote 
the public peace by preventing race conflicts. Desirable as 
this is, and important as is the preservation of the public



19

peace, this aim cannot be accomplished by laws or ordi­
nances which deny rights created or protected by the Fed­
eral Constitution.

It is said that such acquisitions by colored persons de­
preciate property owned in the neighborhood by white per­
sons. But property may be acquired by undesirable white 
neighbors or put to disagreeable though lawful uses with 
like results.

We think this attempt to prevent the alienation of the 
property in question to a person of color was not a legiti­
mate exercise of the police power of the State, and is in 
direct violation of the fundamental law enacted in the Four­
teenth Amendment of the Constitution preventing state in­
terference with property rights except by due process of 
law. That being the case the ordinance cannot stand. 
Booth v. Illinois, 184 U. S. 425, 429; Otis v. Parker, 187 U. 
S. 606, 609.

Beaching this conclusion it follows that the judgment of 
the Kentucky Court of Appeals must be reversed, and the 
cause remanded to that court for further proceedings not 
inconsistent with this opinion.

Reversed.



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