Barrows v. Jackson Respondent's Brief on Certiorari

    IN THE

Supreme Court of the United States
October Term, 1952 

No. 517.

Olive B. Barrows, R ichard P ikaar and M. M. O’Gara,
Petitioners,

Leona J ackson,

vs.

Respondent.

RESPONDENT’S BRIEF ON CERTIORARI.

L oren M iller and 
F ranklin  H. W illiam s,

542 South Broadway,
Los Angeles 13, California, 

Counsel for Respondent.

Maurice W allbert, 
James S im s,
H arold J. S inclair, 

Of Counsel.

The Myers Legal Press, Los Angeles. Phone VAndike 9007.



SUBJECT INDEX

PAGE

Question presented ...........................................................................  1

Statement of the case..........................................   1

Argument..........................   3

Conclusion .........................................................................................  10



TABLE OF AUTHORITIES CITED

Cases page

American Federation of Labor v. Swing, 312 U, S. 321............... 4
Barrows v. Jackson, 112 A. C. A. 613............................... .......... 5, 9

Buchanan v. Warley, 245 U. S. 60............................................5, 6
Burke v. Maze, 10 Cal. App. 206....................................................  2
Civil Rights Cases, 109 U. S. 3.................................................... 3, 4

Cummings v. Hokr, 31 Cal. 2d 844................................................. . 9

Los Angeles Investment Co. v. Gary, 181 Cal. 680....................... 2
Martin v. Holm, 197 Cal. 733.... ...................................................  8

People v. Davis, 147 Cal. 346.......................................................... 2
Shelley v. Kramer, 334 U. S. 1...........................2, 3, 4, 5, 7, 8, 10
Vesper v. Forest Lawn, 20 Cal. App. 2d 157..............................  8
Virginia v. Rives, 100 U. S. 339......................................................  3

Wayt v. Patee, 205 Cal. 46.... ................... ....................................2, 8
Werner v. Graham, 181 Cal. 874.................................................... g
Wing v. Forest Lawn, 15 Cal. 2d 472.......................... .................  8
Young v. Cramer, 38 Cal. App. 2d 64............................................  8

S tatutes

California Civil Code, Sec. 1213......................................................  2
United States Constitution, Fourteenth Amendment..................... 3

T extbooks

Restatement of Law of Contracts, Sec. 1......................................  7



IN THE

Supreme Court of the United States
October Term, 1952 

No. 517.

Olive B. Barrows, R ichard P ikaar and M. M. O’Gara,
Petitioners,

Leona Jackson,
vs.

Respondent.

RESPONDENT’S BRIEF ON CERTIORARI.

Question Presented.
Although the issue is somewhat obscured by Petition­

er’s arguments on collateral matters the question presented 
here is whether or not judicial cognizance of a damage 
action against the signer of a race restrictive covenant, 
whose sale of race restricted real property eventuates in 
its occupancy by a Negro, is permissible state action.

Statement of the Case.
Respondent owner of a lot signed a race restrictive 

covenant in 1944 proscribing Negro occupancy. On 
February 2, 1950, she conveyed the lot to predecessors in 
title of Negro occupants. On September 3, 1950, she va­
cated the premises and the next day Negroes began oc­
cupancy. It is alleged that she vacated in order to “per­
mit persons known to her to be other than the Caucasian



— 2 —-

race” to move into the premises. She failed to include 
the proscriptive clause in her deed of February 2, 1950, 
as she had covenanted to do.1 Because California has long 
held that covenants against the sale of land to persons 
of particular racial groups contravene its statutory and 
public policy against restraints on alienation,2 Petitioners 
predicated their suit on the theory that the occurrence of 
non-conforming occupancy, per se, gave rise to a cause of 
action for damages against Respondent and in favor of 
Petitioners who were signers of the agreement.

Basing its decision on Shelley v. Kramer, 334 U. S. 1, 
the trial court sustained a demurrer without leave to 
amend as against all Petitioners and ordered judgment 
for Respondent. Also relying on Shelley, the California 
District Court of Appeal affirmed the judgment of the 
trial court. The California Supreme Court denied a pe­
tition to hear the case after decision by the District 
Court of Appeal.3

Petitioners are here on petition for certiorari.

1The covenant was recorded and in California recordation of 
such an instrument imparts notice of its terms to subsequent pur­
chasers. (California Civ. Code, Sec. 1213; Wayt v. Pa-tee, 205 
Cal. 46.) (Recitals in the deed are superfluous.)

Covenants against sales have been held void. This rule was 
established in Los Angeles Investment Co. v. Gary (1919), 181 
Cal. 680, and was followed without variance until the decision in 
Shelley v. Kramer, 334 U. S. 1, with California courts upholding 
covenants against use and occupancy and refusing enforcement of 
agreements against sale.

3Under California procedure the refusal of its Supreme Court 
to hear a cause after decision by its District Court of Appeal indi­
cates approval of the result reached but does not necessarily indi­
cate concurrence in the grounds of the decision. (People v. Davis, 
147 Cal. 346; Burke v. Maze, 10 Cal. App. 206.)



— 3 —

Argument.
Petitioners’ assignment of errors is bottomed on the 

proposition that Shelley held that race restrictive cove­
nants are “valid,”4 and, they argue, that since such agree' 
ments are “valid” the State must afford a remedy in dam­
ages where non-Caucasian occupancy ensues as a result of 
a signer’s sale of a restricted parcel. This unsophisticated 
concept slurs over the basic issue of whether State par­
ticipation in the discriminatory scheme of the covenantors 
is forbidden by the command of the Fourteenth Amend­
ment.

Plainly enough, Petitioners attempted to invoke state 
participation when they filed suit asking the state courts 
to assess and levy damages against Respondent. Judicial 
action is, of course, State action.

Virginia v. Rives, 100 U. S. 339, 347;
Shelley v. Kramer, 334 U. S. 1.

The precise impact of the Fourteenth Amendment lay 
in the fact that it “makes void 'State action of every kind’ 
which is inconsistent with the guarantees therein contained 
and extends to manifestation of ‘State authority in the 
shape of laws, customs, judicial or executive procedings.’ ”

Shelley v. Kramer■, supra.

As this Court pointed out in Shelley, the landmark 
Civil Rights Cases, 109 U. S. 3, establish the proposition

4This Court did not hold such agreements “valid” in those words. 
It did hold that “restrictive agreements standing alone cannot be 
regarded as a violation of any rights guaranteed . . .  by the 
Fourteenth Amendment. So long as the purposes of these agree­
ments are effectuated by voluntary adherence to their terms 
there has been no action by the States.” (Shelley v. Kramer, 
supra.)



4

that any and every kind of State action taken to assist 
the individual in a racially discriminatory plan or scheme 
runs afoul of the Amendment.5

We do not understand Petitioners to contend that a 
State statute, city ordinance, or other enactment of a 
State or one of its subdivisions assessing damages against 
the signer of a race restrictive covenant, whose sale of 
such property eventuates in Negro occupancy, would es­
cape constitutional condemnation. However Petitioners 
do contend that because the remedy they seek derives from 
a substantive rule of law fashioned from the complex of 
code provisions and decided cases their action is immune 
to constitutional attack. But:

“It has been recognized that the action of state 
courts in enforcing substantive common law rules 
formulated by those courts may result in denial of 
rights guaranteed by the Fourteenth Amendment.”

Shelley v. Kramer, supra, p. 17.

A substantive rule of law, then, is no less, and no more, 
subject to constitutional scrutiny than legislative enact­
ments or executive action.

Cf.:
American Federation of Labor v. Swing, 312 U. 

S. 321;
Shelley v. Kramer, supra.

BThis Court noted that the Civil Rights Cases contained no less 
than eighteen phrases condemnatory of state participation—either 
legislaive, executive, or judicial—in discriminatory action. It must 
be kept in mind that the Civil Rights Cases do not hold that the 
Amendment confers on the individual any right to discriminate. 
They simply hold that so long as the individual engages in dis­
criminatory conduct without the aid of the state his conduct is not 
wrongful under the Amendment. The state may prohibit such 
conduct; it may not assist it.



— 5—

The fact that participation of State courts is sought to 
enforce the terms of a private agreement does not aid 
Petitioners.

“Nor is the Amendment inffective simply because 
the particular pattern of discrimination, which the 
state has enforced, was defined initially by the terms 
of a private agreement. State action, as that phrase 
is understood for the purposes of the Fourteenth 
Amendment, refers to exertions of State power in all 
forms.”

Shelley v. Kramer, supra.

The California courts found as a fact that the purpose 
of the covenant drawn in issue here was discriminatory. 
The District Court of Appeal thus epitomizes this aspect 
of the matter:

“Racial discrimination is inherent in the covenant; 
its purpose and impact is to prevent the use or occu­
pancy of real property by non-Caucasians, to segre­
gate non-Caucasions ‘simply that and nothing more.’ 
The basic pattern of racial discrimination is much 
the same in an action for damages as it is in a suit 
in equity.” [R. p. 53.]

Barrows v. Jackson, 112 A. C. A. 613.

The question of whether or not the State may lend its 
aid to residential segregation is not new to this Court. 
That issue was decided thirty-five years ago in Buchanan 
v. War ley, 245 U. S. 60.

The City of Louisville enacted an ordinance prescribing 
racial residential segregation. Buchanan, a white man 
agreed to sell a parcel of the interdicted property to War- 
ley, a Negro. Warley breached his agreement and, when 
sued, pleaded the ordinance by way of justification for his



breach. He prevailed in the State courts. On writ of 
error to this Court, Buchanan attacked the constitution­
ality of the ordinance insofar as it denied his right to sell 
to a Negro. There, as is the case with Petitioners here, 
the objection:

“is made that this writ of error should be dismissed 
because the alleged denial of constitutional rights in­
volves only the rights of colored persons and plain­
tiff in error is a white person.”

Buchanan v. Warley, supra, p. 72.

This Court looked through form and saw that the ef­
fect of sustaining Warley’s defense would be to prevent 
the use and occupancy of real property by Negroes— 
the same end envisaged here as epitomized by the Dis­
trict Court of Appeal. There the command of the ordi­
nance was absolute prohibition; here the attempt is made 
to prevent Negro occupancy by the imposition of penalties 
in the guise of damages on those whose sales result in 
Negro occupancy.

In Buchanan this Court observed that:
“The right which the ordinance annulled was the 
civil right of a white man to dispose of his property 
if he saw fit to do so to a person of color.”

Buchanan v. Warley, supra, p. 81.

What Petitioners seek here is application of a substan­
tive rule of law which, through imposition of damages, 
will annul the civil right of a white person to dispose of 
her property in such a manner that Negro occupancy may 
ensue. Conceivably, fear of imposition of damages might



effectively prevent all sales where Negro occupancy might 
ensue—the very end sought by Petitioners here, and in Bu­
chanan. Nor can it be doubted

. . that among the civil rights intended to be
protected from discriminatory State action by the 
Fourteenth Amendment are the rights to acquire, 
enjoy, own and dispose of property.” (Italics ours.)

Shelley v. Kramer, supra, p. 10.

The short of the matter is that the State may not, 
through judicial, executive or legislative action, annul the 
civil right of any person to dispose of his property as he 
sees fit, and that is true whether the attempted annulment 
is by way of outright prohibition or through the imposi­
tion of penalties in the guise of damages.

At this posture of the case Petitioners interject the con­
tention that Respondent is bound by her “contract” and 
that she “waived” her civil right to dispose of her prop­
erty as she saw fit. Lawyers seeking to enforce agree­
ments are fond of terming all writings to which their 
clients are parties “contracts” because the very term “con­
tract” implies an agreement enforceable in a court of law.6

6“A contract is a promise or set of promises for breach of which 
the law gives a remedy or the performance of which the law in 
some way recognizes as a duty.” (Restatement of the Law of 
Contracts, Sec. 1.) Weighed in these scales and equated with the 
holding in Shelley it cannot be said that race restrictive agree­
ments are “contracts” in the ordinary sense of the term. Of 
course, not every agreement is a “contract” in that sense. English 
courts withheld enforcement of agreements in restraint of trade, 
for example, although the agreements were “valid.” Agreements 
not conforming to the Statute of Frauds are “valid” as are agree­
ments against which the Statute of Limitations has run. Laches 
may bar enforcement of a valid agreement.



The need for this semantic exercise is greater in this case 
than in the ordinary action because here Petitioners hope, 
by use of the term, to encase their claim for damages in 
armor that will render it impervious to constitutional at­
tack. What eludes Petitioners here is the legal conse­
quences that flow from the signing of restrictive agree­
ments, racial or building, under California law. Califor­
nia has long and consistently held that such agreements 
create . . equitable easements or servitudes for the
benefit of the lots of co-owners.”

Young v. Cramer, 38 Cal. App. 2d 64, 69.

This doctrine of equitable servitudes has been affirmed 
and reaffirmed in a long line of cases, involving both 
building and racial restrictions.

Werner v. Graham, 181 Cal. 874;
Martin v. Holm, 197 Cal. 733;
Vesper v. Forest Lawn, 20 Cal. App. 2d 157;
Wing v. Forest Lawn, 15 Cal. 2d 472;
Wayt v, Patee, 205 Cal. 46.

Once the servitude was created the California courts, 
applying substantive rules of law, charged the conscience 
of the violator with observance of the servitude and either 
enjoined further violation or held him answerable in dam­
ages. Either remedy was available at the option of the 
complainant.

After Shelley the California courts declined to lend 
further aid in enforcement of race restrictive covenants, 
holding correctly that the full impact of this Court’s de-



-9-

cision fell on the substantive rule of law under which they 
had previously charged the conscience of the violator 
with observance of the terms of the agreement. ( Cum­
mings v. Hokr, 31 Cal. 2d 844.) In this case the variant 
is that aid of the California courts was sought through 
a levy of damages rather than through injunctive relief. 
Again they declined, correctly, to apply the substantive 
rule of law to effectuate the discriminatory purpose of the 
covenantors. The District Court of Appeal phrased its 
declination in these words:

“The Fourteenth Amendment does not proscribe 
individual action; but when, as here, the aid of a 
court is sought to compel one of the parties to the 
restrictive covenant to abide by its terms by sub­
jecting him to an action for damages because of the 
use or occupancy of the property by non-Cauca­
sians—it is no longer a matter of individual action: 
it is one of State participation in the maintenance 
of racial residential segregation.” [R. p. 53.] 

Barrows v. Jackson■, supra.

Petitioners are as free in California as they ever were 
to enter into race restrictive agreements and to voluntarily 
adhere to them. There is nothing in the decision of 
which Petitioners complain that narrows that right in any 
particular. The fact that they are free to observe the 
terms of their agreement does not entitle them to demand 
State action to accomplish their discriminatory purposes. 
Parties cannot, by stipulation or agreement, confer on any 
court jurisdiction to exceed its constitutional powers.



— - 10—

Conclusion,

It is true as Petitioners set forth that there is an even 
division of the highest courts of the various states on the 
question involved here. California and Michigan have 
ruled adversely to Petitioners’ claim; Oklahoma and Mis­
souri have upheld the right of their courts to entertain 
damage actions of this kind. A trial court in the District 
of Columbia dismissed such an action on the authority of 
Shelley. Respondent agrees that the issue needs clarifi­
cation but because the question presented has been so com­
pletely disposed of by prior decisions we respectfully 
urge that this Court grant certiorari and affirm the de­
cision of the Court below without further briefs or 
argument.

Loren M iller and 
F ranklin  H. W illiam s,

Counsel for Respondent.

Maurice W allbert,
James S im s,
H arold J. S inclair,

Of Counsel.



Service of the within and receipt of a copy
thereof is hereby admitted this.................day of
January, A. D. 1953.

1-.30-53—85