Kemp v. Rubin Records and Briefs
Public Court Documents
January 1, 1945 - January 1, 1948
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Brief Collection, LDF Court Filings. Kemp v. Rubin Records and Briefs, 1945. 57e53553-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9a5020da-0e31-4dbb-b7b8-1c35d8601de1/kemp-v-rubin-records-and-briefs. Accessed September 18, 2025.
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RECORDS
AND
BRI E F S
t
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Appellate Division— Second Department
Harold F. K emp, Sarah M. K emp, John H. Lutz and I rene
Lutz, on behalf of themselves and all others equally in
terested,
Plaintiffs-Respondents,
against
Sophie Rubin and Samuel R ichardson,
Defendants-Appellants.
R ECO R D ON A P P E A L
A ndrew D. W einberger,
Attorney for Defendant-Appellant
Samuel Richardson,
67 West 44th Street,
New York 18, N. Y.
Paul R. Silverstein,
Attorney for Defendant-Appellant
Sophie Rubin,
89-31 161st Street,
Jamaica, N. Y.
W ait, W ilson & Newton,
Attorneys for Plaintiff s-Respondents,
11 Park Place,
New York 7, N. Y.
Grosby Press, Inc., 30 Ferry St., N. Y . C.— BEekman— 3-2336-7-8
I N D E X
PAGE
Statement Under Rule 234 ............................. 1
Notice of Appeal of Defendant Samuel Rich
ardson ............................................................ 3
Notice of Appeal of Defendant Sophie Rubin 5
Summons .......................................................... 7
Amended Complaint......................................... 8
Exhibit A, Annexed to Com plaint........ 14
Exhibit B, Annexed to Com plaint........ 20
Answer of Defendant Sophie Rubin to
Amended Complaint ................................... 27
Answer of Defendant Samuel Richardson to
Amended Com plaint..................................... 35
Judgment ........................................................... 38
Case and Exceptions ....................................... 41
Defendant Richardson’s Motion to Dis
miss Complaint ..................................... 88
Defendant Rubin’s Motion to Dismiss
Complaint ............................................... 121
Defendant Rubin’s Motion to Dismiss
Complaint Renewed ............................. 180
Opinion by Mr. Justice Livingston .............. 184
Order Settling Case ............................. 191
Stipulation Waiving Certification ................ 193
Order Filing Record in Appellate Division .. 193
11
t
Plaintiffs’ W itnesses
page
Harold F. Kemp
Direct ........................................................ 42
Cross (by Mr. Weinberger) .................... 52
Cross (by Mr. Silverstein) ...................... 54
John H. Lutz
Direct ......................................................... 65
Cross (by Mr. Silverstein) ...................... 69
Defendant Rubin ’s W itnesses
Irving L. Schuh
Direct ........................................................... 128
Vera G. Jenkins
Direct .......................................................... 137
Beasley D. Kelly
Direct ......................................................... 140
Recalled
Direct ...........................................................
Helen Levy
Direct ......................................................... 147
Ferdinand W. Buermeyer
Direct ......................................................... 148
William E. Taube
Direct ...................................................... 152
Fred Williams
Direct ......................................................... 156
Andrew Reis
Direct ......................................................... 158
Cross ........................................................... 162
R edirect....................................................... 164
Ill
Plaintiffs’ E xhibits:*
Admitted
Page
1—Photograph of home of Harold F. Kemp,
one of the plaintiff-respondents .............. 44
2— A, 2-B, 2-C and 2-D. Photographs of the
two houses to the north of Harold F. Kemp
on the same side of the street and of the
remaining houses within the block between
112th Avenue and 114th Avenue in St.
Albans, New Y o r k ....................................... 45
3— Tax map of the City of New York showing
the location of the premises in issu e ........ 46
4—Agreement of restrictive covenant dated
January 10, 1939 signed by Harold F.
Kemp, Sarah M. Kemp and Sophie Rubin 46
5— Agreement of restrictive covenant dated
January 10,1939 affecting the side of 177th
Street wherein John H. Lutz and Irene
Lutz reside ................................................... 50
6— A, 6-B and 6-C. Photographs of houses
on side of 177th Street wherein John H.
Lutz and Irene Lutz reside ..................... 66
7— Photograph of 177th Street looking north
from 114th Avenue toward 112th Avenue,
St. Albans, New York ............................... 66
8— Sketch upon which certain lots are shaded
in red, representing those lots covered by
the agreements of restrictive covenant .. 68
* Omitted pursuant to Order Settling Case, herein
printed at pages 191-2.
IV
Defendant R u b in ’s E xh ibits :*
Admitted
Page
A For Identification— Certified copy of writ
ing dated July 26, 1943 recorded in Office
of the Register of Queens County, August
26, 1943 in Liber 4734 of Conveyances,
page 467 . . . •................................................. 132
B For Identification—Writing dated June 2,
1941, recorded January 10, 1942 in Office
of the Register of Queens County, January
10,1942 in Liber 4513 of Deeds, page 293 .. 132
C—Map of Addisleigh section of St. Albans
containing certain portions shaded in red
representing bouses occupied by colored
persons........................................................... 144
C.l—List with addresses of colored families
residing in Addisleigh section of St. Al
bans, New Y o r k ........................................... 144
D—List of colored residents in Addisleigh
area of St. Albans, New York with ad
dresses ............................................................ 171
* Omitted pursuant to Order Settling Case, herein
printed at pages 191-2.
(Unurt nf tfjr o f 2m h fo r k
Appellate Division—Second Department
1
------------------ 4------------------
H aeold F. K emp, Sarah M. K emp, John H. Lutz
and Irene Lutz, on behalf of themselves and
all others equally interested,
Plaintiff s-Respondents,
against
Sophie Rubin and Samuel Richardson,
Defendants-Appellants.
------------------ +-------------------
Statement Under Rule 234
This action was commenced on May 8,1946.
The summons and complaint were served on de
fendant Sophie Rubin on May 8,1946.
The answer of defendant Sophie Rubin was
served on June 4, 1946.
The first amended answer of defendant Sophie
Rubin was served on July 1, 1946.
The amended complaint was served on defend
ant Sophie Rubin on July 5,1946.
The amended answer of defendant Sophie Rubin
was served on July 24,1946.
There has been a change of parties in this action
in that the summons and complaint designated as
defendants the fictitious persons “ John Doe and
Jane Roe” . Thereafter, and on July 5, 1946
the amended complaint dropped the defendants
2
4 Statement Under Rule 234
“ John Doe and Jane Roe” and designated Sophie
Rubin as sole defendant.
On August 29th a motion was made by Samuel
Richardson pursuant to Civil Practice Act 193 sub
division 3, for leave to intervene as a party in in
terest, which motion was granted by order of Mr.
Justice Thomas C. Kadien on the 13th day of Sep
tember 1946.
The amended complaint was served upon de-
g fendant Samuel Richardson on the 5th day of
September, 1946.
The answer of defendant Samuel Richardson
was served on the 26th day of September, 1946.
6
3
Notice of Appeal of Defendant Samuel
Richardson
SUPREME COURT OF THE STATE
OF NEW YORK
County of Queens
------------------- ♦--------------------
H arold F. K emp, Sarah M. K emp, John H. L utz
and Irene Lutz, on behalf of themselves and
all others equally interested, g
Plaintiffs,
against
Sophie Rubin and Samuel R ichardson,
Defendants.
------------------- ♦ -------------------
Sirs:
Please take notice that the defendant Samuel
Richardson hereby appeals to the Supreme Court,
Appellate Division, Second Department, from the
judgment of this Court in this action, entered in ̂
the office of the Clerk of the County of Queens on
March 1,1947 in favor of the plaintiffs and against
the defendants Samuel Richardson and Sophie
Rubin, permanently restraining and enjoining the
said Sophie Rubin until December 31, 1975 from
permitting the use or occupancy by, or selling,
conveying, leasing, renting or giving to Samuel
Richardson, a Negro, or to any person or persons
of the Negro race, blood or descent, the premises
112-03 177th Street, St. Albans, New York, and
permanently restraining and enjoining the said
Samuel Richardson until December 31, 1975 from
4
10 Notice of Appeal of Defendant Samuel
Richardson
using or occupying or buying, leasing, renting, or
taking a conveyance or gift from the defendant
Sophie Rubin or others of the premises 112-03
177th Street, St. Albans, N. Y. and appeals from
each and every part of said judgment as well as
from the whole thereof.
Dated, New York, March 25, 1947.
11 Yours, etc.,
A ndrew D. W einberger,
Attorney for Defendant Samuel
Richardson,
67 West 44th Street,
New York 18, N. Y.
W ait, W ilson & Newton, Esqs.,
Attorneys for Plaintiffs,
11 Park Place,
New York City.
Paul R. Silverstein, Esq.,
Attorney for Defendant Sophie Rubin,
89-31161st Street,
Jamaica, N. Y.
Paul L ivoti, Esq.,
Clerk of Queens County.
5
Notice of Appeal of Defendant, Sophie Rubin
SUPREME COURT
Queens County
13
H arold F. K emp, Sarah M. K emp, John H. L utz
and Irene Lutz, on behalf of themselves and
all others equally interested,
Plaintiffs,
against 4̂
Sophie Rubin and Samuel Richardson,
Defendants.
------------------- +-------------------
Sirs:
P lease take notice that the defendant, Sophie
Rubin, hereby appeals to the Supreme Court,
Appellate Division, Second Department, from
the judgment of this Court in this action, entered
in the office of the Clerk of the County of Queens
on March 1, 1947, in favor of the plaintiffs and 45
against the defendants, Sophie Rubin and Samuel
Richardson, permanently restraining and enjoin
ing the said Sophie Rubin, until December 31,
1975, from permitting the use or occupancy by, or
selling, conveying, leasing, renting or giving to
Samuel Richardson, a negro, or to any person or
persons of the negro race, blood or descent, the
premises 112-03 177th Street, St. Albans, New
York, and permanently restraining and enjoining
the said Samuel Richardson until December 31,
1975, from using or occupying or buying, leasing,
6
Notice of Appeal of Defendant, Sophie Rubin
renting, or taking a conveyance or gift from the
defendant Sophie Rubin, or others, of the prem
ises 112-03 177th Street, St. Albans, N. Y. and
appeals from each and every part of said judg
ment, as well as from the whole thereof.
Dated: Jamaica, New York, April 1, 1947.
Yours, etc.,
y . Paul R. Silverstein,
Attorney for Defendant,
Sophie Rubin,
Office & P. 0. Address,
89-31 161st Street,
Jamaica, New York.
To:
W ait, W ilson & Newton, Esqs.,
Attorneys for Plaintiffs,
11 Park Place, New York City.
A ndrew D. W einberger, Esq.,
2g Attorney for Defendant,
Samuel Richardson,
67 West 44th St., New York City.
Paul L ivoti, Esq.,
Clerk of Queens County.
7
Summons
19
SUPREME COURT OF THE STATE
OF NEW YORK
County of Queens
+
H arold F. K emp, Sarah M. K emp, John H. L utz
and Irene L utz, on behalf of themselves and
all others equally interested,
Plaintiffs, 20
against
Sophie Rubin, John Doe and Jane Roe, the last
two named being fictitious, true names being
unknown, the person or persons intended being
in negotiation to violate the agreement for re
strictive covenant the subject of this action,
Defendants.
♦
Plaintiffs designate Queens County as the place
of trial. 21
To the above named Defendant:
You are hereby summoned to answer the com
plaint in this action, and to serve a copy of your
answer, or, if the complaint is not served with
this summons, to serve a notice of appearance, on
the Plaintiffs’ Attorney within twenty days after
the service of this summons, exclusive of the day
of service; and in case of your failure to appear,
or answer, judgment will be taken against you
8
2 2 Amended Complaint
by default, for the relief demanded in the com
plaint.
Dated, May 6th, 1946.
23
W ait, W ilson & Newton,
Attorneys for Plaintiffs,
Office and Post Office Address:
11 Park Place,
New York 7, N. Y.
Amended Complaint
SUPREME COURT
Queens County
------------------ 1-------------------
[SAME TITLE]
-------------------1-------------------
The plaintiffs by Wait, Wilson & Newton, their
attorneys, complaining of the defendants for their
amended complaint allege:
1. That on or about the 10th day of January,
1939, the plaintiffs and the defendant Sophie
Rubin and others being residents and owners of
lots in the section of St. Albans, Queens County,
New York, known as Addisleigh, executed in two
instruments, an agreement for a restrictive cove
nant of the lands known as Blocks 12631 and 12632
of Section 51, Land Map of Queens County, which
restrictive covenants were duly recorded in the
office of the Register of the County of Queens in
9
Liber 4146 at pages 394, and 399 of Conveyances,
on January 2, 1940, at 10:13 A. M., indexed under
section 51 in Blocks 12631 and 12632, which in
struments are annexed hereto and made a part
hereof as Exhibits A and B.
2. That the plaintiffs Harold F. Kemp and
Sarah M. Kemp are the owners in fee and the
occupants of the premises known as 112-59 177th
Street, St. Albans, New York, which premises
have a frontage of 60 feet on 177th Street, and 26
have a depth of 100 feet on either side, being
known as Lot 4 in Block 12631 of Section 51 on
the Land Map of the County of Queens.
3. That John Id. Lutz and Irene Lutz are the
owners in fee and the occupants of the premises
known as 112-20 177th Street, St. Albans, New
York, which premises have a frontage of 45 feet
on 177th Street and a depth of 100 feet on either
side, being known as Lot 46 in Block 12632 of
Section 51 on the Land Map of the County of
Queens. 9_
4. On information and belief that the defendant
Sophie Rubin is the owner in fee and one of the
occupants of premises known as 112-03 177th
Street, St. Albans, New York, which premises
have a frontage of 40 feet on 177th Street and a
depth of 100 feet on either side, being known as
Lot 28 in Block 12631 of Section 51 on the Land
Map of the County of Queens.
5. That the plaintiffs Harold F. Kemp, Sarah
M. Kemp, John H. Lutz and Irene Lutz and the
Amended Complaint *0
10
28
29
30
defendant Sophie Rubin, duly signed and acknowl
edged the agreement for the covenant aforesaid
in paragraph 1 of this complaint.
6. That the aforesaid agreement for restrictive
covenant provided as follows:
“ Whereas the said parties hereto desire,
for their mutual benefit as well as for the
best interests of the said community and
neighborhood, to improve and further the
interests of said community.
Now therefore, in consideration of the
premises and mutual promises and the sum
of One Dollar ($1.00) each to the other in
hand paid, and other valuable consideration,
the parties hereto do hereby create, impose
and establish, and do hereby mutually cove
nant, promise and agree each with the other
and for their respective heirs, successors and
assigns, that no part of the land now owned
by the parties hereto, a more detailed de
scription of said property being given after
the respective signatures 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
or descent. This covenant shall run with
the land and bind the respective heirs, suc
cessors, and assigns of the parties hereto
until December 31st, 1975.”
Amended Complaint
7. On information and belief that the defend
ant Sophie Rubin has entered into negotiations
with persons of the Negro race for the sale of
11
the premises owned in fee by her and known as
112-03 177th Street, St. Albans, New York.
8. On information and belief that the defend
ant Sophie Rubin has made a contract of sale
with, and received a deposit from a person or
persons of the Negro race, for the sale of the
premises known as 112-03 177th Street, St. Albans,
New York. *
9. On information and belief that the defend- 32
ant Sophie Rubin intends to carry out the ne
gotiations for the sale of the premises known as
112-03 177th Street, St. Albans, New York, and
to carry out the sale of said premises to a per
son or persons of the Negro race.
10. That said sale of the said premises 112-03
177th Street, St. Albans, New York, would be in
violation of the agreement for restrictive cov
enant duly recorded and mentioned in paragraph
1 of this complaint, and which the defendant So
phie Rubin duly signed and is a party thereto. 00
33
11. That the premises owned by the plaintiffs
John H. Lutz, Irene Lutz, Harold F. Kemp and
Sarah M. Kemp are improved with private dwel
lings of a high class and of great value similar
to a large number of similar residences in the
said section known as Addisleigh.
12. That the houses of the plaintiffs Harold F.
Kemp, Sarah M. Kemp, John H. Lutz and Irene
Lutz are of large rental value and are desirable
residences, but that said rental values and said
desirability as residences, as well as their fee
Amended Complaint c ' ±
12
value depends wholly upon the exclusion from
the vicinity, and especially from the premises
owned and occupied by plaintiffs and defendant
Sohpie Rubin, of persons who are Negroes or
persons of the Negro race or blood or descent.
13. That the plaintiffs entered into the agree
ment for restrictive covenant believing that by
reason thereof the occupancy of all of the build
ings owned by them and the other parties to
35 the agreement for restrictive covenant, would
be restricted as provided for in said agreement.
14. That plaintiffs will suffer substantial dam
age if the conveyance or transfer intended by the
defendant Sophie Rubin is permitted to be com
pleted.
15. That plaintiffs have no adequate remedy
at law and would suffer great pecuniary loss and
will be substantially and irreparably injured and
damaged and will suffer great injuries which
will be difficult of ascertainment unless the in-
junction prayed for herein is granted.
W herefore, plaintiffs demand judgment that
the defendant Sophie Rubin be permanently, and
pending the hearing and determination of this
action, temporarily, restrained and enjoined from
permitting the use or occupancy by, selling, con
veying, leasing, renting or giving to, Negroes or
to any person or persons of the Negro race or
blood or descent until December 31st, 1975, the
said premises 112-03 177th Street, St. Albans,
New York, and for such other and further relief
04 Amended Complaint
13
to plaintiffs as to the Court may seem just and
Amended Complaint
proper.
W ait, W ilson & Newton,
Attorneys for Plaintiffs,
Office & P. 0. Address,
11 Park Place,
Borough of Manhattan,
New York City.
(Duly verified on July 3, 1946 by John H. and
Irene Lutz, Sarah M. Kemp and Harold F. Kemp 38
as plaintiffs.)
39
14
40
EXHIBIT A, ANNEXED TO AMENDED
COMPLAINT
Deed 4146 Page 399
A greement eor R estrictive Covenant
This indenture made this 10th day of January,
1939, by and between the undersigned, all being
residents of Queens County, New York, and own
ers of real estate situated therein, witnesseth
41 that;
Whereas the said parties hereto are owners of
real estate situated in Queens County, being in
the block bounded on the north by 112th Avenue,
on the east by 178th Street, on the south by 114th
Avenue, and on the west by 177th Street, and being
in Block No. 12631, Land Map of the County of
Queens, and
Whereas the said parties hereto desire, for
their mutual benefit as well as for the best inter
ests of the said community and neighborhood, to
improve and further the interests of said com-
42 munity.
Now therefore, in consideration of the premises
and mutual promises and the sum of One Dollar
($1.00) each to the other in hand paid, and other
valuable consideration, the parties hereto do
hereby create, impose and establish, and do hereby
mutually covenant, promises and agree each with
the other and for their respective heirs, succes
sors and assigns, (that no part of the land now
owned by the parties hereto, a more detailed
description of said property being given after
the respective signatures hereto, shall ever be
15
used or occupied by, or sold, conveyed, leased,
rented, or given, to Negroes or any person or
persons of the Negro race or blood or descent.
This covenant shall run with the land and bind
the respective heirs, successors, and assigns of
the parties hereto until December 31st, 1975.
It is understood that the holders of mortgages
affecting the premises owned by the undersigned
are omitted from this agreement, but this shall
not affect the validity of this agreement.
44
Name Address
Sophie Rubin 112-03 177 St
James Sovagl 112-35 177 St
Roger R. Grillon 112-11 177th St
Emily Nonni 112-23 177th St
Victor J. Jenkins 112-07 177th Street
Arthur Beck 112-27 177th St
George E. Baer 112-18 178th St.
Michelle G. Grillon 112-18 178th St.
Edward A. Canter 112-26 178th St.
Hattie W. Canter 112-26 178th St.
Harry C. Zimmer 112-22 178th St.
(illigible) 177-15 114th Avenue
Deed 4146 Page 400
Bessie A. Scott 112-44 178 St. St. Albans
W. S. Kaufmann 112-40 178 St., St. Albans
Harold F. Kemp 112-89 177th St., St. Albans
Sarah M. Kemp 112-59 177th St.
Arthur Levey 112-05 178th Place, St. Albans
Vera G. Jenkins 112-07 177th Street
Exhibit A, Annexed to Amended Complaint ^
I
16
4 6 Exhibit A, Annexed to Amended Complaint
Deed 4146 Page 401
State of New Y ork
'County of Queens
On the 25th day of September, one thousand
nine hundred and thirty-nine before me came
Sophie Rubin to me known to be the individual
described in, and who executed, the foregoing in
strument, and acknowledged that she executed
47 the same.
F rank J. Menig
Notary Public: Queens County
Reg. #3865, Clerks #3439
Term exp-3-30-40
State of New Y ork
County of Queens
On the 25th day of September, one thousand
nine hundred and thirty-nine before me came
48 James Savage to me known to be the individual
described in, and who executed, the foregoing in
strument, and acknoweldged that he executed the
same.
Frank J. Menig
Notary Public: Queens County
Reg. #3865, Clerks #3439
Term expires 3/30/40
17
State of New Y ork
'County of Queens
On the 28th day of September, one thousand
nine hundred and thirty-nine before me came
Harold F. Kemp and Sarah M. Kemp to me
known to be the individuals described in, and who
executed, the foregoing instrument, and acknowl
edged that they execute the same.
F rank J. Menig
Notary Public: Queens County
Reg. No. 3865, Clerk’s No. 3439
Term expires 3/30/40
State of New Y ork
C ounty of Queens
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came Arthur
P. Beck the subscribing witness to the foregoing
instrument, with whom I am personally ac
quainted, who, being by me duly sworn, did depose 51
and say that he resides at 112-27 177th St., St.
Albans, in Queens County; that he knows Emily
Nonni to be the individual described in, and who
executed, the foregoing instrument; that he, said
subscribing witness, was present and saw Emily
Nonni execute the same; that he, said witness, at
the time subscribed his name as witness thereto.
Regina J. Schmidt
Notary Public: Queens County
Co. Clk’s #3671, Reg. #3452
Term exp. 3/30/1940
Exhibit A, Annexed to Amended Complaint
18
Exhibit A, Annexed to Amended Complaint
Deed 4146 Page 402
State of New Y ork
■County of Queens
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came Roger R.
Grillon and Michelle Gr. G-rillon and Arthur Beck
to me known to be the individuals described in,
and who executed, the foregoing instrument, and
acknowledged that they executed the same.
Regina J. Schmidt
Notary Public: Queens County
Co. Clk No. 3671, Reg. No. 3453
Term expires 3/30/1940
State of New Y ork
County of Queens
On the 24th day of October, one thousand nine
hundred and thirty-nine before me came Victor
J. Jenkins and Vera 0. Jenkins to me known to be
the individuals described in, and who executed,
the foregoing instrument, and acknowledged that
they executed the same.
Regina J. Schmidt
Notary Public: Queens County
Co. Clk. No. 3671, Reg. No. 3452
Term expires 3/30/1940
J 9
7
RESTRICTIVE COVENANT
Premises: Addisleigh
The land affected by the within instrument lies
in Section 51 in Bloch 12631 on the Land Map of
the County of Queens
J. N.
R. & R. to:
Mary McKeon 56
Room 513
163-18 Jamaica Avenue
Jamaica, New York
Exhibit A, Annexed to Amended Complaint °
Recorded in the Office of the Register of the
County of Queens, in Liber No. 4146 Page 399 of
Conveyances on Jan. 2,1940 at 10:13 A. M. and in
dexed under Section 51 Block 12631 on the Land
Map of the County of Queens.
Bernard M. Patten
Register 57
20
EXHIBIT B, ANNEXED TO AMENDED
COMPLAINT
Deed 4146 Page 394
A greement F or Restrictive Covenant
This indenture made this, 10th day of January,
1939, by and between the undersigned, all being
residents of Queens County, New York, and own
ers of real estate situated therein, witnesseth
that;
Whereas the said parties hereto are owners of
real estate situated in Queens County, being in
the block bounded on the north by 112th Avenue,
on the east by 177th Street, on the south by 114th
Avenue, and on the west by 176th Street, and
being in Block No. 12632, Land Map of the County
of Queens, and
Whereas the said parties hereto desire, for their
mutual benefit as well as for the best interests of
the said community and neighborhood, to improve
and further the interests of said community.
Now therefore, in consideration of the premises
and mutual promises and the sum of One Dollar
($1.00) each to the other in hand paid, and other
valuable consideration, the parties hereto do
hereby create, impose and establish, and do hereby
mutually covenant, promise and agree each with
the other and for their respective heirs, succes
sors and assigns, that no part of the land now
owned by the parties hereto, a more detailed de
scription of said property being given after the
respective signatures hereto, shall ever be used
or occupied by, or sold, conveyed, leased, rented,
or given, to Negroes or any person or persons of
21
Exhibit B, Annexed to Amended Complaint 61
the Negro race or blood or descent. This cove
nant shall run with the land and bind the re
spective heirs, successors, and assigns of the
parties hereto until December 31st, 1975.
It is understood that the holders of mortgages
affecting the premises owned by the undersigned
are omitted from this agreement, but this shall
not affect the validity of this agreement.
Name Address
John H. Lutz 112-20 177 St.
Olga Ruggiero 112-50 177 Street
Victor Ruggiero 112-50 177 St.
Florence A. Renaud 112-24— 177th Street
Janette Hewitt 112-40 177th Street
112-40—177 Street
176-15— 114th St.
112-15—176 St.
112-19 176 St. Albans
112-16 177 St.
62
Ross I. Hewitt
Edith L. Rowe
Alfred S. W olf
George Strasser
Nunzio Mancuso
Irene Lutz 112-20 177 St. 63
W insome H olding Coup.
By Herman Kirschhaum, Treas.
(Seal)
Description
Corner formed by intersection
of southerly side of 112th Ave.
and westerly side of 177th St.,
being 144 feet on 177th St. and
100 feet deep on each side.
22
64 Exhibit B, Annexed to Amended Complaint
Deed 4146 Page 395
State of New Y ork
County of Queens
On the 29th day of February, 1939, before me
came H erman K irschbaum, to me known, who,
being by me duly sworn, did depose and say that
be resides at 88-23 162 St. Jamaica, Queens
County in N. Y .; that be is the Treasurer of Win
some Holding Corp., the corporation described
65 in, and which executed, the foregoing instrument;
that be knows the seal of said corporation; that
the seal affixed to said instrument is such cor
porate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that
be signed bis name thereto by like order.
Charles Mikelberg
Charles Mikelberg
Notary Public, Kings Co.
Kings Co. Clks. No. 164, Reg. No. 266
N. Y. Co. Clks. No. 516, Reg. No. 0M348
(36 Queens Co. Clk’s No. 280, Reg. No. 1757
Bronx Co. Clks. No. 36, Reg. No. 138M40
Nassau Co. Clk’s No. 21M40
Cert, filed in Westchester Co.
Commission Expires March 30, 1940
23
Exhibit B, Annexed to Amended Complaint
Deed 4146 Page 396
State of New Y ork
County of Queens
oo • o o . .
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came V ictor
Ruggiero and Olga Ruggiero to me known to be
the individuals described in, and who executed,
the foregoing instrument, and acknowledged that
they executed the same.
Regina J. Schmidt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
68
State of New Y ork
County of Queens jss. :
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came John H.
L utz and I rene L utz to me known to be the in
dividuals described in, and who executed, the
foregoing instrument, and acknowledged that they
executed the same.
Regina J. Schmidt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
69
24
State of New Y ork
County of Queens
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came Janette
H ewitt and Ross I. H ewitt to me known to be the
individuals described in, and who executed, the
foregoing instrument, and acknowledged that they
executed the same.
Regina J. Schmidt
72 Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
^ Exhibit B, Annexed to Amended Complaint
State of New Y ork
County of Queens
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came John
H. L utz, the subscribing witness to the foregoing
instrument, with whom I am personally ac-
72 quainted, who, being by me duly sworn, did depose
and say that he resides at 112-20 177th Street,
St. Albans, in Queens County; that he knows
Nunzio Mancuso to be the individual described in,
and who executed, the foregoing instrument; that
he, said subscribing witness, was present and saw
Nunzio Mancuso execute the same; that he, said
witness, at the time subscribed his name as wit
ness thereto.
Regina J. Schmidt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
25
Deed 4146 Page 397
Exhibit B, Annexed to Amended Complaint
State of New Y ork
'County of Queens
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came F lor
ence A. Renaud to me known to be the individual
described in, and who executed, the foregoing in
strument, and acknowledged that she executed the
same.
Regina J. Schmidt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
i O
26
Exhibit B, Annexed to Amended Complaint
Deed 4146 Page 398
6
RESTRICTIVE COVENANT
Premises: Addisleigh
77
The land affected by the within instrument lies
in Section 51 in Bloch 12632 on the Land Map of
the County of Queens
J. N.
R & R to :
Mary McKeon
Room 513
163-18 Jamaica Avenue
Jamaica, New York
78
Recorded in the Office of the Register of the
County of Queens, in Liber No. 4146 Page 394 of
Conveyances on Jan. 2, 1940 at 10:13 A. M., and
indexed under Section 51 Block 12632 on the Land
Map of the County of Queens.
Bernard M. Patten
Register
27
Answer of Defendant Sophie Rubin, to
Amended Complaint
SUPREME COURT
Queens County
79
------------♦------------
[SAME TITLE]
------------ *------------
The defendant, Sophie Rubin, by Paul R. Silver-
stein, her attorney, answering the amended com- gO
plaint, alleges:
First: Denies each and every allegation con
tained in paragraphs of the complaint numbered
; > 9 i < g ? > <6 10” , “ 11” , “ 12” , “ 13’ \14” , and
‘15*
Second: Denies each and every allegation con
tained in paragraph numbered “ 1” of the com
plaint, except that the defendant admits that said
defendant and the plaintiffs, Harold F. Kemp and
Sarah M. Kemp, his wife, are two of the parties
who were signatories to the certain agreement gp
with respect to the land known as Block #12631,
Section #51, on the Land Map of Queens County.
As AND FOE A FIRST DEFENSE, DEFENDANT
FURTHER ALLEGES:
Third: Upon information and belief, that the
block in which the defendant resides is one of
twenty-nine blocks, more or less, which comprise
the section known as Addisleigh Park, County of
Queens, City and State of New York.
Fourth: Upon information and belief, that
covenants and restrictions similar in form to Ex-
hibit A annexed to the complaint, to which this
defendant is a signatory, were prepared for all of
the land blocks in Addisleigh Park under a gen
eral plan and scheme, with the intent and purpose
that they were to be executed by a substantial
percentage of the respective owners in each of
said blocks intended to be effected thereby and
that the same were not to become effective or re
corded until executed by a substantial percentage
of the land owners as aforesaid.
F ifth : Upon information and belief, that it was
further intended under said general plan and
scheme that covenants similar in form to Exhibit
A annexed to the complaint affecting the remain
ing blocks in the said Addisleigh Park section
were to be recorded concurrently with the covenant
referred to as Exhibit A.
Sixth: Upon information and belief, that the
general plan and scheme failed because a sub
stantial percentage of the respective land owners
failed and/or refused to execute the covenants
affecting the blocks in which they owned real prop
erty.
Seventh: Upon information and belief, that
the only covenants similar in form to Exhibit A
annexed to the complaint ever recorded were
those affecting blocks 12631 and 12632 of the Land
Map of the County of Queens.
Eighth: Upon information and belief, the
aforesaid recordation was violative of the general
plan and scheme.
Ninth: Upon information and belief, that by
reason of all the foregoing the said covenants and
Answer of Defendant Sophie Rubin
29
restrictions referred to in the complaint as Ex
hibit A and B never became of any force and
effect and are invalid and unenforceable.
As AND FOR A SECOND DEFENSE, DEFENDANT
FURTHER ALLEGES:
Tenth: At all the times hereinafter mentioned,
the defendant was and still is the owner of prem
ises known as and by the street number 112-03
177th Street, St. Albans, New York, which prem- gg
ises have a frontage of 40 feet on 177th Street and
a depth of 100 feet on either side and lies in Block
12631, Section 51 on the Land Map of the County
of Queens.
Eleventh: On or about the 10th day of Janu
ary, 1939, the defendant herein, the plaintiffs,
Harold F. Kemp and Sarah M. Kemp, and others,
who ŵ ere then residents and owners of one family
houses on lots in the section of St. Albans, Queens
County, New York, known as Addisleigh Park,
situate in Block 12631, Section 51, on Land Map
of the County of Queens, executed a certain agree- 87
ment with respect to the property owned by them,
which agreement was recorded in the Office of the
Register of the County of Queens in Liber 4146 of
conveyances, page 399 on January 2, 1940, a
photostatic copy of which agreement is annexed
to the complaint and referred to in paragraph
“ 1” thereof as Exhibit A, and hereby incorpo
rated by reference with the same force and effect
as though the same were set forth in full and at
length.
Twelfth: Upon information and belief, Roger
R. Grillon and Michelle G. Grillon, his wife, two
Answer of Defendant Sophie Rubin
30
of the signatories to the agreement referred to in
paragraph “ Eleventh” hereof, conveyed premises
known as 112-11 177th Street, St. Albans, New
York, to Anna Williams, by deed dated October
6, 1942, recorded in the Office of the Register of
Queens County, on October 8, 1942, in Liber 4263
of conveyances, page 498.
Thirteenth: Upon information and belief, that
“ John” Williams, first name “ John” being ficti
tious, the true first name unknown to defendant,
is the husband of Anna Williams, the grantee men
tioned and described in the deed of conveyance re
ferred to in paragraph “ Twelfth” hereof, and
that the said “ John” Williams is a person of the
Negro race.
Fourteenth: That the said Anna Williams and
the said “ John” Williams, and their children,
ever since the 6th day of October, 1942, have
openly and notoriously continuously been in pos
session and occupation of premises 112-11 177th
Street, St. Albans, New York, to the knowledge of
gQ the plaintiffs herein and of the other signatories
to the agreement hereinbefore referred to as Ex
hibit A.
Fifteenth: Upon information and belief, no
action or proceeding has ever been instituted in
any Court of this State or of the United States to
enjoin the use and occupancy by the Williams fam
ily of the said premises 112-11 177th Street, St.
Albans, New York, by the plaintiffs or any of the
signatories, or their heirs, successors or assigns.
Sixteenth: By reason of all of the foregoing,
plaintiffs have waived all benefits, rights and priv-
° ° Answer of Defendant Sophie Rubin
31
ileges under the aforesaid agreement hereinbefore
referred to as Exhibit A.
As AND FOR A THIRD DEFENSE DEFENDANT
FURTHER ALLEGES:
Seventeenth: Defendant repeats each and
every allegation set forth in paragraphs “ Tenth”
to “ Fifteenth” , both inclusive, herein, as though
herein fully set forth.
Eighteenth: By reason of the foregoing, plain- 92
tiffs are guilty of such laches as should in equity
bar the plaintiffs from maintaining this action.
As AND FOR A FOURTH DEFENSE DEFENDANT
FURTHER ALLEGES :
Nineteenth: Defendant repeats each and every
allegation set forth in paragraphs “ Tenth” to
“ Fourteenth” both inclusive, herein, as though
herein fully set forth.
Twentieth: Upon information and belief, that
in addition to the premises occupied by the W il
liams family as aforesaid, three other houses in
the same block in which the plaintiffs, Harold F.
Kemp and Sarah M. Kemp, and this defendant
reside, are owned and/or occupied by persons of
the Negro race.
Twenty first: Upon information and belief,
that such ownership and/or occupancy as alleged
in paragraph “ Twentieth” hereof occurred sub
sequent to the date of the execution of the agree
ment hereinbefore referred to as Exhibit A.
Answer of Defendant Sophie Rubin
32
Twenty second: Upon information and belief,
that since the execution of the agreement herein
before referred to as Exhibit A, approximately
sixty residences in the Addisleigh Park section of
St. Albans are owned, rented and/or occupied by
persons of the Negro race.
Twenty third: That the general condition now
prevailing in the Addisleigh Park section of St.
Albans and in the block in which this defendant
resides, have become so altered that the terms and
9° conditions of the agreement heerinbefore referred
to as Exhibit A are no longer applicable to the
existing situation.
Twenty fourth: That by reason of the prem
ises, enforcement of the agreement hereinbefore
referred to as Exhibit A would be unjust, inequit
able and oppressive and cause great hardship with
little or no benefit to the parties to said agreement
or to the general neighborhood.
As AND FOE A FIFTH DEFENSE DEFENDANT
CjQ FUETHEE ALLEGES:
Twenty fifth: That the agreement referred to
in the amended complaint is void and invalid and
of no force or effect in that it constitutes an un
lawful restraint on alienation.
As AND FOE A SIXTH DEFENSE DEFENDANT
FUETHEE ALLEGES:
Twenty sixth: That the agreement referred to
in the complaint is void and invalid and of no force
and effect whatsoever in that its enforcement and
94 Answer of Defendant Sophie Rubin
33
the terms thereof are contrary to the provisions
and violative of the 14th Amendment to the Con
stitution of the United States of America.
As AND FOE A SEVENTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Twenty seventh: That the agreement referred
to in the complaint is void and invalid and of no
force or effect whatsoever in that its enforcement
and the terms thereof are contrary to the provi- gg
sions and violative of Article I, Section 11 of the
Constitution of the State of New York.
As AND FOR AN EIGHTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Twenty eighth: That the agreement referred
to in the complaint and the enforcement thereof
by a Court of equity or by any Court of the State
of New York would result in segregation of
Negroes and other persons not of the white or
Caucasion race solely by reason of their race or
color which is contrary to the public policy of the
State of New York and contrary to the public pol
icy of the United States of America.
As AND FOR A NINTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Twenty ninth: That the agreement referred to
in the complaint is void and invalid and of no
force or effect in that the terms thereof and the
enforcement thereof by any Court of the State
of New York are violative of the treaty obligations
of the United States of America under the Charter
Answer of Defendant Sophie Rubin y '
34
of the United States, Articles 55c and 56, which
treaty was made under the authority of the United
States.
Answer of Defendant Sophie Rubin
AS AND FOE A TENTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Thirtieth: That the agreement referred to in
the complaint is void and invalid and of no force
or effect in that the terms thereof and the enforce-
ment thereof by any Court of the State of New
York are violative of the treaty obligations of the
United States of America under the Act of Cha-
pultepec of 1945, which treaty was made under the
authority of the United States.
W herefore, defendant demands judgment dis
missing the complaint, together with costs and
disbursements of this action.
102
Paul R. Silverstein,
Attorney for Defendant,
89-31 161st St., Jamaica, N. Y.
(Duly verified on 7/24/46 by Sophie Rubin as
defendant.)
35
Answer of Defendant Samuel Richardson, to
Amended Complaint
SUPREME COURT
Queens County
-------------------1-------------------
[SAME TITLE]
------------------- *-------------------
Defendant, Samuel Richardson, by his attor
ney, Andrew D. Weinberger, for his answer, al- 104
leges:
1. Denies each and every allegation contained
in paragraph 1 of the complaint, except admits
that an exhibit annexed to the complaint purports
to show a writing to which plaintiffs Harold and
Sarah Kemp and defendant Sophie Rubin are
signatories.
2. Denies knowledge or information sufficient
to form a belief as to the allegations contained in
paragraphs 2 and 3 of the complaint.
105
3. Denies each and every allegation contained
in paragraph 5 of the complaint except admits
that plaintiffs Kemp, defendant Rubin and others
not parties to this action signed a writing which
is shown in Exhibit 1 and that plaintiffs Lutz and
others not parties to this action signed a writing
which is shown in Exhibit 2.
4. Denies each and every allegation contained
in paragraph 6 of the complaint except the ex
ecution of the two exhibits annexed to the com
plaint as elsewhere herein admitted.
36
106 Answer of Defendant Samuel Richardson
5. Denies each and every allegation contained
in paragraph 10 of the complaint.
6. Denies each and every allegation contained
in paragraph 11 of the complaint except admits
that the premises referred to are improved with
private dwellings.
7. Denies each and every allegation contained
in paragraph 12 of the complaint.
107 8. Denies knowledge or information sufficient
to form a belief as to any of the allegations con
tained in paragraph 13 of the complaint.
9. Denies each and every allegation contained
in paragraph 14 of the complaint.
10. Denies each and every allegation contained
in paragraph 15 of the complaint.
As A FIRST SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
103 n . The covenant sued on herein cannot be
judicially enforced by reason of the prohibitions
contained in the 14th Amendment to the Consti
tution of the United States and the laws enacted
thereunder.
As A SECOND SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
12. The enforcement of the covenant sued on
herein is prohibited by existing treaties entered
into between the United States and other nations
and which constitute the supreme law of the land.
37
As A THIRD SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
13. The covenant sued on herein is void and
may not be judicially enforced by reason of the
public policy of the United States and the State
of New York.
As A FOURTH SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
110
14. The covenant sued on herein cannot be
judicially enforced by reason of the prohibitions
contained in Article 1, Section 11 of the Con
stitution of the State of New York.
As A FIFTH SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
15. The covenant sued on herein is void as con
stituting an unlawful restraint on alienation of
real property.
I l l
W herefore, defendant Samuel Richardson de
mands judgment dismissing the complaint in this
action.
A ndrew D. W einberger,
Attorney for Defendant Samuel
Richardson,
67 West 44th Street,
New York 18, N. Y.
(Duly verified on September 24,1946 by Samuel
Richardson as defendant.)
Answer of Defendant Samuel Richardson
38
112
Judgment
At a Special Term, Part I of the Su
preme Court of the State of New
York, held in and for the County of
Queens, at the Queens County Gen
eral Court House, 88-11 Sutphin
Boulevard, Jamaica, Borough of
Queens, City and State of New York
on the 27th day of February, 1947.
P r e s e n t :
113
H on. Jacob H. L ivingston,
Justice.
--------------------♦ -------------------
[SAME TITLE]
------------------ i — — —— — •
The issues in this action having come on for
trial before Mr. Justice Jacob H. Livingston at
Special Term, Part I of this Court on the 6th, 7th
and 13th days of November, 1946 and this action
having been fully tried upon the issues presented
by the amended complaint and the amended an
i l ^ swer of defendant Sophie Rubin and the answer
of defendant Samuel Richardson, and the plain
tiffs having appeared herein by Wait, Wilson &
Newton, Esqs., their attorneys, Frederick W. New
ton, Esq. and William F. Cambell, Jr., Esq. of
counsel and the defendants having appeared as
follows: Sophie Rubin, by Paul Silverstein, Esq.
her attorney and Irving L. Schuh, of counsel,
Samuel Richardson by Andrew D. Weinberger,
Esq. his attorney and Vertner W. Tandy, Jr.,
Esq. of counsel and the following as amici curiae:
Will Maslow and Leo Pfeffer, Esq., on behalf of
39
the American-Jewish Congress and the American
Civil Liberties Union; Marion Wynn Perry, Esq.,
on behalf of the National Lawyers Guild; Witt &
Cammer, Esqs., by Mortimer B. Wolf, Esq. of
counsel, on behalf of New York State Industrial
Union Council and the Greater New York In
dustrial Union Council, C. I. 0., Charles Abrams,
Esq., attorney on behalf of City-wide Citizens
Committee of Harlem; William Kincaid Newman,
Esq., attorney on behalf of Social Action Com
mittee of the New York City Congregational 116
Church Association, Inc.; Robert L. Carter, Esq.,
attorney on behalf of Methodist Federation for
Social Service, and after hearing the proofs and
allegations of the plaintiffs and the defendants,
and due deliberation having been had thereon and
the Court having rendered its decision made and
filed on the 11th day of February, 1947.
Now on motion of Wait, Wilson & Newton, at
torneys for the plaintiffs Harold F. Kemp, Sarah
M. Kemp, John H. Lutz and Irene Lutz, it is
Ordered, adjudged and decreed that the de-
fendant Sophie Rubin be and she hereby is per
manently restrained and enjoined until December
31, 1975 from permitting the use or occupancy
by, or selling, conveying, leasing, renting or giv
ing to Samuel Richardson, a negro, or to any
person or persons of the Negro race, blood or
descent the premises 112-03 177th Street, St. Al
bans, New York, and it is further
Ordered, adjudged and decreed that the defend
ant Samuel Richardson be and he hereby is per
manently restrained and enjoined until December
Judgment 1 1 0
40
118 Judgment
31, 1975 from using or occupying or buying, leas
ing, renting, or taking a conveyance or gift from
the defendant Sophie Rubin or others of the
premises 112-03 177th Street, St. Albans, New
York, and it is further
Ordered, adjudged and decreed that the under
taking, on injunction pendente lite, as provided
by order of this Court dated July 9, 1946, given
on behalf of the plaintiff by The National Surety
119 Corporation, dated July 2, 1946 and approved by
this Court on the 9th day of July, 1946 in the
sum of Three thousand five hundred ($3,500.00)
Dollars is hereby cancelled and annulled and The
National Surety Corporation thereon is hereby
discharged from all liability upon such under
taking and it is further
Ordered, adjudged and decreed that the Clerk
of this Court is directed to enter judgment ac
cordingly.
Granted: February 28, 1947
P aul L ivoti,
Clerk.
Judgment entered March 1st, 1947 at 9 :10 A. M.
Enter,
120 Jacob H. L ivingston,
J. s. c.
(Seal) P aul L ivoti,
Clerk.
4 1
Case and Exceptions
SUPREME COURT
Queens County
Special Term— Part I
--------------------+-------------------
[SAME TITLE]
------------------- +-------------------
Jamaica, N. Y., November 6, 1946. 122
B e f o r e :
121
H on. Jacob H. L ivingston,
Justice
Appearances:
Wait, Wilson & Newton, Esqs.,
Attorneys for the plaintiffs,
By Frederick W. Newton, Esq. and
William F. Campbell, Jr., Esq.
Paul Silverstein, Esq., and
Irving L. Schuh, Esq.,
For the Defendant Rubin.
Andrew D. Weinberger, Esq., and
Vertner W. Tandy, Jr.,
For the Defendant Richardson.
American Jewish Congress and the American
Civil Liberties Union as amici curiae,
by Leo Pfeffer, Esq.
National Lawyers Guild as amicus curiae,
by Marion Wynn Perry, Esq.
42
New York State Industrial Union Council and
the Greater New York Industrial Union Coun
cil, C. I. 0. as amici curiae,
by Witt & Cammer, Esqs., by Mortimer B.
Wolf, Esq., of counsel.
City Wide Citizens Committee On Harlem as
amicus curiae,
by Charles Abrams, Esq.
Social Action Committee of the New York City
Congregational Church Association, as amicus
curiae,
by William Kincaid Newman, Esq.
Methodist Federation for Social Service as
amicus curiae,
by Robert L. Carter, Esq.
(Briefs were submitted to the Court and ex
changed among counsel.)
Harold F. Kemp—For Plaintiffs—Direct
H akold F. K emp, residing at 112-59— 177th
Street, St. Albans, Long Island, New York, called
as a witness on behalf of the plaintiffs, being first
duly sworn, testified as follows:
Direct examination by Mr. Newton-.
Q. Mr. Kemp, you are the owner of the prop
erty, 112-59—117th Street, are you? A. With my
wife.
Q. You and your wife------
Mr. Weinberger: If your Honor please, I
suggest that we may be able to save some of
43
the Court’s time by stipulating as to a few
of the pro forma facts.
Mr. Newton: I am not going to take more
than five minutes.
Mr. Weinberger: There are a number of
things that counsel may not be able to prove,
that we are ready to stipulate. We want to
get down to the fundamentals of law here.
Mr. Newton: All right, go ahead.
Mr. Weinberger: I offer to stipulate, on
the assumption that all of these items are 128
stipulated to pro and con, that the plaintiffs
Kemp own 112-59—177th Street, St. Albans;
that the plaintiffs Lutz own 112-20—177th
Street; that the covenants annexed to the
complaint were signed as indicated and re
corded ; that the plaintiffs are not negroes nor
of the negro race, blood, or descent; that the
defendant Richardson is a negro and a citizen
of the United States and of New York State;
and that the defendant Richardson owns the
vacant lot of land 40 by 100 feet abutting on
the rear of 112-03— 177th Street, which is the [29
property in suit here.
Mr. Newton: I will accept those conces
sions. That will save time. Thank you.
Are those concessions also made by the
defendant Rubin?
Mr. Silver stein: Yes, they are so made.
By Mr. Newton:
Q. Now, Mr. Kemp, how long have you oc
cupied those premises? A. About 22 years.
Q. As a private home? A. As a private home.
Q. Your property there, as I understand it, is
Harold F. Kemp—For Plaintiffs—Direct 1
44
about 60 by 120 feet, is that right? A. No, 100 by
120.
Mr. Weinberger: That is objected to. I
move to strike out the answer. The question
contains the word “ about” . The complaint
alleges that your property is 60 by 100 feet.
Counsel here does not ask the question, but
testifies that it is 100 by 120.
The Court: No; be said 60 by 120, and the
witness corrected him to 100 by 120.
131 The Witness: That’s right.
By Mr. Newton:
Q. Mr. Kemp, those lots on that street are
actually 60 feet wide, is that right? A. That is
correct.
Q. By 100 feet deep? A. Correct.
Q. Your property includes two lots, is that
right? A. That’s right.
Q. I show you a photograph and ask you if
that is a photograph of your home at that loca
tion. A. Yes, sir.
132 Mr. Newton: I offer the photograph in evi
dence, if the Court please.
Mr. Weinberger: No objection.
(Received in evidence and marked Plain
tiffs’ Exhibit 1.)
Q. Now, adjoining your property to the north
there is a vacant lot, is that right? A. Yes, sir.
The Court: May I ask a question? Would
the north be to the right of the picture, Plain
tiffs ’ Exhibit 1, or to the left?
Harold F. Kemp—For Plaintiffs—Direct
45
The Witness: To the left as you are look
ing at it.
Q. Then there is a house, I believe, that is
owned by a person by the name of Hemachandra?
A. Yes, sir, I believe so.
Q. I ask you if these are photographs of the
two houses to the north of you on your side of the
street. A. Yes, sir.
Q. I show you additional photographs and ask
you if those are the remaining houses on your side 134
of that street within that block between 112th
Avenue and 114th Avenue. A. I believe they are.
Mr. Newton: I offer them in evidence.
Mr. Weinberger: There is no objection,
your Honor, except to the photograph of 112-
15—177th Street, which is marked Budelman,
indicating that it is one house owned by
Budelman, when the fact is, I believe, that it
is a photograph of two houses taken at such
an angle that a tree obscures the division line
between the two. If that is noted on the rec
ord I have no objection. 135
The Court: Would it be very important to
the case?
Mr. Weinberger: No, I don’t think it will
be, but I do think that the plaintiffs are not
making an attempt to capitalize it.
Mr. Newton: I certainly consent that coun
sel’s statement be noted on the record, and
that it is correct.
(Received in evidence and marked Plain
tiffs’ Exhibits 2-A, 2-B, 2-C, and 2-D.)
Harold F. Kemp— For Plaintiffs—Direct
46
Harold F. Kemp—For Plaintiffs—Direct
By Mr. Newton:
Q. Those houses, so far as you know, Mr. Kemp,
are all occupied as single-family homes, is that
right ? A. As far as I know, yes.
Mr. Newton: If the Court please, I offer
in evidence a part of the tax map of the City
of New York. It is not for proof of any
boundary lines; it is merely to show the loca
tion of the premises that we are considering
237 and for no other purpose.
(Received in evidence and marked Plain
tiffs’ Exhibit 3.)
Mr. Newton: I offer in evidence agreement
for restrictive covenant dated January 10,
1939. That is the agreement referred to in
the stipulation of counsel. It is signed by the
plaintiffs Harold F. Kemp, Sarah M. Kemp,
and by the defendant Sophie Rubin, so I will
not have to prove the signatures.
(Received in evidence and marked Plain-
133 tiffs’ Exhibit 4.)
Mr. Newton: May it appear in the record
that the restrictive covenant, Exhibit 4, was
recorded in the Queens County Register’s
Office on January 2, 1940?
Mr. Weinberger: That is right.
By Mr. Newton:
Q. Mr. Kemp, at the time that you signed this
restrictive covenant, Exhibit 4, was anything said
about the other side of the street in that same
block that you live on ?
47
Mr. Weinberger: That is objected to.
Mr. Silverstein: The same objection.
A. I haven’t seen that covenant as yet.
The Court: Just a minute. When there
is an objection, do not answer.
Objection sustained. Strike out any an
swer.
Q. Was there at that time, within your knowl
edge, circulated and signed a restrictive covenant 140
affecting the other side of that street and in that
same block that you live in?
Mr. Weinberger: That is objected to. If
such a document were signed, let it be pro
duced and offered.
The Court: Objection sustained. What is
the basis of your complaint? Plaintiffs’ Ex
hibit 4, or Exhibit 4 and another restrictive
covenant?
Mr. Newton: Both.
The Court: You allege in your complaint
another restrictive covenant. 141
Mr. Newton: I want to show—I will be
perfectly frank------
The Court: No; let us limit ourselves.
(Discussion off the record between the
Court and counsel.)
The Court: Now, I said that in your com
plaint you seek injunctive relief because of
the statements contained in this covenant,
Plaintiffs’ Exhibit 4, and another one?
Mr. Newton: That is right.
The Court: Put the other one in evidence.
Harold F. Kemp—For Plaintiffs—Direct
Mr. Newton: I will do that. I offer in evi
dence, if the Court please, a restrictive cove
nant bearing the same date, January 10,
1939, affecting the other side of 177th Street,
in the same block between 112th Avenue and
114th Avenue, recorded in the Queens County
Register’s Office on the same date, January
2, 1940.
Mr. Silverstein: I object to the introduc
tion of that on the ground that a reading of
the instrument will indicate that there is no
privity whatsoever between either the defend
ant Rubin or any other parties whose names
are signatories to that agreement; that the
parties who are the signatories to the agree
ment now offered reside in another block;
that there is no reference whatsoever in the
agreement now in evidence as Plaintiffs’ Ex
hibit 4 to the agreement now offered, or vice
versa; and that that agreement is not binding
upon this plaintiff.
Mr. Newton: In equity in an action to en
force one of these covenants where there are
two or more affected properties as part of a
common scheme or plan, the decisions uni
formly hold that they may all be shown, that
they may be proved together, and that the
relief may be granted without regard to priv
ity of estate or of contract.
If your Honor wishes to look at the cases,
they are on page 4 of my brief—Equitable
Life Insurance vs. Bregin, 148 N. Y. 661;
Saratoga State Waters Corporation vs.
Brach, 227 N. Y. 429.
The Court: Without going into that for
Harold F. Kemp— For Plaintiffs—Direct
49
the moment,—I am addressing myself to Mr.
Silver stein, who made the objection,—is it
one of your contentions that the change in
conditions makes this restrictive covenant in
operative?
Mr. Silverstein: That is one of the de
fenses.
The 'Court: Well, don’t you think that if it
is one of your defenses we ought to have the
picture of the entire neighborhood?
Mr. Silverstein: That is Avhat I want. I 146
don’t want the two blocks between the------
The Court: He is offering two blocks in
order to get a picture of the entire neighbor
hood. I don’t think that anybody would stop
you from offering a couple of more blocks,
and he would be establishing a precedent
which might enure to your benefit.
Mr. Silverstein: There is just one other
thought I want to point out. I claim by my
answer that that which seems to have valid
inception, these two instruments never had
any valid inception, because there was sup-
posed to be a common scheme and plan which
failed in its entirety.
The Court : Wouldn’t we get a better pic
ture of the situation if we had all covenants
in?
Mr. Silverstein: All covenants in, yes.
The Court: I think you ought to withdraw
your objection at this time and only urge the
striking out of this if there is substantial ob
jection made when you want to introduce one
and the ruling is against you.
Mr. Silverstein: May I reserve my right,
then?
Harold F. Kemp— For Plaintiffs—Direct 1'±0
50
148 Harold F. Kemp—For Plaintiffs—Direct
The Court: Yes.
Mr. Newton: I want to say at this time on
that subject, so that the Court may not mis
understand me, that I maintain that this
scheme which affected both sides of the street
is a unit, and that I have a right to show both
sides of the street, and that I have pleaded
both sides of the street. When it comes to
going up beyond that I say now to the Court
that I intend to object to it.
149 The Court: I won’t tell you how I will rule
then. The objection is withdrawn at this time
and counsel reserves the right to make such
objection later, and I give him that right.
(Received in evidence and marked Plain
tiffs’ Exhibit 5.)
By Mr. Newton:
Q. Mr. Kemp, did you know at the time that you
signed this restrictive covenant, Plaintiffs’ Ex
hibit 4, that there was being circulated and signed
on the other side of the street an identical cove-
150 nant affecting the houses on that side of the street?
Mr. Weinberger: That is objected to as
calling for the operation of this witness’s
mind, either now or in 1939, and it is not
evidence.
The Court: I will let him answer it.
A. Yes, sir, I did.
Mr. Weinberger: Exception.
The Court: I want all of you to feel free
to take exceptions whenever you feel you need
them, without feeling that you are in anywise
bothering the Court. You are not.
51
Harold F. Kemp— For Plaintiffs— Direct 151
Q. How long have you owned and occupied that
house? Did I ask that question? A. You asked
that.
Mr. Newton: I ask for the production,
please, of the contract of sale made by the
defendant Sophie Rubin, to one Samuel Rich
ardson, of premises 112-03 177th Street.
Mr. Weinberger: A motion was made be
fore this Court, before we were in the case,
asking for the production and examination of
that contract. The motion was denied. The 152
pleadings admit that the defendant Richard
son signed a contract of purchase from the
defendant Rubin, and that pursuant to that
contract this real property has been sold by
Rubin to Richardson.
Mr. Newton: That is admitted now in the
record, is it?
Mr. Weinberger: It is admitted in the
pleadings.
The Court: Whether it is or not, do you
make that admission now?
Mr. Weinberger: Yes, sir.
The Court: So that we save looking up the °
paper at this moment. All right, that is all
you want, is it?
Mr. Newton: That is all I want. You may
examine.
The Court: This Richardson contract, or
the property covered by the proposed con
tract, is that on the same side of the street as
Kemp’s house, or on the other side of the
street ?
Mr. Weinberger: The same side as Mr.
Kemp’s house.
52
154 Harold F. Kemp—For Plaintiffs—Cross
The Court: In other words, Richardson’s
proposed grantor is a signatory------
Mr. Newton: To Exhibit 4, yes.
The Court: To the restricted covenant, is
that right?
Mr. Weinberger: Yes, sir, that is right.
Mr. Newton: You may examine.
Cross examination by Mr. W einberger:
Q. What is the assessed valuation of your
155 house, Mr. Kemp? A. I don’t know what it is.
Q. What did you pay in taxes on the house last
year? A. I can’t answer accurately, because I pay
so much a month. I believe it was around $250.
Q. Do you recall when I made a motion in this
court last August on behalf of the National Asso
ciation for the Advancement of Colored People,
pleading to come in amicus curiae? A. Do I recall
that? I was not here.
Q. Did counsel tell you that such a motion had
been filed with this court and served on him as
your attorney? A. About what?
156 Q- Did your attorney tell you that such a motion
had been filed? A. What kind of a motion?
Q. A motion for the National Association for
the Advancement of Colored People to intervene
in this action as a friend of the court. A. No, sir.
Q. Did you know that such a motion was pend
ing? A. No, sir.
Q. It was widely reported in the newspapers,
but you didn’t see it there or hear of it from your
attorney, is that correct? A. I didn’t know it.
Q. Did you know that in the interval between
the time that those motion papers were served and
the return before this court on August 28th, in
53
your street in St. Albans and in the adjoining
streets notices had been put under the doors of
ten or twenty of the negro occupants and owners
of those houses warning them to get out of their
homes, and signed KKK?
Mr. Newton: I object, if the 'Court please.
The Court: Sustained. What has that to
do with this case?
Mr. Weinberger: I want to know what this
defendant had to do with it.
The Witness: I had nothing to do with it.
The Court: Wait a minute; don’t answer
it. I don’t see any connection. As I under
stand it, I am trying the case here in Special
Term to determine whether the plaintiff is
entitled to injunctive relief against Sophie
Rubin and Samuel Richardson. Is that right?
Mr. Weinberger: Yes, sir.
The Court: It is a legal proposition, as I
see it. They either are or they are not en
titled to it. I am sure you will concede that
I do not approve of any practices such as
those you have just mentioned, and I don’t 159
think any decent person does, but it has noth
ing to do with this case, and we must not con
fuse the issues.
Mr. Weinberger: Except that this case,
your Honor, is a more polite and more formal
version of just that sort of conduct.
The Court: No. I don’t think that this
Court would allow itself or lend itself to being
used as a branch or adjunct of the Klu Klux
Klan.
Mr. Weinberger: I don’t think this Court
will.
Harold F. Kemp—For Plaintiffs—Cross 10 ‘
54
160 Harold F. Kemp—For Plaintiffs—Cross
The Court: No, this Court won’t, nor
would any Judge of this court, I am sure.
Now, let us get down to the case.
Mr. Weinberger: That is all.
Cross examination by Mr. Silver stein:
Q. Mr. Kemp, how long have you owned your
home? A. About 22 years.
Q. What did you pay for it? A. About $21,000.
Q. Now, there is a party by the name of Hema-
161 chandra living next door to you? A. Hemachan-
dra.
Q. The family is colored, is it not? A. I believe
so.
Q. Do you know what your assessed valuation
of the property was in 1939? A. No, sir.
Q. Do you know how much you paid in taxes in
1939, real estate taxes? A. No, sir.
Q. How much are your real estate taxes today?
A. I said I thought they were about $250 a year.
I am not positive of it.
Q. Are you a member of the Addisleigh A. P. O.
252 Holding Corporation Association? A. Yes.
Q. How long have you been active in that or
ganization? A. I think it is around seven or eight
years.
Q. There is an area in St. Albans known as
Addisleigh, is that correct? A. Yes, sir.
Q. And that area of Addisleigh covers property
running along Linden Boulevard, on both sides of
it, up to the railroad, the Long Island Railroad,
near what is now the Naval Hospital, is that cor
rect? A. That is commonly what it is regarded as.
Q. Then it runs north along the railroad to
what would he known as 112th Avenue ? A. Addis-
leigli was not generally regarded to go down to
as far as 112th Avenue.
Q. Then, you tell me the area that is embraced
in Addisleigh, the Addisleigh section of St. A l
bans. A. Well, there is no way I can tell you
exactly how far north the Addisleigh section of
St. Albans was supposed to be.
The Court: What is your general impres
sion of the Addisleigh section?
The Witness: My general impression from
living there a number of years— there was a
woods there, there was a closed street, and
that street is now opened up and there is no
street running that way now that would close
—between 114th Avenue, or Murdoch Avenue
now, and 112th Avenue. The Addisleigh sec
tion as it was regarded before, that ran from
114th Avenue to this woods which is now
opened up.
The Court: That was your impression?
The Witness: Yes, sir.
By Mr. Silver stein:
Q. And your house is north of 114th Avenue, is
that correct? A. That is correct.
Q. Then, the property south of 112th Avenue is
in the Addisleigh section of St. Albans, is that
right? A. Not all of it, what I would consider the
Addisleigh section of St. Albans.
Q. Is Mr. Eubin’s house in the Addisleigh sec
tion of St. Albans? A. I would regard it in the
Addisleigh section.
Q. Is he not located on the corner of 112th Ave
nue and 177th Street? A. I don’t think he is.
Q. You don’t think so? A. No, sir.
Harold F. Kemp— For. Plaintiffs—Cross
56
Q. You have lived on that street how many
years? A. Twenty-two.
Q. How long have you known Mr. Rubin? A.
I haven’t known him at all.
Q. Do you know his house? A. Yes, sir.
The Court: Do we get a concession as to
the location of Mr. Rubin’s house?
Mr. Newton: Yes, your Honor. I f I un
derstand the question,—and I don’t think the
witness did—as I understand it, it is the
f southeast corner of 112th Avenue and 177th
Street.
The Court: Is that what you contend?
Mr. Silverstein: Yes, sir.
The Court: Do you concede it?
Mr. Newton: Yes, your Honor.
The Court: Your lawyer, Mr. Witness,
says that it is on that corner.
By Mr. Silverstein-.
Q. Now, 112th Avenue going in a northeasterly
168 direction towards Long Island Railroad, would
you call that the boundary line of the Addisleigh
section? A. Would you repeat that again?
Q. (Last question read.) A. Yes, I would, now
that I know where 112th Avenue is, that the Rubin
house is on.
Q. Then, running along the railroad to Linden
Boulevard------ A. Yes, sir.
Q. Then, as we run in a westerly direction
along Linden Boulevard and towards Merrick
Road, would that he within the area? A. Yes, sir.
Q. Both the north and the south sides of Linden
Boulevard? A. I would say it would. I couldn’t
tell you exactly.
16® Harold F. Kemp— For Plaintiffs—Cross
57
Q. What is the most westerly street that is
within the boundary line of the Addisleigh sec
tion? A. You mean towards Merrick Road? Is
this westerly?
Q. Yes, going toward the Merrick Road. A. I
couldn’t give you exactly my definition of where
Addisleigh ends in the westerly direction. As a
rough guess, I would say it is about 174th Street.
Q. Isn ’t it a fact that 173rd Place is part of
the section known as Addisleigh? A. I don’t know.
Q. You wouldn’t know that? A. I don’t know 170
the exact location of 173rd Place.
Q. Some time prior to January 10, 1939, the
residents of the Addisleigh Park area, including
yourself, got together, did they not? A. We had
meetings.
Q. You formed an association, did you not? A.
Yes, sir.
Q. What was that association known as? A. I
believe it was the Addisleigh Holding Corpora
tion, some name that was just repeated a few min
utes ago. I don’t remember the exact name.
Q. Didn’t you form an association prior to
January, 1939, a property owners association? A.
I don’t remember whether there was any asso
ciation formed prior to this Addisleigh Holding
Corporation.
Q. Did you have any meetings? A. There were
meetings before January, 1939, but I don’t re
member whether------
Q. Where did those meetings take place? A.
I don’t remember.
Q. Did you attend them? A. Maybe one.
Q. About how many people were at these meet
ings? A. The one that I attended, I would say
that might have been forty or fifty people.
Harold F. Kemp—For Plaintiff s^-Cross lo y
58
172 Harold F. Kemp—For Plaintiffs— Cross
Q. How many houses are there on your block?
A. The block between what?
Q. The street you live on. A. From Linden
Avenue to what you call 112th?
Q. Do you live between Linden Avenue and
112th? A. No, but I live on 177th Street. That
is on the block that I live on.
Q. Between 112th and 114th, is that correct? A.
Well, yes, I live—that is what I want specified,
what the limitations were.
173 Q- I asked you, Mr. Witness, the block you
lived on. A. I didn’t know if you meant in be
tween those two, 112th and 114th. I want to an
swer accurately. That is why I am asking this.
Q. You don’t live on more than one block, do
you? A. I don’t see how it is physically possible
to.
The Court: Let us not quibble.
Mr. Silverstein: May I have the question
answered?
Q. How many houses are there on your block?
A. On both sides of the street?
174 Q. On one side, your side of the street. A. Why,
there are eight or nine.
Q. How many are there on the other side of
the street? A. Around seven or eight.
Q. And the meeting you attended had forty or
fifty people there, is that correct? A. The meet
ing I attended was a meeting of more than just
the one block.
Q. It included several blocks, did it not? A.
Yes, sir, I believe so.
Q. Have you an idea of how many blocks there
are in the Addisleigh area? A. How many blocks
are in the Addisleigh area?
59
Q. Yes. A. I would say it is from 174tli Street
to around 180th.
Q. If I were to tell you that there were about
29 blocks in the Addisleigh area, would that be
substantially correct? A. I would say it would be
too high.
Q. Despite the fact that it falls within the area
that you have given to me? A. Well, my area, I
said, was what I regarded, was 174th to around
180th Street.
"1 ^ Ft
The Court: How many blocks do you say ‘
is your conception of Addisleigh?
The Witness: I ’d say around nine or ten
blocks, which would be running along west
erly— east to west direction.
Q. Did you become a member of the Addisleigh
Park Properties Association? A. Did I what?
Q. Become a member of the Addisleigh Park
Property Owners Association? A. Yes, sir.
Q. Do you remember when you became a mem
ber? A. Not the exact date, no, sir.
Q. Was it prior to the execution of the cove- 177
nant which I believe is Plaintiffs’ Exhibit 4? A.
I believe it was, but I am not positive.
Q. As a matter of fact, that Association was
formed by people who lived in the Addisleigh
Park section of St. Albans, is that correct? It
is not confined to the two blocks in which you and
Mr. Lutz live? A. No, sir.
Q. But it takes into consideration the people
who live in the entire Addisleigh Park area? A.
Yes, sir.
Q. And at these meetings there was discussion,
was there not, about a covenant that was to be
Harold F. Kemp—For Plaintiffs—Cross
60
178 Harold F. Kemp—For Plaintiffs— Cross
executed by the property owners, which would be
in effect a covenant under a general scheme and
plan covering the entire area, is that correct? A.
Yes, sir, such a covenant was discussed.
Q. And that covenant was to be sent out to the
property owners in the various blocks throughout
the entire Addisleigh area, is that correct? A.
Yes, sir.
Q. And the covenant known as Plaintiffs’ Ex
hibit 4, the one that you signed and the one that
179 Mr. Rubin signed, was the first covenant pre
pared which was submitted to the property own
ers in Addisleigh Park, is that correct? A. I
don’t know whether it was the first or not.
Q. But you do know that that was submitted to
the property owners in Addisleigh Park? A. I
know it was submitted to m e; I don’t know any
thing about the other covenants on the other
streets, when they were submitted.
Q. At these meetings of the Association wasn’t
there some covenant discussed? A. I was only at
one meeting, so I know very little about------
Q. At this meeting you attended------ A. —the
matter of covenants.
Q. (Continuing) —wasn’t the discussion gen
eral? It was not confined to your block, was it?
A. No, sir.
Q. There were people there from other blocks,
were there not? A. Yes, sir.
Q. The people that were at these meetings or
at the meeting that you attended were persons
who lived in the area, and there was taken under
consideration by these people, including yourself,
a type of covenant that was to be signed and filed
6 1
affecting the entire area, is that correct? A. Yes,
sir, a covenant was discussed.
Q. For the entire area? A. Yes, I said that
covenants for the entire area were discussed.
Q. And there was no discussion, was there, at
the meeting you attended, that for the block you
were to be in there would be one type of covenant
and for the block that Mr. Jones was in, using a
fictitious name, there was to be another type of
covenant? A. No, sir.
Q. The general idea then was uniformity of 182
covenant, if any covenant came into existence?
Mr. Newton: I object to that, if the Court
please.
The Court: Yes, I think that is presuppos
ing something of which we have no proof.
I would like to ask a question.
One of you brought out before that there
was a colored neighbor of this man?
Mr. Silverstein: Yes.
By the Court:
183Q. Is that the house right next to you? A.
With one lot in between, 60 feet.
Q. When did that colored neighbor move in
there, Hemachandra? When did they come in?
What I want to know is, was it before this cov
enant or subsequent to the covenant? A. I don’t
know whether it was before. I would say it was
a matter of around six or seven years. There
must be a date there that they know when he came
in.
Q. I am asking you if you know? A. I don’t
know if it is before or after the covenant.
Q. They are there six or seven years and you
Harold F. Kemp— For Plaintiffs—Cross -lca
62
184 Harold F. Kemp—For Plaintiffs—Cross
don’t know whether it is before or after the cov
enant? A. I don’t know whether it is before or
after the covenant.
The Court: Let the record show that the
covenant we refer to is Plaintiffs’ Exhibit
4.
Mr. Silverstein: We can supply that in
formation.
The Court: If counsel can agree, I would
like to have that information.
185 Mr. giiverstein: I am taking the informa
tion from one of your affidavits.
Mr. Newton: And I explain to the Court
that that particular property was not affected
by the covenant, inasmuch as it was owned by
an institution at the time the conveyance was
made.
Mr. Weinberger: I must take exception to
the statement by Mr. Newton that it was not
affected by the covenant because it was owned
by an institution. There are decent people
in Queens County who will convey prop-
186 erty------
The Court: You are suffering from a hang
over. Yesterday was Election Day. Today
we start with a clean slate, and all these
speeches are forgotten until next September
or October. I am not a jury. Before a jury
you use that type of argument, appealing to
emotion. I am going to try to divorce my
self as much as humanly possible from all
emotion in this case. You are correct in your
objection that there is no proof.
What I want to know is this: When did
the Hemachandra family come into posses-
63
sion? I think that is an important factor in
this case. If I can be told, I want to be told.
I f I cannot be told, I •will withdraw the ques
tion.
Mr. Silverstein: I can supply the informa
tion from an affidavit made by John Lutz. I
believe he is in court. He is one of the plain
tiffs. At the time of the signing of the
covenant the premises were owned by the
Manufacturers Trust Company as trustee.
Subsequent to the execution of the covenant 188
Manufacturers sold the property, which it
held by mesne conveyances, and this is long
after the execution of the covenant. It was
purchased by the Hemachandras, who are
now in possession. They are the fee owners.
They purchased it subsequent to the execution
of the covenant.
The Court: Before this case is finished,
will somebody furnish the date of their deed?
(Discussion between Court and counsel off
the record.)
189The Court: Counsel said that he will fur
nish the Court with the information as to
when the Hemachandra family came into pos
session of the property adjacent to Mr.
Kemp’s property, “ adjacent” meaning with
one lot between. I would like also for the
record to show who owned that property at
the time of the signing of the covenant, Plain
tiffs ’ exhibit 4, and whether or not that owner
was a signatory to the covenant. These are
all facts that we do not have to argue about.
Mr. Newton: If your Honor please, as
Harold F. Kemp—For Plaintiffs—Cross
64
was stated in the affidavit, the property was
at that time owned by the Manufacturers
Trust Company as trustee, and that company
did not sign the covenant.
By Mr. Silver stein-.
Q. Do you know a party by the name of Michelle
G. Grillon? A. Who?
Q. Grillon? A. I don’t recognize the name.
Q. If I were to tell you that Michelle G. Grillon
1^1 is a signatory to Plaintiffs ’ Exhibit 4, in evidence,
would you accept that as the fact? A. I f you said
that he was on the covenant?
Q. Yes. A. Yes, surely.
Q. Have any colored families moved in on your
block since the time you signed Plaintiffs’ Exhibit
4? A. Not to my knowledge.
Q. Well, the Hemachandras moved in, didn’t
they? A. I am excluding them.
Q. As a matter of fact, Grillon, one of the
parties to the covenant, sold his house to a colored
man, didn’t he ? A. I don’t know that.
192 Q. Mr. Williams is married to Anna Williams,
do you know that?
Mr. Newton: I object, if the Court please.
Mr. Silverstein: I am asking him if he
knows.
A. I don’t know who you are referring to—Mr.
Williams.
Q. Are you familiar with premises 112-11—
177th Street? A. I know approximately where
it is. I am not familiar with any details connected
with who owns it or anything like that.
Q. You haven’t the faintest idea? A. No, sir,
I haven’t the faintest idea.
-*-yu Harold F. Kemp—For Plaintiffs—Cross
65
Q. And you don’t know who occpuies it? A.
No, sir.
Q. How long have you known Mr. Lutz? A.
Approximately ten or twelve years.
Q. Are you very friendly with him? A. I
wouldn’t say very friendly. We know each other
as neighbors and see each other once in awhile.
Q. He is your co-plaintiff in the action, is he
not? A. Yes, sir.
Q. Was he active in the affairs of the Addis-
leigh Property Owners Association? A. I don’t 194
know how active he was, whether he was active
or not.
Q. You have no idea? A. No, sir. I would say
the one meeting that I was at, that he was not
active in it.
Q. Who brought the covenant to you, Plaintiffs’
Exhibit 4? A. I believe it was a man by the name
of Maring, I think.
Q. Do you remember when he brought it to you?
A. No, I don’t remember the exact date.
Q. Was anybody with him when it was brought
to you? A. I don’t remember that.
Mr. Silverstein: That is all.
John H. Luts—For Plaintiffs—Direct
John H. L utz, residing at 112-20— 177th Street,
St. Albans, Long Island, New York, called as wit
ness on behalf of the plaintiffs, being first duly
sworn, testified as follows:
Direct examination by Mr. Newton:
Q. Mr. Lutz, you live about in the middle of the
block between 112th Avenue and 114th Avenue
66
196 John II. Luts—For Plaintiffs—Direct
and on the side opposite to Mr. Kemp, is that
right? A. Right.
Q. I show you some photographs and ask you
if these are photographs of the houses on your
side of the street in that block? A. Yes, they
are.
Mr. Newton: I offer them in evidence, if
the Court please.
Mr. Silverstein: No objection.
(Received in evidence and marked Plain
tiffs’ Exhibits 6-A, 6-B, and 6-C.)
Q. I show you another photograph and ask
you if that is correctly labeled a photograph of
177th Street looking north from 114th Avenue.
That would be toward 112th Avenue. A. Yes,
that is.
Mr. Newton: I offer that in evidence.
(Received in evidence and marked Plain
tiffs’ Exhibit 7.)
Q. Mr. Lutz, I show you a sketch on which cer
tain lots are shaded in red. Have you compared
that with the covenants, Exhibits 4 and 5, so that
you are able to state that those lots shaded in red
are the ones that were covered by the covenants?
A. That’s right.
Mr. Newton: I offer that in evidence, if
the Court please, not as proof of any fact,
but as a chart to aid in understanding the
covenants.
Mr. Silverstein: Except that one portion
of it Mr. Kemp did not own, I think, 60 feet
67
of it, at the time that the covenant was exe
cuted.
Mr. Newton: He does now.
Mr. Silverstein: He does now own it, but
he did not own it at the time the covenant
was executed.
Mr. Newton: I withdraw the last offer.
Counsel has called my attention------
Mr. Silverstein: If you change it and con
sent to it------
Mr. Newton: I will consent that there is a 200
question about the ownership of one of those
lots at that time. There was a deed which we
believe was given as a mortgage and the next
year was conveyed back to this man. It hap
pened that that deed was of record at that
particular moment.
The Court: Did he own 60 feet and his
house at the time of the covenant?
Mr. Silverstein: No, he didn’t. He owned
the house, if that is the 60 feet you are re
ferring to.
The Court: I am talking about the 60 201
feet.
Mr. Silverstein: That he owned?
The Court: I mean the 60 feet on which the
house was that he owned.
Mr. Silverstein: Yes.
The Court: What difference would it be if
he owned the other 60 feet?
Mr. Silverstein: He didn’t own it.
The Court: Let us assume he didn’t own
it; what difference would it make?
Mr. Silverstein: No difference at all.
The Court: I mean, his rights are not in-
John H. Lutz—For Plaintiffs—Direct iy y
68
creased or decreased by the size of his lot.
Mr. Silverstein: By the size of the prop
erty he owns, that’s right.
The Court: Suppose we take it with the
understanding that he only owns 60 feet and
his house, the lot on which the house stands,
and that later it may he called to the Court’s
attention as to whether or not he owns the
rest, and that unless there is an agreement,
it only stands as to these 60 feet.
203 Mr. Silverstein: Your Honor does not
quite understand it. He unquestionably owns
the whole 120 feet now. The question is
whether at the time of the signing he owned
it.
The Court: At the time of the signing,
surely. I understood it.
(Received in evidence and marked Plain
tiffs’ Exhibit 8.)
By Mr. Newton:
Q. Mr. Lutz, how long have you owned and
occupied that property, 112-20—177th Street? A.
I think it will be about nine years this December,
approximately. Of course, the date I couldn’t
say exactly.
Q. At the time when these covenants, Exhibits
4 and 5, were signed, were you active in any as
sociation or organization of property owners in
that section of the city? A. No, sir.
Q. Did you know that at that time there was a
covenant similar to the one that you signed that
was being circulated and signed on the other side
of the street? A. At that time?
John II. Lutz—For Plaintiffs—Direct
69
John H. Lutz—For Plaintiff—Cross 205
Q. Yes. A. You mean that, was there another
covenant, you mean?
Q. No; this same covenant. A. Yes, both sides,
right.
Q. In your block? A. That’s right, yes.
Mr. Newton: You may examine.
Cross examination by Mr. Silver stein:
Q. Mr. Lutz, is there an Addisleigh section of
St. Albans? A. That’s right, there is. 206
Q. Will you tell us what your impression is of
the area, the boundary lines of the Addisleigh
Park section of St. Albans?
Mr. Newton: I f the Court please, as I
understand it, there is some confusion be
tween the names Addisleigh section and Ad
disleigh Park section. I wish counsel would
explain which he means, so that the record
will not be confused when we get through.
By the Court:
Q. Do you know of two sections, Addisleigh 207
Park and Addisleigh? A. I know Addisleigh.
Q. You don’t know of any Addisleigh Park?
A. Well, I heard of it.
Q. But all your section is------ A. Is called
Addisleigh section.
The Court: Is that what you are talking
about?
Mr. Silverstein: Yes.
Q. What do you consider to be the Addisleigh
section? A. Well, approximately I am giving
you------
70
Q. All these things are approximately. A.
Around 173rd------
The Court: Counsel, you do not contend
that there is a definite section known as Ad-
disleigh Park with definite boundaries?
Mr. Silverstein: No; I am talking about
the section.
The Court: What his general conception
is?
Mr. Silverstein: Yes.
209 The Court: When somebody says, for in
stance, that he lives in the Williamsburg sec
tion of Brooklyn, nobody can hound it.
Mr. Silverstein: No, but these people did
bound it.
The Court: They did?
Mr. Silverstein: Yes.
Q. If you bounded it before, tell us what your
conception of the boundaries is. A. About 173rd
to about 180th. Now, taking Linden Boulevard,
of course, whether it is—I don’t mean the hos-
210 pital site; I mean the opposite side of Linden
Boulevard—it runs from that point of Linden
Boulevard over approximately, as I say, 112th
Avenue. As Mr. Kemp specified before, it was
woods through there, and that was the dividing
line.
By Mr. Silverstein:
Q. So that the Addisleigh section is 173rd
Street running along 112th Avenue to the Long
Island Railroad in St. Albans? A. That’s right.
Q. And running south along the railroad down
to Linden Boulevard? A. That is about right.
John II. Lutz—For Plaintiff—Cross
7 1
Q. And then running along Linden Boulevard
back towards 173rd Street, is that correct? A.
That is about right.
Q. That is your understanding and impression
of the Addisleigh section? A. Unless I have the
actual map that is drawn on there, that is what
I would call Addisleigh, right.
Q. How long have you lived on 177th Street?
A. Oh, since December, approximately nine years.
Q. How long have you known Mr. Kemp? A.
Since I have lived there. In fact, I knew him long 212
before that in line of business.
Q. How long have you known Mr. Rubin? A.
Since I lived in that territory.
Q. Do you know a Mr. Mass in the area? A. I
do.
Q. Since you lived there? A. Since I live there,
yes.
Q. And Mr. Houser? A. Right.
Q. Mr. Greene? A. Right.
Q. Mr. Mancuso? A. That’s right. They are
neighbors.
Q. Mr. Kilpatrick? A. Another neighbor. 213
Q. Mr. Johnson? A. Johnson, yes.
Q. And Mr. Richardson? A. Right.
Q. Mr. Mehling? A. Right.
Q. All the people I have just mentioned, with
the exception of Rubin, live on your side of the
street, is that correct? Do you know a Mr. Litz-
ner? A. That is the opposite side.
Q. Yes. A. That is not the original owner of
that property.
Q. Do you know Mr. Grillon? A. I know of
him, yes. I know Mr. Grillon, yes.
Q. Who is the present occupant of the house
John H. Lutz—For Plaintiffs—Cross
72
214 J q Jm j j Lutz—For Plaintiffs—Cross
that formerly was occupied by Grillon? A. A
party by the name of Williams.
Q. Mr. Grillon signed the covenant, didn’t be?
A. That’s right.
Q. I am referring now to the covenant in the
block in which Mr. Kemp and Mr. Rubin live. A.
Right.
Q. Are there colored people living there now?
A. The party that bought that property was a
white woman by the name of Williams.
215 Q. Mrs. Williams? A. Mrs. Williams, a widow,
supposed to have been when that was sold.
The Court: Who lives there now?
The Witness: Name of Williams. Her
name was Williams.
The Court: Does she live there now?
The Witness: She lives there now.
Q. She is married to a colored man? A. I
wouldn’t say so, no, sir.
Q. Is there a colored man living in the house?
A. I don’t know. I see colored working around
216 there.
Q. Did you ever see a colored man go in and
out of the house? A. Yes, I have seen him going
in and out.
Q. The same man? A. Yes, many a time.
Q. Are there colored children living in that
house ? A. Why, there is a little colored girl, very
light-complected, going in and out. I seen her,
yes.
Q. In the house. Did you know that Grillon
sold that house after he signed the covenant? A.
Yes.
Q. Do you know how long the Williams family
has been living in the house formerly occupied by
Grillon? A. I couldn’t give you the exact date,
but approximately maybe about four years.
Q. Since 1942? A. Well, it might be that. I
don’t know the date or the year.
Q. Have you seen the same colored man going
in and out of that bouse? A. No, I don’t. I have
no interest in that particular route by watching
people like that, my friend. I have seen them
there a number of times, but I haven’t seen them
going in and out the way you specify.
Q. Have you ever been active in any association
embracing the area in which you live?
Mr. Newton: I ask that the time be fixed,
your Honor.
Mr. Silverstein: Let him first tell us if be
has ever been. Then no time may be fixed.
A. Ask the question again, please?
Q. (Last question read.) A. No, not up until
the present time. Of course, within the last year.
Q. Well, are you now connected with any asso
ciation? A. In that area?
Q. Yes. A. Yes, I am.
Q. What is the name of that association? A.
The association?
Q. Yes. A. Addisleigh Property Owners Asso
ciation.
Q. Are you an officer of that association? A. I
am.
Q. What office do you occupy? A. President.
Q. How long have you been president? A. Since
about last October.
Q. Prior to that time were you a member of the
Association? A. Yes, I was.
Q. Did it hold any meetings? A. Yes, it did.
John H. Luts—For Plaintiffs—Cross
74
2 2 0 John II. Lutz—For Plaintiffs—Cross
221
222
Q. How long has that association been in exist
ence? A. Ever since I am in the neighborhood.
Q. So that that association has been in exist
ence, as far as you are concerned, for at least nine
years? A. Well, wait a minute. I may he exag
gerating one year. I would say eight years.
Q. Eight to nine years ? A. Eight to nine years.
Q. You were a member then? A. Yes, that’s
right.
Q. Did it hold regular meetings? A. No,—well
once a year or so, like that. Of course, when they
have------
Q. Prior to January 10, 1939, did you attend
the meetings of this Association? A. Prior to
that?
Q. Yes. A. No, I don’t remember; only one,
probably.
Q. Where was that meeting held? A. That
meeting, I believe, was held in the— where the St.
Albans Hospital is now, in the clubhouse. There
used to be a golf links there. They used to call
the meetings there, and the only one I remember
attending on that particular-—of the organization
at that time.
Q. About how many people attended that meet
ing? A. Well, I would say around fifty, forty-five
to fifty.
Q. And the people that attended that meeting,
would you say that they came only from the block
in which you and Mr. Kemp lived, or would you
say that they came from several of the blocks in
what is known as Addisleigh? A. Several of the
blocks of that particular area.
Q. At the meetings you attended prior to the
75
execution of the covenants, was there a general
discussion among the participants at the meeting
concerning restrictive covenants against people
of the negro race? A. No, not at that time.
Q. Well, when did any discussion come up, if
there was any, about execution of covenants con
cerning people of the negro race? A. Why, the
covenant, after it was made, of course, it had that
clause in, and, of course, everybody signed it. Of
course, when it was, I couldn’t exactly give you
the date on that. 224
Q. Mr. Witness, this agreement which has your
signature, in evidence as Plaintiffs’ Exhibit 5,—
look at it. A. That’s right, that’s my signature.
Q. There was a meeting of the Property Owners
Association, was there not, prior to the time you
put your name on that paper? A. Yes, we have
had a meeting, yes, that’s right. We did, of
course. As far as the dates are concerned------
Q. Was there one meeting or more than one
meeting? A. You mind my asking? Don’t push
me too hard, will you, please, just a little easy,
and I will answer every question you might put to QO_
me. What was that question you wanted to know?
By the Court:
Q. He asked you, before you signed these cove
nants did you have a meeting? A. Yes, we did.
Q. Was there more than one meeting or one
meeting? A. Well, I will tell you, at the time—
of course, this is 1939 it went into effect. I am
only in there nine years.
Q. I mean to your knowledge. You can only
speak for yourself. A. Well, maybe one or two
meetings before that.
John H. Luts—For Plaintiffs—Cross
7 6
226 John H. Lutz—For Plaintiffs— Cross
By Mr. Silverstein:
Q. Do you know who prepared that paper? A.
No, I do not.
Q. Did you meet any lawyers during the course
of these meetings? A. No, I didn’t meet any
lawyer.
Q. At any of these meetings were there many
of these papers that were prepared? A. No, I
don’t remember anything like that.
Q. You don’t? A. No, sir.
227 Q. But papers similar in form to the one now
before you were presented to the meeting for
their consideration, were they not? A. I didn’t at
tend those meetings. I knew nothing about them,
only this particular one.
Q. At that meeting were papers in form similar
to the one before you presented for your consid
eration? A. Before this?
Q. Before you signed that paper. A. No, sir.
Q. When for the first time did you see a paper
similar in form to the one you now have before
you ? A. Before this one here ?
228 Q- Yes. A. I don’t remember.
By the Court:
Q. Let us see if you understand the question. A.
Maybe I don’t understand it.
Q. At the time you signed and several other peo
ple signed this at the meeting------ A. That’s right.
Q. You had a meeting or two, you say, before
that? A. Yes. It wasn’t signed at the meeting,
pardon m e; these were signed at individual homes.
Q. All right. At the meeting which you had
and one or two, you said, before, this was dis
cussed? A. That’s right.
7 7
Q. Was this paper or a similar paper or a paper
with this agreement passed around, or was it dis
cussed? A. That was just discussed.
Q. Discussed? A. That is all.
Q. But there wasn’t a paper passed? A. No,
sir, not at the time.
Q. What was in this covenant was discussed at
the meeting? A. That’s right. They just prob
ably discussed it. Of course, I was only to one
meeting.
Q. At that meeting that you were at; that is 230
what you are telling us about? A. Yes.
Q. They talked about this covenant? A. That
is it.
By Mr. Silverstein:
Q. When they spoke about it, they spoke about
it in terms of the Addisleigh section of St. A l
bans, did they not? A. That’s right.
Q. That it was to be a covenant to be submitted
to the residents of Addisleigh? A. That’s right.
Q. That it was to he a covenant under a general
plan and scheme to cover all of Addisleigh? A. 231
Well, I don’t know, I don’t remember that.
Q. You don’t remember that? A. No. I tell
you, all I was interested in, in this particular
covenant. Now, this particular covenant cov
ered our area. What happened outside of the
area, it might have been discussed, but I don’t
remember anything shown to me outside of this
one particular one.
Q. As a matter of fact, at that meeting which
you attended wasn’t there discussion among prop
erty owners in the area of Addisleigh about a
covenant which was to be entered into between
John H. Luts—For Plaintiffs—Cross
78
232 John H. Lutz—For Plaintiffs—Cross
the property owners of Addisleigh under a gen
eral plan or scheme for the entire area of Addis
leigh? A. That’s right, general discussion.
Q. Is that correct? A. That’s right.
Q. And the thought was at that meeting that
the covenant that should be executed and filed
would be a covenant which would cover all the
blocks in the Addisleigh section of St. Albans?
Mr. Newton: I object to that, if the Court
please.
The Court: He has already answered that.
He has said he doesn’t know. He said all he
knew was his block, his area.
Q. Are you an officer of the Addisleigh Prop
erty Owners Association? A. I am.
Q. What office do you hold? A. President.
Q. How long have you been president? A.
Since last October.
The Court: Didn’t we go through that
once?
The Witness: Yes, we went through it.
Q. Now, there is an A. P. 0. Holding Corpora
tion in Addisleigh Park, is there not? A. That
is the A. P. 0. I just mentioned, yes, that’s right.
Q. You are president of that? A. That’s right.
Q. Is there a difference between the Associa
tion and the Corporation, or are they one and the
same? A. The Addisleigh Park------
Mr. Newton: I object to that, if the Court
please. I don’t think that the corporation en
ters into this picture in any way. I can’t
see that it does.
Mr. Silverstein: I f it isn’t material------
7 9
The Court: Let me see if it is the same.
What is the A. P. 0.?
The Witness: A. P. 0. is a corporation,
and there is a civil organization also.
The Court: What is the Addisleigh Park
Organization?
The Witness: The Addisleigh Park Prop
erty Owners Association, Inc. That is a
holding corporation, that is what that is.
That has nothing to do with this particular
case. This is on the civic proposition. 236
Q. Mr. Lutz, do you know of your own knowl
edge how many blocks there are approximately in
Addisleigh? A. When you say blocks, what do
you mean ? When you say a block, do you mean a
block like between------
Q. Bounded by four streets.
The Court: Square blocks.
The Witness: Square blocks? What
would you consider that?
The Court: A square block is one.
The Witness: One? Well, square blocks, 237
I wouldn’t consider Addisleigh with any more
than about 15 square blocks.
Q. Within that area? A. It may run a little
more than that, but, of course, I never figured that
out approximately, but that’s right.
The Court: That is your best estimate?
The Witness: About around 15 square
blocks I would say.
Q. Since the time you signed the covenant,
Plaintiffs’ Exhibit 5, do you know of your own
knowledge how many colored families have moved
John H. Luts—For Plaintiffs—Cross
80
238 John H. Lutz—For Plaintiffs— Cross
into your block on your side of the street? A.
You mean taking in just on my side?
The Court: The block between two------
The Witness: That is a square block?
Mr. Silverstein: The square block that he
lives in.
The Witness: He means 176th Street he
is taking in now?
The Court: Wait a minute. The sketch
that I saw, Plaintiffs’ Exhibit 8, only showed
239 one side of a block, not a square block.
Mr. Silverstein: That is right.
The Court: Now, you have just said a
square block.
Mr. Silverstein: A square block. That is
what I want to know from him.
The Court: You are asking for territory
not covered in the restrictive covenant to
which he is a party?
Mr. Silverstein: Oh, no; I am asking for
territory that was supposedly covered within
the restricted covenant to which he is a
210 party, a square block.
Mr. Newton: I will say, your Honor, that
there were some signers on 176th Street and
178th Street, and each of these covenants was
originally intended to cover a square block.
The Court: That straightens it out. You
want to know the square block?
Mr. Silverstein: Yes.
The Court: See if I state your question
correctly: Since the covenant was signed, the
covenant to which he is a party------
Mr. Silverstein: That is right.
The Court: How many colored families
8 1
have moved into the square block on which
your house is located? Is that your question,
Counselor?
Mr. Newton: I am going to object to that,
your Honor, on the ground that it is imma
terial, since under the law there is no re
quirement that an owner who is a signatory
to one of these covenants take any particular
notice of any particular violation. He may
waive a violation, he may overlook a viola
tion, but when a violation occurs which affects 242
him personally, he may bring action. I want
it understood that I mean that that goes to
the question of waiver only. On the other
question, of change of character, I don’t make
that objection.
The Court: I am taking this only on the
question of change of character.
Mr. Newton: On that it is all right.
The Court: I take it on that basis.
(To the witness): You may answer.
The Witness: Well, that is in the back of
me, 177th. There is nothing on that par- 243
ticular side of the street of 177th, hut around
the other side, around the block, 176th, ap
proximately, I should say, they are right di
rectly in back of me, we have colored.
The Court: About how many families
have moved in since the restrictive covenant?
The Witness: Oh, I would say maybe four
families over there, approximately, I think.
By Mr. Silver stein:
Q. Four have come into the block? A. I don’t
know. Of course, I am guessing at that, but I
John H. Lutz—For Plaintiffs—Cross
82
know directly in back there are two families on
the 176th Street side.
Q. They have come in since? A. That have
been in there, that’s right.
By the Court:
Q. He said, “ That have come in since.” You
say, ‘ 1 That have been in there. ’ ’ To me they mean
different things. A. No, no.
Q. He is asking you for those who have come
245 in since the restrictive covenant was signed. A.
That’s right.
Q. Is that what you meant, too? A. That’s
right, but, pardon me, your Honor, the covenants
were signed by those people—I don’t believe they
come into this covenant.
Q. You leave the legal part to the lawyers and
to me. A. All right.
Mr. Newton: May I ask a question just
to he sure I am straight on this?
The Court: Yes.
"̂ 46 Newton:
Q. That is on the east side of 176th Street be
tween 112th Avenue and 114th Avenue? Is that
the place you are talking about? A. That’s right.
By Mr. Silver stein:
Q. Now, when these covenants of which you
signed one, Plaintiffs’ Exhibit 5, were distributed
to the various property owners for signature,
some of the people who did not live in your block
signed your covenant, did they not? A. You
mean prior to the people who are in there now?
^44 John II. Luts—For Plaintiffs—Cross
83
Q. Yes—no, no, I am talking about those who
are signatories to the covenant. A. Yes.
Q. They did not necessarily live in your block
when they signed it? A. No, no. That’s right.
Q. They might have lived in another block? A.
Right in that square block at 177th Street and
176th that I put------
Q. They might have lived outside of the square
block? A. I don’t know. I am not interested in
that; I am only interested in what I see.
By the Court:
Q. Whether you are interested or not, counsel
wants to know whether any signed your covenant
who did not live on your block? A. Oh, I couldn’t
answer that.
Q. You can’t answer? A. Oh, I don’t know
that.
By Mr. Silverstein:
Q. Tell me, who went around with the instru
ment to the various property owners?
The Court: Do you know what he means
by an instrument?
The Witness: No.
Q. The paper, the covenant, do you know who
took the paper around? A. I know one, the man
across the street came. Beck was one, that he
went around with the covenant. He got maybe
two or three signatures. He got mine.
Q. Did he go to any block other than your
block, that you know of? A. No, I don’t believe
he did.
John H. Luts—For Plaintiffs—Cross 247
248
249
84
Q. You don’t? A. There were several of them,
I believe, in our particular block that went around.
Q. Were there several people who were active
in the Association who were going to the various
folks in Addisleigh? A. They acted as captains,
as I understand it.
Q. To the various property owners in the vari
ous blocks? A. That’s right. They covered so
much of the area.
Q. This covenant to which you are a signatory
251 and the one to which Mr. Kemp and Mr. Lutz are
signatories are similar in form to covenants that
were distributed throughout Addisleigh for signa
ture by the property owners owning property lo
cated in the Addisleigh section of St. Albans, is
that right?
Mr. Newton: I object to that as imma
terial.
The Court: No, I will take it.
Mr. Newton: Exception, please.
By the Court:
0.-59 . . .Q. Did they hand out similar restrictive cove
nants in other parts of Addisleigh Park for signa
ture? A. Outside of this one here?
Q. Yes. A. I don’t know that.
By Mr. Silverstein:
Q. Wasn’t it part of a general scheme and
plan when this covenant was first prepared, that
it was to be submitted to the property owners in
Addisleigh? W asn’t it all part of a general
scheme and plan to have uniformity in the type
of covenant that was to affect the Addisleigh Park
John H. Lutz—For Plaintiffs—Cross
85
area? Was it or was it not? A. When you say a
scheme, I don’t know what you mean.
Q. Wasn’t it a general plan that if any cove
nant was to be applied, that covenant was to be
similar in form not only with respect to the block
on which you live and on which Mr. Kemp and Mr.
Rubin live------ A. That’s right. It took in the
whole area.
Q. It was to take in the whole area? A. I be
lieve so. All I was interested in, though, was
what the covenant came to me. What the other 254
covenants were------
Q. You were not interested it? A. I wasn’t in
terested.
Q. Let me call your attention to an affidavit
made by you under date of May 28, 1946, page 3,
page 2 of the affidavit, the original of which is
on file in this court, in which you said, beginning
with the second sentence of the first paragraph:
“ At the time of the execution of the restrictive
covenant it was part of a general plan in the
neighborhood to place restrictions on the prop
erties of the various land-owners.” You made 255
that statement? A. Was that in the statement?
I didn’t make that statement, hut that was the
general rule of the association at the time, I be
lieve, but I never made the statement.
Mr. Silverstein: Will you concede, Mr.
Campbell, that you were the Notary who took
the affidavit?
Mr. Campbell: Yes, sir.
Mr. Silverstein: Will you concede that Mr.
Lutz signed the original? The papers are
not here.
John 11. Luts—For Plaintiffs—Gross
The Court: It is conceded that he said that
in the affidavit. He just said that that was
the general plan. He objected to the word
“ scheme” , but he said a general plan, and
he said, too, that he was not interested in it.
By Mr. Silverstein:
Q. If I were to tell you, Mr. Witness, that there
are approximately 29 blocks in Addisleigh, would
you accept my statement as being substantially
correct? A. If there are that many, yes.
Q. If I were to tell you, Mr. Witness, that there
are only two blocks in all of Addisleigh against
which there are recorded restrictive covenants,
so-called,—the one recorded with respect to your
block and the one recorded with respect to the
block in which Kemp and Kubin live—would you
accept that statement as a fact?
Mr. Newton: I object, if the Court please,
as immaterial.
The Court: Sustained. I think that you
could get a concession from counsel on that.
Mr. Silverstein: I will tell you what I
have prepared, your Honor,------
The Court: You are asking him what that
means. Maybe out of politeness he says that,
hut he doesn’t know.
By Mr. Silverstein:
Q. Do you know of your own knowledge how
many blocks are affected by covenants similar in
form to Plaintiffs’ Exhibits 4 and 5? A. No, I
couldn’t tell you.
John H. Lutz—For Plaintiffs—Cross
8 7
John II. Lutz—For Plaintiffs—Cross
By the Court:
Q. Do you know of any other blocks that are
restricted in the manner that your block and
Kemp’s block are? A. I understand there is a
temporary covenant. They have on there a
temporary restrictive covenant, yes.
Q. On other blocks? A. On other blocks.
Q. A' temporary restrictive covenant? A. I
don’t know what it is.
The Court: Could he be referring to a 260
temporary injunction?
Mr. Newton: I will explain it, if I may,
and counsel will correct me if I am wrong.
These two covenants, Exhibits 4 and 5, are
the only ones that we have any knowledge
■ of in this precise form. There was another
form of covenant circulated in other blocks
which had in it a defeasance clause, which is
what this witness refers to.
The Court: Were they recorded?
Mr. Newton: I don’t know whether they
were or not. 261
Mr. Silverstein: That is all of this witness.
(An adjournment was taken to Thursday,
November 7, 1946.)
Jamaica, N. Y., November 7, 1946.
Trial Continued
Mr. Newton: The plaintiffs rest, your
Honor.
Mr. Weinberger: The defendant Richard
son rests, your Honor.
88
Defendant Richardson’s Motion to Dismiss
Complaint
The defendant Richardson moves to dis
miss the complaint on the ground that the
plaintiffs have failed to make out a cause of
action.
Before proceeding to the argument, your
Honor, I would like to make four motions on
behalf of amicae curiae who have requested
me to make these motions. Miss Marion
Wynn Perry, attorney for the National Law-
263 yers Guild, who attended in court yesterday
but is not feeling well this morning, has
asked me to read this motion to your Honor:
“ The National Lawyers Guild is a Bar As
sociation devoted to the principle that laws
and the agencies which administer them must
be responsive to the will of the people and
must be devoted to the defense and strength
ening of our democratic institutions. We re
gard it as the true function of law, in a con
stitutional form of government, to guide so
ciety toward higher forms of co-existence
26L rather than to follow the less worthy attitudes
of a community.
“ It is for this reason that we are deeply
concerned that the courts of the State of New
York not be used as an instrument for the en
forcing of residential segregation, an act
which would be forbidden to the legislative
bodies of the State or City of New York.
“ For the reasons stated above, the National
Lawyers Guild hereby requests permission of
this Court to appear as amicus curiae and to
adopt the position taken and briefs filed on
this motion on behalf of the defendant Sam
uel Richardson.
89
“ Subscribed, Marion Wynn Perry, Attor
ney for National Lawyers Guild.”
The Court: Let the record show that yes
terday before we adjourned the Court had
a conference at the bench with the attorneys
representing the plaintiffs, the defendant
Rubin, and the defendant Richardson; that
the question of admission of the amici
curiae was discussed—and if I do not state
the agreement correctly you may all correct
me— that it was agreed that there was no ob- ^66
jection to the admission of these requesting
parties to appear as amicus curiae on the
condition that they were not to ask questions
of the witnesses, make motions, or in any
way act as trial lawyers in the case, but were
to be limited to sitting in at the trial, which
courtesy they have already received without
asking for it, and that they be further lim
ited to the filing of briefs.
Mr. Newton, does that correctly state the
position?
Mr. Newton: That is correct, your Honor. 267
The Court: Mr. Silverstein, does that cor
rectly state the position?
Mr. Silverstein: Yes.
The Court: Mr. Weinberger?
Mr. Weinberger: Yes, except that I am
not certain that your Honor disposed of this
question. I don’t think it was raised. I be
lieve that Mr. Pfeffer, representing the Amer
ican-J ewish Congress, intends to ask for leave
to argue but not otherwise to participate in
the trial, only to argue on this motion.
Mr. Pfeffer: On behalf of the American-
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Jewish Congress—and the American Civil
Liberties Union has also requested me to act
in its behalf—I would like to address the
Court on the motion for a few moments, and
I ask leave to file my brief. It is not in form
to present to the Court yet, but it will be
before the end of the trial.
The Court: I am not limiting you to the
final form of the brief. I will give you a
reasonable time to file a brief. As far as the
question of addressing the Court is concerned,
I have no objection if the other attorneys have
no objection.
Mr. Weinberger: I won’t object, no.
(Discussion between the 'Court and counsel
at the bench.)
The Court: Let the record show that after
another conference with the three attorneys
who appear for the parties in the case, and
with their consent, the Court will grant the
request of Mr. Pfeffer, in addition to his filing
a brief and sitting in on the case, also to ad
dress the Court on the motion to dismiss.
Mr. P feffer: On the motion to dismiss.
The Court: I am granting that on one con
dition, and I am going to enforce that very
strictly, that there be no personalities re
ferred to, no people referred to, in this argu
ment, that you address yourself solely to the
questions of law involved and to any princi
ples of law that you think belong in this case;
but you cannot call anybody any names. I
would not permit that before to lawyers in
the case. Do you understand that?
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Mr. Pfeffer: Yes, your Honor. I would
like to thank the Court and the attorneys, es
pecially the attorney for the plaintiff. I
assure you that my discussion will be purely
one of law, which will be the broader aspects
of law. It will not be an attack on personal
ities nor will it be a speech.
The Court: Now, I don’t think we have a
formal application from you. Mr. Pfeffer,
you apply for permission to sit in as amicus
curiae on behalf of the------
Mr. Pfeffer: The American-Jewish Con
gress and the American Civil Liberties Union.
The Court: Under the conditions afore
mentioned and with the consents aforemen
tioned, that permission is granted to the ex
tent aforementioned.
Mr. Weinberger: Is there a ruling on the
record with reference to the application of
the National Lawyers Guild?
The Court: Well, I grant them the same
permission. Their lawyer, who I understand
was here yesterday but is ill today, may sit
in for the balance of the trial, may file a brief,
and may be heard by the Court in the same
manner as Mr. Pfeffer will be heard, with the
same restrictions and under the same condi
tions. That is what you want, isn’t it?
Mr. Weinberger: That is fine, thank you,
but I don’t believe Miss Perry wants to be
heard.
The Court: Now, come back to your mo
tion to dismiss.
Mr. Weinberger: I have three other appli
cations, none of which applicants wishes to
be heard.
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The Court: Put your applications on the
record.
Mr. Weinberger: The City-wide Citizens
Committee of Harlem, a non-profit organiza
tion dedicated to the improvement and better
ment of housing conditions among negroes in
New York City, respectfully states to this
Court that after having inquired into the
facts of this action and examining the brief
of the defendant Samuel Richardson, it
hereby moves this Court for permission to
appear as amicus curiae and adopt the con
tents of the aforesaid brief as fully as if sub
mitted by the Committee. It is signed by
Charles Abrams, Attorney for the City-wide
Citizens Committee.
The Court: The motion is granted with
the same limitations as imposed on the other
amicus curiae.
Mr. Weinberger: “ The Social Action Com
mittee of the New York City Congregational
Church Association, Inc., is deeply concerned
over the failure to apply the Christian prin
ciples of brotherhood in our daily life, and
particularly with our failure to live peace
fully and with dignity with our negro broth
ers and sisters.
‘ ‘ The Social Action Committee is in accord
with the statement adopted on behalf of the
Congregational Christian Denomination at
the Biennial Meeting by the General Council
of the Congregational Christian Churches in
June, 1946, as follows:
‘We repent of the sin of racial segrega
tion as practiced both within and outside
93
our churches, and respond to the mandate
of the Christian Gospel to promote with
uncompromising word and purpose the in
tegration in our Christian churches and our
democratic society of all persons of what
ever race, color, or ancestry on the basis
of equality and mutual respect in an inclu
sive fellowship.
‘We affirm as our own these words
adopted by the Federal Council of Churches
of Christ in America (meeting at Columbus, 278
Ohio, March 5-7, 1946):
‘ “ The Federal Council of Churches of
Christ in America hereby renounces the
pattern of segregation in race relations as
unnecessary and undesirable and a viola
tion of the Gospel of love and human broth
erhood.” ’ ”
“ For the reasons stated above, the Social
Action Committee of the New York City
Congregational Church Association, Inc.,
hereby requests permission of this Court
to appear as amicus curiae and to adopt 279
the position taken and the brief filed on this
motion on behalf of the defendant Samuel
Richardson.
(Signed) William Kincaid Newman,
Attorney for Social Action Commit
tee of the New York City Congre
gational Church Association, Inc.”
The Court: Without in anywise passing
on the merits or the implications or the state
ments contained in these applications, I am
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94
granting the application to appear as amicus
curiae under the same limitations and under
the same conditions as hereinbefore set forth
when the Court was addressing itself to Mr.
Pfeffer.
Mr. Weinberger: “ The Methodist Federa
tion for Social Service is a membership or
ganization which seeks to establish and ex
tend full ethnic democracy and which seeks
complete realization of the religious and dem-
281 ocratic promise of equal opportunity. In
that connection the Methodist Federation for
Social Service seeks the abolition of all racial
discrimination and segregation, including re
strictive housing covenants. The organiza
tion is an unofficial organization which speaks
only for its membership, but it has the moral
blessing and backing of the General Confer
ence of the Methodist church.
“ For the reasons stated above, the Metho
dist Federation for Social Service hereby re
quests permission of this Court to appear as
282 amicus curiae and to adopt the position taken
and the brief filed on this motion on behalf of
the defendant Samuel Richardson.
(Signed) Robert L. Carter,
Attorney for Methodist Federation
for Social Service.”
The Court: Let it appear that this attor
ney is also permitted to appear as amicus
curiae on the same conditions and with the
same limitations as hereinbefore set forth and
applied to all others who have sought such
permission and to whom it has been granted.
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95
In other words, let us make it clear that this
Court is hearing the trial of a case. These
statements that have been read may meet with
the Court’s approval and may not, but it is
not necessary for me to pass on them. I per
mit to be heard all these attorneys who want
to be heard, and I permit them to sit in at the
trial. I shall give them every courtesy pos
sible, but I do not admit these statements in
evidence, because they are not part of the
case. Isn’t that so, Mr. Weinberger? 284
Mr. Weinberger: They are not evidence,
no, sir; they are argument of counsel.
We make three points, your Honor------
The Court: You are coming back to your
motion to dismiss. The clerk tells me that
there is one counsel for two associations who
also wants to be admitted. As long as we
are granting permission at this time, we will
also grant the permission to Witt & Cammer,
by Mortimer Wolf. They are admitted under
the same terms and conditions and with the
same limitations as applied to the others.
Mr. Weinberger: There are three points,
your Honor: The first is that the judicial
enforcement of this covenant is in violation of
the 14th Amendment to the United States
Constitution. We do not contend that the
covenant is void under the 14th Amendment,
but that any action by this or any other State
court would be in violation of the equal pro
tection granted by the 14th Amendment. That
Amendment, your Honor, is a restriction
against the states only. Consequently, the
restriction may be against the State even
though it is not against these plaintiffs.
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There were three attempts, three pieces of
legislation before the United States Supreme
Court which attempted to secure by legisla
tion pretty much the same result that these
plaintiffs attempt to secure by decree of this
court. The first is the case of Buchanan v.
Warley, where the court considered a statute
of the State of Kentucky which required the
consent of the majority of residents in a com
munity, he the majority white or negro, be
fore any member of the opposite race could
move within that community. The Supreme
Court held that this was in direct violation
of the 14th Amendment and of Title 8, Sec
tion 42, of the United States Code, which is
an enabling act passed pursuant to that
amendment and which reads:
“ All citizens of the United States shall
have the same right in every state and ter
ritory, as is enjoyed by white citizens
thereof, to inherit, purchase, lease, sell,
hold and convey real and personal prop
erty. ’ ’
Construing the amendment and Section 42
of Title 8, in the case of Buchanan v. Warley,
the Supreme Court said:
“ We think this attempt to prevent aliena
tion 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 Con
stitution preventing State interference with
property rights except by due process of
97
law. That being the case, the ordinance
cannot stand.”
Buchanan v. Warley was followed by Har
mon v. Tyler, a similar situation, emanating
from a different State. The court again held
the statute was unconstitutional and that no
State Legislature or City Council, as was
decided in the third case, City of Richmond
v. Deans, could by legislative enactment cre
ate racial segregation.
We are now in court with these plaintiffs
asking your Honor to issue a decree which in
effect legally, completely, and effectually
would accomplish what the Legislature of the
State of New York is prohibited from doing
by the Fourteenth Amendment. This requires
us to sit back and inquire, would a decree
issued out of this court be action by the State
of New York, the decree that is asked for, to
call upon all the machinery of this court with
its power and clerks of the court and baliffs
and sheriffs and writs of assistance, to en
force the decree. 291
There are innumerable cases holding that
action by any State department, action by
the judiciary, action by even an administra
tive officer of the State, is action by the State.
This has been held both with reference to
substantive law and procedural law. The
Supreme Court had the matter before it in
Ex Parte Virginia, in 100 U. S., 339, and I
dare say that that case is cited in almost
every term of the Supreme Court and is con
sidered the leading case on what is State
action.
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A Federal statute required that there be
no discrimination against negroes in the se
lection of juries. A Judge in a State Court
in Virginia excluded negroes from service on
the jury. He was indicted. The Supreme
Court held that he was an officer of the State
and that this was a violation of the Four
teenth Amendment and sustained the indict
ment.
In the procedural field the Supreme Court
had the matter before it in Powell v. Alabama,
287 U. S., where a conviction was reversed as
being in violation of the Fourteenth Amend
ment, because it was held that the Judge did
not adequately safeguard the rights of the
accused.
The cases are legion that action of the
judiciary is action of the State. There is a
fair sample of it in the brief. I do not think
your Honor would want me to go further with
the question.
The Court: I f you have covered it in the
brief you may rest assured that I shall read
it and every brief very carefully and, of
course, all the cases cited in the various briefs.
Mr. Weinberger: This conclusion was
reached in the District Court for the District
of California as early as 1892 in Gandolfo v.
Hartman. The covenant before the court was
one which prohibited renting to Chinese. The
court there said:
“ Any result inhibited by the Constitu
tion can no more he accomplished by con
tracts of individual citizens than by
99
legisation and the court should no more
enforce the one than the other.”
Only last year the Los Angeles Superior
Court had the question before it again.
The Court: Let me understand it. I don’t
know if I have gotten the correct implication
of what you say. Do you say that that de
cision held that an agreement among indi
vidual property owners not to rent to Chinese
was held illegal?
Mr. Weinberger: Yes, sir. "
The Court: Was this a State law that you
were talking about?
Mr. Weinberger: No. It was held that
such an agreement, whereas the agreement
itself was not void between the parties, en
forcement of that agreement by the courts
was void and prohibited by the Fourteenth
Amendment.
The Court: That is in your brief?
Mr. Weinberger: Yes.
The Court: What case is that?
Mr. Weinberger: Gandolfo v. Hartman, 49 297
Fed., 181, cited on page 16.
Last year in the State Court in Los Angeles,
California, Anderson v. Anseth, which is cited
on the same page, the court had a racial re
strictive covenant before it. The complaint
was dismissed on demurrer, on the ground
that judicial enforcement of the covenant was
violative of the Fourteenth Amendment. One
sentence from the opinion of Justice Clark
is this:
“ This Court is of the opinion that it
is time that members of the negro race are
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100
accorded, without reservation and evasions,
the full rights guaranteed them under the
Fourteenth Amendment of the Federal Con
stitution. ’ ’
That was followed by this interesting
dictum:
“ Judges have been avoiding the real
issue for too long. Certainly there was
no discrimination against the negro race
299 when it came time to calling upon its mem
bers to die upon the battlefields in defense
of this country in the war just ended.”
In the plaintiff’s briefs in this case and in
all similar proceedings in New York State,
reliance by those who wish to support the
covenants is always placed on Ridgway v.
Cockburn, which was decided in Special Term,
Westchester County, in 1937. Before analyz
ing Ridgway v. Cockburn it may be pertinent
to say that I doubt that that is authority for
anything at all. An opinion was written by
300 the Justice in 1937. The opinion was entered.
No decree, judgment, or order was entered
in that action, nor was any enforced. The
defendant remained in the building until last
year, from 1937 until 1945, a period of eight
years, and then moved, completely of her
own volition, not because of any threat of
judgment. Aside from that fact, however,
Ridgway v. Cockburn made no analysis of
the constitutional question at all. The opinion
itself showed that it relied entirely on Cor
rigan v. Buckley, and argued that Corrigan
v. Buckley in the United States Supreme
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101
Court once and for all decided the constitu
tional question, a misconception that is held
by many.
That there was no inquiry in Ridgway v.
Cockburn is shown by the fact that in the
four-page opinion the only reference to con
stitutionality is this one sentence:
“ It is sufficient to say that the United
States Supreme Court has held that a
covenant of this precise character violated
no constitutional right. (Corrigan v. Buck- ^
ley, 271 U. S., 323.)”
So if we go behind the scene there and
look at Corrigan v. Buckley, that case does
not hold what the opinion in Ridgway v.
Cockburn says it holds; then Ridgway v.
Cockburn is certainly not good law in New
York State.
The Fourteenth Amendment by its lan
guage, by the decisions, and without any ques
tion, applies only to the states; it does not
apply to insular possessions, it does not apply
to the District of Columbia. Corrigan v.
Buckley originated in the courts of the Dis
trict of Columbia and was concerned with a
man in the District of Columbia. The Four
teenth Amendment having no application,
certainly the decision in that case is no con
struction of the Fourteenth Amendment as it
applies to the courts of the states.
Furthermore, the question of judicial en
forcement was not raised in that case, and
even the question as to the validity of the
covenant was not properly raised on appeal,
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as the opinion of the United States Court
says in so many words.
There were two very interesting and, I
might well say, scholarly, unusually scholarly,
Law Review articles published last year
within a month of each other on the question
of the constitutionality of restrictive coven
ants— on the question, I should say, of the
unconstitutionality of judicial enforcement
of restrictive covenants,— The February,
1945, issue of the University of Chicago Law
Review, and the March 1945 issue of the
California Law Review. They are available,
I suppose, in all libraries, but for your Hon
or ’s convenience I would like to hand them
to you.
The Court: I would like very much to have
them. I will return them to you when I am
through with them.
Mr. Weinberger: Before leaving this point
I should say, your Honor, that there is no
decision in New York State by any appellate
court, no Appellate Division decision, no
Court of Appeals decision whatever.
The Court: Do you mean to say that this
question has never gone up in this State?
Mr. Weinberger: No, sir, no case in the
Appellate Division, any of the Appellate Divi
sions. In fact, the only two reported cases
—no, they are not even reported. The only
other case in New York State, which is un
reported, Dury v. Neely, concerns itself
with the other Addisleigh covenant, the one
that has the four-months’ escape clause that
if at any time for a period of four months
10 3
a negro owns or occupies any building in the
block, and I believe also the adjoining block
the covenant may by declaration be voided
as against a particular piece of property.
Judge Cuff, in Dury v. Neely in 1942, up
held that covenant, relying, as his opinion
shows, on Corrigan v. Buckley, and Bidgway
v. Cockburn, decided April 28, 1942.
The second point, your Honor, is that our
treaties, the treaties of the United States
with foreign nations, by the terms of the 308
Federal Constitution are the Supreme law
of the land, and that our present treaty ob
ligations are such that enforcement of this
covenant by this Court is prohibited.
The best definition of the significance and
meaning of foreign treaties is in the classic
Migratory Bird Case, where Congress passed
a statute protecting from hunters and others
birds which left Canada and came to the
United States to avoid the cold winters of
Canada. That statute was held unconstitu
tional and thrown out by the courts as an oqq
invasion of the rights of the states. Follow
ing that the United States entered into a
treaty with Great Britain protecting these
migratory birds while they were sojourning
for the winter in the United States. Then
Congress re-enacted in substance the same
statute which had been held unconstitutional,
and that was upheld by the United States
Supreme Court as a proper constitutional
statute, as the supreme law of the land, as
treaty obligations with Great Britain over
rode all other restrictions.
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The Court: What treaty obligations do
you contend this violates?
Mr. Weinberger: The United Nations
Charter, the most solemn treaty, I might say,
that the United States has ever entered into, a
treaty not alone with one nation, but with
all the nations of the world. The General As
sembly of the United Nations is now meeting
in our back door, in this County and in the
adjoining County of Nassau.
Article 55 of the United Nations Charter
says:
“ The United Nations shall promote
* * * uniform respect for, and observance
of, human rights and fundamental freed
oms for all without distinction as to race,
sex, language, and religion.”
Article 56 says:
“ All members pledge themselves to take
joint and separate action in cooperation
with the organization for the achievement
of the purposes set forth in Article 55.”
Also, in March of last year in Mexico City
the United States met with the Latin Amer
ican nations and executed the Act of Chapul-
tepec which, among other things, states that
the signers will:
“ * * * prevent with all the means within
their power all that may provoke discrim
ination among individuals because of ra
cial and religious reasons.”
On this point I urge the United Nations
Charter, as that is a solemn treaty executed
by the United States with the principal na-
10 5
tions of the world. The Act of Chapultepec is
a firm obligation of the United States, but
there is some question as to whether it has
the force of a treaty. In any event, the Act
of Chapultepec certainly declares public pol
icy of the United States.
There have been many cases, your Honor,
where treaties overrode state statutes. The
inheritance laws of the State of Virginia were
set aside in favor of a Swiss National be
cause of our treaty obligations with Switz- 314
erland.
The laws of descent of the District of
Columbia were set aside because of the treaty
we had with France.
Here in New York State at the time of the
liquidation of the Russian insurance com
panies the problem was first before the State
Courts and ultimately passed upon by the
United States Supreme Court as to whether
distribution among the creditors of the Rus
sian insurance companies should be in accord
ance with the Insurance Law of the State of 3^5
New York or whether the Litvinoff agree
ment governed, and the United States Su
preme Court held that the Litvinoff agree
ment governed and set aside the statutes of
the State of New York which were passed
expressly for the purpose of governing dis
tribution in such a situation. This was one
of the points in Gondolfo v. Hartman also.
Finally, your Honor, we submit that under
the present public policy of New York State,
as distinguished from and in addition to the
present public policy of the United States,
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for both reasons this covenant may not be
judicially enforced and also is void. We
look to the statutes for declaration of public
policy of a jurisdiction. In New York State
we have The Civil Rights Law, Section 40,
which forbids discrimination in places of
public accommodation and among applicants
for official positions in the public schools.
Section 41 of the Civil Rights Law, which
provides a penalty to a person aggrieved by
discrimination under Section 40.
We have penal provisions. Section 514 of
the Penal Law makes certain classes of dis
criminatory practices criminally punishable
as misdemeanors.
We have Section 700 of the Penal Law,
which says that all persons within the juris
diction of this State shall be entitled to the
equal protection of the laws of this State, or
any subdivision thereof, and that, “ No
person shall, because of race, color, creed
or religion, be subjected to any discrimina
tion in his civil rights by any other person
or by any firm, corporation, or institution or
by the State or any agency or subdivision of
the State.”
The Public Housing Law, Section 223, pro
hibits discrimination in public housing.
The Labor Law, Section 220, forbids con
tractors on public works projects from dis
criminating in hiring or employment prac
tices.
Since Ridgway v. Cockburn, which was in
1937, a year after that and a year before this
covenant was signed in 1939, the Constitution
1 0 7
of the State of New York was amended, or I
should say, a new Constitution was adopted—
The Court: The Court is well aware of
that, having sat as a delegate in that Con
stitutional Convention.
Mr. Weinberger: And Article I, Section
11, says:
“ No person shall be denied the equal pro
tection of the laws of this state or any sub
division thereof. No person shall, because
of race, color, creed or religion, be sub-
jected to any discrimination in his civil
rights by any other person or by any firm,
corporation, or institution or by the state
or any agency or subdivision of the state,”
very close to what Section 700 is. Section
700 of the Penal Law implements the Con
stitution and makes it a misdemeanor, as
well as a declaration of policy.
This is a fundamental law and, sir, the
fundamental public policy of the State of
New York, this section in the Constitution,
and it shows that New York State was not
satisfied with the broad and fine language of
the Fourteenth Amendment. I am not criti
cizing the Fourteenth Amendment, but I cer
tainly am approving of the Legislature of
the State of New York, which went beyond it
and extended the equal-protection clause that
is to be found in the Fourteenth Amendment
as a prohibition against the states, and in
our state law made it also a prohibition
against individuals, against these plaintiffs,
among others.
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10 8
322
323
324
Tlie Executive Law, Section 125, which
with several other sections created the State
Commission against discrimination, was
adopted in 1945, and the language of it is as
direct and as fine a declaration of public
policy as can be found in New York statutes:
“ * * * the Legislature hereby finds and
declares that practices of discrimination
against any of its inhabitants because of
race, creed, color or national origin are a
matter of state concern, that such discrimin
ation threatens not only the rights and
proper privileges of its inhabitants but
menances the institutions and foundations
of a free democratic state.”
Section 125, and its following sections, were
concerned principally with employment, but
this preamble that is introductory to the sec
tions concerned itself with more than a par
ticular statute; it is a declaration of what is
now the public policy of New York State.
Perhaps the best place to look for the pub
lic policy of the United States, in fact, the
most critical place from my point of view,
would be the war cases, the Japanese curfew
cases decided in 1943 by the United States
Supreme Court, when many of us, perhaps
you might say all of us, were influenced to
some extent more or less in our reasoning by
the war hysteria and the war needs; but
despite that the United States Supreme
Court, in the Japanese curfew cases, by the
late Mr. Chief Justice Stone, said:
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“ Distinctions between citizens solely be
cause of their ancestry are by their very
nature odious to a free people whose in
stitutions are founded upon the doctrine
of equality. For that reason, legislative
classification or discrimination based on
race alone has often been held to be a
denial of equal protection.”
In the concurring opinion Mr. Justice
Murphy said:
“ Distinctions based on color and ancestry
are utterly inconsistent with our traditions
and ideals. They are at variance with the
principles for which we are now waging
war. We cannot close our eyes to the fact
for that centuries the Old World has been
torn by racial and religious conflicts and
has suffered the worst kind of anguish be
cause of inequality of treatment for differ
ent groups. There was one law for one and
a different law for another. Nothing is
written more firmly into our law than the
compact of the Plymouth voyages to have
just and equal laws.”
A further expression of public policy is
found in Mays v. Burgess, which is a Fair
Employment Practices Commission case,—
I am mistaken; it is a restrictive covenant
case in which Judge Edgerton in the dissent
ing opinion stated:
“ I can see no sufficient distinction from
the point of view of policy, between dis
crimination in employment and discrimina
tion in housing.”
110
Title 8, Section 42, to which I referred be
fore and, I believe, read, is an expression now
of policy as well as an enabling act for the
Fourteenth Amendment.
The Court: Let me ask you a question.
You read from Judge Edgerton. Was it a
dissenting opinion?
Mr. Weinberger: Yes, a dissenting opinion.
The Court: What was the prevailing
opinion ?
329 Mr. Weinberger: Mays v. Burgess was a
District of Columbia case. The Fourteenth
Amendment did not apply.
On both the question of public policy and
also on the question of our responsibility
under our treaties to foreign countries, I wish
to draw your Honor’s attention to the 1945
case in the Supreme Court of Ontario, in Re
Drummond Wren, a case, I may say, ably and
nobly fought by the Canadian Branch of the
American-Jewish Congress. The restriction
in suit there read:
330 “ Land not to be sold to Jews or per
sons of objectionable nationality.”
Judge MacKay, hearing the case, found,
without the benefit of a Federal Constitution,
without the benefit of any constitution, lean
ing slightly on anti-discrimination statutes
such as we have in New York, but leaning par
ticularly on the United Nations Charter and
the Act of Chapultepec, of public policy, de
clared the covenant void.
I want to make one more statement in con
clusion, your Honor, that there is a great
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deal more in this case than whether Samuel
Richardson has his legal rights to live in
Queens County instead of in a crowded apart
ment in New York, as a free man with dig
nity. This case presents to the courts of the
State of New York for the first time fairly
and squarely whether or not the citizens of
New York State and perhaps citizens of the
United States shall live in a true democratic
society at least in reference to housing.
We ask your Honor to dismiss the case. 332
The Court: Up to the present time no dis
position is made on the Richardson motion to
dismiss, pending further argument.
(Recess until 2 o ’clock P. M.)
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A fternoon Session.
The Court: Mr. Silverstein, is it agreeable
to you that Mr. Pfeffer go ahead on the Rich
ardson motion before you make yours?
Mr. Silverstein: Yes.
The Court: Just as a matter of informa
tion, is there anybody else who will speak on
the Richardson motion?
Mr. Pfeifer: No.
The Court: All right, go ahead.
Mr. Pfeifer: I should like to state for the
record that the American-Jewish Congress is
interested in this case not merely because
we, as the negroes, as our brothers, the ne
groes, have been the victims of racial restric
tive covenants with increasing frequency, but
because we believe that the very existence of
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a racial restrictive covenant imbues and im
plies an inferiority to one group of our
American citizenry that happens to be a
minority, and the same implication is trans
ferred to all other racial minorities and
ethnic groups.
I should like to call to the Court’s attention
that not merely the negroes and the Jews
have been confined to ghettos by means of
racial restrictive covenants, but Chinese,
Americans of Mexican descent, and even the
original citizens of this country, the American
Indian. In some locality or other throughout
the country every one of these minorities has
been up against a racial restrictive covenant.
If your Honor please, the day of the racial
restrictive covenant is fast coming to an end.
In ten years the weight of authority will
throw them out. The State of California
seems to be taking the lead. The State of
New York generally takes the lead in
progressive action, either legislative or ju
dicial. I do not think that we should allow
California to take the lead away from us. I
think that this Court has an opportunity to
manifest the progressive and liberal attitude
of the New York courts in cases involving so
cial policy. I am aware that the Court has no
power to satisfy its own feelings as to desir
ability, but that it must follow the law set
down in the Legislature and by judicial deci
sion. We are here to present to you, your
Honor, the arms, the weapons, the legal
meanings whereby this progressive and social
1 1 3
step may be taken. I am not going to make
any speeches; I am going to present you with
solid legal argument, your Honor.
My friend, Mr. Weinberger, has covered
three points, I think, brilliantly. I do not
want to repeat what he has said, because I
have other things to say. I should, however,
like to add this one point on the constitutional
issue. As Mr. Weinberger has pointed out,
the Fourteenth Amendment is aimed at state
action. He has pointed out the United States 338
Supreme Court, Twining v. New Jersey casej
and in many other cases has shown that the
judiciary is as much a part of the state as is
the legislative and the executive branch, and
that action by the judiciary is state action as
much as action by the Governor, the Assem
bly, or the Senate.
The Supreme Court, however, has gone
further than that. In a very recent case the
United States Supreme Court held that the
owners of a housing development, a large
housing development, could not prohibit mem- 339
bers of the Jehovah’s witnesses Sect from
coming in there and proselytizing. The
United States Supreme Court had held pre
viously that the State under the Fourteenth
Amendment could not prohibit or restrict
freedom of religion, but in the civil rights
cases the court had held that the Fourteenth
Amendment did not aim at individual or pri
vate action. Here was private action. The
state had nothing to do with it. The owners
of a housing development said, “ We don’t
want Jehovah’s witnesses to come in here and
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interfere and disturb our neighbors.” The
United States Supreme Court said that when
a group of individuals in the form of an as
sociation or corporation gathered together
and in effect legislate over a specific area of
property or real estate within a state in the
Union, that that is a quasi state action, that
that is in effect a private government, that
it is no longer pure contract, that it is legis
lative action, which is action by people who
vote, who get together, who decide, who
argue, and therefore within the prohibition of
the Fourteenth Amendment, and the United
States Supreme Court invalidated state en
forcement of that regulation.
That, your Honor, is exactly the situation
here. These people got together, they had a
meeting just as if it was the Assembly in the
Legislature. They had a chairman, they
made a motion, and then they argued and
discussed, and then passed a resolution. In
effect that is legislation by a private govern
ment. That, your Honor, we contend, is
within the inhibition of the Fourteenth
Amendment.
The rest of the constitutional issue, as I
say, Mr. Weinberger has very completely and
adequately covered. I want to cover two
points only which Mr. Weinberger has not
touched. It is our contention—and this has
never adequately been considered—that a
prohibition against alienation for a period in
excess of 21 years, or, as a matter of fact,
any length of time, is an unreasonable re
straint on alienation in violation of the com-
115
mon and statutory law of the State of New
York. Section 42 of the Real Property Law
and Section 11 of the Personal Property Law
provide that a remainder which is limited by
a contingency which may or may not occur
within a period measured by two lives in be
ing is impossible of validity and is illegal.
The Court: Is that in your brief?
Mr. P feffer: It will be when our brief is pre
sented to you; that those sections are modifi
cations of a long existing common law policy 344
which invalidated restraints on alienation.
The only qualification and exception to that
policy was that limited reasonable restraints
on alienation would not be held illegal, and
the test in all cases when you have a restraint
on alienation for a period of years is, is that
restraint reasonable? There are cases going
back to the 14th Century on that. An ab
solute restraint on alienation, where I agree
that I shall not sell this land for ten or fifteen
or thirty or until 1975, as in this case, is
void and illegal unless we can show that 345
under the facts and circumstances of a par
ticular case such restraint is reasonable. The
American-Jewish Congress submits to your
Honor that this case may not be adjudged
reasonable, a restraint which prohibits the
sale of land to American citizens and resi
dents of our city and state.
The Court: Is there any time limit in this
restraint?
Mr. P feffer: To 1975, made in 1939, which
is for a period of approximately thirty-six
years.
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There have been cases, your Honor, which
have held that a restraint on the use of prop
erty is legal, because the common law in
hibition which goes back as I say, to the
14th and 13th Centuries and before was
not against the use of property but against
restraint on its alienation; so for this purpose
we might say that a covenant which says
that no negro shall occupy this property, in
and of itself conceivably might be valid—we
do not concede it at all for this argument—
but a covenant which says that it shall not be
purchased or sold to a negro is a restraint on
alienation and not on use and is illegal. That
is the covenant here and that is the relief
which the plaintiffs are asking your Honor
to give them, to prevent the sale to negroes.
Now, I come to my second clause.
This is not a court of law, your Honor; this
is a court of equity. The plaintiffs are not
asking for judgment for a verdict of dam
ages; they are asking for equitable relief in
the form of specific performance and injunc
tion. I do not have to cite to your Honor
cases that hold that specific performance is
an extraordinary remedy, that equitable relief
is within the discretion of the court of equity,
and that when a plaintiff appears before a
court of equity and asks that court to exercise
its discretion in the extraordinary form of
specific relief punishable by contempt in a
person, that that court may consider and must
consider all the equities of the case, must bal
ance and weigh the equities of the plaintiffs
117
as against the equities of the defendant. Time
and time again courts of equity have refused
specific relief even though a prima facie case
at law has been made out. The courts, bal
ancing the equities, said, “ We leave you to
your remedy at law. ’ ’
We submit that this Court, before it de
cides on how it shall exercise its discretion,
must balance the equities not merely of the
plaintiff, Mr. Kemp, or of the defendant, Mrs.
Rubin, or of even the co-defendant, Samuel 350
Richardson, but of the whole public of the
State of New York in general and specifically
the members of the negro race of this state.
This covenant is not aimed at Samuel Rich
ardson. He is merely a figure, he is a rep
resentative. It is aimed at all negroes. If
somebody else of the colored race would come
in he, too, would be subject to this covenant.
Therefore, this Court must weigh the equities
not merely of Samuel Richardson—a business
man with a family, a child in college, a nephew
and niece also in college, living with him, hon- 0__.
orable, fine citizens—but of the whole negro 0
citizenry of this city.
This is not radical law, your Honor. Our
briefs will cite you cases where the court con
sidered, in deciding whether or not to allow a
nuisance to continue or to abate, either to
abate it or to allow it to continue with a rem
edy at law—the court considered how many
people would be out of work, what would be
the economic effect on the storekeepers and
the fate of the people in the village. The
court was not merely considering the plea that
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this land may have been polluted by the fact
that some refuse of this big factory was on
the water; it was not considering the owner
or the factory; it was considering the em
ployees, their families, the people of the city,
and the fact that this plant was an economic
asset of this locality.
We are asking you, your Honor, to do ex
actly that. We are asking you to consider the
people of the City of New York and the negro
citizenry of New York. I am not going to
burden this Court with social statistical facts.
They are in our brief. We submit with au
thority that this Court may judicially note
economic and social facts which are matters
of record and which may be gathered from
the United States Bureau of Statistics and
the statistics of business. Your Honor will
appreciate that much better when he reads
our brief. We have an appendix showing
those facts.
There are two certain startling facts which
I think your Honor should know. In the City
of Chicago 80% of the city is hound by re
strictive covenants against the negroes. In
80% of the City of Chicago a negro cannot
move in unless the court will throw out these
restrictive covenants. We don’t know in New
York. No study has been made how many
there are in New York, but they are abound
ing in this Borough of Queens. The least
densely populated Borough of Queens, which
offers the greatest opportunity to take the
overflow of residents of Manhattan, is
hemmed in, is protected by a wall of paper,
119
paper which persons sign that they will not
sell to negroes.
The most densely populated section in the
whole United States is a block in Harlem. If
that density of population in that block were
spread throughout the rest of the population,
the whole one hundred thirty-five to one hun
dred forty million people in the United States,
if they were residented as densely as in that
block in Harlem, could reside in one-half of
the City of New York. That, your Honor, 356
gives you an idea of what the negro people
are up against, and they can’t get out. They
can’t get out why? Because courts of equity
have said that they can’t do anything about it,
that this is a private fight between Mr. Kemp
and Mrs. Rubin, and nobody else is involved,
that Mrs. Rubin put her hand and seal on it
and she is bound by it, without considering
that a negro population of millions of people
in this country is damaged by it and are sig
natories to that contract in fact, if not in
name. ___oO /That does not only injure the negro people,
your Honor. Our files will show the tre
mendously higher death rate among the ne
groes in New York and unemployment and
lower wage scale among negroes in New York,
the higher rent which negroes must pay for
worst accommodations in this city because
they are hemmed in, they are congregated in
what has aptly been called black ghettos.
That is the social interest which must be con
sidered by this Court in deciding whether to
exercise its discretion in favor of giving spe
cific relief in this case.
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The Court cannot close its eyes to that.
That is public policy; that is public interest.
The whole public pays for the race tensions,
for the ill-health, for the unemployment of
the negro people, not the negroes alone, and
that is a fact which we submit this Court must
answer.
I will conclude with this: In 1938 the Con
stitution of this State, in connection with
which convention your Honor was a member,
adopted a revolutionary concept in the field
of constitutional law. The Fourteenth
Amendment adopted the revolutionary con
cept that no state may discriminate against
any person by reason, of race, creed, or color,
and on the basis of that limited decision a
coordinate branch of this court, Mr. Justice
Davis, of Westchester, held that action by
individuals did not violate that amendment;
but the New York Constitution went one step
further. Fifty years had passed, and in that
fifty years it was found in New York that pro
hibitions against state action were insufficient
and inadequate. The New York Constitution
said in express words that no person shall be
discriminated against not merely by the state,
hut by any person or individual. That, your
Honor, was a revolutionary concept. That is
the difference between Ridgway v. Cockburn
and Kemp v. Rubin. This case is after 1938;
that was before. In between the New York
Constitution has said, “ We are opposed to
and we prohibit discrimination not merely
by state or state agencies, but by private in
dividuals, firms, or corporations.”
121
Defendant Rubin’s Motion to Dismiss Complaint ^61
Your Honor, with that I rest. I would like
your Honor’s permission to present our brief.
It is not yet exactly in the form in which we
can give it to you. We will have it in a few
days.
The Court: That is perfectly all right.
Mr. P feifer: Thank you.
Mr. Silverstein: I f the Court please,------
The Court: You are not on this motion?
You are making your own motion?
Mr .Silverstein: I am making my own mo- 352
tion.
The Court: I will reserve decision on this
motion at this time and on the motion made
by the defendant Richardson to dismiss the
complaint in so far as it affects him.
Mr. Weinberger: Your Honor, I think it
would he pointless, in fact, perhaps improper,
for us to continue in the case. The case, as
far as Richardson is concerned, is over; that
is, the proof is in, subject to your Honor’s
decision on the motion.
The Court: Except that in the presenta-
tion of Mr. Silverstein’s proof on behalf of 0
the defendant Rubin you may wish to cross-
examine. I f you want to leave, I have no ob
jection.
Mr. Weinberger: No. Actually I would
like to hear the balance of this trial, but I
want the record to show that we have rested.
The Court: The record does so show.
Mr. Weinberger: All right, sir.
Mr. Silverstein: The formal motion is to
dismiss the complaint on the ground that the
plaintiff has failed to establish a prima facie
case.
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The Court: To dismiss the complaint in so
far as it relates to the defendant Rubin?
Mr. Silverstein: Yes.
The Court: All right. Now, you wish to
make your argument, don’t you?
Mr. Silverstein: The plaintiff in its com
plaint alleges the execution of these two in
struments, or rather, that one is the counter
part of another. There is no reference in
either instrument to the other. Be that as it
may, the instruments they rely on starts off
with the preamble, “ Whereas the parties
hereto desire for their mutual benefit as well
as for the best interests of the community and
the neighborhood.”
Now, when they refer to “ community” and
“ neighborhood” they refer to Addisleigh.
The witnesses bounded Addisleigh formally
when I asked them where Addisleigh was lo
cated, and they told me that on the west it was
bounded by the east side of Marne Place,
which is 173rd Street, then a continuation of
112th Avenue to the railroad, then south by
the Long Island Railroad to Linden Boule
vard, and then along Linden Boulevard back
to the point of beginning. That embraces an
area of 29 blocks approximately.
The witness Lutz has testified that it was
part of a general plan and scheme in the
neighborhood to place restrictions on the
properties of various landowners. All they
have established thus far is that on two blocks
some of the people who live in those two
blocks signed what is purported to be a re
strictive covenant against a particular class
of persons. I submit that adjoining land-
123
owners may make agreements so far as they
are not contrary to public policy.
I also submit that where it is a common plan
or scheme, if the plan or scheme is not estab
lished to cover the territory intended, that the
plan or scheme must fail.
The remedy by way of injunction which
this Court is called upon in the exercise of
its discretion to grant is a very drastic one,
and the courts have held that it will not
be exercised merely because the plaintiff has 368
shown that there has been a violation of the
so-called covenant. There must be irrepar
able damage established. The plaintiffs in
their complaint specify: ‘ 4 The houses of the
plaintiffs Kemp and Lutz are of large rental
value and are desirable residences, but said
rental value and said desirability as resi
dences, as well as their fee value, depend
wholly upon the exclusion from the vicinity,
and especially from the premises owned by
the plaintiffs and the defendant Sophie Ru
bin, of persons who are negroes or persons of 359
the negro race or blood or descent.”
There has been no proof offered to this
Court whatsoever by the plaintiffs to estab
lish that any injury has resulted to these
plaintiffs or to anyone who signed this so-
called covenant. Merely because there is
what appears to be a violation of an in
strument as solemn as a covenant, the Court
will not lend its arm in the enforcement by
judicial decree where the result would be
harsh, inequitable, and contrary to public
policy.
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I respectfully submit, in the words of Mr.
Justice Holmes, of the Supreme Court, when
he said that the law is a living thing and that
it breathes, that it moves, that it is governed
by the trends and by the times, that that
which was good precedent in years gone by
can no longer, because of the social trends
that have come about, be relied upon as part
of the public policy of any agency or any
government. The best illustration I can give
to your Honor at this time is the Child Labor
Laws. Passage of such laws at one time was
unconstitutional. Such laws eventually were
looked upon as constitutional.
There are any number of judicial decisions
made by our Supreme Court which frowned
upon the constitutionality of certain acts
passed by our Congress which in later years
were recognized as compelling necessities by
sheer force of the times which made it neces
sary for these things to come about.
Certainly it will be harsh and inequitable,
on the meager proof offered by the plaintiff,
which was nothing more than the execution
of this covenant, without the proof of any
loss or damage on the part of the plaintiff—
and certainly there was none—for this Court
in the exercise of its discretion to render a
judicial decree seeking to enforce a provi
sion which today is frowned upon, which
today is no longer the public policy of this
state or of the United States, and most prob
ably will be against the public policy of the
entire United Nations. If such covenants can
be recognized as enforceable by injunctive
125
relief, then all minorities can be foreclosed
very effectively from ownership or occupancy
not only in any given area, but in every given
area in the United States of America.
Inasmuch as plaintiff has failed to estab
lish that it will suffer irreparable damage,
this Court should not lend its arm to a decree
which will restrain minorities from enjoy
ing the same benefits of ownership and oc
cupancy of property as any citizen, as any
person, regardless of whether or not he be a 374
citizen, is entitled to enjoy in this country of
ours.
By reason of the nature of the proof of the
plaintiff’s complaint, I respectfully suggest
that the complaint be dismissed.
The Court: I have reserved decision on
the other motion and I reserve decision on
this, pending the answer of both arguments
or both sets of arguments, I should say, by
the attorney for the plaintiffs. Do you want
to he heard now?
Mr. Newton: Yes, unless your Honor oy -
wants to take it in the form of briefs. Prac
tically everything that has been said is an
swered in my brief. There is one new matter
that was brought up in Mr. Weinberger’s
argument that has not been answered and
that I am not immediately prepared to an
swer. That is the question of the fact of a
judicial decision on a contract between pri
vate parties as coming under the Fourteenth
Amendment. That, frankly, is new to me.
The Court: You mean that case involving
the Chinese in California, the Gandolfo case?
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126
376 Colloquy
Mr. Newton: Yes, that is the one.
The Court: I have no objection to giving
you as much time as you need to answer it by
way of brief. I would like you to address
yourself either now or in your brief, unless
you have already done so,—I haven’t quite
had time to read these briefs yet; they are
very voluminous—to the question of damage.
Do you do so in your brief?
Mr. Newton: Yes. I shall read very
377 briefly from page 17 of our brief, a decision
of the Court of Appeals in Trustees of Co
lumbia College vs. Thatcher, 87 N. Y. 311-21.
I am quoting from it :
“ Now having before us a covenant bind
ing the defendant, and his breach of it, if
there is nothing more, the usual result must
follow, viz, an injunction to keep within
the terms of the agreement; for the case
would come under the rule laid down in
Topping vs. Eckersley, 264, 2 K. & J . : ‘ If
the Construction of the instrument be
378 clear, and the breach clear, then it is not
a question of damage, hut the mere cir
cumstance of a breach of covenant affords
sufficient ground for the Court to interfere
by injunction.’ ”
The Court: You say that is still the law?
Mr. Newton: That is still the law, your
Honor.
The Court: Have you anything to add to
that, Mr. Silverstein?
Mr. Silverstein: No, I have nothing to add
except to say that it may afford sufficient
ground for a court to interfere by way of in-
1 2 7
junction. It still remains a matter of dis
cretion for this Court to exercise.
The Court: There is no doubt about that,
and there are other questions to be consid
ered. I am not trying to make this the sole
question. The only thing is— and you made
the point several times in your argument on
the motion to dismiss—that there was no
irreparable injury shown.
Mr. Silverstein: That is right.
The Court: I think that effectively answers 380
that point. However, I do not want to fore
close any of you or myself from further con
sideration of this and other point.
I think that the best way to dispose of this
matter finally, unless by common consent we
all change our minds, is for all sides to ex
change briefs after the presentation of the
evidence is finished, with a reasonable time
to all sides to reply, so that the Court will
finally have the benefit, when it comes to
making a decision, of the research of all the
learned counsel, because I am sure that all ggp
of you can contribute something that will
make the Court’s difficult task that much less
difficult. Is that plan agreeable to everybody?
Mr. Newton: Yes, your Honor.
Mr. Silverstein: Yes.
The Court: Then, you do not wish to argue
further now?
Mr. Silverstein: Not at this time, no.
The Court: I am not foreclosing you. It
is purely voluntary on your part.
Mr. Silverstein: Oh, no. I had anticipated
that we would do it by briefs.
The Court: I will reserve decision on both
Colloquy d ' y
128
motions and the case will proceed under the
arrangement just outlined. Let the record
show now that unless otherwise specified,
when we refer to “ the defendant” we are
referring to the defendant Rubin, because
the defendant Richardson has rested.
Mr. Silver stein: Yes.
382 j rving Jj' Schuh— F or Defendant Rubin— Direct
Irving L. Schuh, residing at 2953 Nostrand
383 Avenue, Borough of Brooklyn, City of New York,
called as a witness in behalf of the defendant
Rubin, being first duly sworn, testified as fol
lows :
Direct examination by Mr. Silverstein:
Q. Mr. Schuh, what is your business or pro
fession? A. I am an attorney-at-law.
Q. Are you employed? A. Yes, I am employed
in your office.
Q. You are associated with me? A. I am.
Q. For how many years have you been prac-
384 ticing law? A. Since—nine years.
Q. During the course of your practice have you
had occasion to make searches and examinations
of titles?
Mr. Newton: His qualifications are ad
mitted.
The Court: Qualifications are conceded.
Q. Mr. Schuh, did you make an examination of
the records maintained by the Register of the
County of Queens in so far as they pertain to
the property located in the block in which Mr.
Rubin resides? A. I did.
1 2 9
Irving L. Schuh—For Defendant Rubin—Direct 385
Q. I should say in which Mr. and Mrs. Rubin
reside. With respect also to the block in which
the plaintiff Lutz resides? A. I did.
Q. Did you also make an examination of title
with respect to those blocks which are located in
the Addisleigh section of St. Albans hounded on
the west by Marne Place, on the north by 112th
Avenue, on the east by Long Island Railroad,
and on the south by Linden Boulevard? A. I did.
The Court: May I make a suggestion in
the interest of expedition? He is going to
testify to facts that are matters of record?
Mr. Silverstein: Yes.
The Court: Why don’t you use leading
questions? I don’t think Mr. Newton will
object.
Q. Did you find of record in the blocks in which
the plaintiffs reside instruments known as Plain
tiffs’ Exhibits 4 and 5? A. I did.
The Court: Those are the restrictive cove
nants?
The Witness: Yes. 387
Q. Do you know on what sections on the land
map of Queens County the blocks which you have
just bounded for us are located? A. Practically
all are in Section 51.
Q. Are they in any other section? A. I believe
a couple of the blocks are in another section.
Q. Would they be in sections 52 and 57? A.
Yes.
Q. Of approximately how many blocks? A.
130
Q. Including the two blocks in which the plain
tiffs and the defendant reside? A. That is correct.
Q. Now, in how many other blocks aside from
the two blocks in which the plaintiffs and the de
fendant reside did you find of record covenants
similar in form to Plaintiffs’ Exhibits 4 and 5?
Mr. Newton: I object to that as imma
terial, your Honor.
The Court: Sustained.
Mr. Silverstein: Will your Honor take it
subject to connection?
The Court: All right.
Mr. Silverstein: If I can’t connect it, then
on motion it will be stricken out.
The Court: All right, I will take it that
way. I will take it subject to connection with
the understanding that if it is not properly
connected I will entertain a motion to strike
out.
Mr. Silverstein: That is right.
A. In none of the remaining land blocks did I find
°90 a covenan ̂ sim^ar f ° rm the ones that are
° the basis of this action.
Q. Did you find of record, with respect to the
blocks in Section 51, 52, and 57 on the land map
of Queens County, covenants of any other type
or form other than the type or form of Plaintiffs’
Exhibits 4 and 5?
Mr. Newton: I object, if the Court please,
to the question as being immaterial.
The Court: It sounds to me like the same
question.
Mr. Silverstein: The first question was:
Did you find any covenants in form similar
388 i rving L. Schuh— F o r D efendant Rubin— D irect
131
to these in any other blocks? The answer
was “ N o” .
(The last question was read.)
The Court: There might be all kinds of
covenants.
Mr. Silverstein: He will tell us what he
found.
Mr. Newton: I am objecting to it as being
immaterial, what covenants of record he found
in respect to other blocks. 392
The Court: I assume that you want this
on the same basis that he answered the pre
vious one?
Mr. Silverstein: On the same basis.
The Court: Subject to a motion to strike
out if not properly connected.
(To the witness): Did you?
The Witness: Yes.
By Mr. Silverstein-.
Q. I show you a certified copy of a paper
dated July 26, 1943, recorded in the office of the 393
Register of the County of Queens on August 26,
1943, in Liber 4734 of Conveyances, page 467, and
ask you if that is one of the types of covenants
you found with respect to the property in Addis-
leigh.
Mr. Newton: I object to that as immaterial.
Mr. Silverstein: Shall we say that he has a
general objection to everything?
The Court: Yes, along this line. I think
you ought to agree that you have an objection.
We are taking all this subject to a motion to
strike out.
Irving L. Schuh—For Defendant Rubin—Direct
Mr. Newton: All right, your Honor.
The Court: So your rights are protected.
A. Yes.
Q. I show you another instrument, dated June
2, 1941, recorded January 10, 1942, in Liber 4513
of Deeds, page 293, and ask you if your examina
tion revealed such covenant of record? A. Yes.
Mr. Silverstein: May I offer them in evi
dence as two separate exhibits?
Mr. Newton: I object, if the Court please,
on the ground that they are immaterial. It
seems to me that when it comes to putting
documents in evidence, that ought to he held
up until such time as they are properly ad
mitted.
The Court: Yes, I am afraid I will have
to exclude them at this time, because we are
taking them subject to connection.
Mr. Silverstein: That is right.
The Court: Otherwise we would be putting
a lot of things in the record that should not
be there if I decide to exclude them. I will
sustain the objection at this time. Mark
these for identification. When we finally de
cide upon the relevancy of this evidence we
will either let them in or exclude them.
Mr. Silverstein: That is right.
(Marked Defendant’s Exhibits A and B,
for identification, Rubin.)
By Mr. Silverstein:
Q. In the course of your examination of the
records of the Register of Queens County with
respect to the blocks contained within Sections 51,
Irving L. Schuh—For Defendant Rubin—Direct
133
52, and 57, will you tell us wliat your examination
of the records revealed, what you found in your
search with respect to agreements similar in form
to Defendant’s Exhibits A and B, for identifica
tion? A. All of the land blocks of Addisleigh, the
twenty-nine of them, are covered by covenants of
that type, that is, the type offered for identifica
tion. In substance they can be summed up and
differentiated from the covenants that are the
basis of this action in that they have what is called
an escape clause. The covenants that bind Ad- 398
disleigh in the main limit Addisleigh north by
112th Avenue, east by the Long Island Railroad,
south by Linden Boulevard, and west by 173rd
Street, and as a further provision in there that
in the event—well, the signers of the covenant
agree not to sell or convey to persons of the colored
race.
Mr. Newton: That is in the document it
self, isn’t it? I don’t like to interrupt.
By the Court:
Q. Well, you say that this covenant that was 399
just kept out of evidence covers all the blocks?
A. No.
Q. Most of the blocks? A. No, not this par
ticular covenant, but all the covenants that are
on file in Addisleigh are of this type.
Q. Well, aren’t these that are the subject of
this lawsuit on file covering part of Addisleigh?
A. No. The ones that are the basis of this action
are—the only ones filed are the two that are in
evidence.
Q. Aren’t those two blocks in Addisleigh? A
Yes.
Irving L. Schuh—For Defendant Rubin—Direct ^97
134
400 /ruing L. Schuh—For Defendant Rubin—Direct
Q. Aren’t they covered by these covenants,
Plaintiffs’ Exhibits 4 and 5? A. Yes. If I may
explain it------
Q. Then, why do you need to summarize it for
us? The testimony shows, if I recall it, that the
covenants which are the subject of this lawsuit
cover two blocks. Plaintiffs’ Exhibit 4 covers one
block and Plaintiffs’ Exhibit 5 covers another
block. Now, there is also testimony by you that
most of the other blocks in Addisleigh are covered
401 by the covenants as set forth, which are not be
fore us in evidence, but as set forth in Defendant
Rubin’s Exhibits A and B, for identification; is
that right? A. Right.
Q. You are just telling us a factual story which
we have in the record now.
The Court: Now, ask your next question.
402
By Mr. Silver stein-.
Q. And Defendant Rubin’s Exhibits A and B,
for identification, are recorded with respect to
every block in the area known as Addisleigh as
you have bounded it, is that so? A. Agreements
of that type?
Q. Yes. A. Yes.
By the Court:
Q. Let me ask you this question: Are the two
blocks in question in this lawsuit—there are two
blocks in question in this lawsuit—covered also
by agreements of this type, meaning the------ A.
Yes.
Q. The one with the defeasance clause, or the
escape clause, rather? A. Yes.
135
Irving L. Scliuh— For Defendant Rubin— Direct
By Mr. Silverstein:
Q. When you say they are covered, you mean
the instruments are indexed against those blocks?
Mr. Newton: Wait a minute. That doesn’t
mean anything to me. It is a question of sig
natures and the owners of the property.
Mr. Silverstein: That is just the thing I
want to clear up. Mr. Schuh does not want
to convey the impression that they are signed
by the people who signed Plaintiffs’ Exhibit 404
4 and 5.
The Court: That is what I mean.
Mr. Silverstein: No.
The Court: Rubin and Lutz and Kemp are
in this lawsuit. Rubin and Lutz and Kemp
have signed agreements such as appear in
Plaintiffs’ Exhibits 4 and 5. We all agree
on that.
Mr. Silverstein: That’s right.
The Court: There is a restrictive covenant
signed by Lutz, there is a restrictive covenant
signed by Rubin, and there is a restrictive ^q-
covenant signed by Kemp, in which they say
they will not sell, and the escape clause, as we
have been calling it, is not in that covenant.
Isn’t that the fact?
Mr. Silverstein: Yes, sir.
By Mr. Silverstein:
Q. Now, there is a different kind of agreement.
We shall call it, with everybody’s consent, the
escape type, just for identification. A. Yes.
136
406 j rving I,, Schuh—For Defendant Rubin—Direct
By the Court:
Q. Is there such an agreement on record signed
by Rubin, Lutz, and Kemp? A. No.
Q. That is what I was trying to find out. In
other words, I want to know if they signed both
types of agreement or only one. A. No.
Q. Only one? A. Only one.
The Court: All right, I think we all agree
on it.
407 Mr. Silverstein: That is all.
Mr. Newton: No questions, your Honor.
Mr. Silverstein: Just one more question.
By Mr. Silverstein:
Q. These covenants with the escape clause in
them, were any of them executed prior to the date
of the execution of the Rubin-Kemp-Lutz type of
covenant?
Mr. Newton: That is a little different ques
tion. I assume the objection holds with re
spect to that question as well as with respect
to the others?
The Court: I would just as soon you with
drew your objection to this question. I do
not see the relevancy of it, but if it has any
relevancy, let us have it.
Mr. Newton: All right.
The Court: Were any of these prior or
subsequent to ?
The Witness: They were all executed sub
sequent to the covenants known as Plaintiffs ’
Exhibits 4 and 5.
Mr. Silverstein: That is all.
1 3 7
Mr. Silverstein: Now, proof is being
given to you not in the order I would like
to give it to you.
The Court: I have no objection to the
order. Follow any order that suits your con
venience and the availability of your wit
nesses.
Vera G. Jenkins—For Defendant Rubin—Direct ^ 9
V era G. Jenkins, residing at 24 Yale Place,
Rockville Center, Long Island, New York, called 410
as a witness on behalf of the defendant Rubin,
being first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Is this your signature, Mrs. Jenkins, to
Plaintiffs’ Exhibit 4, in evidence, the last signa
ture on the page? A. Yes.
Q. At the time this instrument was presented
to you do you remember the name of the person
who brought it to you? A. Mr. Richardson.
Q. Does Mr. Richardson live in Addisleigh
Park? A. He did at the time he brought it to us. 411
Q. Did you live in Addisleigh at the time? A.
Yes, we did.
Q. On whose block did you live; Mr. Lutz’s or
Mr. Kemp’s? A. Mr. Lutz’s block.
Q. Are you a member of the Addisleigh Park
property Owners Association? A. We were at the
time we owned property there.
Q. Was Mr. Richardson associated with that
organization? A. He was elected president.
Q. Was he the president then? A. I believe so,
or was shortly after elected president.
138
412 Vera G. Jenkins—For Defendant Rubin—Direct
Q. Did lie come to you with this instrument? A.
He did personally.
The Court: So that we do not have any
confusion, this is a different Richardson from
the defendant Richardson, isn’t it?
Mr. Silverstein: Yes, that is right.
The Court: What Richardson was this?
What was his first name?
Mr. Newton: Roy.
Mr. Silverstein: Now or formerly the pres-
413 ident of the Addisleigh Park Association.
Q. When this paper was brought to you by Mr.
Richardson did he have a conversation with you?
A. Yes, he did.
Q. Was your husband present at the time? A.
He was.
Q. Will you tell us what the conversation was?
Mr. Newton: I object to that as incompe
tent, irrelevant and immaterial.
The Court: Sustained.
Mr. Silverstein: May I argue the point?
414 The Court: It is a very simple point. The
case here is on the validity of an agreement.
You are not seeking to have the agreement
set aside on the ground of fraud or mistake.
You cannot attack the agreement that way.
Mr. Silverstein: I am trying to show, as
appears by my answer, that what purports to
be an agreement entered into between these
people was part of a general scheme and plan.
I plead it in my answer.
The Court: What paragraph?
Mr. Silverstein: My first defense, begin
ning at page one of my answer.
139
The Court: Well, I don’t think this is ad
missible, but in view of the fact that there is
no jury present whose minds can be affected
adversely, I will take it and I will reserve de
cision on a motion to strike out or to exclude
it. I f I decide to exclude it I will notify you
before the trial is over.
Mr. Newton: Your Honor, before you rule
finally on that, will you please read pages 9
and 10 of my brief?
The Court: I think you are right. I was 416
just doing it as a matter of convenience. I
shall stick to my original resolution and sus
tain the objection. You may have an excep
tion. I read your pleading and I said, after
reading your pleading, that I did not believe
that it belongs in, because the instrument is
full and complete on its face and there is no
attack on the instrument.
Mr. Silverstein: There is no attack on the
basis of fraud.
The Court: Well, how old is this instru
ment? Since 1936 or something?
Mr. Silverstein: 1939.
The Court: There is nothing in the instru
ment that says that it shall not be recorded
unless a certain number of people agree. The
instrument seems to contain all the elements
of an agreement. Whether that agreement
is good on other grounds is something that I
am not prepared to say right now, but in so
far as one considers the elements of a con
tract, I think that on that basis you will be
violating the rules and I would have to ex
clude the testimony. I will exclude it.
Vera G. Jenkins—For Defendant Rubin—Direct
140
418 Beasley D. Kelly—For Defendant Rubin—Direct
Mr. Silverstein: Exception. Just one
question of Mrs. Jenkins.
By Mr. Silverstein:
Q. Aside from the paper that contains your sig
nature was there any other paper submitted to
you by Mr. Richardson? A. No, sir.
Q. At any subsequent date? A. No, sir.
Q. Pertaining to your premises? A. None at
ail
419 Q. Or pertaining to your premises in connection
with any of the persons who were the owners of
property and who signed with you Plaintiffs’ Ex
hibit 4? A. No, sir.
Q. There was no other paper ever presented?
A. No, sir.
Mr. Newton: No questions.
B easley D. K elly, residing at 109-48 175th
Street, Jamaica, Long Island, New York, called as
a witness in behalf of the defendant Rubin, being
420 first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Kelley, will you keep your voice up?
What is your business or occupation? A. Real
estate salesman.
Q. How long have you been a real estate sales
man? A. Since 1939.
Q. Whom are you employed by? A. I.was first
employed by Hugo R, Haydon. I am now em
ployed by Edward Brown.
Q. Where is your office now located? A. 110-14
Merrick Road.
141
Q. Is that in Jamaica? A. Jamaica.
Q. Are you familiar with the neighborhood
known as Addisleigh, in St. Albans? A. Well,
very familiar with it. I have traveled all through
there. I have a lot of friends live in there,
Q. For how many years have you been familiar
with that area? A. Since 1939.
Q. Did you at my request make a survey of
Addisleigh with respect to the section south of
112th Avenue, west of the Long Island Railroad,
north of Linden Boulevard, and east of the west 422
side of 173rd Street and Sayres Avenue, in St.
Albans? A. I did.
Q. Did you make such a survey? A. I did.
Q. Did you go from house to house in each
block? A. From house to house in each block, yes,
sir.
Q. Can you tell us from your investigation ap
proximately how many colored families reside in
the Addisleigh Park section of St. Albans?
Mr. Newton: I object to the question as in
competent, irrelevant and immaterial.
The Court: Well, isn’t one of the defenses 423
that the character of the neighborhood has
changed and that therefore the agreements
have become inoperative?
Mr. Silverstein: Yes.
The Court: I think that on that score I
ought to take it.
Mr. Newton: I f your Honor please, I want
to make my objection clear for the record,
anyway. I object to this survey at this time
of the two blocks Nos. 1314 and 1315, which
are the blocks covered by the covenants.
The Court: I assume that in getting this
Beasley D. Kelly—For Defendant Rubin—Direct
142
424 Beasley D. Kelly—For Defendant Rubin—Direct
picture we will get a picture of the whole
neighborhood and the two blocks.
Mr. Newton: Then, further, I object to any
present census, inasmuch as it doesn’t show
any change since the date of the covenant.
Mr. Silverstein: We will show the dates
when title was acquired.
The Court: I will say now that if he
doesn’t show any change since the date of the
covenant, I think Mr. Silverstein would agree
425 that he would not have a very good point.
By Mr. Silverstein:
Q. All right, will you tell us approximately how
many colored families you found in the Addisleigh
section of St. Albans ? A. I found approximately
about 50 or 60 families.
By the Court:
Q. Wait a minute. You went from door to
door? A. From door to door.
Q. From house to house? A. That’s right.
426 Q. Why do you have to tell us approximately 50
or 60? Can’t you tell us how many you found?
Didn’t you keep a record? A. There was a num
ber of them was out and I didn’t see them.
Q. Well, how many people did you find? A.
Fifty.
Q. Exactly fifty? A. Yes. That is what I got
on the record.
Q. Then, don’t say sixty. A. But some of them,
I couldn’t find them.
Q. But you were asked how many you found.
A. All right.
143
Q. If you didn’t find them you don’t know if
they were there, except by hearsay. A. All right.
Q. So fifty is your answer? A. Yes.
By Mr. Silverstein :
Q. Will you give us the name and the street
address of the colored persons you found residing
within the Addisleigh section of St. Albans? A.
On Linden Boulevard, 174------
The Court: Couldn’t we in the interest of ^ 8
expedition have you bring in a list, put it in
the record, and have Mr. Newton concede
that he would so testify? Do I have to sit
and listen to fifty names and addresses?
Mr. Newton: I will concede that he will so
testify.
The Court: You can put the list right into
the record.
Mr. Newton: Yes. That is, subject to my
objection to the testimony in general.
Mr. Silverstein: I offer for identification
this plate, which is similar to the one you of
fered with respect to the Addisleigh section
of St. Albans.
The Court: For identification or in evi
dence?
Mr. Silverstein: No, just for identification
at the moment.
(Marked Defendant Rubin’s Exhibit C, for
identification.)
Q. Are the houses which your survey disclosed
were occupied by colored persons, as contained in
the record before you now—would they corres-
Beasley D. Kelly—For Defendant Rubin—Direct
144
pond to the houses which are shown in red, in
deep red, on Defendant’s Exhibit C, for identifi
cation? A. To the best of my ability they do.
Mr. Silverstein: I offer them in evidence.
Mr. Newton: May I ask a question of
counsel, your Honor?
The Court: Yes.
Mr. Newton: Do I understand that what
the witness is saying is that the area shaded
in red on this chart that you have before me
are the same areas as are in this list of prop
erty and that this is just a chart of what the
list itself shows?
Mr. Silverstein: Yes.
Mr. Newton: I have no objection, subject
to the same objection as related to the list.
Mr. Silverstein: May I offer it in evidence ?
Mr. Newton: All right, on the same basis.
(Map referred to, heretofore marked De
fendant Rubin’s Exhibit C, for identification,
received in evidence and marked Defendant
Rubin’s Exhibit C. List referred to received
in evidence and marked Defendant Rubin’s
Exhibit C-l.)
The Court: It is the understanding of
everybody involved that Defendant Rubin’s
Exhibit C-l is a list of houses in the Addis-
leigh section occupied by colored families, that
this witness would so testify, and that De
fendant Rubin’s Exhibit C, the chart, is a
drawing of the list, so to speak, showing the
same thing, and that the houses in red are the
houses occupied by the colored families set
forth in the list, and that this witness would
so testify.
430 Beasley D. Kelly—For Defendant Rubin—Direct
145
Beasley D. Kelly—For Defendant Rubin—Direct ^33
By Mr. Newton:
Q. Mr. Kelly, there are on this map, Exhibit C,
eight houses which have been stricken out, since
they are not in the Addisleigh area as it has been
described here. Were those eight houses included
in the fifty that you mentioned a few moments
ago? A. Eight houses? Where are those houses
located?
Q. Here (indicating). A. No, they are not in
here.
Q. They are not in the list of fifty? A. Let us ^34
see. Yes, they are.
Mr. Newton: May I ask that the witness
take his list of fifty and cross out those eight,
and also let the record show that the number
is 42 instead of 50?
By the Court:
Q. Is that right? A. These aren’t in there.
Q. You don’t understand the question. You said
before that there were fifty. A. Yes.
Q. Now, eight have been taken out by the law- 435
yer. Were those eight included in the fifty? A.
Yes, these were included in there, too.
Q. So now there would be only 42 left? A. Yes.
(Discussion off the record.)
The Court: You check this up overnight
and tell Mr. Newton the next time we get to
gether.
Mr. Silverstein: I should say that on this
list the names of those of the negro race are
checked off.
The Court: Here is a question I want to
146
ask: Do the two blocks, the Lutz block and
the Kemp block, appear in this map marked
off in red?
Mr. Newton: Yes, they are Block Nos. 1314
and 1315.
The Court: According to my ability I see
three on the 1314 block and five on the 1315
block.
(Discussion off the record.)
437 The Court: With the consent of counsel
the Court has marked “ Lutz” opposite or
next to Lot 46 as showing the residence of
Lutz, the Kemp residence and the Rubin resi
dence already having been indicated on the
same map.
Mr. Newton: The Kemp residence, your
Honor, is Lots 1 and 4. It shows as only Lot
1 there.
Mr. Silverstein: I have no further ques
tions of the witness.
Mr. Newton: I have just one question.
438 fiy jy[r ]$ewton:
Q. Do you know how many houses there are
in this Addisleigh section altogether? A. I do
not.
Q. In the section that you covered, how many
houses did you visit? A. I couldn’t tell exactly
how many, because I didn’t count them all, so many
people weren’t at home and I didn’t count.
Beasley D. Kelly—For Defendant Rubin—Direct
147
Helen L evy, residing at 112-71—175th Place,
St. Albans, Long Island, New York, called as a
witness in behalf of the defendant Rubin, being
first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. How long have you lived on that street, Mrs.
Levy? A. Seventeen years.
Q. Are there any negro families living on your
block? A. Yes.
Q. How many are there? 440
Mr. Newton: I object to it as immaterial.
The Court: I will take it.
Q. How many are there living on your block?
A. There is more than I know, because I have been
away all summer, and there have been some mov
ing in.
The Court: No. How many do you know?
The Witness: There are seven.
Q. Are they all on the same side of the street as 444
you are? A. No, some across the street.
The Court: Is she on either block, the Lutz
block or the Kemp block?
Mr. Silverstein: No. I can immediately
see an error on this. I see 112-71—175th
Place is marked off in red as colored. That is
Mrs. Levy’s address.
Q. There are seven whom you know? A. I
don’t know them, but I know they live in the
bouse.
Helen Levy—For Defendant Rubin—Direct
148
442 Ferdinand W. Buermeyer—For Defendant Rubin
—Direct
Q. They live in houses on that block? A. On
either side.
The Court: But they have your house
marked as colored.
The Witness: No. The house next to me
is sold to colored, but the white people are
still in it.
The Court: You had better check your
list between now and the next time we come
443 back.
Mr. Silverstein: The list is correct. This
is an error, that’s all.
Mr. Newton: No questions.
F erdinand W. B uermeyer, residing at 299 West
12th Street, Borough of Manhattan, City of New
York, called as a witness in behalf of the defend
ant Rubin, being first duly sworn, testified as
follows:
444 Direct examination by Mr. Silverstein:
Q. Mr. Buermeyer, what is your business or
occupation? A. I am a stenographer and law
clerk.
Q. Have you as a law clerk made examinations
of titles and of records of the Register of Queens
County? A. I have.
Q. Over how many years? A. Forty.
Q. Are you familiar with the Addisleigh sec
tion of St. Albans? A. Yes.
Q. Did you at my request make a survey of
that area? A. I did.
Q. More particularly did you make a survey of
149
the area with respect to the number of colored
families residing within the area known as Addis-
leigh? A. I did.
Q. Will you tell us from your survey approxi
mately how many colored families you found liv
ing in the area? A. Forty-eight.
Mr. Newton: I object to that as incompe
tent, irrelevant and immaterial.
The Witness: Pardon.
Mr. Newton: In the first place, I don’t
think I have made this entire thing clear to
the Court. I am objecting to all this line of
testimony on the ground that any change of
character of the neighborhood is not available
to this defendant Rubin as an original signa
tory to the agreement, and it is very plain
that the change of character, if there has been
any change of character, is something that
was clearly within the contemplation of the
parties when they made the agreement.
Therefore they cannot plead it now as a
defense. With respect to this particular con- 447
tract I submit that before the witness gives
his conclusions he ought to tell us what he
did.
The Court: I will sustain the objection to
it only on that last ground, but, otherwise I
will take the testimony. If this witness is
competent to testify, in other words, if he
made a proper inspection and investigation.
But as to your other objection, on the ground
that this defense is not available to this sig
natory, Mrs. Rubin, I can still take this testi
mony and pass on that later.
Mr. Newton: That is right.
Ferdinand W. Buermeyer—For Defendant Rubin '±"±u
—Direct
1 5 0
448 Ferdinand W . Buermeyer—For Defendant Rubin
—Direct
The Court: But if I say later that it is
available to her and I have already excluded
the testimony, I am in a bad position.
By Mr. Silver stein-.
Q. Tell us what you did, Mr. Buermeyer. A. I
went from house to house and made a canvass of
each house in that particular section and also the
surrounding territory, and I inquired in each
449 h0lise as to whether there were colored people
living there or whether there were white people,
and from that------
The Court: Did you make it clear that you
weren’t referring to help!
The Witness: I did, sir; as to whether they
were tenants or whether they owned the build
ing themselves, and in each particular case
where I found that there were colored people
living there, that is the ones that I reported
to you, sir.
4^0 Q. About how many houses did you find were
tenanted, occupied, or owned by persons of the
negro race?
Mr. Newton: In order to avoid the con
fusion that we had with the other witness,
may we have the area confined that he tested
in this way? We got into confusion with the
other witness.
The Court: Give us the boundaries of the
neighborhood you investigated.
The Witness: I went from Marne Avenue,
113th Place, along Sayres Avenue to 180th
Street, which backs up on the railroad, south
151
on 180th Street to Linden Boulevard, and then
back to the point of beginning.
Mr. Newton: That is a vastly greater area,
your Honor, than is included in this lawsuit,
vastly greater than has been described as
Addisleigh.
Mr. Silverstein: That is right.
The Witness: May I suggest here, when I
said there were 48, those are only the ones
that were included in what was here today, 452
from 112th Avenue.
Ferdinand W. Buermeyer—For Defendant Rubin ^51
—Direct
By Mr. Silverstein:
Q. You haven’t told us the number yet. Con
fine yourself to 112th Avenue as the northerly
boundary line.
The Court: He is an old-time abstract man,
and title man.
The Witness: I was the head of the Law
Department in Queens Title for a great many
years.
453
By the Court:
Q. You looked at that map we have in evidence?
A. I didn’t see that map. I made a diagram of my
own.
Q. Look at the map, referring to Defendant’s
Exhibit C, and see if the neighborhood you
scoured or investigated was included in the lim
its of that map. A. They are included in that.
Q. How many houses did you find occupied by
negro families in that area? A. Forty-eight.
Mr. Newton: I object to that as immate
rial. Exception.
152
454 William E. Taube—For Defendant Rubin—
Direct
Q. Forty-eight? A. Yes.
The Court: Is there anything else?
By Mr. Silverstein:
Q. Do you know approximately how many
houses there are in the defined area? A. Approx
imately I would say that there was about 325 or
330 houses in that particular area.
455 The Court: The ratio of colored is about
one to six and a half?
The Witness: I would say so.
Mr. Silverstein: That is all.
Mr. Newton: No questions.
The Court: We all understand when we
talk of ratio that we are talking of families,
not the component parts of families.
W illiam E. Taube, residing at 64 Wellington
Road, Garden City, Long Island, New York,
called as a witness in behalf of the defendant
Rubin, being first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Taube, what is your business or occupa
tion? A. Licensed real estate broker and ap
praiser.
Q. For how many years have you been such?
A. Over fifteen years.
Q. Where do you maintain your office? A. 161-
19—Jamaica Avenue, Jamaica.
Q. How long have you operated in that area?
A. About eight years there and the balance of it
in Long Island City.
153
Q. Are you familiar with the Addisleigh Park
section of St. Albans? A. I am.
Q. Did you ever live near that neighborhood?
A. No, sir.
Q. Did you ever pass that neighborhood? A.
Twice a day.
Q. For how long? A. For about five years.
That is the way I come in from Garden City.
Q. Were you familiar with that section in 1939?
A. I knew it then, yes, sir. 458
Q. And prior to that date? A. Yes, sir.
Q. Do you know who owned the property which
is known as Addisleigh today, before it was built
on? A. Yes, sir.
Q. Who owned it? A. Edward Brown.
Q. Do you know who developed it? A. Edward
Brown, Rodman English, and a few developers
through him.
Q. Are you familiar with the type of neigh
borhood of Addisleigh in 1939? A. Yes, sir.
Q. Will you tell us what type of neighborhood
it was? A. Well, it was a high-class neighbor- 459
hood. There were good houses, some expensive
and some medium-priced. There was a large
golf course to the south—to the east, rather, of
Linden Boulevard, now converted into the Naval
Hospital.
Q. That is being operated by the United States
Government? A. United States Government.
Q. During the war and ever since? A. That’s
right.
Q. Going north to Linden Boulevard, were
there any colored families in the Addisleigh sec
tion of St. Albans prior to 1939? A. Not to my
knowledge.
William E. Taube—For Defendant Rubin—
Direct
154
460 William E. Taube—For Defendant Rubin—
Direct
Q. Were there any in 1939? A. I wouldn’t
know the exact date that the influx came, but they
are there now.
Q. From 1939, going from 1939 up to the pres
ent date, has there been an influx in the Addis-
leigh section of St. Albans of colored families?
Mr. Newton: I object to that, if the Court
please, as a conclusion.
The Court: Yes. “ Influx” is a general
word, isn’t it?
Mr. Silverstein: Yes.
Q. Will you tell us, if you know from your own
knowledge and observation, what changes, if any,
have taken place in the section of Addisleigh with
respect to the occupancy of houses in that section?
Mr. Newton: I object to that, if the Court
please, as incompetent, irrelevant and imma
terial.
The Court: Yes. I would let him tell me,
if he knows, how many houses he knows in
the last five years or six years have been sold
or transferred or rented to colored people in
that part, the Addisleigh Park section, or the
Addisleigh, that were formerly inhabited or
tenanted by white people.
The Witness: I don’t know the exact num
ber, your Honor, but it was all white at one
time. It was built up for the white people,
and the neighborhood south of the Merrick
or west of the Merrick, rather, at that point,
and north of Sayres, or the Addisleigh sec
tion, has been gradually filling up with col
ored.
155
The Court: It can’t be filling up, because
it has been testified to that there are 325 to
330 bouses and that only 48 are occupied by
colored.
The Witness: No; I said the section, not
the Addisleigb section.
The Court: We are only interested in the
Addisleigb section. I will strike that other
part out.
The Witness: I don’t really know bow
many there shall be. 464
By the Court:
Q. But you saw some there? A. Yes.
Q. You do know there are some colored? A.
Yes.
Q. Can you tell us what the situation was in
1939? Were there any in 1939, that is, colored?
A. There might be some in 1939.
Q. “ Might be” is not good testimony. A. No.
Q. Would you say there were none in 1939? A.
I wouldn’t say that.
Q. Would you say there are more now than 465
there were in 1939? A. Yes, sir.
Q. You couldn’t tell us how many there were in
1939? A. No.
By Mr. Silverstein:
Q. If you know, can you tell us whether or not
there have been sales of houses to persons of the
negro race in the Addisleigh section of St. Albans
prior to 1939? Do you know of any? A. I really
don’t.
The Court: Isn’t that really unnecessary?
You are preparing a list of all the houses oc-
William E. Taube—For Defendant Rubin—Direct 463
156
466 p reci Williams—For Defendant Rubin—Direct
cupied by colored folk. You are going to get
the dates when the transfers were made.
Mr. Silverstein: That is right.
The Court: Let us assume he says there
weren’t and that ten of your transfers show
they were before 1939; what are you going to
do with that? And vice versa, let us assume
he says there were. You are going to have
the best evidence, aren’t you, on that point?
Mr. Silverstein: Yes, I think so.
467 ______
(An adjournment was taken to November
13, 1946, at 2 o ’clock P. M.)
Jamaica, N. Y., November 13, 1946.
T rial Continued
F red W illiams, residing at 112-11 117th Street,
St. Albans, Long Island, New York, called as a
witness in behalf of the defendant Rubin, being
4Qg first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Williams, where do you reside? A.
112-11 177th Street, St. Albans.
Q. Is that on the same street that Mr. Rubin
resides? A. That’s right, two doors from Mr.
Rubin.
Q. How long have you lived there? A. Four
years.
Q. Have you your family living with you there?
A. That’s right.
157
Q. Who was the house purchased from? A.
From Grillon, J. Grillon. I am quite sure there is
a “ J ” in the front.
Mr. Silverstein: I ask your Honor to take
notice of the fact that Grillon was one of the
signers of the covenant.
The Court: Is that right, Counselor?
Mr. Newton: That’s right.
The Court: When did he say he bought;
four years ago?
Mr. Newton: He didn’t buy it. He has ^70
not said that.
The Court: Oh, he said he has lived there
four years.
By Mr. Silverstein:
Q. In whose name is title? A. My wife’s.
Q. When did she purchase it? A. October 6,
1941, if------ 1 am quite sure.
Q. You have lived there ever since the time you
purchased it? A. That’s right.
Q. Have you children? A. I have.
Q. They live with you? A. That’s right. 471
Mr. Silverstein: Will your Honor take
judicial notice of the fact that Mr. Williams
is a member of the negro race?
The Court: I don’t think there is any argu
ment about that. Is there?
Mr. Newton: No, there is no question about
that.
Mr. Silverstein: That is all.
Mr. Newton: Is it conceded that Mrs. W il
liams, the wife of the witness, is a white per
son?
Fred Williams—For Defendant Rubin—Direct ^69
158
Mr. Silverstein: I don’t know about that.
You bad better cross-examine—yes.
Mr. Newton: And that sbe was the pur
chaser and is the owner of that property?
Mr. Silverstein: Yes.
Mr .Newton: That is all.
Andrew Reis—For Defendant Rubin—Direct
A ndrew Reis, residing at 112-40 177th Street,
472 St. Albans, Long Island, New York, called as a
witness in behalf of the defendant Rubin, being
first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Reis, what is your business or occupa
tion? A. Real estate broker.
Q. How long have you been in the real estate
business? A. Fifty-two years.
Q. Are you familiar with the section known as
Addisleigh? A. For the past twenty years.
Q. Do you know the approximate date when
474 the first colored family moved into the section
known as Addisleigh? A. The deed, I think, was
October, but they came in in December, 1940. The
number is 112-20, and the next is white, and then
the next is 112-10. They followed about two weeks
after. Those two houses were the first colored
folks in Addisleigh. That was December, 1940.
We came from Brooklyn and moved into Addis
leigh in October, 1940.
Q. To your knowledge, have colored families
been either acquiring by purchase or by lease
agreements living accommodations in Addisleigh
ever since that date?
159
Mr. Newton: I object to that, if the Court
please.
The Court: I will take it.
Mr. Newton: It is too general. I thought
that the understanding was that we were
going to have a specific statement of just what
families moved in and where and when.
Mr. Silver stein: We have that.
The Court: Is this the witness who is pre
pared to give the specific statements?
Mr. Silverstein: No; he is not here yet. 475
That is Mr. Kelly.
The Court: I will still take it.
A. I know of no lease holds, but I do know that
since that time there is between fifty and sixty
colored folks have moved into Addisleigh this side
of Linden Boulevard.
Q. When you say this side of Linden Boule
vard------ A. North.
Q. You mean north of Linden Boulevard? A.
That’s correct. I might also add that in the street,
176th, with those two families------
Mr. Newton: Just a minute, there is no ^”
question. I object to the volunteering.
The Court: Yes, there is no question.
Strike it out.
Q. Do you know the number of houses in the
two blocks in which Mr. Rubin and Mr. Lutz and
Mr. Kemp reside—how many houses are occupied
by persons of the colored race?
Mr. Newton: I object to that on the same
ground. We want some specific information,
not generalities.
Andrew Reis—For Defendant Rubin—Direct
160
Mr. Silverstein: I am asking him if he
knows.
The Court: If he knows he can tell us.
Mr. Silverstein: I f he doesn’t know, that
is all there is to it.
A. Yes, sir, I do know.
Q. You live in the same block that Mr. Rubin
lives on? A. That’s right.
Q. How many colored families live in that
block? Two.
479 q . these colored families come in prior to
or subsequent to the execution and recording of
the covenant? A. Subsequent.
Q. Do you know how many colored families live
in the block that Mr. Lutz lives in? A. That is the
same block you are speaking of?
By the Court:
Q. There are two sides of the street, aren’t
there? A. Yes.
Q. Rubin is on one side with Kemp? A. That’s
right.
4S0 Q. Lutz is on the other side? A. That’s right.
Q. When you say two on that block, you mean
on both sides of the street? A. They are both on
Mr. Rubin’s side, sir.
Q. In other words, that is on Mr. Kemp’s? A.
That’s right.
Q. There are two on the same side with Kemp
and Rubin and none on the other side? A. That’s
correct.
By Mr. Silverstein:
Q. Are there any on the side Mr. Lutz lives on?
A. No, sir.
Andrew Reis—For Defendant Rubin—Direct
161
Andrew Reis—For Defendant Rubin—Direct 481
The Court: He just said no.
Q. Are there any in the block in which Mr.
Lutz is on? By “ blocks” I mean not necessarily
fronting on the same street, but fronting on an
other street within the same block.
The Court: You mean on the same square?
Mr. Silverstein: On the same square, yes.
A. Yes, Mr. Lutz, he backs up to about 5. That
is 176th Street.
Q. That would be 176th Street, that’s right.
And in the block you live in, in the square you live
in? A. That is the same square. I am on Lutz’s
side.
Q. And in the square that Mr. Rubin lives in?
A. Back of him are about four.
Q. Four colored families? A. That’s correct.
Q. Do you know the names of the families? A.
I do not, sir.
Q. Prior to occupancy by any member of the
colored race of any part of the section of Addis-
leigh what was the general character of the
neighborhood? A. Strictly white.
Q. Have you from your experience and knowl
edge of the area been able to form an opinion as
to whether or not there has been a change in the
neighborhood? A. A distinct------
Mr. Newton: I object to that, if the Court
please.
The Court: Sustained.
Mr. Silverstein: Does your Honor take
the position that that is a question for your
Honor to decide and he may not venture an
opinion?
The Court: I think so.
162
484 Andrew Reis—For Defendant Rubin— Cross
Q. Do you know approximately how many
houses there are in the Addisleigh section of St.
Albans? A. What section?
Q. Addisleigh. A. Known as Addisleigh?
Q. Yes, north of Linden Boulevard. A. Oh,
north of Linden Boulevard?
Q. Yes. A. About 350.
Q. 350 residences? A. Correct.
Mr. Silverstein: That is all.
The Court: How many of those are col
ored?
The Witness: Your Honor, between fifty
and sixty.
Cross examination by Mr. Newton-.
Q. Mr. Reis, you said that in the block hack of
Mr. Kemp and Mr. Rubin, that is, facing 178th
Street, there are about four colored families; is
that right? A. There is-—there is in that block
four.
Q. Which ones are they and where do they
live? A. Sir?
Q. Which ones are they and where do they
live? A. I can’t tell you offhand. I know they
are there.
Q. Is there any information here from which
you can tell us? A. There is information there,
but I can tell you that they are in the block.
Q. I said on the next street back of Kemp and
Rubin. That is what you answered, I think—
there were four. A. That’s right.
Q. What I want to know from you— and look
at anything you want to to refresh your recollec
tion—is how many there actually are.
163
Andrew Reis—For Defendant Rubin—Cross
The Court: Is there anything in this court
room that would help you remember how
many there are exactly, not about?
The Witness: Yes, I think so. I think the
paper is there (indicating).
The Court: Let the witness see the paper
he wants.
The Witness: (referring to paper): May
I peruse this, your Honor?
The Court: Yes.
The Witness: There are three backing up 488
to him.
Q. Which ones are they, please? A. 112-36,
112------
Q. Pardon me just a second. Who lives in 112-
36? A. I don’t know them, sir; all I know they
are colored people.
Q. Do you know whether the name is Kano or
not? A. I do not, sir.
Q. Then, you don’t know who it is? A. All I
know they are colored people. -08, -44, -36; that
is on the same square. ^gg
Q. -08 is McCauley? A. 112-08 is directly be
hind Mr. Rubin’s house.
Q. That is McCauley, isn’t it? A. I don’t know.
I tell you, I don’t know their names.
Q. When you speak of the two families on 177th
Street you refer to Williams as one of them? A.
That’s correct.
Q. That is one of the two families you refer to?
A. That’s correct.
Q. The other is Hemachandra? A. That’s cor
rect.
Q. Which are the five on 176th Street backing
164
up towards Mr. Lutz? That would be on the east
side of 176th Street. A. That is 114-15------
Q. Wait a minute. A. You see, that is the odd
number, I believe, on that side.
Mr. Silverstein: I don’t believe he has
176th Street in front of him.
The Witness: No. I have my own here—
I got it. 114-15.
Q. Wait a minute. A. That is the other side,
491 that is Murdoch. You don’t want them. That is
the square—pardon me, Counsellor, 112-36, 112-
42,------
Q. Wait a minute, that is on the wrong side of
176th Street, isn’t it?
Mr. Silverstein: It is on the wrong side,
that’s right.
A. No, sir, that is the side on his square.
Q. I want the east side of 176th Street. Those
are the odd numbers, are they not? A. That is
the odd numbers. That is what I am giving you.
492 Q- You are giving me 36. That is an even
number. A. All right, I will give you 112-43.
Q. Yes. A. 112-23. That is all I got of the
odd numbers on my paper.
Mr. Newton: That is all.
Redirect examination by Mr. Silverstein:
Q. But there are four, sir?
Mr. Newton: I object to that.
The Court: Sustained.
Mr. Silverstein: Exception.
4^0 Andrew Reis—For Defendant Rubin—Redirect
Andrew Reis—For Defendant Rubin— Redirect
Ry the Court:
Q. How many have you named as backing up on
Lutz? A. As backing up on him? Five.
Q. You said five, but bow many could you
name? A. I could only give the two numbers.
Q. You don’t know the other numbers? A. I
didn’t put them down. I know them well. They
back up to my own borne. I have 110 front foot
where I reside.
Q. You reside near Lutz? A. Just this side
of him.
Q. The same block? A. Yes, sir.
Q. The same side of the street? A. Yes, sir.
Q. You know from your own knowledge that
there are five? A. Yes, your Honor.
Q. Backing up on you and Lutz? A. Yes, sir.
Q. There is no doubt in your mind? A. Not a
doubt. One of them is the professor-in-cbief of
the New York University. That backs right up
to my property.
Q. Professor-in-cbief of the New York Uni
versity? A. Of the New York University.
Q. What kind of title is that? A. I don’t know.
I spoke to him. He told me be is the chief pro
fessor.
Q. Do you think modesty compelled him to say
that? A. I don’t know, your Honor.
Ry Mr. Silver stein:
Q. Do you know the Hemachandra family? A.
Yes, sir.
Q. Do you know the business or profession of
Mrs. Hemachandra?
166
Mr. Newton: I object to that, if the Court
please.
The Court: Yes, sustained. There is no
question here as to whether they have reached
a certain social or professional or economic
stratum.
Q. Will this paper that I now show you refresh
your recollection as to the number of colored
families on the east side of 176th Street------
497 . n
Mr. Silverstein: I think I will withdraw
this witness. I have someone that I can defi
nitely establish the house numbers through.
The Court: You don’t want to ask him any
more questions ?
Mr. Silverstein: Oh, just one more ques
tion:
Q. Do you know in what part of Addisleigh
there exists the greatest concentration of colored
families ?
Mr. Newton: I object to that, if the Court
498 please.
The Court: Sustained.
Mr. Silverstein: That is all.
49£> Beasley D. Kelly—For Defendant Rubin—
Recalled, Direct
Beasley D. K elly, recalled.
By Mr. Silverstein:
Q. Mr. Kelly, with respect to the section known
Addisleigh in St. Albans, did you at my request
make a house-to-house survey of the area? A.
I did, sir.
Q. In the course of your survey did you make
any records, notes, and memoranda to indicate
1 6 7
the number of families living on any one street?
Did you answer my question? Did you make any
notes and memoranda? A. I did make notes.
Q. Are the notes and memoranda that you now
have in your hands the records that you made in
the course of your survey? A. It is.
Q. Can you tell me how many colored families
there are on 177th Street between 112th Avenue
and 114th Avenue? A. On 177th Street between
112th Avenue and 114th Avenue? 500
Q. That’s right. A. I got two colored families.
Q. On which side of the street? A. On the east
side of the street.
Q. You have two? Have you any record show
ing how many there are on the west side of the
street? A. On 177th Street, I do not.
By the Court:
Q. Do you mean there are none, or that you
haven’t any record? A. I haven’t got any rec
ord.
Q. How is it that you have made a survey and 501
yet you haven’t a record?
Mr. Silverstein: That is correct. There
are none.
The Court: That is not what he is saying.
Q. You say you have no record or that there
are none? A. There are none. I haven’t any
record. There are none on 177th Street.
Q. You surveyed there? A. I did.
Q. There are none? A. Yes.
Q. You should not say you haven’t any record;
you should say there are none. A. All right.
Beasley D. Kelly—For Defendant Rubin— ^yy
Recalled, Direct
1 6 8
By Mr. Silver stein:
Q. Going to 176th Street north of 114th Avenue,
have you any record of how many colored families
there are on the east side of the street? A. On
the east side of 176th Street I have a record of
four colored families.
Q. Four colored families? A. That’s right.
Q. Are there any colored families on the west
side of 176th Street?
503
Mr. Newton: I object to that as imma
terial, if the Court please. That is outside
of the restricted area under these covenants.
The Court: Is it conceded that this is out
side the restricted area?
Mr. Silverstein: It is outside of the two
blocks referred to in the covenant.
The Court: I think I ought to take it sub
ject to connection, because I remember some
thing about a question of whether or not the
other numbers were supposed to be included
50-L or n0^ ̂ think I held that they could not
vary the agreement by the evidence they tried
to introduce, but this case has had an inter
lude now of about six or seven days, and I
think I will take it subject to connection. If
it is not connected I will strike it out.
Mr. Silverstein: I f I may refresh your
Honor’s recollection, I brought out on cross-
examination through Mr. Lutz that it was
part of the common plan and scheme for the
neighborhood, and I confronted him with his
affidavit that was used in support of the ap
plication for a temporary injunction in
which------
oU- 1 Beasley D. Kelly—For Defendant Rubin—
Recalled, Direct
The Court: I think he admitted that they
intend to ask the other owners in the vicinity
to join this plan. Of course, I am not ready
to hold now that because the others didn’t
join, that this is not a good agreement. I
am talking about the legality of it. In other
words, if it is a good agreement from other
considerations, it could be good if others did
not join it.
„ . 506
By Mr. Silver stein:
Q. (Last question read.)
Mr. Newton: May I say this, your Honor,
that so far as this particular objection is con
cerned, we had some testimony in the last
hearing in this case concerning the number
who have moved into the whole Addisleigh
area. I didn’t object to that. I think that
it is immaterial now to break it down and
try to draw conclusions with respect to par
ticular blocks on any theory of a common 507
plan or scheme. If your Honor is taking it
on the question of whether there has been a
change of character in the neighborhood,
which is what we discussed at the last trial,
it seems to me that the best evidence is the
evidence that we all agreed at the last trial
would be received, and that is a statement
showing the families that had moved into the
Addisleigh section and where.
Mr. Silverstein: I have that statement.
The Court: Why don’t you get to it? We
agreed last time that you were going to get
me a list of the changes and when they were
169
Beasley D. Kelly—For Defendant Rubin— 505
Recalled, Direct
170
made, that is, whether they were made sub
sequent to the signing of these restrictions or
prior to it.
Mr. Silverstein: I have such a list, hut
before I could put Mr. Schuh on to testify
as to the date of each conveyance I thought
I would have to show that, because Mr. Schuh
wouldn’t know from an examination of the
record whether or not they were people of
the white race or colored race. I would have
509 to show the number of people living in that
block who are persons of the colored race.
The Court: Are you still objecting? Can
you help this by concession?
Mr. Silverstein: Unless there is a conces
sion that the names of persons on this list are
persons of the colored race------
Mr. Newton: There was testimony of two
witnesses before that they had gone over this
area and that these people were people of the
colored race. I was supposed to receive a
copy of this a short time after the last hear-
--jq ing, so that we might make a check. I re
ceived it as I came into court today.
Mr. Silverstein: We only completed it last
night.
Mr. Newton: I assumed it was going to be
offered. I will say right now that I was
going to make the statement, when it was
offered—I am asking the Court to take it
subject to an opportunity to us to check it
up and to call attention to any errors that
we may find in it.
The Court: All right, we will take it on
that basis. I think that is a fair request.
Colloquy
1 7 1
Take it out and test check it. If we are
through with everything else I will close the
case, and if there are any errors, serious
errors, call them to my attention and I will
reopen the case.
Mr. Silverstein: May I make this memo
randum on the original of it and conform his
copy! We will by brackets indicate those
houses which are within the area described
in the covenants by brackets. All the rest will
be houses in Addisleigh, but not within the 512
two blocks referred to in your bill.
Mr. Newton: That part is all right. There
are also on this statement three houses on
the north side of 112th Avenue which are not
in our area at all, as I read it. They are at
174-15, 174-19, 174-27.
(Discussion off the record.)
Mr. Silverstein: Then, will we stipulate
that this is Mr. Kelly’s list?
Mr. Newton: Yes.
Mr. Silverstein: And that it may be of-
fered in evidence?
Mr. Newton: Yes. I object merely on the
question of immateriality with respect to the
properties outside of the restricted area.
Mr. Silverstein: Before it is marked in
evidence I want to bracket those houses in the
two blocks and put letters down.
(Received in evidence and marked Defend
ant Rubin’s Exhibit D.)
The Court: Do I understand that the
bracketed houses are the ones that appear in
the blocks covered by the restrictions?
Colloquy 011
Colloquy
Mr. Silverstein: That is right.
Mr. Newton: That is right, Judge.
The Court: How could there be three
blocks ?
Mr. Newton: The first group of four are
the ones back of Lutz, and the next group of
two are------
The Court: May I make a mark on them
for my own use?
Mr. Silverstein: Yes, surely.
Mr. Newton: And the next group of two
include the Williams, which is owned by a
white woman. That is on 177th Street.
The Court: That is on 177th Street, 112-11
and 112-39.
Mr. Newton: That is right. Those are on
Rubin’s block, or as long as we are using the
plaintiff’s name, on Kemp’s block.
The Court: That’s right, and which one
is------
Mr. Newton: Williams, that is 112-11.
The Court: The next two on 178th Street?
Mr. Newton: That’s right, your Honor.
The Court: What are those?
Mr. Newton: That O ’Malley, you see, is
occupied by a white person, so there is one
colored family living on that street.
The Court: I don’t follow you. You have
four— 112-19, -23, -27, and -43. Those are all
occupied by colored families and are in back
of Lutz?
Mr. Newton: That’s right.
The Court: The next two are on the block
of Kemp, and 112-11 is occupied by Williams?
1 7 3
Mr. Newton: That’s right.
The Court: Mrs. Williams is white and
Mr. Williams is colored?
Mr. Newton: That is right, and she owns
the property.
The Court: 112-39 is colored?
Mr. Newton: That’s right.
The Court: On 178th Street you have 112-
OS and 112-14. Where are those two?
Mr. Newton: They are back of Kemp and
Rubin ? 5^8
The Court: Back of Kemp?
Mr. Newton: Yes.
Mr. Silverstein: The same square.
The Court: And they are both------
Mr. Newton: And 112-14 is occupied by
white people.
The Court: Why have you got them both
bracketed?
Mr. Kem p: Because they claim it is owned
by a colored family. I don’t know but it is
occupied by a white family.
The Court: It is occupied by white and ~iq
owned by colored?
Mr. Newton: They claim it is owned by
colored. I don’t know.
The Court: In that list you gave me is it
ownership or occupancy, or which?
Mr. Silverstein: Both.
The Court: In other words, where you
have an occupancy and not an ownership and
you have included it as colored------
Mr. Silverstein: I showed it by a symbol.
I f there was an occupancy by a colored tenant
then I showed it by the symbol “ B ” . If he
Colloquy 0 1 '
174
was a colored owner and he was not the ten
ant, I showed the colored owner by the symbol
“ B ” , and if he was a white tenant, by the
symbol “ C ” . Otherwise they are all colored.
The Court: All right, I have it now.
Mr. Silverstein: The explanation of the
symbols is down below at the bottom of the
list. I f you look under the heading, “ Ten
ant” , all of them are occupants, either as
owners or tenants, and they are all colored
521 except I think I see one letter “ C ” , and that
is O ’Malley.
The Court: Teller is the owner, colored,
and O ’Malley is the white owner?
Mr. Silverstein: That is right.
The Court: Here you have back of Lutz,
back of Kemp’s block. We have none on the
Lutz block.
Mr. Silverstein: The Lutz side we have
four, that’s right, back of Lutz.
The Court: Are you through ?
Mr. Silverstein: Yes, except that in con
nection with the testimony------
^ T h e Court: Are you through with the
witness?
Mr. Silverstein: Yes.
Mr. Newton: No questions, your Honor.
Colloquy
Mr. Silverstein: I just want to call your
Honor’s attention to the fact that in the
agreement for restrictive covenant which
plaintiff has in evidence there is the language,
the second “ Whereas” clause, “ Whereas the
parties hereto desire for their mutual benefit
Colloquy
as well as for the best interests of the com
munity and the neighborhood, to improve and
further the interests of said community” —
I call it to your Honor’s attention solely by
reason of the fact that the objection is raised
as to any evidence with respect to colored
ownership or occupancy outside of the two
blocks mentioned in the covenants in evidence,
as an indication that there was this contem
plated general scheme or plan.
Have you the minutes?
Mr. Newton: Yes, I have.
The Court: The minutes of what?
Mr. Silverstein: Of the Addisleigh Park
Association.
Mr. Newton: I f your Honor please, coun
sel has asked to see the minutes of the Addis
leigh Property Owners Association. I have
here the minutes. They have been produced
pursuant to a subpoena. There were no meet
ings held in the years 1936, 1937, 1938, 1939,
and 1940, and there are no minutes for any of
that period. Counsel has asked to see the
minutes subsequent to that. I claim they are
entirely immaterial in this case.
The Court: When were these agreements
signed ?
Mr. Newton: 1939.
Mr. Silverstein: Am I not entitled to see
any evidence which may shed light on the
question of the common scheme and plan?
Mr. Newton: That existed in 1939 if it
ever existed, not since.
Mr. Silverstein: I realize that I can’t offer
parole evidence to vary what amounts to a
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grant. One of the exceptions to the parole
evidence rule is that conditional delivery may
be shown, hut the exception to that rule is
that it may not be shown where it affects an
interest in real property.
Mr. Newton: Go ahead and look at it. I
am not going to object to your looking at it
(handing papers to Mr. Silverstein).
Mr. Silverstein: I want to offer in evi
dence the minutes of a meeting of the Addis-
leigh Property Owners Association that took
place on April 7, 1941. I might add, while
counsel is looking at them, that he has a rec
ord in there that there were no meetings be
tween 1936 and 1940. I subpoenaed the at
torney for the Association who prepared the
instruments, the covenants, and who attended
the meetings. He has not appeared, despite
my requests that he do so appear to testify.
Mr. Newton: If the Court please, I object
to that as incompetent, irrelevant and imma
terial. They are minutes of a meeting after
the present covenants were made and after
they had been recorded, and it has to do with
some other arrangements that were made
there. I can’t see that it has any hearing
whatever on the issues in this case.
Mr. Silverstein: May I be heard on it?
The Court: Yes.
Mr. Silverstein: If your Honor recalls,
during the course of the trial I offered in evi
dence photo static copies of covenants con-
cededly not affecting these blocks but con
taining the escape clause referred to in there,
and it is through Mr. Schaefer, who was ac-
1 7 7
tive in the Association, who has not appeared
despite subpoena, that I can establish by a
series of correspondence, copies of which I
have, that these covenants offered by us were
to be submitted to the people on both sides,
within the two squares, on 176th and 177th
and 179th Streets, and that they were to be
given the opportunity to have their names
eradicated from the covenant if they affixed
their names to the new covenant. I have
copies of such correspondence, which Mr. 530
Schaefer could testify to, letters written to
him by co-counsel of the Association. Those
letters are in his file.
I say he has been subpoenaed. He just re
fuses to come here. He has told me time and
again that he doesn’t want to get himself in
the middle of the situation. He asked me to
adjourn this case until after Election Day,
because he was managing Mr. Barry’s cam
paign, and when Mr. Barry passed away he
managed Mrs. Barry’s campaign. He has
been advised of every adjournment and has
consistently failed to appear.
The Court: I assume you are making a
statement why these minutes should be ad
mitted and you end up with a sort of tirade
against Mr. Schaefer, the manager of an un
successful campaign. Now, I don’t know. Is
that obiter dicta?
Mr. Silverstein: No. I say that through
him I could establish------
The Court: If you are making an applica
tion to the Court to produce a witness, that
is one thing. Right now the business before
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1 7 8
532
533
534
the Court, as I understand it, is as follows:
You have offered in evidence two certain
typewritten pages which purport to be the
minutes of a meeting of the Addisleigh Prop
erty Owners Association, Inc. at the St.
Albans Golf Club on April 7, 1941.
Mr. Silverstein: That is right.
The Court: They have been objected to.
You asked to be heard on it before I ruled.
Mr. Silverstein: Yes.
The Court: Where are you now?
Mr. Silverstein: What I attempted to con
vey to the Court was this------
The Court: Don’t go over it again. I
heard everything you said. Are you still on
the question?
Mr. Silverstein: Yes, on the question.
The Court: Are you through?
Mr. Silverstein: That I could connect that
with the covenant through Mr. Schaefer.
The Court: I don’t know what you could
do in the future, and I am not ready to rule
in futuro. At this moment I will sustain
the objection and keep out these minutes for
the following reasons: We are concerned
here with two covenants, Plaintiffs’ Exhibits
4 and 5, both of which are dated some time
in 1939 and recorded in 1940; is that correct?
Mr. Silverstein: That’s right.
Mr. Newton: Dated January 10, 1939, re
corded January 2, 1940.
The Court: Both?
Mr. Newton: Both.
The Court: As I say, we are concerned
with those covenants, actual signed agree
ments, actually recorded, referring to certain
Colloquy
179
people who are signatories to those covenants.
In order to attack those covenants you offer
two typewritten sheets of paper headed by,
or rather, headed up, as I have said, “ Meeting
of the Addisleigh Property Owners Associa
tion, Inc.,” and signed in parenthesis—I am
reading from the paper—“ George J. Rodius,
Jr.,” a typewritten signature. It does not
say who was present at this meeting, it does
not say who had a right to bind whom, it
does not show any authority on anybody’s 536
part; it shows that a discussion took place
without any previous connection in these so-
called minutes. It says, “ The revised lan
guage of the covenant reads as follow s:”
It does not talk about which covenants, it
does not tell us which covenants they are
talking about. We don’t know if this re
lates to the group or the location covered by
the recorded covenants, Plaintiffs’ Exhibits
4 and 5. It is much too indefinite. There
is no authentication of these minutes. I think
that if we let these in we might as well let ggy
in the opinion, the thought, and the street
corner discussion of everybody in the neigh
borhood. I think you would be going a little
too far afield. I therefore sustain the objec
tion to admitting it into evidence, with proper
exceptions to you.
Mr. Silverstein: As I started to say to
your Honor, the only other witness I would
have submitted would have been Mr. Schae
fer. He has not appeared.
The Court: Let us dispose of that. I f you
are willing to rest without Mr. Schaefer’s
Colloquy odo
Motion to Dismiss Renewed
testimony, that is your affair, your judgment.
I am sure that you will use your best judg
ment in behalf of your client. If you want me
to give consideration to any testimony that
he may possibly affirm or deny, on the theory
that you have subpoenaed him and he is not
here, I cannot do that. Do you want to apply
to the Court to bring him in by mandate of
the Court, after showing to this Court prop
erly served subpoenas and the failure of the
witness to obey them? I shall then consider
your application.
Mr. Silverstein: The defendant Rubin
rests.
Mr. Newton: Your Honor, will the Court
take judicial notice of the official reports of
the proceedings of the Constitutional Con
vention of 1938 and the proceedings with
reference to amendments, and the proceedings
of the Legislature since that date? I f you
will, then it will not be necessary for me to
bring those many volumes in and encumber
the record with them.
The Court: You have no objection to my
taking judicial notice of that?
Mr. Silverstein: No.
Mr. Newton: The plaintiff rests, your
Honor.
Mr. Silverstein: The defendant Rubin re
news its motion to dismiss the complaint.
The Court: I shall reserve decision. Any
decisions made on these motions will be with
appropriate exceptions.
Is this procedure agreeable to both of you
gentlemen— and in addressing the attorney
for Rubin I assume he will be able to speak
for the attorney for Richardson in this mat
ter—a number of items of evidence have been
admitted subject to a motion to strike out, and
as always happens in a case of this type,
which is prolonged and protracted over a pe
riod of time, even though not being presented
all the time, everybody forgets about these
motions.
Mr. Newton: May I speak on that subject
while you are right there?
The Court: I was going to make a sugges
tion, and you might not have to speak. See
if it is agreeable to you. I will assume that
all these motions were pressed again at the
conclusion of the trial. If I find any evidence
that in my opinion has not been properly con
nected, or if I find that no further evidence
was given on such a point, I will strike it out
if I deem that it has not been connected, with
an appropriate exception to the party ad
versely affected. Is that agreeable?
Mr. Newton: That takes care of it.
Mr. Silverstein: Yes.
Motion to Dismiss Renewed
Plaintiffs’ Exhibits
(Omitted pursuant to Order Settling Case herein
printed at pages 191-2)
1. Photograph of home of Harold F. Kemp,
one of the plaintiff-respondents.
2. A, 2-B, 2-C and 2-D. Photographs of the
two houses to the north of Harold F. Kemp on
the same side of the street and of the remaining
houses within the block between 112th Avenue and
114th Avenue in St. Albans, New York.
3. Tax map of the City of New York showing
the location of the premises in issue.
4. Agreement of restrictive covenant dated
January 10, 1939 signed by Harold F. Kemp,
Sarah M. Kemp and Sophie Rubin.
5. Agreement of restrictive covenant dated
January 10, 1939 affecting the side of 177th Street
wherein John H. Lutz and Irene Lutz reside.
6. A, 6-B and 6-C. Photographs of houses on
side of 177th Street wherein John H. Lutz and
Irene Lutz reside.
7. Photograph of 177th Street looking north
from 114th Avenue toward 112th Avenue, St.
Albans, New York.
8. Sketch upon which certain lots are shaded
in red, representing those lots covered by the
agreements of restrictive covenant.
1 8 3
Defendant Rubin’s Exhibits
(Omitted pursuant to Order Settling Case herein
printed at pages 191-2)
A. For Identification— Certified copy of writ
ing dated July 26, 1943 recorded in Office of the
Register of Queens County, August 26, 1943 in
Liber 4734 of Conveyances, page 467.
B. For Identification—Writing dated June 2,
1941, recorded January 10, 1942 in Office of the
Register of Queens County, January 10, 1942 in 548
Liber 4513 of Deeds, page 293.
C. Map of Addisleigh section of St. Albans
containing certain portions shaded in red repre
senting houses occupied by colored persons.
C. l List with addresses of colored families re
siding in Addisleigh section of St. Albans, New
York.
D. List of colored residents in Addisleigh area
of St. Albans, New York with addresses. _ .n
547
1 8 4
In 1939 eighteen owners of real property on
One Hundred and Seventy-seventh Street between
One Hundred and Twelfth and One Hundred and
Fourteenth Avenues, in the Addisleigh section of
St. Albans, Queens County, executed a restrictive
covenant reciting “ that no part of the land now
owned by the parties hereto * * * shall ever be
used or occupied, or sold, conveyed, leased, rented
or given, to Negroes or any person or persons
551 the Negro race or blood or descent.” The
agreement also provides that the covenant is to
run with the land and is to bind the parties, their
heirs, successors and assigns until December 31,
1975. Plaintiffs, who are two of the signers of
the agreement, sue to enjoin a third, the de
fendant Sophie Rubin, from conveying her prop
erty to a Negro, the defendant Samuel Richard
son, and to enjoin the latter from purchasing or
occupying such property. The answers admit that
defendants entered into a contract of sale
and that the defendant Richardson is of the
Negro race. In addition to denying that plain
tiffs will sustain irreparable and great pecuniary
loss if the proposed conveyance is consummated,
defendants plead ten affirmative defenses. Prefa
tory to a consideration of the issues presented,
the court wishes to express its deep gratitude to
counsel for plaintiffs, defendants and the various
organizations which have intervened in this ac
tion as amicus curiae, for their able and enlighten
ing arguments and for their very scholarly briefs.
Also by way of prelude, the court wishes to state
that it is in accord with the views expressed
by Mr. Justice Murphy in Hirabayashi v. United
O p in ion by M r. Justice L ivingston
185
States (320 U. S., 81) to the effect that: “ Dis
tinctions based on color and ancestry are utterly
inconsistent with our traditions and ideals. They
are at variance with the principles for which we
are now waging war. We cannot close our eyes
to the fact that for centuries the Old World has
been torn by racial and religious conflicts and has
suffered the worst kind of anguish because of
inequality of treatment for different groups.
There was one law for one and a different law
for another. Nothing is written more firmly into 554
our law than the compact of the Plymouth voyag
ers to have just and equal laws.”
At the same time, however, and regardless of
what its sentiments may be, this court is con
strained to follow precedent and govern itself in
accordance with what it considers to be the pre
vailing law.
Defendants’ main contentions are that judicial
enforcement of the racial restrictive agreement
involved is prohibited by the Fourteenth Amend
ment of the Constitution of the United States and
that the same is contrary to the public policy of 555
the State of New York and of the United States.
Similar restrictive covenants, however, have con
sistently been held to be valid and enforcible in
equity by way of injunction by both the Supreme
Court of the United States and our state and
federal courts. The first holding by the Supreme
Court of the United States to this effect was
Corrigan v. Buckley (271 U. S. 323). There the
court affirmed a decree enjoining the defendant
Corrigan from selling a lot in Washington, D. C.,
to the defendant Curtis in violation of an inden
ture entered into by Buckley, Corrigan and
Opinion by Mr. Justice Livingston
18 6
another, whereby they mutually covenanted and
bound themselves, their heirs and assigns for
twenty-one years, not to sell to any person of the
Negro race or blood. Significantly, in the Cor
rigan case, it was also urged that so long as it was
beyond legislative power to enact a statutory
restriction similar to the covenant involved there
(Buchanan v. Warley, 245 U. S. 60), it was in
conceivable that a court of equity would judicially
compel observance of such a covenant. The Su-
557 preme Court brushed aside this contention and
specifically stated that the prohibition of the
Fourteenth Amendment had reference to state
action exclusively and not to any action by private
individuals. The court stated, at page 330: “ And
the prohibitions of the Fourteenth Amendment
‘have reference to state action exclusively, and
not to any action of private individuals’ (Virginia
v. Rives, 100 U. S. 313, 318; United States v.
Harris, 106 U. S. 629, 639). ‘ It is State action
of a particular character that is prohibited. In
dividual invasion of individual rights is not the
- - g subject matter of the amendment’ (Civil Rights
Cases, 109 U. S., 3, 11). It is obvious that none
of these Amendments prohibited private individ
uals from entering into contracts respecting the
control and disposition of their own property;
and there is no color whatever for the contention
that they rendered the indenture void.”
In the intervening twenty years subsequent to
the decision in Corrigan v. Buckley (supra), the
same question has arisen in a considerable num
ber of cases and the same conclusion has been
reached by the courts (see Russell v. Wallace, 30
Fed. [2], 981 [cert, denied 279 U. S. 871]; Cornish
00(5 Opinion by Mr. Justice Livingston
1 8 7
v. O’Donoghue, 30 Fed. [2d], 983 [cert, denied
279 U. S. 871]; Grady v. Garland, 89 Fed. [2d],
817 [cert, denied 302 U. S. 694]; Mays v. Burgess,
147 Fed. [2d], 869 [cert, denied 325 U. S. 868] ;
Ridgway v. Cockburn, 163 Misc. 511; Dury v.
Neely, N. Y. L. J., April 28,1942, p. 1796, Cuff, J.).
Counsel for the defendants also urge that sec
tion 11, article 1, of the Constitution of the State
of New York now prohibits the use of such cove
nants. Section 11 reads: “ No person shall be
denied the equal protection of the laws of this 560
state or any subdivision thereof. No person shall,
because of race, color, creed or religion, be sub
jected to any discrimination in his civil rights by
any other person or by any firm, corporation or
institution, or by the state or any agency or sub
division of the state.” In seeking the answer
to this question, we must examine the origin and
background of the new provision of the Consti
tution to determine the intention of its framers.
Except for the first sentence which embodies in
part Article XIV of the Federal Constitution, sec
tion 11 is the compromised result of ten separate 55 ̂
and original proposals (page 810, Volume 2, Re
vised Record of the New York State Constitu
tional Convention) differing in length and scope,
with varying degrees of particularity. The pro
posal which was finally passed is general in form
and does not include any language which spe
cifically condemns restrictive covenants. This
omission seems significant when considered in the
light of the discussion which attended the passing
of the amendment. In the debates which pre
ceded the adoption of the amendment (pages 2626
and 2627 of Volume 4, Revised Record of the New
Opinion by Mr. Justice Livingston
1 8 8
York State Constitutional Convention) it was
stated that the civil rights concerning which the
amendment was designed to afford protection
were only those “ which appertain to a person by
virtue of his citizenship in a state or a commun
ity,” and “ which are found in the Constitution,
in the Civil Rights Law and in the statutes.” In
other words, no new civil rights were intended to
be created by the constitutional amendment and
it was merely permissive in character. This in-
563 terpretation is reinforced by the statement of the
bill of rights committee (page 1144, Volume 2,
of the Revised Record, &c.) which reads: “ # * #
it is implicit in the Constitution that any * * *
enactment such as this, in order to be effective,
must be carried out in some form by legislative
enactment * * #.” It is significant to note that
several such statutory amendments prohibiting
restrictive covenants were introduced in the Leg
islature subsequent to the constitutional conven
tion, but were not adopted.
In fact, a bill has been introduced at the present
session of the Legislature (Introductory Bill No.
71) to amend the Civil Rights Law as follows:
“ Section 46. Purchase and lease of real prop
erty. The opportunity to purchase and to lease
real property without discrimination because of
race, creed, color or national origin is hereby
recognized as and declared to be a civil right.”
It seems clear, therefore, that we do not have
on our statute books any specific provisions which
outlaws racial restrictive covenants. In the cir
cumstances, this court does not feel that it should
judicially legislate by reading into the statutes
something which the Legislature itself has failed
Opinion by Mr. Justice Livingston
189
to adopt. What was said by the Court of Appeals
in the Matter of O ’Brien v. Tremaine (285 N. Y.
233, 238) is particularly pertinent: “ The policy
which dictated the enactment of a statute which
both defines and limits the rights which the ap
pellant now asserts, is a matter solely for the
Legislature. No power is granted to the courts by
interpretation to vary the clear and positive man
date of the statute. Mindful of our duty to con
strue that statute liberally, we must not be un
mindful of the rule that ‘ freedom to construe is 566
not freedom to amend.’ ”
Defendants’ further contention that the cove
nant in the present case constitutes an undue and
unlawful restraint upon alienation is also un
tenable. The true test to determine whether a re
strictive covenant is void as a restraint upon
alienation is whether it restrains all alienation
(Patter v. Couch, 141 U. S. 296, 315). Applying
that rule to the facts here, we find that the de
fendant owner has been free at all times to sell
her property to all persons except to those of a
particular race, for a limited period of time. 557
Such a covenant has been held not to be an un
lawful restraint upon alienation (Hundley v. Gore-
witz, 132 Fed., 2, 23; Cornish v. O’Donoghue,
supra; Corrigan v. Buckley, supra).
Defendants also stress the defenses that there
was a conditional delivery of the covenant by the
defendant Rubin, that plaintiffs have been guilty
of laches and have waived the benefits of the
restrictive covenant; also, that the character of
the neighborhood has changed to such an extent
that to grant injunctive relief would impose a
great hardship upon them. These defenses have
Opinion by Mr. Justice Livingston ° ° °
190
not been substantiated by the evidence adduced at
the trial.
The evidence shows that plaintiffs have not vio
lated the covenant themselves nor have they con
sented to or authorized its violation by others.
Even if there were violations, plaintiffs could dis
regard those that were not in close proximity to
them and could proceed against the ones which
were particularly offensive. Under the circum
stances there was no waiver or laches on their
569 part (Rowland v. Miller, 139 N. Y. 93).
The proof also discloses that the present cove
nant was executed by the plaintiffs and the de
fendant Rubin but seven years ago, and there are
only two houses in the area restricted by the
covenant which are occupied by Negroes: one
which was not covered by the restriction and the
other by a white woman who is married to a
Negro. It thus appears that the character of the
neighborhood has not changed to any great extent.
Moreover, the covenant was executed to protect
the restricted property and not the property sur-
0 rounding it (Grady v. Garland, supra).
Defendants’ remaining contention that the en
forcement of the covenant is forbidden by existing
treaties to which the United States is a signatory
is without force. These treaties have nothing to
do with domestic matters nor with agreements be
tween citizens of the United States. In fact, A r
ticle 2, Section 7, of the United Nations Charter
expressly so provides.
Judgment is, therefore, granted to plaintiffs for
the relief demanded in the complaint. Submit
judgment accordingly on notice.
Opinion by Mr. Justice Livingston
Order Settling Case
At a Special Term, Part I thereof, of
the Supreme Court of the State of
New York, held in and for the County
of Queens, at the Queens County
General Courthouse, 88-13 Sutphin
Blvd., Jamaica, N. Y., on the 25th
day of June, 1947.
Pr e s e nt :
H on. Jacob H. L ivingston,
Justice.
------------------- ♦-------------------
H arold F. K emp, Sarah M. K emp, John H. L utz
and Irene Lutz, on behalf of themselves and
all others equally interested,
Plaintiffs,
against
Sophie Rubin and Samuel Richardson,
Defendants.
-------------------♦-------------------
The Case on Appeal in the within action having
been duly submitted to me for settlement on June
12, 1947, together with the proposed amendments
thereto, and having heard Andrew D. Weinberger,
by Wertner W. Tandy, Jr., attorney for defend
ant-appellant Samuel Richardson; Wait, Wilson &
Newton, by William F. Campbell, attorney for
plaintiff-respondent; and Paul R. Silverstein, by
Irving Schuh, attorney for defendant-appellant
Sophie Rubin, and due deliberation having been
had thereon, it is
192
Order Settling Case
■Ordered, that in the seventh paragraph of
“ Statement Under Rule 234” , the words “ the per
sons intended being Samuel Richardson and his
w ife” are stricken; and it is further
Ordered, that the other proposed amendments
to the seventh and eighth paragraphs of the state
ment are disallowed; and it is further
Ordered, that the exhibits shall not be included
in the record on appeal but shall be handed up to
575 the Appellate Division at the time the appeal is
argued or submitted, provided, however, that the
exhibits shall be described in the record on appeal
so that they may be readily identified.
There being no opposition by appellants to the
remainder of the proposed amendments, they are,
therefore, allowed.
Enter,
J. H. L.
J. S. C.
Granted June 25, 1947
Paul Livoti, Clerk
19 3
Stipulation Waiving Certification
It is hereby stipulated pursuant to Section 170
of the Civil Practice Act that the foregoing are
true and correct copies of the Notices of Appeal,
the Judgment Appealed From, the Opinion of
the Court, the case on appeal as settled, and the
whole thereof, now on file in the office of the Clerk
of the County of Queens, and certification thereof
by the Clerk of said Court pursuant to Section 616
of the Civil Practice Act is hereby waived.
Dated, July , 1947. 578
A ndrew D. W einberger,
Attorney for Defendant-Appellant
Samuel Richardson.
Paul R. Silverstein,
Attorney for Defendant-Appellant
Sophie Rubin.
W ait W ilson & Newton,
Attorneys for Plaintiffs-Respondents.
______ 579
577
Order Filing Record in Appellate Division
Pursuant to Section 616 of the Civil Practice
Act it is hereby ordered that the foregoing printed
record be filed in the office of the Clerk of the
Appellate Division of the Supreme Court, Second
Judicial Department.
Dated, July , 1947.
Jacob H. L ivingston,
J. 8. C.
Argued by
A ndrew D. W einberger
(fkmrt of Appeals
OF THE STATE OF NEW YORK
------------------- +-------------------
Harold F. K emp, Sarah M. K emp, John H. Lutz,
and Irene L utz, on behalf of themselves and
all others equally interested,
Plaintiffs-Respondents,
against
Sophie Rubin and Samuel Richardson,
Defendants-Appellants.
------------------- +-------------------
*
BRIEF OF APPELLANT
SAMUEL RICHARDSON
Statement
Defendants appeal from a judgment of the
Appellate Division of the Supreme Court, 2nd
Department, which unanimously affirmed a judg
ment of the Special Term of the Supreme Court,
in Queens County, granting a permanent injunc
tion restraining the sale of certain residential
property covered by a restrictive covenant pro
scribing its sale, use or occupancy by members of
the Negro race (cf. Kemp v. Rubin, 188 Misc. 310;
atf’d .------ App. D iv .------- , 75 N. Y. Supp. 2d 768).
The following are appellant Richardson’s
points:
2
I. Judicial enforcement of racial restrictive
covenants is prohibited by the 14th Amend
ment to the Constitution of the United States.
II. The restrictive covenants sued on in this
action are void as repugnant to the well estab
lished public policy of the State of New York.
Facts
The respondents and the appellant Sophie Rubin
are owner-residents in the area of St. Albans, in
Queens County, known as Addisleigh Park . The
appellant Samuel Richardson owns a lot of un
improved land immediately adjacent to that of
appellant Rubin, which latter parcel is not affected
by this suit. The respondents Kemp and appel
lant Rubin executed a restrictive covenant dated
January 10, 1939, affecting the side of the street
on which they reside. Contemporaneously, re
spondent Lutz and others executed a similar cove
nant, thereby covering both sides of 177th Street
with restrictive agreements proscribing the sale
of any of the properties of the signatories to
Negroes or persons of the Negro race, blood or
descent, until 1975. The appellant Richardson is
not a party to either of these agreements, nor is
his vacant land subject to such restrictions.
In the Spring of 1946, following the execution
by appellants Rubin and Richardson of a con
tract for the sale of appellant Rubin’s property
to Richardson, respondents commenced an action
for an injunction to restrain the consummation of
the proposed sale, which, after trial at Special
Term of the Supreme Court in Queens County,
3
resulted in a judgment granting a permanent in
junction against the sale of the said property to
Richardson or any other person of the Negro race,
blood or descent. This decision was affirmed by
the Appellate Division of the Supreme Court, 2nd
Department.
P O I N T I
Judicial enforcement of racial restrictive
covenants is prohibited by the 14th Amendment
to the Constitution of the United States.
On May 3, 1948, the Supreme Court of the
United States in Shelley v. Kraemer and McGhee
v. Sipes (Cases No. 72 and 87, October Term,
1947), --------- U. S. --------- , unanimously re
versed the Supreme Courts of Michigan and Mis
souri, vacating injunctions enforcing restrictive
covenants, preventing the sale, use or occupancy
of certain residential property by members of the
Negro race.
At page 17 of the opinion in these cases (the
full text of which is annexed to this brief, follow
ing page ), the Supreme Court states:
“ We hold that in granting judicial enforce
ment of the restrictive agreements in these
cases, the states have denied petitioners the
equal protection of the laws and that, there
fore, the action of the state courts cannot
stand.”
We refrain from further argument of this point,
with the exception of pointing out that the salient
facts and our argument in the Supreme Court of
4
the United States were identical with the facts and
argument we advanced in this case at Special
Term and in the Appellate Division but rejected
by these latter courts.
The prohibitions of the 14th Amendment to the
Constitution of the United States include the
judicial enforcement of the covenants in this action
by injunctive mandate: the injunction must be
vacated.
P O I N T I I
The restrictive covenants sued on in this ac
tion are void as repugnant to the well estab
lished public policy of the State of New York.
No more fundamental principle is the subject
of universal recognition in law than that judicial
assistance cannot be granted, where to do so
would contravene the settled public policy applic
able to the circumstances.
This Court has never before had occasion to
state the public policy of the State of New York
in its application to racial restrictive covenants.
Likewise, Shelley v. Kraemer and McGhee v. Sipes,
supra, are no adjudication on the issue of state
public policy as affecting these covenants, since
the restatement of the public policy of a particular
state is not within the sphere of adjudication of
the Supreme Court of the United States. That
is so even though that court may review the state’s
application of its own policy where conflict with
federal law is claimed. Consequently, the decision
of the Supreme Court of the United States in Shel
ley v. Kraemer, supra, did not decide whether or
not racial restrictive covenants are void as
against the public policy of New York or any other
state.
5
That such a determination can stem only from
this court is shown by the opinion in Marsich v.
Eastman Kodak Co. et al., 244 App. Div. 295 (2nd
Dept.) aff’d 269 N. Y. 621. The court stated:
“ What constitutes the common law of this
state in the light of which state statutes are
to be interpreted, is to be determined by state
court decisions. The construction by state
courts of a state statute is binding on the fed
eral courts, there being no federal question
involved, even though such courts disagree
with the soundness of the interpretation.”
This reasoning was followed in People v. Bar
ber, 289 N. Y. 378, where this court stated:
“ * * * In determining the scope and effect
of the guarantees of fundamental rights of
the individual in the Constitution of the State
of New York, this court is bound to exercise
its independent judgment and is not bound
by a decision of the Supreme Court of the
United States limiting the scope of similar
guarantees in the Constitution of the United
States.”
Public policy as a concept of law has been suc
cinctly defined as:
“ * * * the principle of law that no one can
lawfully do that which has a tendency to be
injurious to the public or against the public
good” (Cahill v. Gilman, 84 Misc. 372).
Notwithstanding the seeming clarity of the prin
ciple, its method of application frequently remains
obscured, particularly where statutory enactment
on all phases of a given subject is either absent or
6
so lacking in exactitude as to lead to tlie unsound
conclusion that public policy is not wholly formu
lated and that it is thus incapable of independ
ently forming the basis of a decision.
The effects of the apparent indiscriminate in
termingling of public policy with statutory law as
one and the same, compels a detailed examination
of the subject, if the error on this point in the
judgment is to be seen. In making such an exam
ination, the subject lends itself to a threefold
classification, to wit:
(a) Public Policy as a concept, distinguished
from the statutes upon which it is, in part,
predicated;
(b) The application of public policy as an
independent rule of law;
(c) The interaction of the public policy of
New York upon the restrictive covenants at
bar.
We have taken the liberay of quoting at length
from an appropriate portion of a scholarly opin
ion rendered in the neighboring state of Ohio.
It is not without significance that this excerpt, as
it appears here, has been adopted for their own,
by the courts of at least three other jurisdictions.
In Pittsburgh, C., C. & St. L. Railway Co. v.
Kinney 95 Ohio St. 64,115 N. E. 505, L. 0. A. 1917
D 641, 643 (1916) Justice Wanamaker beginning
at page 67, wrote:
“ What is the definition of ‘ public policy’ ?
A correct definition, at once concise and com
prehensive, of the words ‘ public policy’ has
not yet been formulated by our courts. In-
7
deed the term is as difficult to define with ac
curacy as the word ‘ fraud’ or the term ‘ public
welfare’. In substance it may be said to be
the community common sense and common
conscience, extended and applied throughout
the state to matters of public morals, public
health, public safety, public welfare and the
like. It is that general and well-settled pub
lic opinion relating to man’s plain, palpable
duty to his fellow men, having due regard to
all the circumstances of each particular rela
tion and situation.
Sometimes such public policy is declared by
constitution; sometimes by statute; some
times by judicial decision. More often, how
ever, it abides only in the customs and con
ventions of the people—in their clear con
sciousness and conviction of what is naturally
and inherently just and right between man
and man.
It regards the primary principles of equity
and justice and is sometimes expressed under
the title of social and industrial justice, as it
is conceived by our body politic.
When a course of conduct is cruel or shock
ing to the average man’s conception of justice,
such course of conduct must be held to be ob
viously contrary to public policy, though such
policy has never been written in the bond,
whether it be constitution, statute or decree
of court.
It has frequently been said that such public
policy is a composite of constitutional pro
visions, statutes and judicial decisions and
some courts have gone so far as to hold that
8
it is limited to these. The obvious fallacy
of such a conclusion is quite apparent from
the most superficial examination.
When a contract is contrary to some provi
sions of the constitution, we say it is pro
hibited by the constitution n*ot by public
policy. When a contract is contrary to stat
ute, we say it is prohibited by a statute, not
by public policy. When a contract is contrary
to a settled line of judicial decisions, we say
it is prohibited by the law of the land, but
we do not say it is contrary to public policy.
Public policy is the cornerstone— the founda
tion—of all constitutions, statutes and judi
cial decisions; and its latitude and longitude,
its height and its depth, greater than any or
all of them. If this be not true, whence came
the first judicial decision on matters of public
policy? There was no precedent for it, else
it would not have been the first.” (Accord:
Snyder v. Ridge Hill Memorial Park, 61 Ohio
App. 271, 288, 22 N. E. 2d 559, (1938)
Adopted: Skutt v. City of Grand Rapids, 275
Michigan 258, 264, 266 N. W. 346 (1936);
Girard Trust Co. v. Schmitz 129 N. J. Eq. 444,
20 A. 2d 21 (1941).
Public policy is greater than any specific stat
ute or decision on a particular aspect of a given
subject, for it represents the aggregate, of which
each statute or individual rule is but a component
part. Yet, reluctance has frequently been ex
pressed to regard public policy as a rule, apart
and of itself, capable of forming the independent
basis of a decision.
Much has been said by courts against judicial
legislation. That the courts will not do what the
9
legislature has not seen fit to do, has become a
settled maxim and in many instances the facts
justify such attitude on the part of the courts.
But the question presents itself: “ May a court
proceed contrary to settled public policy solely
because specific statutory prohibition is lacking?”
And further: “ Is not a court absolutely bound
to apply the rule of public policy when the statute
is silent?”
The latter question was expressly passed upon
in a California decision in 1944. In James v.
Marinship Corporation, 25 Cal. 2d 721, 155 P 2d
329, 160 A. L. B. 900, the court held:
“ The discriminatory practices involved in
this case are, moreover, contrary to the public
policy of the United States and this State.
The United States Constitution has long pro
hibited governmental action discriminating
against persons because of race or color. 5th,
14th and 15th Amendments. * * * Although
the constitutional provisions have been said
to apply to state action rather than to private
action, they nevertheless evidence a definite
national policy against discrimination be
cause of race or color. Defendants contend
that “ Individual invasion of individual
rights ’ ’ can be prohibited only by a statute of
the state and they point out that California
statutes forbidding racial discrimination by
private persons relate only to certain specific
ally enumerated businesses such as inns, res
taurants and the like, but not to labor unions
* * *. It was well established at common law
that inn-keepers and common carriers were
under a duty to furnish accommodations to all
persons, in absence of some reasonable ground
* * * and if colored persons are furnished
10
accommodations they must be equally safe,
commodious and comfortable * * * The an
alogy of the public service cases not only
demonstrate a public policy against racial
discrimination but also refutes defendant’s
contention that a statute is necessary to en
force such a policy where private rather than
public action is involved.” (Italics added)
That a court may apply the existing rule of
public policy without transgressing upon legisla
tive functions, finds further support in the well-
reasoned opinion in Georgia Fruit Growers Ex
change v. Turnipseed, Ala. App. 123, 62 So.
542 (1913). The court said, at page 128:
“ Public policy, however, is broader than the
mere terms of the Constitution and statutes
and embraces their general purpose and
spirit. Constitutions are born of the people,
and statutes made (including the positive
rules of common law adopted) in pursuance
thereof emanate, of course, from legislative
sources, all designated for the public good;
but, where they are silent in terms and do
not of their own force vitiate contracts detri
mental to the public interest or welfare, as
may be outlined in, and as is to be determined
alone from, a general view of such constitution
and statutes, the courts have supplied in a
way the deficiencies of positive law by orig
inating the doctrine of ‘ public policy’ and so
applying it as to bold void and decline to
enforce executory contracts which though not
violating the terms, yet violate the general
spirit and policy of the law as expressed in
the Constitution and statutes.”
11 •
“ Where a contract belongs to this class it
will be declared void, although in the par
ticular instance no injury to the public may
have resulted, and no positive statute be
violated” (citing People v. Hawkins, 157
N. Y. 1).
It is evident that a decision consistent with a
settled rule of public policy is not, in the absence
of statutory mandate, usurpation of the legis
lative function. The lower court would not have
been engaging in judicial legislation if it applied
the public policy of this State to the case at bar,
in the absence of express statutory direction, for
as the statute is absent but the public policy is not,
the court is under an equally affirmative duty to
apply the latter rule.
In examining the remaining classification in
this inquiry, namely, the interaction of the public
policy of this state upon the restrictive covenant
at bar, it is necessary to avoid narrowing the sub
ject to racial restrictive covenants, apart and of
themselves, and in doing so overlooking the prin
cipal issue, namely, discrimination on the basis
of race and color. Just as we have no public
policy confined to burglary, but rather to crime in
all its aspects, one cannot divorce the object of
the agreement forming the basis of this action
from the overall question of racial discrimination.
It is either the policy of this state to oppose
racial discrimination wherever and however it
manifests itself or, the state is so lacking in the
formulation of a settled will as to have no policy
on the subject at all. It thus becomes necessary,
if one is to consider the interaction of the public
I t w a s t h e c o u r t ’ s c o n c lu s io n t h a t :
12
policy of this state upon a discriminatory agree
ment, to ascertain first whether a public policy on
the subject exists and, if so, its scope. As stated
in Mertz v. Mertz, 271 N. Y. 466, and numerous
other decisions, the public policy of a state may
be determined largely by reference to the statutes
in existence.
New York has the following impressive list of
statutes currently in force, all aimed solely at
eliminating racial discrimination:
“ Alcoholic Beverages Control Law— Section
65
Forbids discrimination because of race, creed
or color in the sale or delivery of alcoholic
beverages.
Civil Rights Law— Section 13
Forbids disqualification to serve as a grand
or petit juror on account of race, color, creed
national origin or sex.
Civil Rights Law—Section 40
Prohibits discrimination because of race,
color, creed or national origin in places of
public accommodation, resort or amusement,
and provides that all persons shall be en
titled to the full and equal accommodations,
advantages, facilities and privileges of such
places.
Civil Rights Law— Section 40 (a)
Prohibits any inquiry concerning religion or
religious affiliation of persons seeking em
ployment or official position in public schools.
13
Prohibits any public utility company from
refusing to employ any person on account of
race, creed, color or national origin.
Civil Rights Law—Section 43
Forbids any labor organization to deny any
person membership or deny any member equal
rights on account of race, creed, color or
national origin.
Civil Rights Law—Section 44
Forbids any industry involved in defense con
tracts to discriminate in employment on ac
count of race, color, creed or national origin.
Civil Service Law—Section 14 (b)
Forbids discrimination on account of race,
color, creed or national origin in civil service.
Education Law— Section 3201
Prohibits refusal to admit to or exclusion
from any public school on account of race,
creed, color or national origin.
Insurance Law—Section 209 (3)
Prohibits discrimination between white and
colored persons in the issuance of life insur
ance.
Judiciary Law— Section 460
Provides that race, creed, color, national
origin or sex shall not constitute cause for
refusing any person examination or admis
sion to practice as an attorney.
Civil Rights Law—Section 42
1 4
Requires ail contracts on behalf of the state
or municipality for the construction, altera
tion or repair in any public building or pub
lic work to maintain a clause against discrim
ination in employment because of race, creed,
color or national origin.
Penal Law— Section 514
Forbids any discrimination by reason of race,
color, creed or national origin in any public
employment or employment in any capacity in
industries engaged in defense contracts, or
any accommodation by innkeepers, common
carriers or operation of amusement places or
by teachers or officers of public institutions of
learning.
Penal Law■— Section 700
Forbids discrimination against any person
because of race, creed, color or national origin
in his civil rights.
Penal Law— Section 772 (a)
Forbids any deprivation of public relief or
work relief because of race, creed, color or
national origin.
Penal Law— Section 1191
Forbids discrimination between white and
colored persons in life insurance rights and
benefits.
Public Housing Law— Sections 201 and 223
Forbids any discrimination in public housing
because of race, creed, color or national origin.
Labor Law—Section 220 (e)
1 5
Forbids tax exemption to any education cor
poration or association which holds itself out
as non-sectarian but denies its facilities to
any person because of race, color or religion.
Executive Law— Section 125 et seq.
Prohibits discrimination in employment on
account of race, color, creed or national ori
gin by employers, labor organizations and em
ployment agencies. ’ ’
It cannot be said that this imposing array of
statutory expression on the subject of racial dis
crimination does not emphatically declare the pub
lic policy in this state on that subject. The lan
guage in the preamble to Executive Law, Section
125 (the last above listed), is, of itself, an explicit
statement of the official state policy, namely:
“ * * * the legislature hereby finds and de
clares that practices of discrimination against
any of its inhabitants because of race, creed,
color or national origin are a matter of state
concern, that such discrimination threatens
not only the rights and proper privileges of
its inhabitants but menaces the institutions
and foundations of a free democratic state.”
This is forthright language without reserva
tion or qualification. It is an exceptionally deci
sive overall condemnation of discrimination on
the basis of race, creed or color, regardless of
source.
The Constitution of the State of New York (Art.
1, Sec. 11) likewise condemns racial discrimina
tion in the broadest possible terms. It reads:
Tax Law—Section 4
16
“ No person shall be denied the equal protec
tion of the laws of this state or any subdivi
sion thereof. No person shall, because of race,
color, creed or religion, be subjected to any
discrimination in his civil rights by any other
person or by any firm, corporation or institu
tion or by the state or any agency or sub
division thereof.” (Italics added.)
The opinion of Special Term gave great weight
to the fact that restrictive covenants are not in
violation of any specific statute. But to contend
that this state’s public policy, finding its source
in over twenty individual anti-discrimination laws,
approves one type of discrimination solely by rea
son of statutory silence, is to indulge in fallacious
reasoning. It is to ascribe to public policy a legal
effect no greater than the individual directives of
each statute taken by itself. The concept of pub
lic policy is not so narrow.
A statute is not necessary to enforce a well-
settled public policy where private rather than
public action is involved and where the public pol
icy is clear the deficiencies of positive law must be
supplied by the courts.
This is not judicial legislation, but rather the
application of the policy of the law on a given
subject so as to effectuate and uphold that policy.
This conclusion was affirmed in Camp-Of-The
Pines v. Neiv York Times Co., 184, Misc. 389, where
the Supreme Court in passing upon the appli
cability of Civil Rights Law, Section 40 to a
“ restricted clientele” notice, held:
“ Every effort is made, and should be made
to prevent, so far as is humanly possible, so
cial and economic ostracism.” /
1 7
The far reaching effects of restrictive covenants
are shown by the following table which shows
85.1% of subdivisions of 75 or more parcels of
residential property in Queens, Nassau and West
chester counties as subject to restrictive covenants.
Pkoperties Restricted as to Racial Occupancy as a Percent of
Total Properties, B y Size of Subdivision and W hether Subdi
vision was Developed in the Pre-W ar or Post-W ar Period
Pre-wara Post-warb
Total parcels on which data available 6,827 3,726
Parcels restricted to race— 4,432 1,481
as % of total parcels 65.0% 39.7%
Parcels in subdivisions of 20 or more
parcels, restricted as to race— 4,343 1,449
as % of all parcels in such subdivi
sions of 20 parcels or more 71.6% 45.2%
Parcels in subdivisions of 75 or more
parcels restricted as to race— 2,921 1,082
as % of all parcels in subdivisions
of 75 parcels or more 86.7% 81.1%
Total
10,553
3,913
56.1%
5,792
62.5%
4,003
85.1%
(a) Subdivisions developed 1938-1942 in Queens and Nassau
Counties, 1935-1942 in Westchester.
(b) 1945-1947 subdivisions, many of which are still in process
of development.
(Only Caucasian: A Study of Race Covenants, John P. Dean,
November, 1947, page 430, The Journal of Land and Public
Utility Economics.)
18
In summary, it may be said:
First: That tbe principle of public policy is
not synonymous with any one statute but repre
sents the policy of the law on a given subject as
compounded from the Constitution and statutes
taken together as a whole.
Second: That where the policy of the law has
been clearly formulated, a court is bound to ef
fectuate this policy although no specific statute
can be pointed to as a basis for its decision.
Third: That a court is not legislating judicially
when, in being called upon to pass upon the valid
ity of agreements that are repugnant to the settled
public policy of the state, it pronounces them void.
Fourth: That the public policy of this state is
on record as being unquestionably against racial
discrimination and admits of no exceptions, loop
holes or excuses in its blanket condemnation.
F ifth : That the courts below, by having granted
affirmative relief, ruled erroneously on the legal
connotations of public policy and have, as a sub
division of the State of New York, themselves,
contravened this state’s own policy.
CONCLUSION
Appellant is in a somewhat unique position in
that he appeals from a judgment that is now
clearly erroneous on constitutional grounds and
cannot stand, yet, he nonetheless, further presents
to this Court a request to restate in unequivocal
terms, the public policy of this state regarding
discriminatory practices against its Negro citi
zens by reason of their racial identity.
This Court has before it a question which the
Supreme Court of the United States had no op
portunity to determine. This Court can, and we
urge that it do, declare and reaffirm that this state
will not permit a minority of people, ridden with
race hatred, to keep alive and nourish anachronis
tic practices derogatory of the dignity of human
beings.
The judgment appealed from should be re
versed.
Respectfully submitted,
A ndrew D. W einberger,
Attorney for Appellant Richardson.
A ndrew D. W einberger,'
Y ertner W . Tandy, Jr.,
of Counsel.
SUPREME COURT OF THE UNITED STATES
Nos. 72 and 87.— October Term, 1947.
J. D. Shelley, Ethel Lee Shelley, His
Wife, Petitioners,
72 v.
Louis Kraemer and Fern W. Krae-
mer, His Wife.
On Writ of Certio
rari to the Su
preme Court of
the State of Mis
souri.
Orsel McGhee and Minnie S. Mc
Ghee, His Wife, Petitioners,
87 v.
Benjamin J. Sipes and Anna C.
Sipes, James A. Coon and Addie
A. Coon.
On Writ of Certio
rari to the Su
preme Court of
th e S t a t e o f
Michigan.
[May 3, 1948.]
Mr. Chief Justice V inson delivered the opinion of
the Court.
These cases present for our consideration questions re
lating to the validity of court enforcement of private
agreements, generally described as restrictive covenants,
which have as their purpose the exclusion of persons of
designated race or color from the ownership or occupancy
of real property. Basic constitutional issues of obvious
importance have been raised.
The first of these cases comes to this Court on certiorari
to the Supreme Court of Missouri. On February 16,
1911, thirty out of a total of thirty-nine owners of prop
erty fronting both sides of Labadie Avenue between
Taylor Avenue and Cora Avenue in the city of St. Louis,
signed an agreement, which was subsequently recorded,
providing in part:
. . the said property is hereby restricted to the
use and occupancy for the term of Fifty (50) years
from this date, so that it shall be a condition all the
2 S H E L L E Y v. K R A E M E R .
time and whether recited and referred to as [sic]
not in subsequent conveyances and shall attach to
the land, as a condition precedent to the sale of the
same, that hereafter no part of said property or any
portion thereof shall be, for said term of Fifty-years,
occupied by any person not of the Caucasian race,
it being intended hereby to restrict the use of said
property for said period of time against the occu
pancy as owners or tenants of any portion of said
property for resident or other purpose by people of
the Negro or Mongolian Race.”
The entire district described in the agreement included
fifty-seven parcels of land. The thirty owners who signed
the agreement held title to forty-seven parcels, including
the particular parcel involved in this case. At the time
the agreement was signed, five of the parcels in the dis
trict were owned by Negroes. One of those had been
occupied by Negro families since 1882, nearly thirty years
before the restrictive agreement was executed. The trial
court found that owners of seven out of nine homes on
the south side of Labadie Avenue, within the restricted
district and “ in the immediate vicinity” of the premises
in question, had failed to sign the restrictive agreement
in 1911. At the time this action was brought, four of
the premises were occupied by Negroes, and had been so
occupied for periods ranging from twenty-three to sixty-
three years. A fifth parcel had been occupied by Negroes
until a year before this suit was instituted.
On August 11, 1945, pursuant to a contract of sale,
petitioners Shelley, who are Negroes, for valuable con
sideration received from one Fitzgerald a warranty deed
to the parcel in question.1 The trial court found that 1
1 The trial court found that title to the property which petitioners
Shelley sought to purchase was held by one Bishop, a real estate
dealer, who placed the property in the name of Josephine Fitzgerald.
Bishop, who acted as agent for petitioners in the purchase, concealed
the fact of his ownership.
petitioners had no actual knowledge of the restrictive
agreement at the time of the purchase.
On October 9, 1945, respondents, as owners of other
property subject to the terms of the restrictive covenant,
brought suit in the Circuit Court of the city of St. Louis
praying that petitioners Shelley be restrained from tak
ing possession of the property and that judgment be en
tered divesting title out of petitioners Shelley and revest
ing title in the immediate grantor or in such other person
as the court should direct. The trial court denied the
requested relief on the ground that the restrictive agree
ment, upon which respondents based their action, had
never become final and complete because it was the inten
tion of the parties to that agreement that it was not to
become effective until signed by all property owners in
the district, and signatures of all the owners had never
been obtained.
The Supreme Court of Missouri sitting en banc reversed
and directed the trial court to grant the relief for which
respondents had prayed. That court held the agreement
effective and concluded that enforcement of its provisions
violated no rights guaranteed to petitioners by the Fed
eral Constitution.2 At the time the court rendered its
decision, petitioners were occupying the property in
question.
The second of the cases under consideration comes to
this Court from the Supreme Court of Michigan. The
circumstances presented do not differ materially from the
Missouri case. In June, 1934, one Ferguson and his wife,
who then owned the property located in the city of De
troit which is involved in this case, executed a contract
providing in part:
“This property shall not be used or occupied by
any person or persons except those of the Caucasian
race.
S H E L L E Y v. K R A E M E R . 3
2 Kraemer v. Shelley, 355 Mo. 8l4, 198 S. W. 2d 679 (1946).
4 S H E L L E Y v. K R A E M E R .
“It is further agreed that this restriction shall not
be effective unless at least eighty percent of the prop
erty fronting on both sides of the street in the block
where our land is located is subjected to this or a
similar restriction.”
The agreement provided that the restrictions were to
remain in effect until January 1, 1960. The contract was
subsequently recorded; and similar agreements were exe
cuted with respect to eighty percent of the lots in the
block in which the property in question is situated.
By deed dated November 30, 1944, petitioners, who
were found by the trial court to be Negroes, acquired title
to the property and thereupon entered into its occupancy.
On January 30, 1945, respondents, as owners of property
subject to the terms of the restrictive agreement, brought
suit against petitioners in the Circuit Court of Wayne
County. After a hearing, the court entered a decree
directing petitioners to move from the property within
ninety days. Petitioners were further enjoined and re
strained from using or occupying the premises in the
future. On appeal, the Supreme Court of Michigan af
firmed, deciding adversely to petitioners’ contentions that
they had been denied rights protected by the Fourteenth
Amendment.3
Petitioners have placed primary reliance on their con
tentions, first raised in the state courts, that judicial en
forcement of the restrictive agreements in these cases has
violated rights guaranteed to petitioners by the Four
teenth Amendment of the Federal Constitution and Acts
of Congress passed pursuant to that Amendment.4 Spe
cifically, petitioners urge that they have been denied the
3 Sipes v. McGhee, 316 Mich. 614, 25 N. W. 2d 638 (194/).
4 The first section of the Fourteenth Amendment provides: “All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law
S H E L L E Y v. K R A E M E R . 5
equal protection of the laws, deprived of property without
due process of law, and have been denied privileges and
immunities of citizens of the United States. We pass to
a consideration of those issues.
I .
Whether the equal protection clause of the Fourteenth
Amendment inhibits judicial enforcement by state courts
of restrictive covenants based on race or color is a question
which this Court has not heretofore been called upon to
consider. Only two cases have been decided by this
Court which in any way have involved the enforcement of
such agreements. The first of these was the case of
Corrigan v. Buckley, 271 U. S. 323 (1926). There, suit
was brought in the courts of the District of Columbia to
enjoin a threatened violation of certain restrictive cov
enants relating to lands situated in the city of Washing
ton. Relief was granted, and the case was brought here
on appeal. It is apparent that that case, which had
originated in the federal courts and involved the enforce
ment of covenants on land located in the District of
Columbia, could present no issues under the Fourteenth
Amendment; for that Amendment by its terms applies
only to the States. Nor was the question of the validity
of court enforcement of the restrictive covenants under
the Fifth Amendment properly before the Court, as the
opinion of this Court specifically recognizes.5 The only
constitutional issue which the appellants had raised in
the lower courts, and hence the only constitutional issue
before this Court on appeal, was the validity of the cov
enant agreements as such. This Court concluded that
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.”
5Corrigan v. Buckley, 271 U. S. 323, 330-331 (1926).
6 S H E L L E Y v. K R A E M E R .
since the inhibitions of the constitutional provisions in
voked, apply only to governmental action, as contrasted
to action of private individuals, there was no showing that
the covenants, which were simply agreements between
private property owners, were invalid. Accordingly, the
appeal was dismissed for want of a substantial question.
Nothing in the opinion of this Court, therefore, may prop
erly be regarded as an adjudication on the merits of the
constitutional issues presented by these cases, which raise
the question of the validity, not of the private agreements
as such, but of the judicial enforcement of those agree
ments.
The second of the cases involving racial restrictive
covenants was Hansberry v. Lee, 311 U. S. 32 (1940).
In that case, petitioners, white property owners, were
enjoined by the state courts from violating the terms
of a restrictive agreement. The state Supreme Court had
held petitioners bound by an earlier judicial determina
tion, in litigation in which petitioners were not parties,
upholding the validity of the restrictive agreement, al
though, in fact, the agreement had not been signed by
the number of owners necessary to make it effective under
state law. This Court reversed the judgment of the state
Supreme Court upon the ground that petitioners had
been denied due process of law in being held estopped
to challenge the validity of the agreement on the theory,
accepted by the state court, that the earlier litigation,
in which petitioners did not participate, was in the nature
of a class suit. In arriving at its result, this Court did
not reach the issues presented by the cases now under
consideration.
It is well, at the outset, to scrutinize the terms of the
restrictive agreements involved in these cases. In the
Missouri case, the covenant declares that no part of the
affected property shall be “occupied by any person not
of the Caucasian race, it being intended hereby to restrict
S H E L L E Y v. K R A E M E R . 7
the use of said property . . . against the occupancy as
owners or tenants of any portion of said property for
resident or other purpose by people of the Negro or Mon
golian Race.” Not only does the restriction seek to pro
scribe use and occupancy of the affected properties by
members of the excluded class, but as construed by the
Missouri courts, the agreement requires that title of any
person who uses his property in violation of the restriction
shall be divested. The restriction of the covenant in the
Michigan case seeks to bar occupancy by persons of the
excluded class. It provides that “This property shall not
be used or occupied by any person or persons except those
of the Caucasian race.”
It should be observed that these covenants do not
seek to proscribe any particular use of the affected prop
erties. Use of the properties for residential occupancy,
as such, is not forbidden. The restrictions of these agree
ments, rather, are directed toward a designated class of
persons and seek to determine who may and who may
not own or make use of the properties for residential
purposes. The excluded class is defined wholly in terms
of race or color; “simply that and nothing more.” 6
It cannot be doubted that among the civil rights in
tended to be protected from discriminatory state action
by the Fourteenth Amendment are the rights to acquire,
enjoy, own and dispose of property. Equality in the
enjoyment of property rights was regarded by the framers
of that Amendment as an essential pre-condition to
the realization of other basic civil rights and liberties
which the Amendment was intended to guarantee.7 Thus,
§ 1978 of the Revised Statutes, derived from § 1 of the
Civil Rights Act of 1866 which was enacted by Congress
6 Buchanan v. Warley, 245 U. S. 60,73 (1917).
7 Slaughter-House Cases, 16 Wall. 36, 70, 81 (1873). See Flack,
The Adoption of the Fourteenth Amendment.
8 S H E L L E Y v. K R A E M E R .
while the Fourteenth Amendment was also under con
sideration,8 provides:
“All citizens of the United States shall have the
same right, in every State and Territory, as is en
joyed by white citizens thereof to inherit, purchase,
lease, sell, hold, and convey real and personal prop
erty.” 9
This Court has given specific recognition to the same
principle. Buchanan v. Warley, 245 U. S. 60 (1917).
It is likewise clear that restrictions on the right of
occupancy of the sort sought to be created by the private
agreements in these cases could not be squared with the
requirements of the Fourteenth Amendment if imposed
by state statute or local ordinance. We do not under
stand respondents to urge the contrary. In the case of
Buchanan v. Warley, supra, a unanimous Court declared
unconstitutional the provisions of a city ordinance which
denied to colored persons the right to occupy houses in
blocks in which the greater number of houses were occu
pied by white persons, and imposed similar restrictions
on white persons with respect to blocks in which the
greater number of houses were occupied by colored per
sons. During the course of the opinion in that case,
this Court stated: “The Fourteenth Amendment and
these statutes enacted in furtherance of its purpose oper
ate to qualify and entitle a colored man to acquire
property without state legislation discriminating against
him solely because of color.” 10
8 In Oyama v. California, 332 U. S. 633, 640 (1948) the section
of the Civil Rights Act herein considered is described as the federal
statute, “ enacted before the Fourteenth Amendment but vindicated
by it.” The Civil Rights Act of 1866 was reenacted in § 18 of the
Act of May 31, 1870, subsequent to the adoption of the Fourteenth
Amendment. 16 Stat. 144.
9 14 Stat. 27,8 U. S. C. § 42.
10 Buchanan v. Warley, 245 U. S. 60,79 (1917).
S H E L L E Y v. K R A E M E R . 9
In Harmon v. Tyler, 273 U. S. 668 (1927), a unanimous
court, on the authority of Buchanan v. Warley, supra,
declared invalid an ordinance which forbade any Negro
to establish a home on any property in a white community
or any white person to establish a home in a Negro com
munity, “except on the written consent of a majority of
the persons of the opposite race inhabiting such com
munity or portion of the City to be affected.”
The precise question before this Court in both the
Buchanan and Harmon cases, involved the rights of white
sellers to dispose of their properties free from restrictions
as to potential purchasers based on considerations of race
or color. But that such legislation is also offensive to
the rights of those desiring to acquire and occupy property
and barred on grounds of race or color, is clear, not only
from the language of the opinion in Buchanan v. Warley,
supra, but from this Court’s disposition of the case of
Richmond v. Deans, 281 U. S. 704 (1930). There, a
Negro, barred from the occupancy of certain property
by the terms of an ordinance similar to that in the
Buchanan case, sought injunctive relief in the federal
courts to enjoin the enforcement of the ordinance on
the grounds that its provisions violated the terms of
the Fourteenth Amendment. Such relief was granted,
and this Court affirmed, finding the citation of Buchanan
v. Warley, supra, and Harmon v. Tyler, supra, sufficient
to support its judgment.11 11
11 Courts of Georgia, Maryland, North Carolina, Oklahoma, Texas,
and Virginia have also declared similar statutes invalid as being
in contravention of the Fourteenth Amendment. Glover v. Atlanta,
148 Ga. 285, 96 S. E. 562 (1918); Jackson v. State, 132 Md. 311,
103 Atl. 910 (1918); Clinard v. Winston-Salem, 217 N. C. 119, 6 S. E.
2d 867 (1940); Allen v. Oklahoma City, 175 Okla. 421, 52 P. 2d
1054 (1936); Liberty Annex Corp. v. Dallas, 289 S. W. 1067 (Tex.
Civ. App. 1927); Irvine v. Clifton Forge, 124 Va. 781, 97 S. E. 310
(1918).
#
10 S H E L L E Y v. K R A E M E R .
But the present cases, unlike those just discussed, do
not involve action by state legislatures or city councils.
Here the particular patterns of discrimination and the
areas in which the restrictions are to operate, are deter
mined, in the first instance, by the terms of agreements
among private individuals. Participation of the State
consists in the enforcement of the restrictions so defined.
The crucial issue with which we are here confronted is
whether this distinction removes these cases from the
operation of the prohibitory provisions of the Fourteenth
Amendment.
Since the decision of this Court in the Civil Rights
Cases, 109 U. S. 3 (1883), the principle has become firmly
embedded in our constitutional law that the action in
hibited by the first section of the Fourteenth Amendment
is only such action as may fairly be said to be that of
the States. That Amendment erects no shield against
merely private conduct, however discriminatory or wrong
ful.12
We conclude, therefore, that the restrictive agreements
standing alone cannot be regarded as a violation of any
rights guaranteed to petitioners by the Fourteenth
Amendment. So long as the purposes of those agree
ments are effectuated by voluntary adherence to their
terms, it would appear clear that there has been no action
by the State and the provisions of the Amendment have
not been violated. Cf. Corrigan v. Buckley, supra.
But here there was more. These are cases in which
the purposes of the agreements were secured only by
judicial enforcement by state courts of the restrictive
terms of the agreements. The respondents urge that
judicial enforcement of private agreements does not
12 And see United States v. Harris, 106 U. S. 629 (1883); United
States v. Cruikshank, 92 U. S. 542 (1876).
S H E L L E Y v. K R A E M E R . 11
amount to state action; or, in any event, the participation
of the State is so attenuated in character as not to amount
to state action within the meaning of the Fourteenth
Amendment. Finally, it is suggested, even if the States
in these cases may be deemed to have acted in the consti
tutional sense, their action did not deprive petitioners
of rights guaranteed by the Fourteenth Amendment. We
move to a consideration of these matters.
II.
That the action of state courts and of judicial officers
in their official capacities is to be regarded as action of
the State within the meaning of the Fourteenth Amend
ment, is a proposition which has long been established
by decisions of this Court. That principle was given ex
pression in the earliest cases involving the construction
of the terms of the Fourteenth Amendment. Thus, in
Virginia v. Rives, 100 U. S. 3l3, 318 (1880), this Court
stated: “ It is doubtless true that a State may act through
different agencies,—either by its legislative, its executive,
or its judicial authorities; and the prohibitions of the
amendment extend to all action of the State denying
equal protection of the laws, whether it be action by one
of these agencies or by another.” In Ex parte Virginia,
100 U. S. 339, 347 (1880), the Court observed: “A
State acts by its legislative, its executive, or its judicial
authorities. It can act in no other way.” In the Civil
Rights Cases, 109 U. S. 3,11, 17 (1883), this Court pointed
out that the Amendment makes void “State action of
every kind” which is inconsistent with the guaranties
therein contained, and extends to manifestations of “State
authority in the shape of laws, customs, or judicial or
executive proceedings.” Language to like effect is em
ployed no less than eighteen times during the course of
that opinion.13
Similar expressions, giving specific recognition to the
fact that judicial action is to be regarded as action of the
State for the purposes of the Fourteenth Amendment, are
to be found in numerous cases which have been more
recently decided. In Twining v. New Jersey, 211 U. S.
78, 90-91 (1908), the Court said: “The judicial act of the
highest court of the State, in authoritatively construing
and enforcing its laws, is the act of the State.” In Brink-
erhofj-Faris Trust & Savings Co. v. Hill, 281 U. S. 673,
680 (1930), the Court, through Mr. Justice Brandeis,
stated: “The federal guaranty of due process extends to
state action through its judicial as well as through its
legislative, executive or administrative branch of gov
ernment.” Further examples of such declarations in the
opinions of this Court are not lacking.14
One of the earliest applications of the prohibitions con
tained in the Fourteenth Amendment to action of state
judicial officials occurred in cases in which Negroes had
13 Among the phrases appearing in the opinion are the following:
“ the operation of State laws, and the action of State officers executive
or judicial” ; “ State laws and State proceedings” ; “State law . . .
or some State action through its officers or agents” ; “State laws and
acts done under State authority” ; “State laws, or State action of
some kind” ; “ such laws as the States may adopt or enforce” ; “such
acts and proceedings as the States may commit or take” ; “State
legislation or action” ; “ State law or State authority.”
u Neal v. Delaware, 103 U. S. 370, 397 (1881); Scott v. McEeal,
154 U. S. 34, 45 (1894); Chicago, Burlington and Quincy R. Co.
v. Chicago, 166 U. S. 226, 233-235 (1897); Hovey v. Elliott, 167
U. S. 409, 417-418 (1897); Carter v. Texas, 177 U. S. 442, 447 (1900);
Martin v. Texas, 200 U. S. 316, 319 (1906) ; Raymond v. Chicago
Union Traction Co., 207 U. S. 20, 35-36 (1907); Home Telephone
and Telegraph Co. v. Los Angeles, 227 U. S. 278, 286-287 (1913);
Pi udential Insurance Co. v. Cheek, 259 U. S. 530, 548 (1922); Ameri
can Railway Express Co. v. Kentucky, 273 U. S. 269, 274 (1927);
Mooney v. Holohan, 294 U. S. 103, 112-113 (1935); Hansberry v.
Lee, 311 U. S.32,41 (1940).
12 S H E L L E Y v. K R A E M E R .
S H E L L E Y v. K R A E M E R . 13
been excluded from jury service in criminal prosecutions
by reason of their race or color. These cases demonstrate,
also, the early recognition by this Court that state action
in violation of the Amendment’s provisions is equally
repugnant to the constitutional commands whether di
rected by state statute or taken by a judicial official in the
absence of statute. Thus, in Strauder v. West Virginia,
100 U. S. 303 (1880), this Court declared invalid a state
statute restricting jury service to white persons as
amounting to a denial of the equal protection of the
laws to the colored defendant in that case. In the same
volume of the reports, the Court in Ex parte Virginia,
supra, held that a similar discrimination imposed by the
action of a state judge denied rights protected by the
Amendment, despite the fact that the language of the
state statute relating to jury service contained no such
restrictions.
The action of state courts in imposing penalties or de
priving parties of other substantive rights without pro
viding adequate notice and opportunity to defend, has,
of course, long been regarded as a denial of the due process
of law guaranteed by the Fourteenth Amendment.
BrinkerhojJ-Faris Trust & Savings Co. v. Hill, supra. Cf.
Pennoyer v. Neff, 95 U. S. 714 (1878).15
In numerous cases, this Court has reversed criminal
convictions in state courts for failure of those courts to
provide the essential ingredients of a fair hearing. Thus
it has been held that convictions obtained in state courts
under the domination of a mob are void. Moore v.
Dempsey, 261 U. S. 86 (1923). And see Frank v. Man-
gum, 237 U. S. 309 (1915). Convictions obtained by
coerced confessions,16 * by the use of perjured testimony
15 And see Standard Oil Co. v. Missouri, 224 U. S. 270, 281-282
(1912); Hansberry v. Lee, 311 U. S. 32 (1940).
16 Brown v. Mississippi, 297 U. S. 278 (1936); Chambers v. Florida,
309 U. S. 227 (1940); Ashcraft v. Tennessee, 322 U. S. 143 (1944);
Lee v. Mississippi, 332 U. S. 742 (1948).
14 S H E L L E Y v. K R A E M E R .
known by the prosecution to be such,17 or without the
effective assistance of counsel,18 have also been held to be
exertions of state authority in conflict with the funda
mental rights protected by the Fourteenth Amendment.
But the examples of state judicial action which have
been held by this Court to violate the Amendment’s com
mands are not restricted to situations in which the judi
cial proceedings were found in some manner to be pro-
cedurally unfair. It has been recognized that the action
of state courts in enforcing a substantive common-law
rule formulated by those courts, may result in the denial
of rights guaranteed by the Fourteenth Amendment, even
though the judicial proceedings in such cases may have
been in complete accord with the most rigorous concep
tions of procedural due process.19 Thus, in American
Federation of Labor v. Swing, 312 U. S. 321 (1941), en
forcement by state courts of the common-law policy of
the State, which resulted in the restraining of peaceful
picketing, was held to be state action of the sort pro
hibited by the Amendment’s guaranties of freedom of
discussion.20 In Cantwell v. Connecticut, 310 U. S. 296
(1940), a conviction in a state court of the common-law
crime of breach of the peace was, under the circumstances
of the case, found to be a violation of the Amendments
commands relating to freedom of religion. In Bridges v.
California, 314 U. S. 252 (1941), enforcement of the
it See Mooney v. Holohan, 294 U. S. 103 (1935); Pyle v. Kansas,
317 U. S. 213 (1942).
is Powell v. Alabama, 287 U. S. 45 (1932); Williams v. Kaiser, 323
U. S. 471 (1945); Tomkins v. Missouri, 323 U. S. 485 (1945);
DeMeerleer v. Michigan, 329 U. S. 663 (1947).
19 In applying the rule of Erie R. Co. v. Tompkins, 304 U. S. 64
(1938), it is clear that the common-law rules enunciated by state
courts in judicial opinions are to be regarded as a part of the law
of the State.
20 And see Bakery Drivers Local v. Wohl, 315 U. S. 769 (1942);
Cafeteria Employees Union v. Angelos, 320 U. S. 293 (1943).
S H E L L E Y v. K R A E M E R . 15
state’s common-law rule relating to contempts by publi
cation was held to be state action inconsistent with the
prohibitions of the Fourteenth Amendment.21 And cf.
Chicago, Burlington and Quincy R. Co. v. Chicago, 166
U.S.226 (1897).
The short of the matter is that from the time of the
adoption of the Fourteenth Amendment until the present,
it has been the consistent ruling of this Court that the ac
tion of the States to which the Amendment has reference,
includes action of state courts and state judicial officials.
Although, in construing the terms of the Fourteenth
Amendment, differences have from time to time been ex
pressed as to whether particular types of state action may
be said to offend the Amendment’s prohibitory provisions,
it has never been suggested that state court action is im
munized from the operation of those provisions simply
because the act is that of the judicial branch of the state
government.
III.
Against this background of judicial construction, ex
tending over a period of some three-quarters of a century,
we are called upon to consider whether enforcement by
state courts of the restrictive agreements in these cases
may be deemed to be the acts of those States; and, if
so, whether that action has denied these petitioners the
equal protection of the laws which the Amendment was
intended to insure.
We have no doubt that there has been state action
in these cases in the full and complete sense of the phrase.
The undisputed facts disclose that petitioners were willing
purchasers of properties upon w’hich they desired to es
tablish homes. The owners of the properties were willing
sellers; and contracts of sale were accordingly consum
21 And see Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v.
Harney, 331 U. S. 367 (1947).
16
mated. It is clear that but for the active intervention
of the state courts, supported by the full panoply of state
power, petitioners would have been free to occupy the
properties in question without restraint.
These are not cases, as has been suggested, in which
the States have merely abstained from action, leaving
private individuals free to impose such discriminations
as they see fit. Rather, these are cases in which the States
have made available to such individuals the full coercive
power of government to deny to petitioners, on the
grounds of race or color, the enjoyment of property rights
in premises which petitioners are willing and financially
able to acquire and which the grantors are willing to sell.
The difference between judicial enforcement and non
enforcement of the restrictive covenants is the difference
to petitioners between being denied rights of property
available to other members of the community and being
accorded full enjoyment of those rights on an equal
footing.
The enforcement of the restrictive agreements by the
state courts in these cases was directed pursuant to the
common-law policy of the States as formulated by those
courts in earlier decisions.22 In the Missouri case, en
forcement of the covenant was directed in the first in
stance by the highest court of the State after the trial
court had determined the agreement to be invalid for
want of the requisite number of signatures. In the Mich
igan case, the order of enforcement by the trial court was
affirmed by the highest state court.23 The judicial action
22 See Swain v. Maxwell, 355 Mo. 448, 196 S. W. 2d <80 (1946),
Koehler v. Roxdand, 275 Mo. 573, 205 S. W. 217 (1918). See also
Parmalee v. Morris, 218 Mich. 625, 188 N. W. 330 (1922). C.
Porter v. Barrett, 233 Mich. 373,206 N. W. 532 (1925).
23 c f . Home Telephone and Telegraph Co. v. Los Angeles, 227
U. S. 278 (1913); Raymond v. Chicago Union Traction Co., 207
U .S .2 0 (1907).
S H E L L E Y v. K R A E M E R .
S H E L L E Y v. K R A E M E R . 17
in each case bears the clear and unmistakable imprimatur
of the State. We have noted that previous decisions of
this Court have established the proposition that judicial
action is not immunized from the operation of the Four
teenth Amendment simply because it is taken pursuant
to the state’s common-law policy.24 Nor is the Amend
ment ineffective simply because the particular pattern
of discrimination, which the State has enforced, was de
fined 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. And when the effect of that action
is to deny rights subject to the protection of the Four
teenth Amendment, it is the obligation of this Court to
enforce the constitutional commands.
We hold that in granting judicial enforcement of the
restrictive agreements in these cases, the States have
denied petitioners the equal protection of the laws and
that, therefore, the action of the state courts cannot stand.
We have noted that freedom from discrimination by the
States in the enjoyment of property rights was among
the basic objectives sought to be effectuated by the
framers of the Fourteenth Amendment. That such dis
crimination has occurred in these cases is clear. Because
of the race or color of these petitioners they have been
denied rights of ownership or occupancy enjoyed as a
matter of course by other citizens of different race or
color.25 The Fourteenth Amendment declares “ that all
persons, whether colored or white, shall stand equal before
the laws of the States, and, in regard to the colored race,
for whose protection the amendment was primarily de
signed, that no discrimination shall be made against them
24 Bridges v. California, 314 U. S. 252 (1941); American Federation
of Labor v. Swing, 312 U. S. 321 (1941).
25 See Yick Wo v. Hopkins, 118 U. S. 356 (1886); Strauder v. West
Virginia, 100 U. S. 303 (1880); Truax\. Raich, 239 U. S. 33 (1915).
18 S H E L L E Y v. K R A E M E R .
by law because of their color.” 26 Strauder v. West Vir
ginia, supra at 307. Only recently this Court has had
occasion to declare that a state law which denied equal
enjoyment of property rights to a designated class of
citizens of specified race and ancestry, was not a legitimate
exercise of the state’s police power but violated the guar
anty of the equal protection of the laws. Oyama v. Cali
fornia, 332 U. S. 633 (1948). Nor may the discrimina
tions imposed by the state courts in these cases be justified
as proper exertions of state police power.27 Cf. Buchanan
v. Warley, supra.
Respondents urge, however, that since the state courts
stand ready to enforce restrictive covenants excluding
white persons from the ownership or occupancy of prop
erty covered by such agreements, enforcement of coven
ants excluding colored persons may not be deemed a
denial of equal protection of the laws to the colored per
sons who are thereby affected.28 This contention does
not bear scrutiny. The parties have directed our atten
tion to no case in which a court, state or federal, has been
called upon to enforce a covenant excluding members of
the white majority from ownership or occupancy of real
property on grounds of race or color. But there are more
fundamental considerations. The rights created by the
26 Restrictive agreements of the sort involved in these cases have
been used to exclude other than Negroes from the ownership or
occupancy of real property. We are informed that such agreements
have been directed against Indians, Jews, Chinese, Japanese, Mexi
cans, Hawaiians, Puerto Ricans, and Filipinos, among others.
27 See Bridges v. California, 314 U. S. 252, 261 (1941); Cantwell v.
Connecticut, 310 U. S. 296, 307-308 (1940).
28 It should be observed that the restrictions relating to residential
occupancy contained in ordinances involved in the Buchanan, Harmon
and Deans cases, cited supra, and declared by this Court to be incon
sistent with the requirements of the Fourteenth Amendment, applied
equally to white persons and Negroes.
S H E L L E Y v. K R A E M E R . 19
first section of the Fourteenth Amendment are, by its
terms, guaranteed to the individual. The rights estab
lished are personal rights.29 It is, therefore, no answer to
these petitioners to say that the courts may also be in
duced to deny white persons rights of ownership and
occupancy on grounds of race or color. Equal protection
of the laws is not achieved through indiscriminate impo
sition of ineqiAlities.
Nor do we find merit in the suggestion that property
owners who are parties to these agreements are denied
equal protection of the laws if denied access to the courts
to enforce the terms of restrictive covenants and to assert
property rights which the state courts have held to be
created by such agreements. The Constitution confers
upon no individual the right to demand action by the
State which results in the denial of equal protection of
the laws to other individuals. And it would appear be
yond question that the power of the State to create and
enforce property interests must be exercised within the
boundaries defined by the Fourteenth Amendment. Cf.
Marsh v. Alabama, 326 U S. 501 (1946).
The problem of defining the scope of the restrictions
which the Federal Constitution imposes upon exertions of
power by the States has given rise to many of the most
persistent and fundamental issues which this Court has
been called upon to consider. That problem was fore
most in the minds of the framers of the Constitution,
and since that early, day, has arisen in a multitude of
forms. The task of determining whether the action of
a State offends constitutional provisions is one which may
not be undertaken lightly. Where, however, it is clear
that the action of the State violates the terms of the
29 McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151,
161-162 (1914); Missouri ex rel. Gaines v. Canada, 305 U. S. 337
(1938); Oyaraa v. California, 332 U. S. 633 (1948).
fundamental charter, it is the obligation of this Court so
to declare.
The historical context in which the Fourteenth Amend
ment became a part of the Constitution should not be
forgotten. Whatever else the framers sought to achieve,
it is clear that the matter of primary concern was the
establishment of equality in the enjoyment of basic civil
and political rights and the preservation 6f those rights
from discriminatory action on the part of the States based
on considerations of race or color. Seventy-five years ago
this Court announced that the provisions of the Amend
ment are to be construed with this fundamental purpose
in mind.30 Upon full consideration, we have concluded
that in these cases the States have acted to deny peti
tioners the equal protection of the laws guaranteed by
the Fourteenth Amendment. Having so decided, we find
it unnecessary to consider whether petitioners have also
been deprived of property without due process of law
or denied privileges and immunities of citizens of the
United States.
For the reasons stated, the judgment of the Supreme
Court of Missouri and the judgment of the Supreme
Court of Michigan must be reversed.
Reversed.
M r . Justice Reed, M r . Justice Jackson, and M r . Jus
tice Rutledge took no part in the consideration or
decision of these cases.
20 S H E L L E Y v. K R A E M E R .
30 Slaughter-House Cases, 16 Wall 36, 81 (1873); Strauder v.
West Virginia, 100 U. S. 303 (1880). See Flack, The Adoption oj the
Fourteenth Amendment.
■
Supreme Court
of the State of New York
Appellate Division— Second Department
----------------- ^ i m ---------------
Harold P. K emp, Sarah M. K emp, John H. Lutz
and Irene Lutz, on behalf of themselves and all
others equally interested,
Respondents,
against
Sophie Rubin and Samuel Richardson,
Appellants.
*
-----------
BRIEF SUBMITTED ON BEHALF OF THE
AMERICAN JEWISH COMMITTEE AS
FRIEND OF THE COURT
Statement
The American Jewish Committee is a corpora
tion created by an Act of the Legislature of the
State of New York. Its charter states:
The object of this corporation shall be to
prevent the infraction of the civil and reli
gious rights of Jews, in any part of the world;
to render all lawful assistance and to take
appropriate remedial action in the event of
2
threatened or actual invasion or restriction
of such rights, or of unfavorable discrimina
tion with respect thereto * * *
During the forty years of our existence it has
been one of the fundamental tenets of our organi
zation that the welfare and security of Jews in
America depends upon the preservation of con
stitutional guarantees. An invasion of the civil
rights of any group is a threat to the safety of
all groups.
For this reason we have, on many occasions
fought in defense of civil liberties although Jew
ish interests were not specifically involved. The
present racial restrictive covenant case is one
with which we are deeply concerned. The pattern
of discrimination in housing because of race,
religion, and color has grown ominously in re
cent years, and millions of persons are being
deprived of rights that are freely enjoyed by
others. Covenants against Jews are becoming
more frequent, but this is not our sole interest.
An invasion of fundamental constitutional rights
on a nation-wide scale presents to this Court a
question of transcendent public importance.
Introduction
1
The racial restrictive covenant is a device to
give aid and support to racial and religious
prejudice. No one will quarrel with the right of
anyone to surround himself with desirable neigh
bors. It is entirely reasonable for a person to
try to protect his home against noise, vulgarity,
immorality, and even social uncongeniality.
3
It is implicit in the racial restrictive covenant,
however, that these and other undesirable quali
ties are not individual traits, but exist collec
tively in certain racial groups. Not only are
persons, known to the covenantors, barred from
purchasing and occupying the restricted prop
erty, but unknown doctors, lawyers, statesmen,
judges, and clergymen, extending into the re
mote future, are equally barred if they belong to
one of the restricted races or religions.
It is evident, therefore, that these covenants
are instruments of bigotry. They would forbid
to some future Carver, Cardozo, or Lin Yutang,
the free choice of a home. They assume an
anticipatory objectionability in generations of
unborn children. But even more sinister, they
would impose upon the American scene a rigid
pattern of segregation, a pattern antagonistic to
the basic tenets of the American Creed.
Perhaps it is trite to point out that the pres
ervation of all that we cherish, all that is
summed up in the word Americanism, depends
upon the achievement of national unity. Nothing
more potent can be conceived to bring about
disunity than a legally sanctioned device to
create racial and religious enclaves within our
country. New York has been traditionally the
pioneer and pathfinder to the rest of the nation
in the field of social progress and civil liberties.
This case presents a test of our devotion to this
great tradition.
4
2
“ The racial covenant” , says Charles Abrams
in an illuminating article1, “ is a modern deriva
tive of the restrictive covenant that sought to ex
clude glue, soap, and gunpowder factories, livery
stables, forge shops, bone and charnel houses,
potential brothels, and other intrusions upon
neighborhood dignity. ’ ’
In 1890 San Francisco adopted a race zoning
ordinance directed against the Chinese. This
was rapidly followed by the enactment of similar
ordinances in several southern and border cities,
culminating in the Louisville, Kentucky, ordi
nance which was held by the Supreme Court of
the United States in 1917 in Buchanan v. Warley1 2
to be unconstitutional.
This put an end to attempts to create racial
segregation by legislation, and those who were
concerned with extending the pattern of discrimi
nation turned to the ancient device of the restric
tive covenant and adapted it to their needs.
The evils of this practice, its sociological as
pects, and its potency as a breeder of delinquency,
dissension, and disease, will be dealt with fully in
other briefs. It is sufficient to say that it has
spread with ominous rapidity. Although the cove
nants are largely directed against Negroes, most
of them include all non-Caucasians, which of
course bars a substantial section of the popula
tion. Some covenants mention, in addition to
Negroes, Mexicans, Spanish Americans and Orien
tals. Some include Jews, and there are also
1 H o m e s F o r A r y a n s O n ly, Commentary, May, 1947,
p. 421.
2 245 U. S. 60.
5
restrictive covenants against Catholics. A few
include Armenians, Hindus, Syrians or former
residents of the Turkish Empire. In a recent
case in California a full-blooded American Indian
was ordered by the court to vacate his home be
cause of a limitation of occupancy to Caucasians
only.
Racial segregation by legislation is illegal.
Whatever its evils, it at least had the merit of
being repealable whenever the spirit of good will
overcame the prejudices of a community. But
the racial restrictive covenant is usually of long
duration and sometimes perpetual. I f it is up
held by this Court it will freeze upon an enlight
ened future the bigotry and intolerance of an
obscurantist past.
Summary of Argument
Since the many questions involved in this
litigation will be thoroughly considered in the
briefs of the appellants this amicus brief will be
limited to just two points:
I. The racial restrictive covenant herein
violates Article I, Section 11 of the Con
stitution of the State of New York.
II. The spread of racial restrictive cove
nants is creating racial zoning contrary to
the public policy of the State of New York.
6
POINT I
The racial restrictive covenant herein vio
lates Article I, Section 11 of the Constitution
of the State of New York.
In his opinion in the court below,1 Mr. Justice
Livingston makes two statements concerning the
basis of his decision which we respectfully chal
lenge.
In referring to the discussions in the Consti
tutional Convention over the proposal which
later became Article I, Section 11 of the New
York State Constitution, he says (p. 314):
“ The proposal which was finally passed is
general in form and does not include any
language which specifically condemns re
strictive covenants. This omission seems
significant Avhen considered in the light of
the discussion which attended the passing
of the amendment.”
The implication is that since the amendment
does not mention racial restrictive covenants it
does not apply to them. It is true that the dis
cussions in a constitutional convention throw
some light upon the intention of the framers. It
is equally true that these discussions are not a
controlling factor, and that the scope of a con
stitutional provision must be ascertained from
the language of the section itself.1 2
1 188 Misc. 310.
2 G ibbon s v. O gd en , 9 Wheat. 1, 188; U . S . v. W o n g
K im A r k , 169 U. S. 649, 699; U . S . v. S h revep ort Grain
&■ E leva tor C o ., 287 U. S. 77, 83.
7
Restrictive covenants are not mentioned in
the section, but a constitution states broad, gen
eral principles. It is not a statute, and should
not contain the particularity of a statute. It
would have surprised the fathers of our Federal
Constitution could they have forseen that the
Interstate Commerce Clause would be used some
day to prevent white slavery. The authors of
the Fourteenth Amendment certainly never an
ticipated that the language that was intended to
protect the civil rights of Negroes would be used
as authority to regulate railroad rates and grain
elevators. The fact that racial restrictive cove
nants are not specifically referred to in Article
I, Sec. 11 of the New York State Constitution
has not the slightest bearing upon whether or
not they are banned by the section.
Mr. Justice Livingston then said (p. 314):
In the debates which preceded the adop
tion of the amendment (Revised Record of
the New York State Constitutional Conven
tion, 1938, Vol. 4, pp. 2626-2627), it was
stated that the civil rights concerning which
the amendment was designed to afford pro
tection were only those “ which appertain to
a person by virtue of his citizenship in a
state or a community” , and “ which are
found in the Constitution, in the Civil Rights
Law and in the statutes.” In other words,
no new civil rights were intended to be
created by the constitutional amendment and
it was merely permissive in character.
We do not claim that the rights violated by
the covenant in this case were new rights, created
by the constitutional amendment. The right to
buy, sell, occupy and enjoy real property with
8
out discrimination as to race, religion, or color,
is a fundamental constitutional right, antedating
Article I, Section 11. It is a right guaranteed
and protected by the State and Federal Con
stitutions. It is our contention that the right
of any person to buy, sell, and enjoy property,
and to live wherever he wishes to without dis
crimination are civil rights “ which appertain
to a person by virtue of his citizenship in a
state or community” .
A. The right to buy, sell, occupy, and enjoy
real property without discrimination as to race,
religion, or color, is a fundamental constitu
tional right.
In Buchanan v. Warley, 245 U. S. 60, the City
of Louisville, Kentucky passed an ordinance for
bidding any white person or Negro to reside on
any city block in which the majority of houses
were occupied by persons of the other color. The
decision held that the ordinance was invalid be
cause it was a denial of due process of law under
the Fourteenth Amendment to the Constitution of
the United States. The Court said at p. 81:
The case presented does not deal with an
attempt to prohibit the amalgamation of the
races. The right which the ordinance an
nulled 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, 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 im
portant as is the preservation of the public
peace, this aim cannot be accomplished by
9
laws or ordinances which deny rights cre
ated or protected by the Federal Constitu
tion. (Italics ours)
In the same case the Court said at page 74:
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
Constitution protects these essential attri
butes of property * * * Property consists of
the free use, enjoyment, and disposal of a
person’s acquisitions without control or di
minution save by the law of the land.
In Allgeyer v. State of Louisiana, 165 U. S.
578, the Supreme Court said, p. 589:
The liberty mentioned in the amendment
(the Fourteenth) means, not only the right
of the citizen to be free from the mere physi
cal restraint of his person, as by incarcera
tion, but the term is deemed to embrace the
right of the citizen * * * to live and work
where he will.
The Court of Appeals, using almost the iden
tical language, has likewise affirmed that these
are fundamental rights inherent in citizens of
the State of New York. In Ives v. South Buffalo
By. Co., 201 N. Y. 271, the Court said at page
293:
Liberty has been authoritatively defined
as “ the right of one to use his faculties in
10
all lawful ways, to live and work where he
will, to earn his livelihood in any lawful call
ing, and to pursue any lawful trade or avo
cation” (Matter of Jacobs, 98 N. Y. 98, 106);
and the right of property as “ the right to
acquire, possess and enjoy it in any way
consistent with the equal rights of others and
the just exactions and demands of the State”
(Bertholf v. O’Reilly, 74 N. Y. 509, 515).
(Italics ours)
Since the right of a person to acquire prop
erty is a fundamental constitutional right both
by virtue of his Federal and State citizenship,
an invasion of this right is unconstitutional.
All limitations upon the use of property are,
of course, not invalid. Restrictive covenants are
legal if they are not discriminatory, and serve a
public purpose, such as restrictions on glue fac
tories, breweries, and the like. But restrictions
based upon race, color, or religion are invalid.
In Buchanan v. Worley, supra, the Court said
(P. 82):
We think this attempt to prevent the
alienation of the property in question to a
person of color was not a legitimate exer
cise of the police power of the state.
And in Steele v. Louisville & Nashville R. R.
Co., 323 U. S. 192, 203, the Court said:
* * * discriminations based on race alone are
obviously irrelevant and invidious.
It should be emphasized that in this case, as
in all racial restrictive covenant cases, the trans
action involved a willing vendor and a willing
purchaser. I f the purchaser had been white there
11
would have been no difficulty. Because he was
colored his right to “ acquire” property was in
vaded, and the “ civil right of a white man to
dispose of his property * * * to a person of
color” was likewise invaded.
It is clear that these rights which were violated
by the restrictive covenant in this case are rights
guaranteed and protected by the Fourteenth
Amendment of the Constitution of the United
States, and Article I, Section 6 of the Constitu
tion of the State of New York.
B. The provisions of the New York State Con
stitution are hroader than those of the Fourteenth
Amendment to the Constitution of the United
States, in that they forbid not only discrimination
by state action but by individual action.
Mr. Justice Livingston, in his opinion below,
quite correctly says (p. 313) that the prohibitions
of the Fourteenth Amendment have reference to
state action exclusively, and not to the action of
private individuals.
Baclianan v. Warierf, 245 U. S. 60;
Virginia v. Rives, 100 U. S. 313, 318;
United States v. Harris, 106 U. S. 629,
639;
'Civil Rights Cases, 109 U. S. 3, 11.
Whether or not the judicial enforcement of
racial restrictive covenants is forbidden state
action under the Fourteenth Amendment is the
issue in the cases now pending in the Supreme
Court of the United States3, and will be decided
there. But, however the Supreme Court may
decide those questions, its decision will not he
3 There are four cases, Nos. 72, 87, 290 and 291. We
are informed that they are set down for argument the week
of December 8, 1947.
12
conclusive here. Regardless of the outcome of
those cases, we contend that a racial restrictive
covenant is invalid in New York under the much
broader provisions of our State Constitution.
The Fourteenth Amendment says “ * * * nor
shall any State deprive any person of life, liberty,
or property without due process of law.” This
is, by its terms, a prohibition against state action.
Article I, Sec. 6 of the State Constitution,
guaranteeing* due process of law, contains sub
stantially the same language as the Fifth and
Fourteenth Amendments to the Federal Consti
tution. But Article I, Section 11, adopted in 1938,
adds language not contained in the Federal Con
stitution. It says, ‘ ‘ No person shall, because of
race, color, creed, or religion be subjected to any
discrimination in his civil rights by any person
* * * ” (Italics ours)
This is clearly a prohibition against individual
action. It forbids discrimination by a person.
If, as we have shown, the right to buy, sell, and
enjoy property, and the right of a person to live
where he will are fundamental civil rights, then
the invasion of those rights by individual action
because of race, color, creed or religion, violates
the State Constitution.
We have already stated that the debates in the
Constitutional Convention, although an aid to
interpretation, are not controlling. Let us point
out that Article I, Sec. 11 was ratified by the
voters of the State at an election. They did not
have the convention proceedings before them.
They merely had the language of the amendment
before them. They voted, and they had every
reason to believe they voted, against discrimina
tion in civil rights by any person because of
13
race, color, creed or religion.4 If two or more
persons make a discriminatory contract it comes
under the constitutional ban. This is the true
meaning of the section.
POINT II
The spread of racial restrictive covenants
is creating racial zoning contrary to the public
policy of the State of New York.
New York is justly proud of its record of
pioneering in the field of anti-discrimination leg
islation. The progressive public policy of the
state and the imposing array of statutes to en
force it are set forth in the brief of the appellant,
Samuel Richardson, and need not be repeated
here. We will content ourselves with quoting one
example, taken from the preamble to Executive
Law, Section 125:
* * * the legislature hereby finds and declares
that practices of discrimination against any
of its inhabitants because of race, creed, color
or national origin are a matter of state con
cern, that such discrimination threatens not
only the rights and proper privileges of its
inhabitants but menaces the institutions and
foundation of a free democratic state.
It would be beyond the power of the legislature
or any subdivision of the government to enact
racial zoning laws in this state. Buchanan v.
Warley, supra. But aside from legal and consti
4 H o d g e s v. U . S ., 203 U. S. 1, 16, 17; General O u t
d oor A d v . C o. v. D ep t, o f Public W o r k s , 289 Mass. 149,
158.
14
tutional considerations, any such zoning, by law
or otherwise, would fly in the face of our ex
pressed state public policy and the wishes of an
overwhelming majority of our population.
It is our contention that the rapid spread of
racial restrictive covenants is bringing about just
such zoning. This is borne out by an important
study recently made by Dr. John P. Dean1 at the
request of the American Jewish Committee. The
results of Dr. Dean’s survey will shortly appear
in the Architectural Forum, but since it has not
yet been published we are attaching it for the en
lightenment of the Court as an appendix to this
brief.
The importance of Dr. Dean’s study to the pres
ent litigation is that it covered the growth of
racial covenants for the past ten years in building
developments in the neighborhood involved in the
present case. The covenants studied were in
Queens County, Nassau County, and Southern
Westchester County. The period was roughly
from the late 1930’s to the end of the war.
The essence of Dr. Dean’s study is found in the
following quotation from it :
How prevalent are race restrictive cove
nants? In the 315 recent developments in
Queens, Nassau and Southern Westchester
surveyed in the study, race covenants applied
to few small developments were frequent on
the large-scale building operations. Only 8 1 * * * * &
1 Regional Economist, Federal Public Housing Au
thority, 1945-47; on faculty of Queens College, Flushing,
N. Y., 1940-45. Author, among others, of H o m e O w n er
s h ip : I s I t S o u n d ? , Harper & Bros., 1945; T h e B ook of
H o u ses (Co-author with S. Breines), Crown Publishers,
1946; T h e O rientation o f H ou sin g R esearch , Jo. of Land
& Pub. Util. Econ., Feb. 1947.
1 5
per cent of the developments with less than
20 homes were restricted as to race, com
pared with nearly one-half (48%) of the sub
divisions of 20 homes or more. Among large
developments of 75 properties or more, five-
sixths were race restricted (Table I). No
less than 56 per cent of all homes checked
were forbidden to Negroes. The proportion
rises to 63 per cent for properties in develop
ments of 20 or more houses and to 85 per
cent for homes in subdivisions of 75 or more.
These figures suggest that in the larger sub
divisions where new properties are numerous
enough to create their own new neighbor
hood, race restrictions are considered neces
sary to implement the uniform racial charac
ter of families moving in and to maintain
uniform occupancy thereafter. But where
just a handful of houses are constructed in
an already-built-up neighborhood, interlock
ing friendships, mutual loyalties, and exist
ing social pressures can be depended on as an
adequate barrier against Negroes.
A development of seventy-five properties or
more is extensive enough to be dignified by the
name of a Neighborhood. Five-sixths of these
are racially restricted. Certainly this means in
fact, regardless of how it is accomplished, the
imposition of racial zoning in the area constitut
ing the outer border of Greater New York.
There are certain conditions bearing upon this
case that are so well known that the Court may
take judicial notice of them.
1. We are in the midst of an acute housing
emergency. The federal, state, and munici
pal rent laws bear witness to the existence
16
of a shortage of homes. Returned veterans,
particularly, are victims of this situation.
2. The congestion is especially severe in Man
hattan, Brooklyn and the Bronx. The trend
has been, and will continue to be, to relieve
the pressure in these congested areas by
moving to the outlying sections of Queens,
Nassau and Lower Westchester.
3. The Negro sections, of which Harlem is the
most conspicuous, are notoriously slum
areas. The high incidence of crime, dis
ease, and race tension in these sections is
the inevitable concomitant of the conditions
existing there.2
These facts are known to all residents of New
York, and can be judically noticed by this Court.
White persons, on the whole, can live wherever
they can find accomodations, limited only by the
size of their pocketbooks. Negroes can live only
where they are permitted to live.
That decent living conditions are a paramount
concern of the State was never more eloquently
stated than by Chief Justice Cardozo who said
in Adler v. Deegan, 251 N. Y. 467, 484:
The Multiple Dwelling Act is aimed at
many evils, but most of all it is a measure
to eradicate the slum. It seeks to bring
2 By the close of the 1930’s West Harlem, inhabited
almost exclusively by Negroes, contained about a quarter
of a million people who were packed into 203 blocks. As
a result, more than one-tenth of the people in Manhattan
were living in less than one-sixteenth of the area of the
borough. In this part of the city, a single block had a
population of 3,871 persons, “said to be the most crowded
dwelling section in the world”. ( H a rlem H ou sin g , Citi
zens’ Housing Council of New York, 1939, p. 10.)
17
about conditions whereby healthy children
shall be born, and healthy men and women
reared, in the dwellings of the great metrop
olis. To have such men and women is not
a city concern merely. It is the concern of
the whole State. Here is to be bred the
citizenry with which the State must do its
work in the years that are to come. The
end to be achieved is more than the avoid
ance of pestilence or contagion. The end
to be achieved is the quality of men and
women * * * If the moral and physical fibre
of its manhood and its womanhood is not a
State concern, the question is, tvhat is? Till
now the voice of the courts has not faltered
for an answer.
Since it is beyond any doubt the public policy
of the State to provide decent, healthy homes
for its inhabitants, and since this obviously can
be accomplished only by permitting unrestricted
expansion into the areas adjacent to the con
gested sections, it is clear that this benign policy
is frustrated by racial zoning restrictions. The
Negro is hopelessly condemned to squalor, crime
and disease, with most avenues of escape shut
off.3
It is true that public housing projects are
technically non-discriminating, although in prac
tice they are largely resolved into white and
Negro units. But in any event it will be many
3 Shaw, Clifford R., and McKay, Henry D., Juvenile
D elinqu en cy in U rban A rea s, Univ. of Chicago Press
(1942), pp. 156-7, 168; Ford, James, S lu m s and H ou sin g,
Harvard Univ. Press (1936), pp. 375-397; M o w r e r ,
E. R., F am ily D isorganization, Univ. of Chicago Press
(1927) ; Wood, E. E., S lu m s and Blighted A rea s in the
U nited S tates, U. S. Print. Off. (1935).
18
years before they can even slightly relieve the
current pressure.
Relief unquestionably must be sought in pri
vate building developments. Fifty-six percent of
these have been restricted in the past decade,
and the practice is rapidly growing. The larger
developments from which the greatest relief
might be expected are eighty-five percent re
stricted.
Negroes cannot build their own developments.
Their comparative poverty is a well known fact.
Even if they could obtain adequate property,
which is doubtful, they could not privately
finance housing developments that would re
motely be sufficient to their needs.
Beyond that, it would be unthinkable for
Negroes voluntarily to accept the concept of dis
crimination by building Jim Crow housing for
themselves. It is equally unthinkable that the
State of New York, that blazed the way for
complete equality in transportation and places
of public accommodation, should tolerate a prac
tice that creates Jim Crowism in the most essen
tial accommodation of all—housing.
The only way out is to declare invalid these
racial restrictive covenants that violate the
proud public policy and tradition of the State
of New York. The alternative is a mounting toll
of disease, delinquency, and dissension, with
an incalculable cost to all of us in money and
security. We have seen in recent years race
riots in New York, Chicago, and Detroit, result
ing from the confinement of an underprivileged
group in a small area without adequate possi
bility of expansion. Gunpowder is an innocuous
inflammable unless it is tightly compressed in a
chamber. Then a tiny spark can set off a vio
lent, destructive explosion,
19
Conclusion
The judgment of the Court below should be
reversed and the racial restrictive covenant de
clared invalid.
Respectfully submitted,
Newman Levy and
George J. Mintzer.
Attorneys for the American Jewish
Committee as Friend of the Court
39 Broadway
Borough of Manhattan
City of New York
Of Counsel
Newman Levy
Jacob Schaum
[appendix follows]
20
APPENDIX
None Other than Caucasian
John P. Dean
The restrictive covenant is under sharp attack
as the leading device by which race ghettos are
legally maintained in America. Yet few reliable
data have been offered to document its preva
lence. The oft-quoted statement of an unsigned
article in Crisis that “ in Chicago it has been
estimated that 80 per cent of the city is covered
by such agreements” has received such wide
currency that it has begun to acquire the ring
of validity. It has been “ estimated,” too, by a
reliable executive of a New York title company,
that a study of race covenants in the New York
area would disclose “ not more than a handful.”
Both could be right. Both could be wrong. To
remedy this ignorance, the study here reported
was undertaken.
The restrictive covenant becomes a vehicle for
racism when property owners in a neighborhood
agree not to rent or sell their property to
Negroes or other ethnic minorities. Widespread
use of the restrictive covenant limits the hous
ing available to Negroes and condemns them to
the overcrowded dwellings of “ black belts where
the evils of residential segregation multiply
into the evils of separate stores, separate restau
rants, separate schools, and separate public serv
ices—not equal and seriously too few. Since the
inadequacy of these institutions becomes identi
fied with the inadequacy of the people them
selves, expansion of the restricted group to new
areas of residence is seen as a threat to neigh
borhood character and property values— and
21
if white residents begin to abandon the old neigh
borhood in numbers, the threat may become
reality. As a result, black belts tend to expand
by sudden and expulsive accretions to their bor
ders when the bonds that restrain them can no
longer hold back the rising pressures of over
crowding. Each subsequent inundation confirms
anew the prejudices which caused it.
In this light, any restraint upon the opportuni
ties of Negroes to move into new non-segregated
areas needs careful scrutiny as to its prevalence
and ultimate repercussions on property values,
race tension, and social injustice. According to
recent statements, the increasing segregation
of Negroes in Northern communities has paral
leled the epidemic spread of race restrictive
covenants. But the obvious effectiveness of in
formal discrimination against Negroes and their
depressed economic status in achieving segra-
gation in northern cities has left doubts as to
the role of specific race covenants—especially
since no one knew how extensive they were.
The present study was designed to determine
the extent to which new suburban developments
in the New York area are restricted by race
covenants. In Queens County, Nassau County,
and Southern Westchester County—the leading
outlets east of the Hudson for Manhattan’s
crowded population— over 300 subdivisions de
veloped since the war or during the extensive
pre-war building of the late 1930’s and early
1940’s were checked to determine whether re
strictive covenants against racial minorities were
in effect. A large title company in the New York
area, estimated to handle roughly a quarter of
the title business in Queens, Nassau, and West
chester, agreed to let the author examine the title
22
reports summarizing the encumbrances disclosed
by searching the title, including any covenants
and restrictions on the property at the time of
the search. All developments of 20 parcels or
more and, for comparison, an additional 132 de
velopments of less than 20 parcels were checked
for the period of study.* In most instances a
copy of the covenants and restrictions, if any,
was attached to the title report. Since the of
ficial volume and page where the covenants were
on record in the County Eegister’s Office was
noted, the official record could be checked to see
if restrictions on race were included where no
copy of the covenants was attached. Several title
reports were checked for each development to
discover if some, but not all, of the properties
were race covenanted. In almost every instance
—309 out of 315— all properties in the develop
ment were either uniformly free of race restric
tions or uniformly covered by them. A few race
covenants may have been missed (1) where the
parcels sampled were free of them but those not
selected were restricted, or (2) where the race
covenant agreements were imposed after the dat
ing of the title report. In so far as this was the
case, the figures given here understate somewhat
the extent of race restrictive covenants.
How prevalent are race restrictive covenants?
In the 315 recent developments in Queens, Nas
sau, and Southern Westchester surveyed in the
study, race covenants applied to few small de
velopments but were frequent on the large-scale
* Discussions with executives of the company disclosed
no reason to believe that the developments covered in
the title searches of this company were in any way un
representative of the properties developed during the
period covered by the study.
23
building operations. Only 8 per cent of the de
velopments with less than 20 homes were re
stricted as to race, compared with nearly one-
half (48%) of the subdivisions of 20 homes or
more. Among large developments of 75 proper
ties or more, five-sixths were race restricted
(Table I). No less than 56 per cent of all homes
checked were forbidden to Negroes. The propor
tion rises to 63 per cent for properties in de
velopments of 20 or more houses and to 85 per
cent for homes in subdivisions of 75 or more.
These figures suggest that in the larger subdivi
sions where new properties are numerous enough
to create their own new neighborhood, race re
strictions are considered necessary to implement
the uniform racial character of families moving
in and to maintain uniform occupancy thereafter.
But where just a handful of houses are con
structed in an already-built-up neighborhood, in
terlocking friendships, mutual loyalties, and ex
isting social pressures can be depended on as an
adequate barrier against Negroes.
24
TABLE I
Race Restrictive Covenants in Subdivisions Developed
During the Last Decade in Queens, Nassau, & Westchester
Counties, by Size of Subdivision
Size of Subdivision
Less than 20 to 74 75 or More
20 Parcels Parcels Parcels
No. % No. % No. % No. %
Subdivisions
with race
restrictions 11 8% 52 3 7 % 35 8 3 % 98 31%
Subdivisions
without race
restrictions 12L 9 2 % 89» 6 3 % 7- 1 7 % 217 69%
Total 132 1 0 0 % 141 1 0 0 % 42 100% 315 100%
Approximate
No. of
Parcels" 1300 4800 5200 11,300
(a) One subdivision of 6 parcels had a race restriction on one
parcel.
(b) Four of these subdivisions had racial restrictions on some
but not all of the parcels.
(c) One of these subdivisions had race restrictions on only a few
parcels.
(d) For 17 subdivisions for which accurate information on the
number of parcels was unavailable conservative estimates were made.
These subdivisions are not included in Table II.
TABLE II
Properties Restricted as to Racial Occupancy as a Per
Cent of Total Properties, by Size of Subdivision and
Whether Subdivision Was Developed in the Pre-war or
Post-war Period
Pre-W ar* Post-War i Total
4432
65.0%
Total Parcels on which
data available .............. 6827
Parcels restricted as to
race .............................
—as % of total parcels ....
Parcels in subdivisions of
20 or more parcels, re
stricted as to race ....... 4343
—as % of all parcels in
subdivisions of 20 par
cels or more ..............
Parcels in subdivisions of
75 or more parcels re
stricted as to race...... 2921
—as % of all parcels in
subdivisions of 75 par
cels or more ................
71.6%
86.7%
3726
1481
39.7%
1449
45.2%
1082
81.1%
10,553
3,913
56.1%
5,792
62.5%
4,003
85.1%
(a) Subdivisions developed 1938 to 1942 in Queens and Nassau
counties, 1935 to 1942 in Westchester County.
(b) 1945 to 1947 subdivisions, many of which are still in process
of development.
26
TABLE III
Subdivisions of Twenty or More Parcels With Race Re
strictive Covenants, by Location in Queens County, Nassau
County, and Westchester County, N. Y.
Subdivisions Subdivisions Subdivisions
in Queens in Nassau in Westchester
County, N.Y. County, N.Y. County, N.Y. Total
Subdivisions
with race
restrictions 36 45% 28 47% 23 52% 87 48%
Subdivisions
without race
restrictions 44» 55% 31» 53% 21 48% 96 52%
Total 80 100% 59 100% 44 100% 183 100%
(a) 3 of these subdivisions have race restrictions on part of the
parcels.
(b) 2 of these subdivisions have race restrictions on part of the
parcels.
27
Is the use of race covenants increasing or de
creasing? Unfortunately, we cannot tell from the
data of this study. As shown in Table II, a higher
proportion of the properties in pre-War than in
post-War subdivisions are race restricted. But
many of the post-War developments have not
been completed,! and restrictive covenants are
frequently imposed after completion, either by
including them in the deed when the purchaser
takes over or by tiling in the Register’s Office a
declaration of covenants and restrictions to which
all subsequent transfers are subject. Thus the
race restrictions found on post-War subdivisions
represented for the most part instances where
the land was laid out or partially developed be
fore the war and the restrictions imposed at that
time. Some few of the larger operative builders
had already made post-War declarations of re
strictive covenants, but others, we can safely
assume, will impose covenants and restrictions at
the time of closing title. For this reason, too,,
the figures here reported understate the extent of
race covenants. Their prevalence is best judged
by the 71.6 per cent of homes in pre-War develop
ments of 20 homes or more which carry race cov
enants.
The rapid spread of race covenants within the
last decade is attested by other data which drew
increasing attention as the study proceeded:
(1) Subdivisions subject to covenants imposed
prior to the 1930’s rarely were restricted as to
f Most of the post-War developments in Queens and
Nassau were still making up title reports for individual
properties, and on many subdivisions, no title closings had
been made. At least 10 subdivisions averaging 45-50
parcels had indicated their completed size would average
about 200 homes.
28
racial occupancy, even though otherwise protected
with restrictions on residential character similar
to those contained in covenants today.
(2) The influence of the Federal Housing Ad
ministration on race restriction began to stand
out with embarrassing clarity. Covenants includ
ing those special building and occupancy restric
tions associated with the FHA housing almost in
variably included a race clause. Wording parallel
to the recommendation of the 1938 FHA Under
writing Manual that restrictive covenants include
a “ prohibition of the occupancy of properties
except by the race for which they are intended,” \
was found in a number of race clauses:
— “ said (premises) shall be maintained for the
use and occupancy of persons of the Cauca
sian race, and no race or nationality other
than those for whom the premises are in
tended shall use or occupy any building or
lot.”
— “ It is intended that the said premises are
restricted to the use and occupancy of the
Caucasian race only * * *.”
In some cases the FHA was identified in the pre
amble to covenants as one of the reasons for the
restrictions imposed:
— “ Whereas the Federal Housing Administra
tion requires that the existing mortgages on
the said premises be subject and subordi
nated to the said restrictions * * * ”
£ Sec. 980 (3). The recent post-War revision of the
FHA U nderw riting M anual is said to have removed refer
ences to race covenants.
29
or again, in another:
— “ Whereas the parties hereto desire to mod
ify, add to and amplify the said restrictions
in conformity with the requirements of the
Federal Housing Administration * *
And finally, race covenants are more frequent
among the large operative builders who require
financing assistance and use the FHA guarantee
to secure building loans. Note for instance:
— “ Whereas * * * (names of owners) * * * in
order to better secure their mortgage by the
development of said tract into 1-family
houses and to better promote the sale thereof,
are willing to subordinate and make subject
their lien of their said mortgage to the re
strictions required by the Federal Housing
Administration as hereinafter set forth * *
In each of these instances race restrictions were
included. Kestrictive covenants, once crystallized
as an aid to financing and mortgage stability,
spread and become legion. Just as it became
common practice around the turn of the century
to impose restrictions against any slaughter
house, brewery, or manufactory of gunpowder or
glue, so the race clause is becoming customary
among the restrictive covenants of today. This
practice casts a long shadow on the current trend
toward large-scale building operations. One
builder consistent in the use of race covenants
is identified by Architectural Forum as “ for 25
years one of Long Island’s most prolific house
builders.” His current building program in
volves 8,300 dwelling units—the equivalent of a
city of 30,000 to 35,000 people.
30
How much variation is there from one develop
ment to another in the race restrictions imposed?
In the New York area race covenants are aimed
primarily at Negroes. Sometimes they are iden
tified positively in the covenants as “ negroes or
any persons of the negro race of blood” (sic)
or perhaps as “ persons of African descent who
are not of the Caucasian Race.” More often the
restricted group extends beyond Negroes to in
clude all “ non-Caucasians” or “ persons of any
race other than the white or Caucasian race. ’ ’ Or
the covenant may designate only those permitted:
— “ No house shall be used or occupied except
by white people.”
— “ Said premises are restricted to the use or
occupancy of the Caucasian race only.”
In most developments, the race covenants apply
only to the use or occupancy of dwellings. Our
courts have generally upheld covenants against
use, while those against the sale or alienation of
property have often been ruled out. Nonetheless,
many a restrictive covenant in the New York area
aims to restrain both ownership and use:
— “ No plot or part of plot or building thereon
shall be owned or occupied by any other than
the Caucasian race.”
— “ No part of said premises shall ever be used
or occupied by or sold, conveyed, leased,
rented, or given to persons other than of the
Caucasian race.”
In all cases except one (an oversight?) a loophole
was left for servants:
— “ This covenant shall not prevent occupancy
by domestic servants of a different race dom
iciled with an owner or tenant.”
31
— “ This covenant shall not prohibit the en
gagement or maintenance of colored servants
or domestica in the family household.”
Where the covenant wished to plug all loopholes,
an expanded version such as the following was
used:
— “ No plot or part of any plot or building
thereon shall be occupied by any person other
than of the Caucasian race, nor shall be sold,
leased, conveyed, or rented in any form or
manner by any title legal or equitable to any
person other than those of the Caucasian
race, nor to any firm or corporation of which
any person or persons other than those of
the Caucasian race shall be a member, officer,
or stockholder.” (Domestic servants are
then excepted.)
Despite occasional individual variations such as
this, most race clauses took on a rather standard
ized form which, with minor deviations in phras
ing in each of the three counties surveyed, runs
as follows:
— “ No race other than the Caucasian race shall
use or occupy any building or lot, except that
this restriction shall not prevent occupancy
by domestic servants of a different race em
ployed by an owner or tenant.”
The major implication of these variations in
wording lies in the likelihood that the restrictive
covenant device, once understood and practiced,
and sanctioned by the courts, will spread from
one group to another into a network of discrimi
nations that foster inter-group hostility. Already
race covenants in different parts of the country
32
have implicated Chinese, Japanese, Jews, Indians,
Mexicans, Armenians, and even a Seventh Day
Adventist. The form of a 1946 covenant imposed
on a development of 200 homes in Westchester
County suggests that all these groups and others,
too, will be excluded:
—“ No portion of said premises shall be con
veyed or in any way transferred, and no land
and improvement thereon shall be let to any
person or persons by any owner thereof with
out the written consent of the company to
such conveyance, transfer, letting, or sublet
ting.”
With devices such as this coming into use to dis
criminate against minorities, we can expect con
flict to intensify between Caucasian and other-
than-Caucasian races. At a time when the darker
skinned peoples all over the world are coming
alive with nationalism and technological skill, it
is surprising that the one-fifth of the world’s
population represented by Caucasians do not
anticipate their shrinking status as an ethnic
minority.
BAB PBESS, IN C ., 4 7 W EST ST., NEW YO BK . BO. 9-----0 1 5 7 - 8
(189)
307
(Emirt of IIjb S>tat£ of 2mu fork
Queens County
H arold F. K emp, Sarah M. K emp, John H. L utz
and Irene Lutz, on behalf of themselves and
all others equally interested,
against
Plaintiffs,
Sophie Rubin and Samuel Richardson,
Defendants.
BRIEF OF DEFENDANT SAMUEL RICHARD
SON IN SUPPORT OF MOTION TO
DISMISS THE COMPLAINT.
A ndrew D. W einberger,
Attorney for Defendant Samuel Richardson,
No. 67 West 44th Street,
New York 18, N. Y.
Grosby P ress, Inc., 30 Ferry St., N. Y . C.—BEekman— 3-2336-7-8
fllnurt af S>tat? of 3mu forh
Queens County
Harold F. K emp, Sarah M. K emp, John H. Lutz
and Irene Lutz, on behalf of themselves and
all others equally interested,
against
Plaintiffs.
Sophie Rubin and Samuel Richardson,
♦
Defendants.
BRIEF OF DEFENDANT SAMUEL RICHARD-
SON IN SUPPORT OF MOTION TO
DISMISS THE COMPLAINT.
The Parties
The plaintiffs and the defendant Rubin are
residents in the area known as Addisleigh Park
in St. Albans, Queens County. The defendant
Samuel Richardson owns a lot of vacant land in
Addisleigh Park immediately adjacent to the
property in suit. The plaintiffs Kemp and the
defendant Rubin both executed one of the .re
strictive covenants, dated January 10, 1939, an
nexed to the complaint. The plaintiffs Lutz are
not parties to that covenant. They, together with
third parties, executed the second restrictive
covenant annexed to the complaint. Neither of
the plaintiffs Kemp nor the defendant Rubin is
a party to that covenant. The defendant Richard
son is not a party to either of the covenants, nor
is his vacant land subject to either of them.
2
The Complaint in Substance
That the covenants described above were ex
ecuted, the ownership of houses in Addisleigh
Park by the plaintiffs and the defendant Rubin
and that she contracted to sell to the defendant
Richardson 112-03 177 Street, St. Albans.
That the contract and the contemplated convey
ance would be in violation of both the covenants.
That the realty of the plaintiffs are private
dwellings of great value and that their rental and
sales value depends wholly upon the exclusion
from Addisleigh Park of “ Negroes or persons of
the Negro race or blood or descent” .
That the plaintiffs have no adequate .remedy at
law, and will suffer great and unascertainable pe
cuniary loss if they do not secure the injunction.
The Answer of the Defendant Richardson
in Substance
A.
Admits the execution of the first of the two
covenants annexed to the complaint between plain
tiffs Kemp and the defendant Rubin.
Denies sufficient knowledge or information as to
the allegations concerning the ownership by the
plaintiffs.
Admits that the defendants Richardson and
Rubin entered into a contract of sale for 112-03
177th Street, St. Albans, N. Y., and that the de
fendant Richardson is of the Negro race.
Denies that the houses of the plaintiffs are of
great value, and that their .rental and sales value
depends wholly upon the exclusion from Addis
leigh Park of Negroes.
Denies that the plaintiffs will suffer great and
unascertainable pecuniary loss if there is a con-
3
veyance from the defendant Rubin to the defend
ant Richardson and that plaintiffs have no ade
quate remedy at law against the defendant Rubin.
B. Affirmative Defenses
That this Court may not enforce the covenant
by reason of the prohibitions contained in the 14th
Amendment to the Federal Constitution and the
laws enacted thereunder.
That the covenant is void and judicial enforce
ment is prohibited by existing treaties between
the United States and other nations.
That the covenant is both void and may not be
judicially enforced by reason of the public policy
of the United States and New York State.
That judicial enforcement of the covenant is
prohibited by Article I, Section 11 of the Con
stitution of the State of New York.
That the covenant is void as constituting unlaw
ful restraint on alienation of real property.
The Sociological Background o f the Citizens o f
the State o f New York and Housing Conditions
Pertinent to This Issue Before a Court o f Equity
It is proper for equity to inquire into the so
ciological conditions which underlie this suit.
One of the basic needs of Negroes in this city
is additional housing. This is not a temporary
condition brought about by the general present
housing shortage, but was true even in the late
1930’s, during the years of the real estate de
pression when foreclosures and vacant houses
were commonplace. In fact, it was during that
period, 1939, that the covenants in suit were exe
cuted immediately following the first sales in
Addisleigh Park to Negroes.
4
In West Harlem, a section comprising l/16th
of the total of Manhattan’s area, more than l/10th
of the borough’s population is crowded. On one
Harlem city block (141st Street, between Lenox
and 7th Avenues) there are housed 3,871 people.
This is the highest dwelling density in any com
parable area anywhere in the world (The Urban
N egro : Focus of the Housing Crisis—Beal Es
tate Reporter— October, 1945, page 12, citing the
Mayor’s Committee on City Planning). Com
menting upon this, Edwin Embree in his book,
“ Brown Americans” (The Viking Press— 1943),
said at page 34:
“ Comparable concentration for the entire
population would result in all of the people
in the United States living in one half of New
York City.”
This is aggravated by the fact that rentals in
all Negro neighborhoods are substantially higher
than rentals for comparable accommodations in
white communities.
In the recent scholarly and authoritative trea
tise, Myrdal’s An American Dilemna, sponsored
by the Carnegie Corporation, it is said at Vol. 1,
page 379:
“ We feel inclined to believe that rents are
higher, on the average, in Negro than in
white-occupied dwelling units even when size
and quality are equal. Most housing experts
and real estate people who have had experi
ence with Negro housing have made state
ments to this effect. Not only does there
seem to be consensus on the matter among
those who have studied the Negro housing
problem, but there is also a good logical rea
son for it: housing segregation.”
5
There is presently a continuous inmigration
of Negroes to New York City from the South.
They are influenced by both the desire to live in
the better economic status of the North, and also
in an atmosphere free from lynchings, depriva
tion of the franchise, discrimination and segre
gation.
It is common knowledge that the already over
taxed facilities of greater New York are hope
lessly inadequate. The situation is substantially
more acute for Negroes than for white persons.
Aside from the legal unsoundness and the social
viciousness of restrictive covenants, one must
consider the economic burden that it places upon
the Negro by forcing him to pay higher rents and
occupy inadequate accommodations. Concerning
this, Myrdal, at Vol. 1, page 379, said:
“ Particularly when the Negro population is
increasing in a city, it is hard to see how this
factor can fail to make Negro rents increase
to an even greater extent than would have
been the case if Negroes had been free to seek
accommodations wherever in the city they
could afford to pay the rent. The fact that
they are not wanted where they have not
already been accepted must put them in an
extremely disadvantaged position in any ques
tion of renting or of buying a house. ’ ’
Queens County with its large tracts of unim
proved property has for many years been an es
cape and release from crowded Manhattan for
scores of both white and colored citizens. Queens
County, even more than any of the other suburban
areas of New York City, should afford similar
opportunity to Negroes for home ownership,
which is well-nigh impossible for anyone in Man-
6
hattan. Queens County has taken thousands of
white persons from the undesirable residential
conditions of Manhattan (and we include the dark,
sunless Park Avenue apartments in this category)
and as a matter of both sound law and equity, the
Negro may not be deprived of the same ele
mentary privilege of a human being. Even in
those instances when suburban home ownership is
possible for a Negro, he again pays more for com
parable accommodations than his white equal.
The November, 1945 issue of the Building Re
porter and Realty News, in its second installment
of its survey The Urban N egro : Focus of the
Housing Crisis, says at page 11:
“ This view was supported by other local
spokesmen, who reported Queens housing is
sold to Negroes only when values have al
ready begun to decline. Negroes, in search
of housing, must take what they can get, so,
at somewhat inflated prices, they buy these
properties.”
As there has been no decision on the validity of
restrictive covenants nor on the propriety of their
enforcement by judicial decree in any appellate
court of New York State, nor by the United States
Supreme Court on an appeal from any state court,
this Court has the important privilege and duty
of determination of the mode of life of a good
part of the 13,000,000 Negroes in the United States
and millions more not colored. Restrictive cov
enants are not confined to Negroes alone. There
are many against Catholics, Jews, Chinese, Mexi
cans, Indians, Turks, Armenians, Italians and
others. It is not difficult to envisage a day when
no member of any racial or religious minority
may live anywhere in the United States.
7
P O I N T I
Judicial enforcement of the racial restrictive
agreement in suit is prohibited by the I4th
amendment of the Constitution of the United
States.
This action seeks to enlist the aid of the ju
dicial arm of the government of the State of New
York in enforcing a restrictive land covenant
which prohibits ownership or occupancy of desig
nated lands in Addisleigh Park, St. Albans, by any
Negro.
In considering the prohibitions and guarantees
contained in the 14th Amendment to the United
States Constitution regulating state action and
their application to the case at bar, it is neces
sary to primarily determine whether the State
of New York o.r any of its political subdivisions
can, by legislative enactment, accomplish the ob
jective sought by this action.
In making this inquiry, let it be hypothesized
for the moment that, instead of the action now
before this Court, the plaintiffs had successfully
petitioned the state or a local legislative body for
special enabling legislation which had accom
plished the objective sought by this action and
had by statute, secured the identical result that
would follow from the decree the plaintiffs seek.
In accomplishing this, plaintiffs would have ob
tained an affirmative act by the State of New York
or a political subdivision thereof, acting in its
legislative capacity, countenancing a racially seg
regated neighborhood such as Addisleigh Park
along the lines now constituted.
A discussion of such legislation is not idle
because the possibility of its ever coming into
8
being is too conjectural o.r speculative to be per
tinent to the issue since the fact is that in three
instances such legislation did achieve reality. In
each case, the Supreme Court of the United States
evaluated such legislation in terms of its relation
ship to the 14th Amendment. Although the
laws differed in manner of operation, the signifi
cant point is that they represented an attempt
by a state through its legislative body to legalize
residential segregation by governmental sanction.
It is of direct and material interest to understand
the rationale underlying the invalidation of these
laws by the Supreme Court.
In Buchanan v. Warley, 245 U. S. 60, marking
the first such case where racial residential segre
gation was clothed with legislative approval, the
Supreme Court was called upon to pass upon the
validity of a city ordinance in the State of Ken
tucky which forbade any white or Negro person
from moving into and occupying as a residence,
any house in a city block in which the majority of
the houses were already occupied by persons of
the opposite race. Thus, on its face, the statute
was seemingly susceptible of reciprocal applica
tion, but the Supreme Court stated nevertheless:
“ Colored persons are citizens of the United
States and have the right to purchase prop
erty and enjoy and use the same without laws
discriminating against them solely on account
of color. These enactments (laws enacted to
effectuate the 14th Amendment) did not deal
with the social rights of men, but with those
fundamental rights in property which it was
intended to secure upon the same terms to
citizens of every race and color. The Four
teenth Amendment and those statutes enacted
in furtherance of its purpose operate to qual-
9
ify and entitle a colored man to acquire prop
erty without state legislation discriminating
against him solely because of color.”
In its reference to “ laws enacted to effectuate
the 14th Amendment” the Court had reference in
particular to Title 8, Section 42 of the United
States Code which has been valid law of the
United States since 1866. It reads:
“ 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.”
This statute, together with the 14th Amend
ment, led to the following well-reasoned holding:
“ We think this attempt to prevent aliena
tion 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 Constitu
tion preventing State interference with prop
erty rights except by due process of law.
That being the case the ordinance cannot
stand.” (Buchanan v. Warley, supra)
The Court in response to the contention that
the ordinance was justified by a desire to “ pro
tect” property values revealed the fallaciousness
of such reasoning by pointing out, that:
“ * * * property may be acquired by unde
sirable white neighbors or put to disagree
able though lawful uses with like results.”
(Buchanan v. Warley, supra)
10
Subsequently, in Harmon v. Tyler, 273 U. S.
668, legislation permitting the adopting of racial
residential segregation by private action was
passed in the State of Louisiana through a law
forbidding whites or Negroes from occupying a
residence in any portion of the City of New
Orleans except on written consent of the majority
of the persons of the opposite race inhabiting
such community or portion of the city. This or
dinance thus extended governmental sanction to
racial segregation by community or neighbor
hood agreement.
In reliance on this law, suit was brought by a
white owner of residential property to enjoin an
other white owner in the community from leasing
his residence to a Negro tenant. The Supreme
Court, adhering to Buchanan v. Warley, supra,
again declared legislative interference with resi
dential patterns along lines of color to be viola
tive of the 14th Amendment’s guarantees and, as
such, unconstitutional.
The Supreme Court has unequivocally ex
pressed its intolerance of any legislative attempt
by the states to regulate residential segregation.
In the last of these cases (City of Richmond v.
Deans, 281 U. S. 704), the Court without opinion
simply affirmed the decree voiding the ordinance.
It is a well-known fact that Negroes do not
make restrictive covenants, nor are they ever
likely to adopt such undemocratic practices. The
same is true of lawsuits based on restrictive cove
nants—it is in every instance a white person who
institutes the action. Applying these obvious
facts to the legislation considered above, it can
readily be understood that the apparent reci
procity of use is as empty a concept as a law is
capable of producing under the guise of equality.
11
The laws held unconstitutional would have been
little else than tools in the hands of citizens of
the white race exclusively, to be used against citi
zens of the Negro race whenever any member of
the latter sought to escape from unsatisfactory
housing conditions to an improved home that
was otherwise available. Such is, of a certainty,
not ‘ ‘ equal protection of the laws ’
The same inequality is manifest if the inquiry
as to equality of protection is conducted solely on
a basis of strict legal reasoning apart from the
facts as they incontrovertibly do exist.
In this democracy, racial segregation by states
insofar as public accommodations and services
are concerned has not, as yet, been declared by
the Supreme Court to be a denial of equal pro
tection of the laws. This is the case notwith
standing the glaring inequalities of financial ap
propriations to Negro as contrasted with white
schools, hospitals and other community services
in the states adhering to the “ separate but equal”
doctrine. Theoretically, such equality of facilities
is attainable in that equal facilities for both races
could in fact be provided. However, when one
considers land, even the theoretical possibility of
equality ceases by reason of the well-established
equitable maxim that each lot of land is unique
and cannot be either duplicated or equalled. This
maxim is not a mere legal fiction, but a recognition
of fact.
Viewed in light of this traditional equitable
principle, any state or governmental enactment
which, in its operation, enables a white person to
own and occupy a particular piece of realty while
denying a Negro citizen this fundamental right,
is, of necessity, a denial of the equal rights which
the 14th Amendment and the laws enacted in pur-
12
suance of it rigidly safeguard. No other conclu
sion is logically possible.
It is, therefore, evident that had the plaintiffs
in this action secured the legislative sanction
hypothesized previously to secure their racial
residential segregation objective, the legislation
whether it was direct, as found in Buchanan v.
Warley, supra, or extended a sort of local option,
as in Harmon v. Tyler, supra, would be unques
tionably repugnant to the 14th Amendment and,
as such, void.
Having seen that discriminatory acts of the
legislative arm of government constitute state
action in violation of the guarantees contained in
the 14th Amendment, it is pertinent to further in
quire whether state action of a discriminatory na
ture is capable of stemming from the acts, de
crees and orders of the judicial arm of govern
ment. If the answer be in the affirmative, then
the Courts of a state are subject to the same limi
tations imposed on the legislative arm.
The principle that judicial enforcement, or
court order, constitutes action by the state is
not without abundant authority.
In Brinherhoff-Faris Co. v. Hill, 281 U. S. 673,
the Supreme Court reversed the decision of the
Supreme Court of Missouri, stating:
“ If the result above stated were attained by
an exercise of the state’s legislative power,
the transgression of the due process clause
of the 14th Amendment would be obvious * * *
The federal guarantee of due process extends
to state action through the judicial as well as
through the legislative, executive or adminis
trative branch of government.” (Italics
added)
13
So also in Raymond v. Chicago Traction Co.,
207 U. S. 20, 36 where the Supreme Court states:
“ The provisions of the 14th Amendment are
not confined to the action of the state through
its legislature, or through the executive or
judicial authority. Those provisions relate
to and cover all the instrumentalities by
which the state acts.”
Judicial acts constituting state action of a for
bidden type may be substantive or procedural in
nature. An examination of the following cases
is conclusive of the fact that offending judicial
acts in both categories are prohibited equally.
First in the procedural sphere is Powell v.
Alabama, 287 U. S. 45, where the Supreme Court
reversed a conviction upheld by the highest court
of the State of Alabama as being state action re
pugnant to the 14th Amendment, where it was
shown that the trial court failed to adequately
safeguard an accused person’s rights.
Likewise in Brinkerhoff-Faris Co. v. Hill, 281
U. S. 673, where the Supreme Court set aside the
action of the State of Missouri acting through its
courts, saying:
“ We are of the opinion that the judgment of
the Supreme Court of Missouri must be re
versed because it has denied to the plaintiff
due process of law—using that term in its
primary sense of an opportunity to be heard
and defend its substantive rights.”
Turning to the substantive field, one finds the
rule is no different in application. As early as
1880 the Supreme Court in Ex Parte Virginia,
100 U. S. 339, cited by nearly every term of the
14
Court as the basic case on state action by courts,
held that the limitation on state action applies to
the exercise of the decisional powers of state
courts as well as to laws enacted by a state leg
islature. The Court said at page 347:
“ Whoever by virtue of public position under
a state government deprives another of prop
erty, life or liberty, without due process of
law, or denies or takes away the equal pro
tection of the law violates the constitutional
inhibition; and as he acts in the name and for
the state is clothed with the state’s power, his
act is that of the state. This must be so, or,
as we have often said, the constitutional pro
hibition has no meaning, and the state has
clothed one of its agents with power to annul
or evade it.”
From the foregoing, it is evident that there is
no differentiation between the Equal Protection
Clause and the Due Process Clause in determin
ing what is state action.
So also in Twining v. New Jersey, 211 U. S. 78,
where the court said:
“ The judicial act of the highest court of the
state in authoritatively construing and en
forcing its laws is the act of the state.”
This last raises the question whether, in con
struing not only statutes, but the common law as
well of a state, a court is acting for the state.
In Cantwell v. Connecticut, 310 U. S. 296, the
Supreme Court reversed a conviction on the
ground that the common law of Connecticut as
interpreted and applied by the courts was a denial
of due process by state action contrary to the
15
14th Amendment. Similarly, in Bridges v. Cali
fornia, 314 U. S. 252, the Supreme Court reversed
a contempt sentence on the ground that the state
court improperly interpreted the common law so
as to infringe upon the guarantees of the 14th
Amendment.
In American Federation of Labor v. Stving,
312 U. S. 321, the Court stated, at page 326:
“ The scope of the Fourteenth Amendment is
not confined by the notion of a particular
state regarding the wise limits of an in
junction in an industrial dispute.”
It seems fallacious to assume that a suit for a
permanent injunction is private action, since in
granting such injunctive relief, this Court would
clearly be acting for the state. This Court is not
a private arbitrator. It is the state and every
piece of enforcement machinery belonging to the
State of New York is at its disposal to compel
compliance with its decrees. This is the more
easily realized by considering the fact that racial
restrictive covenants are not self-enforcing, but
depend absolutely upon judicial decree.
Since it is true that the courts are bound to
observe the limitations imposed by the 14th
Amendment as are other branches of the state
government, then upon reviewing the result in
the hypothetical situation propounded at the out
set herein, it is further apparent that since any
legislative attempt to segregate residential areas
on the basis of color is offensive to the 14th
Amendment (Buchanan v. Warley; Harmon v.
Tyler, supra) the same result cannot be accom
plished by the judiciary. Stated otherwise, the
unavoidable conclusion is, that citizens of a state
16
are equally powerless to require its courts to
accomplish an objective which the Supreme Court
of the United States will not permit a state to
accomplish by permissive or direct legislation.
This conclusion was long ago established in
Gandolfo v. Hartman, 49 Fed. 181, decided in 1892,
wherein the Court stated:
“ It would be a very narrow construction of
the constitutional amendment in question and
the decisions based on it and a very restricted
application of the broad principle upon which
both the amendment and the decisions pro
ceed to hold that while state and municipal
legislatures are forbidden to discriminate
against the Chinese in their legislation, a
citizen of the state may lawfully do so by con
tract which the courts may enforce * * * Any
result inhibited by the Constitution can no
more be accomplished by contracts of indi
vidual citizens than by legislation and the
court should no more enforce the one than
the other.”
Very recently (1945) in Anderson v. Anseth,
Los Angeles (Cal.) Superior Court (No. 48408—
not reported), the complaint in an action by white
property owners to enforce a restrictive covenant
against Negroes, was held to state no cause of
action in that the enforcement of the covenant by
the court would be unconstitutional in depriving
the defendants of the equal protection of the law
guaranteed by the 14th Amendment, Mr. Justice
Thurmand Clark said:
“ This court is of the opinion that it is time
that members of the Negro race are accorded,
without reservation and evasions, the full
1 7
rights guaranteed them under the 14th
Amendment of the Federal Constitution.”
The same Court added, by way of dictum:
“ Judges have been avoiding the real issue
for too long. Certainly there was no dis
crimination against the Negro race when it
came time to calling upon its members to
die upon the battlefields in defense of this
country in the war just ended.”
Since no legislative body in the State of New
York would be permitted to bring about, directly
or indirectly, racial residential segregation, by
what authority can the plaintiffs expect this Court,
which is equally subject to the prohibitions of the
14th Amendment, to grant them relief ?
It has been contended that, in New York State,
the case of Ridgway v. Cockburn, 163 Misc. 511,
decided that the enforcement of racial restrictive
covenants did not contravene the 14th Amend
ment. It is therefore necessary to examine this
case closely to ascertain if such contention is
correct.
Ridgway v. Cockburn drew for its support on
the Supreme Court case of Corrigan v. Ruckley,
271 U. S. 323, which case has similarly been used
by a few other state courts as precedent for the
proposition that judicial enforcement by a state
court does not violate the 14th Amendment. West
chester County Special Term in Ridgway v. Cock
burn misconstrued Corrigan v. Ruckley as con
trolling and made no further inquiry. The opin
ion shows this. In its four page opinion all that
is said concerning constitutionality is:
“ (2) Constitutionality. The second de
fense is to the effect that the enforcement of
18
the covenant would deprive the defendant of
her property without due process of law, and
would deny her the equal protection of the
laws, in violation of the federal constitution,
and in particular of the Fourteenth Amend
ment. It is sufficient to say that the United
States Supreme Court has held that a cov
enant of this precise character violated no
constitutional right. (Corrigan v. Buckley,
271 U. S. 323.)”
But even the most cursory examination of
Corrigan v. Buckley reveals two essential rea
sons why it is not an adjudication on the question
of judicial enforcement. The constitutionality of
judicial enforcement was not properly .raised on
appeal and, accordingly, the issue was not before
the court for determination as the court said.
Secondly, the question of judicial enforcement as
violative of the 14th Amendment could not pos
sibly have been settled by Corrigan v. Buckley
for the actual, though often unnoticed, fact is
that the action originally arose in the District of
Columbia and it is undisputed that the provisions
of the 14th Amendment are addressed only to the
states and not to the District of Columbia or the
federal government where only the 5th Amend
ment is applicable which contains no equal pro
tection clause.
The court in Ridgway v. Cockburn actually had
no precedent to rely on in determining the ques
tion, and since the court saw fit to adopt for prece
dent what actually is non-existent as precedent
and could not have been precedent, the learned
court cannot be said to have even considered the
constitutional question. Consequently, Ridgway
v. Cockburn and any state decision on the ques-
19
tion of judicial enforcement which relies on Cor
rigan v. Buckley, is without legal basis. It is not
without significance that no decree or judgment
was entered in Ridgway v. Cockburn and that the
defendant continued to occupy the premises.
The plain and inescapable fact is that this ques
tion has never been decided by the Supreme Court
of the United States. Nor has it been before any
New York State appellate court.
For further consideration of the constitutional
problems raised by this action, the attention of
this Court is invited to the following authoritative
and exhaustive articles:
“ Validity of Anti-Negro Restrictive Cov
enants: A Reconsideration Of The Problem”
By Harold I. Kahen (12 Univ. of Chicago
Law Review 198, 1945).
“ Racial Residential Segregation By State
Court Enforcement of Restrictive Agree
ments, Covenants Or Conditions In Deeds Is
Unconstitutional” By Prof. D. 0. McGovney
(33 California Law Review 5, 1945).
P O I N T I I
Enforcement by this court of the racial re
strictive agreement in suit is forbidden by
existing treaties to which the United States is
a signatory and which, as such, are the supreme
law of the land.
Article VI, Clause 2 of the Constitution of the
United States declares:
“ The Constitution, and the Laws of the
United States which shall be made in Pur
suance thereof; and all Treaties made, or
20
which shall be made, under the Authority of
the United States, shall be the supreme Law
of the Land and the Judges in every State
shall be bound thereby, any Thing in the
Constitution o,r Laws of any State to the Con
trary notwithstanding.” (Italics added.)
The Constitution in so many words, says that
a treaty entered into by the United States with
another or other nations constitutes law which
has precedence over all other law throughout this
country.
The rationale underlying this supremacy has
been fully interpreted in Kennett v. Chambers,
14 How. 38, by Mr. Justice Taney, whose opinion
states, in part, that:
“ * * * 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, or the treaties into which they may
enter, within the scope of their delegated
authority. ’ ’
It is, therefore, pertinent to the issue before
this Court to ascertain whether there is any treaty
or treaties in force which would be violated by
granting the decree the plaintiffs seek.
On March 6, 1945, in Mexico City, the United
States duly executed a treaty with the Latin
American nations known as the Act of Chapul-
tepec which provides, among other things, that
the signers will:
“ * * * prevent with all the means within
their power all that may provoke discrimina
tion among individuals because of racial and
religious reasons.”
21
This pledge is similarly contained in the United
Nations Charter, Article 55 (c) where it is stated
that:
“ The United Nations shall promote * * *
uniform respect for, and observance of,
human rights and fundamental freedoms for
all without distinction as to race, sex, lan
guage and religion.”
Article 56 of the United Nations Charter further
states that:
“ All members pledge themselves to take joint
and separate action in cooperation with the
organization for the achievement of the pur
poses set forth in Article 55.”
This is the “ supreme law of the land” and
there is imposed by these treaties a solemn obli
gation incumbent upon every governmental organ
in this country to affirmatively prevent discrimi
nation in the enumerated categories.
Since racial restrictive agreements of the type
at bar are clearly discriminatory in that they ef
fect a deprivation upon citizens of one race, the
Negro, and have no application to the citizens of
the white race, it becomes apparent that the ac
tion of any judicial body which supplies govern
mental enforcement by way of injunction or other
order, serves only to strengthen such discrimina
tory agreement and thus lend the governmental
support without which plaintiffs could not achieve
their undemocratic objectives.
It is thus seen that such a decree would be the
sine qua non of this discriminatory practice and
it is clear that such judicial enforcement would
flagrantly violate a body of law to which this
Court is required to adhere.
22
The force and effect of treaties of the United
States may be illustrated by the following sam
pling of Supreme Court cases:
In Missouri v. Holland, 252 U. S. 416, the Su
preme Court upheld the Migratory Bird Treaty
Act, a federal law enacted pursuant to the Mi
gratory Bird Treaty in force between the United
States and Great Britain, as overriding state
law on the ground that the treaty making power,
unlike the legislative power is not limited by any
concept of powers constitutionally reserved to the
states. The legislation in issue was upheld even
though similar legislation enacted prior to the
execution of the treaty, had been deemed an im
proper exercise of Congressional authority under
the commerce clause of the Constitution, (cf.
U. S. v. Shauver, 214 Fed. 154; U. S. v. McCullagh,
221 Fed. 288.)
In Hauenstein v. Lynham, 100 U. S. 483, the
descent and distribution laws of the State of V ir
ginia were overriden under the supremacy of an
existing treaty affecting a national of Switzerland.
Similarly in Nielson v. Johnson, 279 U. S. 47,
the provisions contained in a treaty between the
United States and the government of Denmark
held precedence over inheritance tax statutes of
the State of Iowa.
A comparable situation arose in Be Geofrey v.
Riggs, 133 U. S. 258, affecting the inheritance
of real property in the District of Columbia where
the terms of a French treaty were given prece
dence.
In U. S. v. Pink, 315 U. S. 203, New York law
yielded to the supremacy of the Litvinov agree
ment between the United States and the Soviet
Union as to the disposition to creditors of the
assets of a liquidated Russian insurance company.
23
In Kennett v. Chambers, the Supreme Court of
the United States asserted the supremacy of the
treaty by denying specific performance (judicial
enforcement) of a contract which, if enforced,
would be repugnant to the objectives of treaties
with Mexico. The Court, per Taney, J. stated
at page 46:
‘ ‘ These treaties, while they remained in force
were, by the Constitution of the United
States, the supreme law, and binding not only
upon the government, but upon every citizen.
No contract could lawfully be made in viola
tion of their provisions.”
In Gandolfo v. Hartman, supra, a restrictive
covenant against renting to Chinese persons was
denied enforcement on the ground that a treaty
between the United States and the Chinese gov
ernment overrode all other applicable law and,
as such, made judicial enforcement improper.
Applying the reasoning and authority of Gan
dolfo v. Hartman to the case at bar, it is evident
that, since the plaintiffs are enlisting the assist
ance of the judicial arm of the government of the
State of New York to further a discriminatory
practice against citizens of this country, such a
decree cannot be granted without being in direct
violation of two treaties to which this Court must
give precedence over all other applicable law.
The conclusion follows that this Court, in light
of the supreme law of the land forbidding dis
crimination to any citizen by reason of race, color
and religion, is, as an agent of the government of
the State of New York, required to deny any re
lief to the plaintiffs in furtherance of their dis
criminatory objective.
2 4
P O I N T I I I
The restrictive agreement in this action is
void as contrary to the present public policy of
New York and the United States.
It is axiomatic that an agreement violative of
and repugnant to the public policy of the juris
diction constitutes a void contract. The contra
vention of public policy by racial restrictive
covenants has not been passed upon by any ap
pellate court in New York State, but it has been
before the Supreme Court in Westchester County
in Ridgway v. Cochburn, 163 Misc. 511, and de
cided to be insufficient as a basis for declaring the
agreement then before that court void.
Cited though Ridgway v. Cochburn is as the
New Yo.rk rule, it cannot be overlooked that it
considered the point so fragmentarily as to have
amounted to no determination.
It is either the public policy of this state to
decry discrimination wherever it appears, or it
is the state’s attitude to ignore it as lacking suffi
cient importance to warrant the formulation of a
policy on the subject. The second alternative,
being that of abetting, activating and implement
ing discrimination is so inconceivable as to merit
no discussion.
Since, as said in Mertz v. Mertz, 271 N. Y. 466
471, the public policy of a state is based on its
statutes, then it is proper that a full examination
on the subject of discrimination be made of the
statutes in force in this state, as an aid to de
termining the official attitude of this jurisdiction.
The New York statutes contain the following
laws directed at curtailing racial and religious dis
crimination :
25
Civil Rights Law, Sections 40, 40(a) and 40(b),
forbids discrimination in places of public accom
modation and to applicants for official positions
in the public schools.
Civil Rights Law, Section 41, provides a pen
alty to a person aggrieved by discrimination for
bidden by the foregoing section.
Penal Law, Section 514, makes certain classes
of discriminato.ry practices criminal conduct pun
ishable as misdemeanors.
Penal Law, Section 1191 (4), forbids discrimina
tion by life insurance companies with regard to
premiums and policies.
Public Housing Law, Section 223, prohibits dis
crimination.
Labor Law, Section 220 (e), forbids contractors
on public works projects from discriminating in
hiring or employment practices.
There have also been enacted since the Ridg-
way v. Cockburn decision, supra, two significant
pieces of legislation which are exceptionally clear
on the subject of the policy of this state on dis
crimination.
Executive Law, Section 125, reads, in part, as
follows:
“ * * * the legislature hereby finds and de
clares that practices of discrimination against
any of its inhabitants because of race, creed,
color or national origin are a matter of state
concern, that such discrimination threatens
not only the rights and proper privileges of
its inhabitants but menaces the institutions
and foundations of a free democratic state.”
(Adopted 1945)
It seems especially significant that, although
this law relates to employment and related prac-
26
tices, the preamble is not addressed solely to
discrimination in that field, bnt is a declaration
that any racial or religious discrimination is an
undesirable policy and inimical to the state’s best
interests.
The Constitution of the State of New York
(Article 1, Section 11) reads:
“ No person shall be denied the equal protec
tion of the laws of this state or any subdivi
sion thereof. No person shall, because of
race, color, creed or religion, be subjected to
any discrimination in his civil rights by any
other person or by any firm, corporation, or
institution or by the state or any agency or
subdivision of the state.” (Adopted 1938)
(Italics ours.)
These statutory pronouncements considered to
gether constitute a legislative statement of the
public policy of this state at present date as con
demning racial and religious discrimination.
In Mertz v. Mertz, 271 N. Y. 466, the late Mr.
Justice Lehman stated (page 471):
“ The courts must always endeavor to apply
to the facts of a particular case a general rule
of law which they find expressed in statute
or judicial decision or which they formulate
to meet new conditions; and even in formu
lating a rule individual notion of public pol
icy may he given effect only where the court
finds that its notion of public policy is so gen
erally held and so obviously sound that it is
in fact a part of the law of the State.”
(Italics ours.)
Whatever may have been the public policy of
this state as determined by Ridgivay v. Cockburn
27
in 1937, there is no such paucity of statutory
enactment at this time as to warrant the applica
tion of the rule of that case to the case at bar.
The public policy of the United States con
demns racial and religious discrimination with
equal force.
In Strauder v. West Virginia, 100 U. S. 303,
308, the Supreme Court in commenting upon the
purpose of the 14th Amendment, said:
“ What is this (the Amendment) but declar
ing that the law in the States shall be the
same for the black as for the white; that all
persons, whether colored or white, shall stand
equal before the laws of the States, and, in
regard to the colored race, for whose protec
tion the Amendment was primarily designed,
that no discrimination shall be made against
them by law because of. their color? The
words of the Amendment, it is true, are pro
hibitory, but they contain a necessary impli
cation of a positive immunity, or right, most
valuable to the colored race—the right to
exemption from unfriendly legislation against
them distinctly as colored; exemption from
legal discriminations, implying inferiority in
civil society, lessening the security of their
enjoyment of the rights which others enjoy,
and discriminations which are steps toward
reducing them to the condition of a subject
race. ’ ’
Likewise in a concurring opinion in Steele v.
Louisville and Nashville R. R. Co., 67 Sup. Ct.
226, Mr. Justice Murphy stated:
“ The Constitution voices its disapproval
whenever economic discrimination is applied
28
Despite the war hysteria motivating others in
1943, the Supreme Court decided the Japanese
curfew cases on constitutional grounds. The
opinions are forthright statements of the public
policy of the United States.
The late Mr. Chief Justice Stone wrote in the
majority opinion (Ilirabayashi v. United States,
320 U. S. 81, 100):
“ Distinctions between citizens solely because
of their ancestry are by their very nature
odious to a free people whose institutions are
founded upon the doctrine of equality. For
that reason, legislative classification or dis
crimination based on race alone has often
been held to be a denial of equal protection.”
Mr. Justice Murphy concurring said at pages
110, 111:
“ Distinctions based on color and ancestry
are utterly inconsistent with our traditions
and ideals. They are at variance with the
principles for which we are now waging war.
We cannot close our eyes to the fact that for
centuries the Old World has been torn by
racial and religious conflicts and has suf
fered the worst kind of anguish because of
inequality of treatment for different groups.
There was one law for one and a different
law for another. Nothing is written more
firmly into our law than the compact of the
Plymouth voyagers to have just and equal
laws.”
u n d e r a u t h o r i t y o f la w a g a in s t a n y r a c e ,
c re e d o r c o l o r .”
29
And in the dissenting opinion in Mays v.
Burgess, 147 Fed. 2nd 869, 875, Mr. Justice
Edgerton in discussing the Fair Employment
Practices Commission as indicative of the federal
attitude of securing equality for all citizens alike,
stated:
“ I can see no sufficient distinction from the
point of view of policy, between discrimina
tion in employment and discrimination in
housing. ’ ’
Turning to written law from which public
policy may be determined (Mertz v. Mertz, supra)
the mandate in Title 8, Section 42 of the United
States Code is precise and unequivocal:
“ 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 con
vey real and personal property.”
Similarly, federal policy can be ascertained
from an examination of the Act of Chapultepec
and the United Nations Charter, both of which
pledge the United States to combat discrimination
based on race, color or religion.
The Supreme Court of Ontario in re Drum
mond Wren (Ontario Reports, 1945, page 778)
removed a land covenant containing a restriction
that:
“ Land not to be sold to Jews or persons of
objectionable nationality.”
Judge Mackay found the covenant void and of
no effect as the restriction was discriminatory
30
and repugnant to the pledges contained in the
United Nations Charter {supra).
It cannot be said, that now in the flush of a
victorious termination of a global struggle to rid
the world of “ superior race” ideologies and the
injustice, inequality and discrimination that ac
company such fictions, and the existence of solemn
pledges by the United States to further end dis
crimination (United Nations Charter, Act of
Chapultepec, supra) by which all states and judges
are bound, that an agreement by some members of
the white race which arbitrarily excludes every
member of the Negro race, solely by reason of
such color, from the enjoyment of a home which
is otherwise available to him, is in conformity
with the public policy of this State and govern
ment.
CONCLUSION
The complaint does not state a cause of action
and should be dismissed.
Respectfully submitted,
A ndrew D. W einberger,
Attorney for Defendant
Samuel Richardson.
A ndrew D. W einberger and
V ertner W . T andy, J r .,
of Counsel.
Supreme Court of New Jersey
Docket No. 1£0
State of New Jersey,
Plaintiff-Respondent,
vs.
Ralph Cooper, Collis E nglish, McK inley
F orrest, John McK enzie, James A.
T horpe and H orace W ilson,
Defendants-Appellants.
O n A p p ea l From
the C ourt o f O y er
and T erm in er o f
M ercer C ounty
BRIEF OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE AS
AMICUS CURIAE
Herbert H. Tate,
Attorney for National Association for
the Advancement of Colored People
as Amicus Curiae,
163 Belmont Avenue,
Newark 3, New Jersey
T hurgood Marshall,
(of the Maryland Bar),
Marian W ynn Perry,
(of the New York Bar),
20 West 40th Street,
New York City,
Of Counsel.
TABLE OF CONTENTS
PAGE
Statement of Interest of Amicus Curiae______ 1
Statement of Questions Involved______ ___ ... 2
Statement of the Case _____________________ 3
Statement of Facts ________________________ 3
A rgument :
I. The conviction of the defendants-ap-
pellants based upon the alleged confes
sions secured by force and duress, after
illegal arrest, during a long period of
detention is in violation of the 14th
Amendment to the United States Con
stitution _______________ ,____________ 4
II. The verdict is against the weight of the
evidence ____________________________ 15
Conclusion ________________________ _____ 19
TABLE OF AUTHORITIES
Cases Cited
Ashcraft v. Tennessee, 322 U. S. 143________ 8
Brown v. Mississippi, 297 U. S. 278 ________ 11
Canty v. Alabama, 309 U. S. 629 ___________ 11
Chambers v. Florida, 309 U. S. 227__ 4, 8, 9,11,12
Haley v. Ohio, 332 U. S. 596, 92 L. ed. Adv.
Op. 239 ---------------------------- -------------------- 10,14
Lisenba v. California, 314 U. S. 219__________ 8, 9
Lomax v. Texas, 313 U. S. 544 _____________ 11
11
PAGE
Malinski v. New York, 324 U. S. 401______8,12,13
McNabb v. U. S., 318 U. S. 332-------------------- 14,15
Vernon v. Alabama, 313 U. S. 547 ---------------- 11
Ward v. Texas, 316 U. S. 547-----------------------9,10
White v. Texas, 310 U. S. 530 -------------------- 11
Ziang Sung Wan v. U. S., 266 U. S. 1 --------- 11
Statutes Cited
New Jersey Rev. Stat. 1937, Sec. 2:216-9------ 14
United States Constitution, Amendment XIV 2
Authority Cited
President Hoover’s Commission on Law Ob
servance and Enforcement ---------------------- 14
The National Association for the Advancement
of Colored People is a membership organization
which for forty years has dedicated itself to work
ing for the broadening of democracy and securing
equal justice under the Constitution and laws of
the United States. The Association has more than
thirty branches in the State of New Jersey which
are joined together in a State Conference of
Branches for the promotion of their program.
From time to time some justiciable issue is pre
sented in the courts, upon the decision of which
depends the evolution of democratic institutions
for some vital area of our national life. The right
of a state to secure the conviction of defendants
upon confessions secured through duress is such
an issue, and one in the presentation of which the
Association has played an active role for many
years. The instant case presents that issue. For
these reasons the NAACP has requested and ob
tained leave of this Court to present this brief as
amicus curiae.
S tatem en t o f Interest o f A m icus Curiae
9
1. Whether convictions secured by confessions
obtained from defendants arrested without war
rants and who were questioned almost continually
for more than four days in the presence of many
police officers, and who were not arraigned until
after the confessions were secured, who were
not advised of their constitutional rights and of
their privilege to remain silent, were secured
under such circumstances as to violate the Due
Process clause of the Fourteenth Amendment of
the Constitution of the United States?
2. Whether the verdict of guilty was against
the weight of the evidence?
S tatem en t o f the Q u estion s In volved
3
This is an appeal by writ of error to this Court
to review a conviction for murder in the Court
of Oyer and Terminer of the County of Mercer,
New Jersey rendered on August 6, 1948 on indict
ment No. 44 of the January Term of that Court,
upon which the petit jury found a verdict of guilty
and a sentence of death was imposed.
The writ of error was filed on August 20, 1948.
S tatem en t o f the C ase
Statement of Facts
The defendants-appellants have been indicted,
tried and convicted of the murder of one William
Horner in Trenton on January 27, 1948. The six
defendants are Negroes and the deceased was a
white man. The record discloses that aside from
a highly dubious alleged identification of three of
the defendants, no evidence connecting any of
these defendants with crime was produced by the
State.
The record discloses further that four of the
five confessions secured were secured by fear and
intimidation during a long period of illegal deten
tion, constant questioning, confrontation by al
leged confederates and frequent accusations that
statements were “ lies” . The arrests of the de
fendants were illegal—flagrantly made without
warrants although there was ample time to secure
them.
4
A R G U M E N T
I.
The conviction of the defendants-appellants
based upon the alleged confessions secured by
force and duress, after illegal arrest, during a
long period of detention is in violation of the
14th Amendment to the United States Con
stitution.
In reviewing the conviction of these appellants
this Court is charged with grave responsibility.
The Supreme Court in Chambers v. Florida, 309
U. S. 227, reversing a conviction based on confes
sions induced by fear, reemphasized the challeng
ing role of our judiciary, stating:
“ Under our constitutional system, courts
stand against any winds that blow as havens
of refuge for those who might otherwise suf
fer because they are helpless, weak, outnum
bered, or because they are non-conforming
victims of prejudice and public excitement.
* * * No higher duty, no more solemn respon
sibility rests upon this Court than that of
translating into living law and maintain
ing these constitutional shields deliberately
planned and inscribed for the benefit of every
human being subject to our constitution of
Avhatever race, creed, or persuasion” (p. 241).
The convictions before this Court for review
are, like the convictions in the Chambers case,
based upon confessions secured from poor, humble
and ignorant persons in such manner as to make
“ the constitutional requirement of due process of
law a meaningless symbol” . 309 IT. S. 240
5
In this record, the law enforcement officers and
the county prosecutor frankly admit that these
defendants were arrested without warrants, ille
gally detained far beyond the forty-eight hour
statutory limitation and subjected to repeated
questioning, confrontation of supposed confed
erates, awakened at all hours of the night and per
mitted no aid, comfort or counsel during a period
of 4 to 5 days. The police testified that they were
aware that any detention of a person beyond 48
hours without arraignment was illegal (R. 2438a).
The purpose of the illegal detention was openly
admitted by the Acting Captain of the police on
the witness stand:
“ We was investigating a high misdemeanor
and we had admissions by certain ones we had
under arrest and implicated the others. That’s
the reason we held them” (R. 2437a).
At the trial it became apparent that the prose
cutor and his assistants had been willing accom
plices in this illegal detention, if not the chief ad
vocates of it (R. 5758a).
This treatment was continued until the police
and the prosecutor had decided that it had pro
duced as much in the way of statements implicat
ing the defendants in the crime as was humanly
possible.
A brief statement of the treatment by police and
prosecutors which elicited these alleged confes
sions establishes their illegality.
Collis English: Arrested without warrant Feb
ruary 6, 1948 in his home at 8.30 p.m.
6
Questioned by three or more police officers who
admitted they did not advise him of his right to
remain silent (R. 457a, 497a, 536a).
Taken twice during night to Robbinsville at
midnight and again at 5 a.m. (R. 506a, 521a).
Questioned on February 7, 8, 9 and 10 in pres
ence of many officers, confronted with men who
had made statements implicating him (R. 244a,
245a, 972a, 1242a, 2452a, 2399a). Finally the
police testified they “ told him what part he played
in the crime” and he confessed (R. 991a, 992a).
After midnight on the 10th, he signed a confession.
Arraigned on the 11th.
Ralph Cooper: Arrested without warrant on
February 7 at 6.30 or 7.00 a.m. in nearby town,
handcuffed and brought to police station (R. 524a,
556a, 588a, 617a).
Questioned at length at all hours of day and
night by many officers February 8, 9 and 10. Taken
to store where crime was committed, confronted
with alleged confederates (R. 2398a, 2401a, 2409a).
February 10 made a “ satisfactory” statement to
police (R. 2409a). About 2.30 a.m. February 11
signed statement (R. 2421a). Arraigned Feb
ruary 11 (R. 2427a).
James Thorpe: Arrested February 7 at 5.00
p.m. without a warrant (R. 4792a and 4793a).
Questioned and confronted with alleged con
federates, 7th, 8th, 9th and 10th (R. 713a, 2400a,
2401a, 2404a). About midnight February lOtli
signed statement (R. 2415a).
7
Police testified when asked by witness if state
ment was true he said “ N o” and explained he was
signing it because he would get less time (R.
2415a).
Arraigned February 11. Visited by attorney
February 12.
McKinley Forrest: Arrested without warrant
on morning of February 7 at courthouse where he
went to see what he thought would be Collis Eng
lish’s trial on charge of auto theft (R. 1393a).
Questioned 7th and 8th and at 11.00 a.m. on 8th
saw his sister for a few minutes (R. 1397a). Ques
tioned and confronted with alleged confederates
on 9th and 10th. Police testified on 10th he
thought he heard his daughter’s voice, he sobbed
and moaned and a doctor was called to provide a
sedative (R. 2405a).
About midnight February 10th he signed his
initials to statement (R. 2417a).
Arraigned February 11th in morning (R.
2427a).
John McKenzie: Arrested without warrant
February 11th. Questioned and confronted by
alleged confederates but refused to make state
ment. Arraigned same day. Made statement on
February 12th after being confronted with Mrs.
Horner because of his fear of what Mrs. Horner
might charge him with (R. 2428a).
Of these defendants only Horace Wilson, a ma
ture man of 40, was able to withstand the pressure
of the questioning. Even he signed a statement
showing his utter confusion as to what days the
police were asking him about. He told truthfully
8
of his employment on Monday and Tuesday a week
after the murder (E. 3076a). At the trial he was
able to prove that he had worked there at the time
he mentioned and at another place on the days
concerning which the police meant to get a state
ment.
Under such circumstances, these alleged con
fessions were clearly inadmissible having been se
cured by fear produced by deliberate actions of
the police and the prosecutor in flagrant violation
of the due process of law. The Supreme Court
has in many cases held that even in the absence
of physical violence, confessions which are the
product of fear, are inadmissible.
Chambers v. Florida, 309 U. S. 227;
Ashcraft v. Tennessee, 322 U. S. 143 ;
Malinski v. New York, 324 U. S. 401.
In determining whether fear existed to such an
extent as to result in a “ deprivation of his free
choice to admit, to deny or to refuse to answer”
(Lisenba v. Cal., 314 U. S. 219, 241) the Supreme
Court has always considered “ the confessor’s
strength or weakness, whether he was educated or
illiterate, intelligent or moronic, well or ill, white
or Negro” . (Opinion of Mr. Justice Jacksox,
Ashcraft v. Tennessee, 322 U. S. 143, 162, dissent
ing from reversal of conviction of a white man.)
The Supreme Court has weighed as a factor in
reaching its decisions on the admissibility of con
fessions the following characteristics of defen
dants :
that they were “ ignorant, young, colored ten
ant farmers” Chambers v. Florida, 309 U. S.
227, 238.
9
that they were “ interrogated by men who held
their very lives—so far as these ignorant
petitioners could know—in the balance” id.
p. 240.
that he was “ an ignorant Negro” — Ward v.
Texas, 316 U. S. 547, 555.
that they were “ ignorant and untutored per
sons in whose minds the power of officers was
greatly magnified” . Lisenba v. California,
314 XL S. 219, 239, 240.
Therefore this Court in determining the effect
upon the defendants of the actions of the police
and the prosecutor, must consider the prisoners
as individuals. All were Negroes. Three were
born and raised in Georgia, one in South Carolina
and one in North Carolina Only one was a native
of Trenton. Two of the defendants were com
pletely unable to read or write (R. 5252a, 2935a);
the others had little schooling. Less than one
month before his arrest James Thorpe had one
arm amputated (R. 4791a).
These are then the poor, the ignorant, the help
less, the weak and outnumbered for whom consti
tutional protections stand as a shield against that
exploitation which would otherwise be inevitable
under any system of government.
It is noteworthy that the outstanding Supreme
Court decisions invoking the protections of the
due process clause against convictions secured by
involuntary confessions have dealt almost exclu
sively with cases in which the defendants came
from the class to which these defendants also be
long. Early decisions dealt with more violent
forms of duress, yet, as Mr. Justice F rankfurter
10
said in his concurring opinion in Haley v. Ohio,
332 U. S. 596, 92 L. ed. Adv. Op. 239:
“ It would disregard standards that we
cherish as part of our faith in the strength
and well-being of a rational, civilized society
to hold that a confession is ‘ voluntary’
simply because the confession is the product
of a sentient choice. ‘ Conduct under duress
involves a choice’, Union P. R. Co. v. Public
Service Commission, 248 U. S. 67, 70, 63 L. ed.
131,132, 39 S. Ct. 24, Pun. 1919B 315, and con
duct devoid of physical pressure but not
leaving a free exercise of choice is the product
of duress as much so as choice reflecting physi
cal contraint” (p. 246).
Mr. Justice F rankfurter recognized the dif
ficulty which faces a court reviewing a record such
as this in the absence of physical or intellectual
weights and measure “ by which judicial judg
ment can determine when pressures in securing
a conviction reach the coercive intensity that calls
for the exclusion of a statement so secured” . 92
L. ed. Adv. Op. 246. Even in the absence of such
weights and measures, however, the Supreme
Court in Ward v. Texas, 316 U. S. 547 clearly
stated the standards by which it judged confes
sions to be illegally secured:
“ This Court has set aside convictions based
upon confessions extorted from ignorant per
sons who have been subjected to persistent and
protracted questioning, or who have been
threatened with mob violence or who have
been unlawfully held incommunicado without
advice of friends or counsel, or who have been
taken at night to lonely and isolated places for
questioning. Any one of these grounds would
be sufficient cause for reversal” (p. 555).
11
citing:
Ziang Sung Wan v. United States, 266
U. S. 1, 14;
Brown v. Mississippi, 297 U. S. 278;
Chambers v. Florida, 309 U. S. 227, 241;
Canty v. Alabama, 309 U. S. 629;
White v. Texas, 310 U. S. 530;
Lomax v. Texas, 313 U. S. 544;
Vernon v. Alabama, 313 U. S. 547.
It is clear that the alleged confessions of English,
Thorpe, Forrest and Cooper were secured by two
of the means proscribed in the Ward case—per
sistent and protracted questioning by police and
unlawful detention incommunicado.
Remembering that these defendants were sub
jected to protracted interrogations lasting into the
early hours of the morning while confined for four
days and questioned without formal charge, that
two were arrested without warrants in a small
farm tenant house, the decision of the Supreme
Court in Chambers v. Florida, 309 U. S. 227, con
tains a description of “ lawless means” which
most accurately describes the methods by which
these confessions were secured:
“ For five days petitioners were subjected to
interrogations culminating in Saturday’s
(May 20th) all night examination. Over a
period of five days they steadily refused to
confess and disclaimed any guilt. The very
circumstances surrounding their confinement
and their questioning without any formal
charges having been brought, were such as to
12
fill petitioners with terror and frightful mis
givings. Some were practical strangers in
the community; three were arrested in a one-
room farm tenant house which was their home;
the haunting fear of mob violence was around
them in an atmosphere charged with excite
ment and public indignation from virtually the
moment of their arrest until their eventual
confessions, they never knew just when any
one would be called back to the fourth floor
room and there, surrounded by his accusors
and others, interrogated by men who held
their very lives—so far as these ignorant peti
tioners could know—in the balance. The re
jection of petitioner Woodward’s first ‘ con
fession’, given in the early hours of Sunday
morning, because it was found wanting,
demonstrates the relentless tenacity which
‘ broke’ petitioners’ will and rendered them
helpless to resist their accusors further” (p.
240).
That the petitioners in the Chambers case were
ignorant and were Negroes, added weight to the
evidence that the confessions were involuntary.
So here the methods used by the police considered
in the light of the humble position of the defen
dants gives added weight to the charge that these
confessions were involuntary, produced by fear of
the power of the police.
Of this entire procedure the Supreme Court
said in the Chambers case “ To permit human lives
to be forfeited upon confessions thus obtained
would make of the constitutional requirements of
due process of law a meaningless symbol” (p.
242).
More recently in Malinski v. New York, 324 U. S.
401>, the Supreme Court viewed with suspicion a
1 3
•confession where the illegal detention was of
shorter duration—3 days—and the questioning
was not particularly protracted, yet the purpose of
the illegal detention and the confrontation of Ma-
linski with his alleged confederates was precisely
to create a state of mind in which a confession
would be secured. Adding to that suspicion, the
statement of the prosecutor in his summation that
“ ‘ Malinski was not hard to break’ ; that ‘ lie did
not care what be did, he knew the cops were going
to break him down’ ” (p. 407), the Supreme Court
concluded “ If we take the prosecutor at his word,
the confession of October 23 was the product of
fear— one on which we could not permit a person
to stand convicted of a crime” (p. 407).
Again there is a striking similarity to the Tren
ton case for the prosecutor there in his summation
spelled out the psychological terror by which these
confessions were induced—by which these men
were “ broken” :
“ We had a lead on the murder. The police
were on the move to protect your lives. * * *
They worked four continuous nights, no sleep,
* * * They got the lead * * * (R. 5757a).
“ Remember the police now had the wedge in
this case. Why, it ’s common sense; what hap
pens ; You have one man who has made an ad
mission of his participation in the crime, you
confront him with another one, and you try
to show him you know about this, that he Avas
in it. What happened? Cooper broke. So
you use the two to confront a third man. So
they figure these two men have admited their
participation, I guess I ’m next. And that’s
the way the six of them—except that McKen
zie did not come in until much later” (R.
5758a).
14
Again, in the Haley case, supra, Mr. Justice
F rankfurter’s concurring opinion gives weight to
the fact that the securing of a confession “ was the
very purpose” of the police procedure, stating:
* ‘ Of course, the police meant to exercise pres
sures upon Haley to make him talk” (p. 246).
This Court is called upon to invoke on behalf of
these helpless defendants the constitutional pro
tection intended to prevent the police from “ using
private secret custody of either man or child as
a device for wringing confession from them.”
Haley v. Ohio, supra, p. 243. Although during the
conduct of the trial every effort was made to im
press upon the jury the need to uphold the police
in the methods used in order to maintain respect
for law enforcement, no such consideration is pos
sible or necessary as a justification for methods
proscribed by the constitution.
Our society condemns the secret protracted
questioning of suspects by the police. President
Hoover’s National Commission on Law Observance
and Enforcement found that the abuse of police
power under such circumstances was actual and
extensive, but even more important the report of
that Commission found that the tolerance of such
methods was not necessary nor desirable for the
suppression of crime. As the Supreme Court said
in McNahh v. U. S., 318 U. S. 332, there exists an
impressive list of state statutes requiring that ar
rested persons be promptly taken before the com
mitting authority, including New Jersey Rev. Stat.
1937, Sec. 2 :216-9. Analyzing the purpose of this
legislation, the Supreme Court found it inherent
15
in a democratic society, which respects the dignity
of all men, as a safeguard against the misuse of
the law enforcement process, and there said:
“ Zeal in tracking down crime is not in itself
an assurance of soberness of judgment. Dis
interestedness in law enforcement does not
alone prevent disregard of cherished liberties.
Experience has therefore counseled that safe
guards must be provided against the dangers
of the overzealous as well as the despotic.
The lawful instruments of the criminal law
cannot be entrusted to a single functionary.
* * * Legislation such as this, requiring that
the police must with reasonable promptness
show legal cause for detaining arrested per
sons, constitutes an important safeguard—
not only in assuring protection for the inno
cent but also in securing conviction of the
guilty by methods that commend themselves
to a progressive and self-confident society.
* * * It reflects not a sentimental but a sturdy
view of laAv enforcement. It outlaws easy
but self-defeating ways in which brutality is
substituted for brains as an instrument of
crime detection” (p. 344).
The violation of due process here is so flagrant
that the admission of these fear induced confes
sions was a clear denial of due process of law call
ing for a reversal of the conviction by this Court. II.
II.
The verdict is against the weight of the
evidence.
The sixteen volume record in this case is a
monument to confusion—not because the issues
are unclear or the testimony technical, but because
■the simple, untutored defendants were subjected to
1 6
“ tricky” cross examination and testimony of
every witness was so lengthened and repetitious as
to be confusing even on second and third reading.
Throughout the record there shine two aspects
of the trial—one that the Negro in Trenton was
treated as he would have been in the South—and
the other that the trial was perverted from a
search for the truth into a search for support for
the prestige of the police of Trenton.
The prosecution has sought to make much of the
fact that these men did not insist upon constitu
tional rights at the time of their arrest and illegal
detention. Speaking of the police invasion of "Wil
son’s home for the purpose of arresting Wilson
and Cooper without a warrant the prosecutor asks
why both these men were found in bed in the early
hours of the morning and he states “ An innocent
man doesn’t react that way. An innocent man
would have stood up and said ‘What right have
you to be here’ ” (R. 5741a). This Court should
remember that these were second class citizens.
These were not persons who from their infancy
have been taught their right to stand up as an
equal of a white man—much less white policemen.
Alleged “ confessions’ aside, the evidence
amounts to nothing. No jury could be free of a
reasonable doubt.
Without the confessions, the state’s case is as
follows:
Elisabeth McGuire Horner who lived with de
ceased:
On January 16 a Negro went into the second
hand store and looked at a mattress. The store
17
is in a neighborhood immediately contiguous to
the main “ black ghetto” in which Trenton’s
Negroes are forced to live. On January 20, two
other Negroes came in and paid $2.00 deposit on a
mattress and got a receipt (E. 237a, 239a).
On January 26, two Negroes came back and one
said he wanted the deposit back. The Negro identi
fied as McKinley Forrest signed a receipt (E.
241a).
On January 27 three Negroes came in to the
store and two went back to see the mattress again,
and two went into the back room and one remained
in front with the witness. This witness was hit
on the head and lost consciousness and some time
later the body of the deceased was found (E. 247a-
252a). In his pocket was a roll of bills containing
$1,570 (E. 453a).
Frank Eldracher:
His car was parked near the store. He saw two
Negroes, one tall and dark, one short and light,
come out of store calmly, close door, walk down
the street. Then door opened and Elizabeth Mc
Guire Horner called for help—with blood on her
face (E. 359a).
Police Officer Dennis:
Found two bottles of “ step up” in store— one
broken, one near body (E. 351a and 353a).
A. Kokenakis:
Has store in Negro neighborhood; sold two
bottles of “ step up” to Negroes the day of the
murder (E. 440a-446a).
1 8
Two people, according to this evidence saw men
who might, have been the assailants. But only one
identified any of them, and that identification was
most flimsy. For although Elizabeth McGuire
Horner claimed to have seen two Negro men con
cerned with the murder on two successive days,
yet two weeks after the murder, when she saw the
defendants at the police station, she was unable to
identify them (R. 277a). She testified she later
recognized four of the defendants from photo
graphs furnished by Police (R. 278a-283a). At the
trial however, she identified one defendant (Ralph
Cooper) as the man who came in to look at a mat
tress January 16, two defendants (McKinley For
rest and Collis English) as having come in three
times, once to pay a deposit, six days later to get
the deposit back, without question, and the third
time the day of the murder, and the fourth de
fendant (Horace Wilson) as having come in on
the day of the murder and discussed with her the
purchase of a stove. Having had such knowledge
of the men she could not identify them face to
face shortly after their arrest. Her memory had
to be refreshed with photographs of the accused
men taken by the police. Surely this is a most
unsatisfactory—in fact incredible—identification.
Particular doubt is cast upon the identification of
McKinley Forrest by the fact that Mrs. Horner
definitely said he was the one who signed a re
ceipt in a false name. There was uncontroverted
evidence that McKinley Forrest is illiterate, un
able even to sign his own name (R. 5252a).
The other witness, who saw two Negroes come
out of the store, Mr. Eldracher, did not identify
any of the defendants as the men he saw.
19
Even assuming that the two bottles of “ step
up” had been connected with the crime, the woman
who sold two bottles of “ step up” to two Negroes
did not recognize any of the defendants and did
not connect them in any way with the crime.
John McKenzie was not connected with the
crime by any witness and Ralph Cooper’s only
connection with the scene of the crime was Eliza
beth McGuire Horner’s testimony that ten days
before the crime he looked at a mattress in the
store.
That any person should lose his life in the elec
tric chair by such flimsy evidence would strike a
blow at the roots of justice. That six Negroes
should die when only the most questionable iden
tification connecting them with the crime has
been made of three intensifies the injustice and
heightens the danger to justice.
Conclusion
It is therefore respectfully submitted
that the conviction of these defendants
in the Court below should be reversed.
H erbert H. Tate,
Attorney for National Association
for the Advancement of Colored'
People as Amicus Curiae.
T htjrgood Marshall,
(of the Maryland Bar)
Marian W ynn Perry,
(of the New York Bar)
Of Counsel.
-
.
[7139]
L a w y e r s P ress, I n c ., 165 William St., N. Y. C. 7; ’Phone: BEekman 3-2300
1 9 4 6
SENATE OF THE UNITED STATES, 79th CONGRESS
S P E C IA L C O M M I T T E E T O I N V E S T I G A T E
S E N A T O R I A L C A M P A I G N E X P E N D I T U R E S
IN THE MATTER
of
THE INVESTIGATION OF THE MISSISSIPPI
DEMOCRATIC P R I M A R Y CAMPAIGN OF
SENATOR THEODORE G. BILBO, SENATOR,
STATE OF MISSISSIPPI
BRIEF FOR THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE
Charles H. H ouston
T hurgood Marshall
Counsel for the National Association for
the Advancement of Colored People.
Robert L. Carter
Marion W . Perry
F ranklin H. W illiams
of Counsel.
1 9 4 6
SENATE OF THE UNITED STATES, 79th CONGRESS
S P E C IA L C O M M I T T E E T O I N V E S T I G A T E
S E N A T O R I A L C A M P A I G N E X P E N D I T U R E S
In the M atter
of
T he I nvestigation of the M ississippi D emocratic
Primary Campaign op Senator T heodore G.
B ilbo, Senator, S tate oe M ississippi.
T o : T he H onorable, T he M embers op the Special Committee to
I nvestigate S enatorial Campaign E xpenditures— 1946:
The National Association for the Advancement of Colored People
respectfully requests leave to file the accompanying supplemental brief
in the above-named investigation.
The National Association for the Advancement of Colored People
for more than 37 years has dedicated itself to and worked for the
achievement of a functioning democracy and equal justice under the
Constitution and laws of the United States. This organization now
represents 1407 branches in 44 states and the District of Columbia with
a membership of more than 500,000. Its membership includes persons
of all races and creeds.
From time to time, issues are presented to the courts and the legis
lative bodies of the United States, the decision of which charts the
future course of the evolving institutions in some vital area of our
national life. Such an issue is presently being considered by your
Committee.
2
The purpose of the immediate investigation is to ascertain whether
the conduct of Senator-elect Theodore G. Bilbo, of Mississippi, during
his 1946 Democratic Primary campaign in the said state was of such
a nature as to taint with fraud and corruption the credentials for a
seat in the Senate of the 80th Congress by the said Senator-elect
Theodore G. Bilbo.
In behalf of our one-half million members and the people of the
United States generally who are interested in the qualifications of our
national legislators, the National Association for the Advancement of
Colored People submits this brief for your consideration and respect
fully urges that Senator-elect Bilbo be denied a seat in the Senate of
the United States for the 80th Congress on the grounds that his acts
and conduct during the 1946 Democratic Primary campaign in the
State of Mississippi were contrary to sound public policy, harmful to
the dignity and honor of the Senate, dangerous to the perpetuity of free
government and have tainted with fraud and corruption his credentials
for a seat in the Senate.
Charles H. H ouston
T hurgood M arshall
Counsel for the National Association for
the Advancement of Colored People.
R obert L. Carter
M arion W . P erry
F ranklin H. W illiams
of Counsel.
3
1 9 4 6
SENATE OF THE UNITED STATES, 79th CONGRESS
S P E C IA L C O M M I T T E E T O I N V E S T I G A T E
S E N A T O R I A L C A M P A I G N E X P E N D I T U R E S
I n the M atter
of
T he I nvestigation of the M ississippi Democratic
P rimary Campaign of S enator T heodore G.
B ilbo, S enator, State of M ississippi.
BRIEF FOR THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE
Nature of the Case
The Special Committee to Investigate Senatorial Campaign Ex
penditures for 1946 was appointed pursuant to Senate Resolution No.
224, 79th Congress, 2d Session. One of the specific considerations
included within the scope of its powers was the investigation of the 1946
Democratic Primary campaign conducted by Senator-elect Theodore
G. Bilbo, Democrat, of the State of Mississippi. The Committee, having
held public hearings in the City of Jackson, Mississippi, on the 2nd,
3rd, 4th and 5th days of December, 1946, is now required to report its
findings to the Senate and its recommendations for action to be taken
thereon.
I* is respectfully submitted that this report should show that
Senator-elect Bilbo was guilty of acts and conduct which were contrary
4
to sound public policy, harmful to the dignity and honor of the Senate,
dangerous to the perpetuity of free government and of such a nature
as to taint with fraud and corruption the credentials for a seat in the
Senate presented by him; and, that based thereon the Senate should
exclude him from a seat within its body for the 80th Congress by a
majority vote at the time he presents himself to take the oath of office.
An examination of the testimony, law, and precedents establishes
that:
I.
The acts and speeches of Senator Bilbo in his primary campaign
were contrary to sound public policy, constituted a known, open, and
notorious violation of the rights of Negro citizens and voters of said
state to register to vote and to vote in said primary, which were guar
anteed to them by the Constitution of the United States, and his open,
notorious and persistent incitement and exhortations to the white citi
zens of Mississippi to resort to fraud and coercion to deny and deprive
Negro citizens and voters of Mississippi of their right to register and
vote in said primary so guaranteed them by the Constitution of the
United States, constitute conduct contrary to sound public policy,
harmful to the dignity and honor of the Senate, dangerous to the
perpetuity of free government and taints with fraud and corruption
the credentials for a seat in the Senate presented by Senator-elect
Bilbo.
II.
The primary election on July 2, 1946, by which Senator-elect Bilbo
was chosen the candidate of the Democratic Party in Mississippi for
the position of United States Senator from Mississippi, was not a free
election, but was so thoroughly corrupted by fraud and violence induced
or fomented by the candidate, Senator-elect Bilbo, that it must be
disregarded and any nomination based thereon held void.
5
The nomination of Senator-elect Bilbo and the placing of his name
on the ballot In the Mississippi general election November 5, 1946, as
a candidate of the Democratic Party in Mississippi, for the position of
United States Senator, is void because although Senator Bilbo received
a majority of the votes actually cast in the primary election of July 2,
1946, he did not receive a majority of the votes actually cast plus those
votes which otherwise would lawfully have been cast except for fraud,
violence and corruption to which he was privy and which he coun
tenanced and encouraged.
III.
Jurisdiction
The jurisdiction of the Special Committee to Investigate Sena
torial Campaign Expenditures, 1946, rests in Senate Resolution No.
224 as representative of the full body of the United States Senate.
The jurisdiction of the United States Senate in the instant case is
derived from Article I, Section 5, Clause 1, of the United States Consti
tution, providing that “ each House shall be the judge of the elections,
returns, and qualifications of its own members.” This provision consti
tutes each House of Congress the sole and exclusive judge of the elec
tions and qualifications of its own members and deprives the courts of
jurisdiction to determine those matters.1 Senatorial precedents, par
ticularly those established in the cases of Senator-elect Frank L. Smith
of Illinois, Senator-elect William S. Yare of Pennsylvania and others
hereinafter cited, recognize the jurisdiction of the Senate to take the
action requested in this brief.
Statement of Facts
The background against which Senator-elect Bilbo conducted his
primary campaign and the political climate in which he made his exhor
tations to the people of Mississippi must be understood for a correct
appraisal of the gravity of his actions.
1 B a rry v. United States, 279 U. S. 597; K ilbourn v. Th om pson , 103 U. S. 68.
See also: 107 A. L. R. 206.
6
Mississippi is the state with the largest Negro population in pro
portion to the white population. Statewide it is within a few thousand
of the total white population. In some counties there is a large pre
ponderant Negro population (Transcript, p. 765). This has caused
white Mississippians to have a morbid fear of Negro political domi
nation.
In 1890 Mississippi amended its state constitution for the purpose
of establishing white political domination over the Negro.
“ Purposely that amendment was written by Senator George
and adopted by the legislature in 1890, as they were trying to
escape reconstruction and what had been wreaked upon the
people in the South through a war-crazed gang in Washington
that adopted the Fourteenth and Fifteenth Amendments, to use
that as a means to eliminate the Negro from the polls.” (Bilbo,
p. 780).
From 1890 to 1946 the white people had the Democratic primary
elections in Mississippi to themselves; there was no effective party of
opposition and nomination in the primary was tantamount to election.
(Testimony of T. B. Wilson, p. 21, Percey Greene, p. 54, Reverend Stan
ley R. Brav, p. 98, E. R. Sanders, p. 619, Ben Cameron, p. 813, Bilbo,
pp. 731, 754.)
Although Senator-elect Bilbo had to face four opponents in the
primary election, not a vote was cast against him in the general elec
tion November 5, 1946 (p. 731).
In 1944 the United States Supreme Court decided the Texas pri
mary case, Smith v. Alhvright (321 U. S. 649); in 1946 the United States
Circuit Court of Appeals, Fifth Circuit, decided the Georgia primary
case, King v. Chapman (154 F. (2d) 460). Both cases decided that
qualified Negro voters could not be barred from a primary election
which was under substantial state regulation and an integral part of
the election process. The cases were officially considered by the State
Democratic Executive Committee in Mississippi to determine whether
it would thereafter be possible to continue to bar all Negroes from the
7
Mississippi Democratic primaries. The State Democratic Executive
Committee decided that thereafter the Negro had a legal right to vote
in the Mississippi Democratic primaries, but that it did not want him
to vote. This decision was reached before Senator Bilbo began his
active primary campaign, and is a vital part of the background against
which he campaigned. (Testimony of George Butler, member State
Democratic Executive Committee, pp. 823-830.)
In 1946 Mississippi passed a law exempting veterans from pay
ment of poll taxes under certain conditions. A great movement of
Negro veterans to register took place all over the state; aided by per
sons interested in making the base of Mississippi elections more rep
resentative of the people and of raising the Negro to first class citizen
ship. There were 66,972 discharged Negro veterans in Mississippi,
and practically 100% of them could read and write. (See statistics and
discussion by Committee, pp. 491-493.)
Negroes organized a state wide voters league with local chapters.
For the first time since 1890 the white people of Mississippi saw a
substantial threat to their exclusive control of the Democratic primary.
Senator Bilbo further knew that because of his past Negro-baiting and
insulting conduct Negroes would vote against him, and that a sub
stantial Negro vote would be sufficient to throw the primary election
against him. Senator Bilbo was on the spot. It was against this back
ground, in this political climate and with the certain knowledge that
unless he eliminated the Negro voter from the primary election July 2,
1946 his political career was ended, that he conducted a studied, per
sistent and unrestrained campaign to eliminate the Negro voter from
the primary.
Senator Bilbo at the hearings did not deny the substance of the
newspaper reports and other charges against him of advocating the
suppression of the Negro vote in the primary, except to deny that he
had advocated the use of violence or illegal means. He admitted that
if he could have “ legally” prevented it not one Negro would have voted
in the primary (p. 777), that he advocated persuasion to keep the Negro
from the polls and that the best way to do it was to visit the Negro
8
the night before the election (p. 784); that he might be guilty of sug
gesting heroic treatment of certain people (p. 789) and riding them
out of town on a I'ail (p. 769) because the white people of Mississippi
were sitting on a volcano (p. 770). He admits he exhorted red-blooded
white men to protect Mississippi from political control by Negroes,
but denies he advocated the use of other than lawful means (p. 747). It
is significant that the uniform reports of the press and the testimony
of the complaining witnesses uniformly fail anywhere to show that
the Senator limited himself at any time to “ lawful means” .
Senator Bilbo filed the script of his last radio talk just before the
primary to prove he advocated “ lawful means” only. The fact the
script contains such a passage is no proof that in the heat of his speech
he actually used the phrase or so limited himself. Significantly enough
the Senator does not testify that he followed the speech verbatim, and
nobody in the record testified he knew that the Senator limited him
self always to advocacy of “ lawful means” . A few defense witnesses
said they had not heard him advocate violence or said they felt he would
not do so ; but that is all.
The Committee witnesses testified that Senator Bilbo advocated
open defiance of the United States Supreme Court decision in Smith
v. Allwright (Collier, p. 420); appealed to local officials to keep the
Negro away from the polls (Wilson, p. 325); advised registration clerks
to disqualify them by trick questions on the constitution (Bender, p.
160; Dickey, p. 344); advised the election officials not to count Negro
ballots but to put them aside in envelops (Jones, p. 186); promised
to defend any white person who got in trouble for keeping a Negro
from voting (Wilson, p. 15; Bender, p. 160), and assured the white
people they would be safe from conviction since they would have to be
tried before a white judge and a white jury (Bender, p. 160; Parham,
p. 258; Bilbo, p. 764). He called the spectacle of Negroes voting in
substantial numbers in the Gulfport municipal election June 4, 1946,
a damnable exhibition of demagoguery (Strype, p. 301), and stated
that Negroes were just 150 years from cannibalism (Hightower, p.
712). Senator Bilbo admits he urged Negroes to stay away from the
polls (p. 767).
9
The record refutes the view of certain members of the Committee
that Senator Bilbo’s speeches had no effect on the white population and
the potential Negro voters. “ But this year that opposition was in
creased, in this special election that opposition was increased, it was
intensified. . . . On account of the people were afraid that Mr. Bilbo’s
advices to the white people to refuse to register them, and the people
knew, knowing the people as they do, they thought that they would
take that instruction not to register them, and they found they were
doing that to some extent, and they feared to go.” (Wilson, p. 19).
“ I heard the speeches and saw them in the press releases, and I felt
some of the fear that I think was engendered by the speeches.” (Greene,
p. 39). Reverend Bender testified he heard Negroes in all parts of the
state express themselves as afraid to register or vote because of Senator
Bilbo’s speeches (p. 163). Witness after witness testified that Senator
Bilbo’s speeches intimidated the Negro voters (Spates, p. 189; Wolfe,
p. 208; Reed, p. 217; Strype, p. 300; Dickey, p. 350; Love, p. 489; Eiland,
p. 519; Franklin, p. 633). “ I stated that because of broadcasts and the
news, there were a number who were afraid to vote. . . . I am referring
to Senator Bilbo’s campaign speeches.” (Moore, pp. 232-233).
Witnesses further testified that his speeches stirred up the white
people. “ I had several white friends in Grenada that said they didn’t
appreciate the speeches coming from Senator Bilbo, that it was accumu
lating hatred between the Negro and the white man in the State of Mis
sissippi.” (Hightower, p. 710; see also: Collins, pp. 530-538; Wilson,
p. 561.) Emmett E. Reynolds, Circuit Clerk, Louisville, testified con
cerning Senator Bilbo’s speeches: “ Well, of course, it didn’t do me
any good to hear those things.” (p. 381). One of the witnesses called
by Senator Bilbo himself testified: “ I think the statements attributed
to Senator Bilbo were for the purpose of getting the unthinking white
men to vote for him . . . Well, a man that would vote for him on some
matter of prejudice rather than policy or something of that sort.”
(Creekmore, pp. 820-821).
In a state-wide political campaign it is impossible to explore the
mind of each individual voter or citizen, but the fact that so many
10
Negroes and white people would volunteer to come at their own expense,
without the protection of subpoena, to testify to the general state of
intimidation and fear caused by Senator Bilbo’s speeches—realizing
they had to return to their home communities and face the officials they
testified against— shows that if the Committee had been as energetic
and solicitous in using its subpoena power to produce testimony against
the Senator as it was solicitous in producing or trying to produce testi
mony for him, the record would have shown the full extent of the intimi
dation and terror caused by Senator Bilbo’s campaign speeches.
As it was the witnesses who did appear represent a true sampling
of the various sections of the state: *
Father Strype, Pass Christian (S. E. Mississippi)
Dickey, McComb (S. W. Mississippi)
Love, Gulfport (S. E. Mississippi)
Eiland, Louisville (E. Central Mississippi)
Franklin, Tougaloo (Central Mississippi)
Hightower, Grenada (N. Central Mississippi)
Collins, Greenwood (N. W. Mississippi)
Clark Wilson, Greenwood
Reynolds, Louisville
Creekmore, Jackson (Central Mississippi)
Spates, Jackson
Wolfe, Jackson
Reed, Jackson
No serious attempt was made to deny wholesale fraud and intimi
dation of Negro voters in the registration and voting in the July 2, 1948
primary, both by officials and by white private citizens.
Qualified Negro voters were denied registration by trickey, catch
questions put to them by the Circuit Clerks (McComb, N. Lewis, p. 269;
M. Lewis, p. 320; Greenville, Brown, p. 134; Dody, p. 139; Myles, pp.
146-147; Tylertown, Dillon, p. 608). The Circuit Clerk took the stand
and admitted they put questions to Negroes which they did not put to
white, and made it harder for Negroes to register than white (Cocke,
p. 365, Holmes, p. 395). The Circuit Clerks would procrastinate and
* See: Appendix A.
11
At the polls Negroes were challenged on the ground they had not
been affiliated with the Democratic party for two years, whereas the
Mississippi statute, sec. 3129, Miss. Code, 1930, merely requires “ with
in” two years (Affidavit, Junkin, election manager, p. 646). Negroes
were assaulted at the polls by peace officers (Bender, p. 159; Daniels,
pp. 282-287; Williams, p. 506). Peace officers refused to protect
Negroes at the polls when others assaulted them (Collier, p. 412).
Election officials refused to let Negroes deposit their ballots in the
ballot box, without stating the ground of challenge except that all Negro
ballots were to be placed in envelops— exactly what Senator Bilbo had
instructed (Lovelady, p. 109, Hodges, p. 117, Hunter, p. 124; Jones, p.
183, Harris, p. 222, Wilson, p. 222, Knott, p. 222).
Instead of officials upholding the rights of qualified Negroes to
vote and giving them protection, they uniformly advised Negroes to
surrender their rights to register and vote “ to avoid trouble” (Hathorn,
p. 102, Parham, p. 248, Reynolds, p. 377, Moore, pp. 402, 407, Collins, p.
527, Moore, p. 597, Raiford, p. 613, Hightower, p. 707, Bostick, p. 719).
In some places, the officials themselves just flatly refused to let any
Negro vote (e. g., Pass Christian,— Strype, pp. 295, et seq., Guyot, p.
309, Roberts, p. 313, Garriga, p. 649).
White private citizens, with the certain knowledge and advice of
Senator Bilbo that they were safe from conviction, added their share
of intimidation and violence to keep Negroes from registering and
voting (Fletcher, pp. 56, 81; Hathorn, p. 102; Bender, p. 158; Parham,
pp. 247, 250; Collier, p. 412; Prichard, p. 582). They joined with officials
or acted alone in advocating and advising Negroes not to exercise their
rights to register and vote in the primary “ to avoid trouble” (Collins,
p. 527, Steele, p. 558; see also Dickey, p. 346, Parham, p. 257).
d e la y r e g i s t r a t i o n o f N e g r o e s ( D o w d y , p . 1 3 7 ; G l a d n e y , p . 4 5 1 ; E i l a n d ,
p . 5 1 5 ; H a m m , p . 6 9 6 ) . N e g r o e s w e r e p r e v e n t e d f r o m r e g i s t e r i n g b y
t h r e a t s o f v io le n c e f r o m p e a c e o ffic e rs ( L e w i s , p . 2 3 8 ).
12
It apparently never penetrated the consciousness of Senator Bilbo,
any Mississippi official or white citizen working with them that the
guarantee of a rule of law and order lies in upholding legal rights, not
in surrendering them. Once again those witnesses testifying to sup
pression, fraud and violence come from all sections of the State, show
ing the conditions were not localized but were state wide.
Mississippi law requires that where a candidate does not receive
a majority of the votes cast in the primary he shall enter a run-off
primary even if he otherwise leads the field (Miss. Code, 1930, secs.
3109 et seq.). Senator Bilbo merely claims a primary majority of
3,834 votes, but when the large Negro population and 66,972 discharged
Negro veterans in Mississippi are considered it is plain his majority
vanishes.*
“ Of course, I knew they were going to vote against me
because they were being organized and led to the polls by the
C. I. O.-P. A. C. and all this Communistic bunch, men like Bloch
yonder. The C. I. 0. had representatives here in the hotels
throughout the campaign. They put up the money in the cam
paign. They helped to organized and all that. They were mess
ing with the nigger. . . . No, sir, I didn’t want any of them to
vote. . . . Would you want somebody to vote that you knew was
going to vote against you.” (Bilbo, pp. 782-783).
We submit that the testimony shows a state-wide condition of in
timidation not merely of individual Negroes, but of large blocks of
Negroes (e. g. Pass Christian, p. 297; Jackson, p. 42; Greenwood, pp.
538-539; Holly Springs, p. 675; Grenada, p. 723).
“ The only other thing I did was to ask them to read the
section of the Constitution of the State of Mississippi where it
explains the election of the Governor of the State of Mississippi.
I did not require that of the whites, but I did require it of the
* We further challenge the election of Senator Bilbo on the ground that at the
minimum he should have been thrown into a run-off primary under Mississippi law
on the ground that he did not have a true majority of the votes cast at the primary
election and of the votes which lawfully would have been cast therein except for
fraud and coercion induced and fomented by him.
1 3
colored. . . . I have no other reason than that they were col
ored. . . . As I said a little while ago to this gentleman (indi
cating the Chairman) we want the primaries white and anything
that will make it a little bit harder for the colored man to become
a voter, that is the way I look at it.” (Clifford R. Field, Circuit
Clerk of Adams County, Natchez, pp. 731, 739).
Leaving out the inherent vice of the primary election as a con
trolled, restricted election, the facts conclusively demonstrate that
Senator Bilbo did not receive the nomination by an expression of a
majority of the qualified Democratic voters of Mississippi, through the
primary held July 2, 1946, and that under Mississippi law he was
improperly on the ticket in the general election November 5, 1946, and
that his election is therefore irregular and void.
I.
The Right of Negroes to Vote in Primary Elections W as
W ell Established Prior to the Campaign of
Senator-elect Bilbo
The United States is a constitutional democracy. Its organic law
grants to all citizens a right to participate in the choice of elected
officials without restriction because of race. The right of citizens not
to be discriminated against because of race in voting at general elec
tions has never been questioned since the adoption of the 15th Amend
ment. The right of citizens to register and qualify as electors without
distinction as to race or color has been firmly established in the cases
of Lane v. Wilson1 and Guinn v. United States.1 2 It is therefore clear
that the right to vote in the election of federal officers and the right to
do so without distinction as to race or color are rights grounded in the
federal Constitution. These rights protected by the federal Consti-
1 307 U. S. 268.
2 238 U. S. 347.
1 4
“ Where the state law has made the primary an integral part
of the procedure of choice, or where in fact the primary effec
tively controls the choice, the right of the elector to have his
ballot counted at the primary, is likewise included in the right
protected by Article I, Section 2. And this right of participation
is protected just as is the right to vote at the election, where the
primary is by law made an integral part of the election ma
chinery, whether the voter exercises his right in a party primary
which invariably, sometimes or never determines the ultimate
choice of the representative. ’ ’
Prior to the primary campaign of Senator-elect Bilbo, the right
of Negroes to vote in such primary had been clearly established. In
the case of Smith v. Allwright, the United States Supreme Court recog
nized the right of Negro electors to vote in primary elections in states
where the primary is an integral part of the election machinery of the
state. This principle was re-emphasized in the case of King v. Chap
man.11
t u t i o n e x t e n d t o e a c h a n d e v e r y s te p o f th e e le c to r a l p r o c e s s a n d e m
b r a c e p r i m a r y a s w e ll a s g e n e r a l e le c t io n s .3 A s th e U n i t e d S t a t e s
S u p r e m e C o u r t s a id in th e ca se o f U nited S ta tes v . C lassic:
A. In Mississippi the Primary Is by Law an Integral
Part of the Election Machinery
The Constitution and statutes of Mississippi affecting and control
ling the conduct of primary elections in that state are of such an all-
inclusive nature that party primaries are clearly an integral part of the
election machinery of that state.
Article XII, Section 248 of the Constitution of Mississippi pro
vides: “ The legislature shall enact laws to secure fairness in party
primary elections, conventions, or other methods of naming party
candidates.” In interpreting this constitutional provision it was held
3 Sm ith v. A llw righ t, 321 U. S. 649; United S tates v. Classic, 313 U. S. 299.
4 154 F. (2d) 460 (C. C. A. 5th, decided March 6, 1946).
15
that it authorizes the nomination of public officers by primary election
exclusively.5
Article XII, Section 249 of the Constitution of Mississippi pro
vides: “ . . . registration under the Constitution and laws of this state
by the proper officers of this state is hereby declared to be an essential
and necessary qualification to vote at any and all elections.”
Pursuant to the constitutional requirement contained in Section
247, the Mississippi State Legislature enacted an entire chapter of the
Code, devoted solely to primary elections. (Title 14, Chapter 1, Sec.
3105-3203-Miss. Code-1942.) These statutes control every conceiv
able phase in the operation of a party primary in the state. In Section
3105, the following language can be found: “ All primary elections
shall be governed and regulated by election laws of the state in force
at the time the primary election is held . . . ” Thus, in the statute,
there appears the clear intent of the state to make party primaries an
integral part of its election machinery.
The statutes affecting and governing primary elections run the
gamut of control from modes of nominating state, district, and other
officers (3105), dates of primaries (3110, 3111) as amended by Laws
of 1944 (ch. 173), manner of recording registrants (3112, 3113, 3114),
form of ballot (3124), ballot boxes (3126), voting hours (3164), to poll
tax exemptions (3199).6 The clear cumulative effect is to bring the
Democratic Party primary in Mississippi into the election machinery
of the state.
B. Primary in Mississippi Effectively Controls
Choice of Officers
The primary in Mississippi not only meets the above test, as set
forth in the Classic and Allivright cases, but also meets the alternative
test in that it “ effectively controls the choice of officers.”
5 M c ln n is v. Tham es, 80 Miss. 617, 32 So. 286.
6 Sections referred to are from the Mississippi Code.
16
The candidate who is successful in the party’s primary is assured
of victory at the general election for two reasons: (1) an unsuccessful
primary candidate may not he a candidate in the general election on
his party’s ballot (Op. Atty. Gen. 1931-33, p. 37), Ruhr v. Cowan, 146
Miss. 870, 112 So. 386; and, (2) the only candidates who may run at
the general election are those nominated in the preceding primary
(Tit. 14, Chap. 1, Sec. 3111 and 3156 Miss. Code).
No party other than the Democratic Party has held an organized,
state-wide primary in Mississippi for the last 56 years. Since 1892,
the Democratic nominees for United States Senator, Representative in
Congress, Governor and other state officers nominated at these pri
maries have been elected at ensuing general elections. For all intents
and purposes there is but one party in Mississippi—the Democratic
Party (R. 793ff).
This fact has become so apparent to qualified electors of Missis
sippi that interest in the general election is practically non-existent
(R. 21, 54, 98, 813). The complete control over the choice of officers
that is held by the Democratic Primary in Mississippi can best be illus
trated by owrds of Senator Bilbo, in discussing the general election:
“ It wasn’t necessary for anybody to go. As a matter of fact, I didn’t
have any opponent. I could have just gone and voted for myself and
been elected.”
It is apparent, therefore, that under both of the alternatives set
forth in the Classic and Allwright cases the right to vote in the primary
in Mississippi without discrimination because of race or color is pro
tected by the federal Constitution. In other words, there cannot be a
lawful “ white Democratic Primary” in Mississippi as alleged by Sena
tor Bilbo (see testimony, R. 729ff).
Prior to the primary campaign of Senator-elect Bilbo, the right of
Negroes to vote in the primary was not only well established at law,
hut was recognized by officials of Mississippi, including the State Demo
cratic Executive Committee. A special committee of the State Demo
cratic Executive Committee, after careful consideration of the prece
dents cited above, concluded that Negroes had the right to vote in the
17
primary elections (R. p. 826). This decision of the State Democratic
Executive Committee was made before Senator-elect Bilbo began his
active campaign (R. p. 830).
II.
Use of Force or Intimidation to Prevent Negroes
from Registering for and Voting in Democratic
Primaries in Mississippi Is Sufficient to Invalidate
Election of Senator-elect Bilbo
State courts have clearly established the principle that where quali
fied electors, sufficient in number to have changed the result of the
election, were corruptly and fraudulently deprived of an opportunity
to vote, the election is void.1
The true effect of intimidation and violence upon elections has been
set forth as follows: “ It is the essence of free elections that the right
of suffrage should be exercised without coercion or the deterrent of
any intimidation or influence. An election will be set aside, or the
returns from a particular precinct rejected, on the grounds of threats,
intimidation or violence, when the threats, intimidation or violence
change the result or render it impossible to ascertain the true result
with certainty, but threats, violence or disturbances not materially
affecting the result will not invalidate an election. Some authorities hold
that if the progress of the election was not in fact arrested, there must
have been such a display of force as ought to have intimidated men of
ordinary firmness, but according to other authorities, the general rule
applies regardless of the personal courage of the voters deterred.
While a threat must be serious, citizens are not bound to fight their
way to the polls. Threats or intimidation exist where there is a putting
in fear; and there may be a moral intimidation independent of threats
or violence or physical injury . . . . ” 1 2
1 M o n to va v. O rtiz , 24 N. M. 616; S n yd er v. Blake, 35 Okl. 294; M artin v
M cG a rr, 27 Okl. 653.
2 29 C. J. S. (Elections) Sec. 220, p. 323.
18
This is particularly true where the deterrent to the free exercise
of the ballot is directed against members of a class. Thus a referendum
held in the City of Des Moines was declared null and void where the
denial of the right to vote was directed at all women as such and where
this denial was widely publicized in the press and in discussions in
women’s organizations with the result that only three women presented
themselves to vote. There the Iowa Supreme Court stated:
“ The distinction must be kept in mind between depriving the
individual of the ballot because of some disqualification peculiar
to himself and the denial thereof to an entire class of voters.” 3
While the court recognized no remedy in the former case, the court
stated that in the latter case if the class is numerous enough to have
changed the result, a remedy exists.
‘ ‘ The denial is then in the nature of oppression and operates
to defeat the very purpose of the election. ’ ’ 4
A similar decision was rendered by the Superior Court of Warren
County, Ga., where municipal elections were declared void when held
under a local law limiting voting to white citizens, upon a showing that
there existed in the town persons of color qualified to vote in numbers
sufficient to have changed the result of the election.5 In a recent case
decided in 1941, by a District Court of Appeals in California, it was
determined that the vote on a bond issue in a school district must be
declared void where threats and intimidation were applied to third
persons in order to prevent qualified voters from voting and thus
deterred qualified voters from the free exercise of the franchise in suf
ficient numbers to affect the outcome of the election. The court found
that the coercion while applied to third persons “ was equally effective
in accomplishing its intended purpose as though it had been directly
3 Coggeshall v. C ity of D e s M o in es, 138 Iowa 730.
4 Ibid.
5 H o w ell v. Pate, 119 Ga. 537.
19
applied to the qualified electors who failed to vote. ’ ’ 6 Early decisions in
courts of many states have established that:
“ An election to be free must be without coercion of every
description. An election may be held in strict accordance with
every legal requirement, yet if in point of fact the voter casts
the ballot as the result of intimidation; if he is deterred from
the exercise of his free will by means of any intimidation what
ever, although there be neither violence nor physical coercion, it
is not a free and equal election within the spirit of the consti
tution. ’ ’ 7
Precedents established by the courts of last appeal of many states
have thus established the principle that any deterrent of the free exer
cise of the ballot which affects a sufficient number of voters to change
the result of the election had they voted for the next highest candidate
render the election void regardless of the responsibility for such activi
ties. 8
The Senate of the United States can have no lower standards for
judging the validity of the elections which furnish the basis for the
credentials presented by a Senator than are used by the States for
judging the validity of elections of state officials.
The acts and speeches of Senator Bilbo and his open and persistent
incitement and exhortations to the white citizens of Mississippi to
resort to fraud and coercion to deprive Negroes of their right to vote
effectively prevented large numbers of Negroes from registering and
6 W illiam s v. Vennem an, 42 Cal. App. (2d) 618.
7 D e W a lt v. B artley, 146 Pa. St. 529.
8 Inmates of an asylum refused, they being of sufficient number to change elec
tion result; R en n er v. B en n ett, 21 Ohio St. 431.
Polls closed early on improper notice of election voided election in following
cases: B a rry v. Lauch, 5 Coldw. 588, N ew cn m v. K irtley , 113 B. Mon. 515; Re
Johnson, 40 U. C. Q. B. 297; W o o d w a rd v. Sarsons, L. R. 10 C. P. 733 (Parlia
mentary election).
Failure to provide opportunity to persons qualified to register voided election
where group denied was materially large enough to affect result, M c D o w e ll v. M a ss.
& S . Constr. C o., 9 6 N. C. 514, 2 S. E. 351; State e x rel. H arris v. Scarborough,
110 N. C. 232, 14 S. E. 737.
20
voting. The transcript of testimony of the hearings in this inquiry
is replete with testimony of actions of violence, intimidation and coer
cion induced or fomented by Senator Bilbo. Negro voters in suf
ficient number to have deprived Senator Bilbo of the majority of votes
necessary for nomination at the first primary were thereby prevented
from voting.
III.
The Authority of the Senate to Exclude Senator-elect
Theodore G. Bilbo from a Seat in the Senate of the 80th
Congress at the Time He Presents Himself to Take the
Oath of Office Is Clear Under the Senate’s Constitutional
Power and Precedents Established in Prior Cases
The jurisdiction of the United States Senate is derived from
Article I, Section 5, Clause 1 of the United States Constitution, pro
viding that “ Each House shall be the Judge of the Elections, Returns
and Qualifications of its own members.” This provision constitutes
each House of Congress the sole and exclusive judge of the elections
and qualifications of its own members and deprives the Courts of juris
diction to determine those matters.1 This constitutional grant of power
to the Senate is interpreted to mean that even though a Senator-elect
possesses all of the qualifications set out in Article I, Section 3, Clause
3 of the Constitution,1 2 the Senate may “ judge” him disqualified to sit
1 B a rry v. United States, 279 U. S. 597; K ilbou rn e v. Th om pson , 103 U. S.
68. See also: 107 A. L. R. 206.
2 “No person shall be a Senator who shall not have attained to the age of 30
years and been 9 years a citizen of the United States and who shall not when
elected be an inhabitant of that state for which he shall be chosen.”
21
within its body and declare his seat vacant because of acts or conduct
which “ taint” his credentials with fraud or corruption.3
In the cases of Senators-elect Frank L. Smith of Illinois and
William S. Vare of Pennsylvania, it was squarely held that corrupt
actions amounting to implicit or implied bribery by a Senator-elect or
such action done with his knowledge or encouragement, which did not
actually affect the result of the elections, may still affect the validity
thereof, thereby furnishing grounds for exclusion from a seat in the
Senate by a majority vote.4 These cases also squarely settled the right
of the Senate to consider acts which corrupt only the Primary election
as sufficient to come within their power to “ judge the elections and
returns” of their members.
On the 17th day of May, 1926, the Senate of the 69th Congress
appointed a special committee to investigate and report on campaign
expenditures, promises, etc., made to influence the nomination of any
person as a candidate or to promote the election of any person as a
member of the Senate at the general election to be held in November
1926. This committee, pursuant to the resolution, investigated the
campaigns of Frank L. Smith of Illinois and William S. Vare of Penn
sylvania.
The investigation in Illinois showed that Senator-elect Frank L.
Smith had expended over $450,000 in his 1926 primary campaign. It
further showed that over $200,000 of this money had come from utility
companies under the control of the Illinois Commerce Commission, of
3 Prior cases in which exclusion was based upon this principle: Phillip F .
Th om as, Senator-elect from Maryland, 40th Congress, charged with disloyalty in
that he gave his son $100 and his blessing when he went off to fight for the Con
federacy.—Excluded (Senate Election Cases, 1879-1903, Taft, Furber and Buck,
pp. 333-339; Cong. Globe, pt. 2, 40th Cong., 2nd Sess., pp. 1260-1271; Feb. 19, 1868.
Hinds Precedents, Vol. 1, pp. 466-470).
B . F . W h ittem ore , House of Rep., 1870, found guilty of selling a cadetship,
resigned to escape expulsion; was re-elected and was excluded when he attempted
to return. (Hinds Precedents, Vol. 1, p. 47).
Brigham R ob erts , House of Rep., an admitted polygamist from Utah, excluded
(53 Cong., Jan. 20, 1900, Hinds Precedents, Vol. 1, Section 447, p. 529, et s e q .) .
4 This issue had never been squarely settled before. See: Appendix B.
22
Its investigation in Pennsylvania showed numerous instances of
fraud and corruption in behalf of the candidacy of William S. Vare.
It further showed that there had been expended in his behalf at the
primary election a sum exceeding $785,000.
The committee presented these facts in its final report to the Senate
of the United States.
On the 5th day of December, 1927, the opening day of the 70th
Congress, Senator-elect Smith, having previously filed his certificate
of election, appeared with Senator-elect Vare and others to take the
oath of office. At this point, Senator Norris presented Senate Resolu
tion No. 1, which recited the previous appointment of the special com
mittee by the 69th Congress, the facts about the receipt and expendi
ture of money by Smith theretofore filed with the Senate, and concluded
with the following clauses:
“ Resolved, That the acceptance and expenditure of the vari
ous sums of money aforesaid in behalf of the candidacy of the
said F rank L. Smith is contrary to sound public policy, harmful
to the dignity and honor of the Senate, dangerous to the per
petuity of free government, and taints with fraud and corruption
the credentials for a seat in the Senate presented by the said
F rank L. Smith ; and be it further
“ Resolved, That the said F rank L. Smith, is not entitled
to membership in the Senate of the United States.” 6
The exact procedure on the same day was followed in connection
with the case of Senator-elect Vare.
On December 6, 1927, Senator Norris, in support of his resolution,
said:
“ The question as to whether Mr. Smith and Mr. V are should
he seated pending the decision of the question as to whether 5
w h ic h S m i t h w a s a m e m b e r , a n d t h a t th e r e c e ip t a n d g r a n t i n g o f su ch
m o n e y c o n s t it u t e d a m is d e m e a n o r u n d e r I l l i n o i s s t a t u t e s .
5 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, p. 3.
23
they will be allowed to remain here permanently is another point
involved. It is true that in ordinary cases a Senator is sworn
in upon the presentation of his certificate of the election and,
if his right to a seat here is then contested, he remains in the
Senate as a Member until that question is finally determined
by the Senate. That procedure is followed because, in the ordi
nary case, the only official evidence that the Senate has of the
election or the qualifications of one claiming the right to be a
Member of the Senate is the certificate of election. No other
evidence of an official kind is ordinarily in the possession of the
Senate, and hence, when the Senate is called upon to act, either
to permit or to refuse to permit the applicant to take the oath
of office, there is no evidence except the certificate of election.
It, as everyone knows, is only prima facie evidence of the facts
which it purports to state.
“ In the case of Mr. Smith and Mr. V are an entirely different
proposition confronts the Senate. The Senate has appointed its
committee and directed it to make an investigation, and in obedi
ence to the commands of the Senate, the committee has gone
into Illinois and Pennsylvania and made an investigation.
“ The committee has reported the results of its investigation
to the Senate. It has submitted to the Senate the sworn testi
mony taken in this investigation and, therefore, the Senate is
now, and has been for many months, in possession of the official
information contained in the report of the committee and the
evidence which it has taken. Therefore at the very threshold
the certificates of election of these men are challenged by this
report and this evidence. It is worthy of note, also, that both
Mr. Vare and Mr. Smith appeared in person before this com
mittee and testified, and that the facts reported by the committee
stand practically uncontradicted.
“ Taking this evidence and the report of the committee upon
its face value, it absolutely annihilates the presumption in favor
of the certificates of election. It brings both cases clearly within
the rule laid down by the Senate in the Newberry case, and if
the Senate still adheres to that rule and desires to enforce the
principle of government therein enunciated it will refuse to per
mit either of these gentlemen to be seated.” 6
6 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, p. 122.
24
Senator Deneen then offered to amend the Norris resolution to
the effect that Frank L. Smith is entitled to be sworn in as a member
of the Senate upon his prim,a facie case.7 This amendment was de
feated.
Thereafter, the Norris resolution, still denying Smith the right to
the oath, but, having been amended to afford him a further right to be
heard and the privilege of the floor to answer in his own defense, when
the matter came up for final Senate action, on December 7, 1927, was
carried.8
On January 17, 1928, the committee reported that “ Smith was not
entitled to take the oath of office and is not entitled to membership . . .
and that a vacancy exists . . . . ” Thereafter, on January 19, 1928,
after extensive debate the Senate adopted the following resolution and
preamble:
“ Whereas on the 17th day of May, 1926, the Senate passed
a resolution creating a special committee to investigate and de
termine the improper use of money to promote the nomination
or election of persons to the United States Senate, and the em
ployment of certain other corrupt and unlawful means to secure
such nomination or election
“ Whereas said committee in the discharge of its duties
notified F rank L. Smith, of Illinois, then a candidate for the
United States Senate from that State, of its proceeding, and the
said F rank L. Smith appeared in person and was permitted to
counsel with and be represented by his attorneys and agents.
“ Whereas the said committee has reported—
“ That the evidence without substantial dispute shows that
there was expended directly or indirectly for and on behalf of
the candidacy of the said F rank L. Smith for the United States
Senate the sum of $458,782; that all of the above sum except
$171,500 was contributed directly to and received by the personal
agent and representative of the said F rank L. Smith with his
full knowledge and consent; and that of the total sum aforesaid
7 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, p. 160.
8 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 1, pp. 161-162.
25
there was contributed by officers of large public-service insti
tutions doing business in the State of Illinois or by said insti-
tions the sum of $203,000, a substantial part of which sum was
contributed by men who were nonresidents of Illinois, but who
were officers of Illinois public-service corporations.
“ That at all of the times aforesaid the said F rank L. Smith
was chairman of the Illinois Commerce Commission, and that
said public-service corporations commonly and generally had
business before said commission, and said commission was,
among other things, empowered to regulate the rates, charges,
and business of said corporations.
“ That by the statutes of Illinois it is made a misdemeanor
for any officer or agent of such public-service corporations to
contribute any money to any member of said commission, or for
any member of said commission to accept such moneys upon
penalty of removal from office.
“ That said Smith has in no manner controverted the truth
of the foregoing facts, although full and complete opportunity
was given to him, not only to present evidence but arguments in
his behalf; and
“ Whereas the said official report of said committee and the
sworn evidence is now and for many months has been on file with
the Senate, and all of the said facts appear without substantial
dispute; Now therefore be it
“ Resolved, That the acceptance and expenditure of the
various sums of money aforesaid in behalf of the candidacy of
the said F rank L. Smith is contrary to sound public policy,
harmful to the dignity and honor of the Senate, dangerous to
the perpetuity of free government, and taints with fraud and
corruption the credentials for a seat in the Senate presented by
the said F rank L. Smith ; and be it further
“ Resolved, That the said F rank L. Smith is not entitled to
membership in the Senate of the United States, and that a
vacancy exists in the representation of the State of Illinois in
the United States Senate.” ” 8
8 70th Cong., 1st Sess., Cong. Rec., vol. 69, pt. 2, pp. 1582-1597, 1665-1672,
1703-1718.
26
It is clear from a reading of this resolution that Smith was excluded
from the Senate. He had never been administered the oath nor allowed
to take his seat in the Senate chamber.
The case of Senator-elect Vare, involving even greater primary
expenditures, resulted in the same preliminary procedure in the 70th
Congress and the same reference to the committee for furthr oppor
tunity for Vare to appear in person. However, Vare became fatally ill
before he could avail himself of the opportunity to appear so that the
Senate never had an opportunity to vote a final exclusion resolution.
The Smith and Vare cases recognized the rule that an election is
invalidated by a single act of bribery or corruption participated in,
encouraged or condoned by the Senator-elect, though not affecting the
numerical result.10
Considering the fact that neither the Senate nor its committee in
the Smith case found that the sums of money used by him were used
to purchase votes sufficient to change the result or that a single voter
or worker was bought, bribed or influenced with this money by Smith
or his supporters with his knowledge, expressed or implied, it must be
concluded that the acceptance and expenditure of this money in connec
tion with an election, even a primary election, of itself was an act
“ contrary to sound public policy, harmful to the dignity and the honor
of the Senate, dangerous to the perpetuity of free government and
taints with fraud and corruption the credentials for a seat in the Senate
presented by the said Frank L. Smith.”
Thus the last word of the Senate construing its right as well as
power to “ judge the elections” of its members not only holds that as
a Senate it has the power to consider acts done in a primary as sufficient
to invalidate the credentials for a seat, but that a new standard, unre
lated to the old rules applicable to bribery and corruption, prevailing
10 See: Appendix B.
2 7
prior to the adoption of the Seventeenth Amendment, has been estab
lished; namely, that acts which are
“ contrary to sound public policy, harmful to the dignity and
honor of the Senate, dangerous to the perpetuity of free govern
ment . . . ”
affect “ the credentials” presented by the Senator-elect so that the
validity of the election is involved and the Senator-elect can be ex
cluded.11
It happened that in the Smith case the acceptance and expenditure
of vast sums of money in connection with a primary election were the
facts which constituted the prohibited acts, but, if the principle be
sound, and it is, then the principle remains as a living, vital part of
our democratic way of life. Since this is true, then any other or dif
ferent acts, which likewise fall within this prohibition when measured
by sound standards of morality and democratic values, will also meet
the standard.
IV.
The Acts and Conduct of Senator-Elect Theodore G.
Bilbo During his 1946 Democratic Primary Campaign in
the State of Mississippi Clearly Fall Within the Prohibi
tions of the Legislative Rule Established by the Senate
in the Sm ith and V are Cases.
When the principles established by the Smith and Vare cases are
applied to the facts set forth in this brief on pages 5 to 13, it is
clear that Senator-elect Bilbo’s actions in the primary election in
Mississippi fall directly within the Smith and Vare cases and he must
therefore be excluded.
11 See Senator Borah, supra, and Senator Reed of Pennsylvania in the Vare
case, who offered to stipulate that if Vare was allowed to take the oath, the Senate
clearly had the power, thereafter, to exclude him by a majority vote— (Cong. Rec.
70th Cong., vol. 69, pt. 1, pp. 298-9, December 9, 1927).
28
Acts and Conduct “Opposed to Sound Public Policy”
The American way of life is dedicated to the perfection of a class
less democratic society in which race, creed and national origin are
invalid and irrational criteria. Our government was founded on the
principle that all men are created equal. Our Constitution and our
national institutions are dedicated to the achievement of that concept.
The public policy of the United States condemns discrimination based
on race, creed or color.
History has proved that freedom cannot exist where classifications
and distinctions because of race or color are tolerated. Our govern
ment, in recognition of this historical fact, has long been dedicated to
the achievement of racial and religious freedom, not only in the United
States, but throughout the world. In recognition of this principle,
specific provisions were added to the United States Constitution to pre
vent the erection of distinctions and classifications on the basis of race
or color.
In Strauder v. West Virginia,1 the Supreme Court stated in com
menting upon the purpose of the Fourteenth Amendment:
"W hat is this but declaring that the law in the States shall
be the same for the black as for the white, shall stand equal
before the laws of the States, and, in regard to the colored race,
for whose protection the Amendment was primarily designed,
that no discrimination shall be made against them by law because
of their color? The words of the Amendment, it is true, are
prohibitory, but they contain a necessary implication of a posi
tive immunity, or right, most valuable to the colored race—thg
right to exemption from unfriendly legislation against them dis
tinctly as colored; exemption from legal discriminations, imply
ing inferiority in civil society, lessening the security of their
enjoyment of the rights which others enjoy, and discriminations
which are steps toward reducing them to the condition of a sub
ject race.”
1 100 U. S. 305, 308.
29
“ Distinctions between citizens solely because of their an
cestry are by their very nature odious to a free people whose
institutions are founded upon the doctrine of equality. For that
reason, legislative classification or discrimination based on race
alone has often been held to be a denial of equal protection.”
Mr. Justice Murphy, concurring, said at pages 110, 111:
“ Distinctions based on color and ancestry are utterly incon
sistent with our traditions and ideals. They are at variance with
the principles for which we are now waging war. We cannot close
our eyes to the fact that for centuries the Old World has been
torn by racial and religious conflicts and has suffered the worst
kind of anguish because of inequality of treatment for different
groups. There was one law for one and a different law for an
other. Nothing is written more firmly into our law than the com
pact of the Plymouth voyagers to have just and equal laws.”
The Senate of the United States has recently ratified and adopted
the Charter of the United Nations which is now a part of our funda
mental law.2 3 Under its provisions, and specifically by virtue of Article
55(c) thereof, our government is obligated to promote “ uniform respect
for, and the observance of, human rights and fundamnetal freedoms for
all without distinction as to race.” The Senate of the United States
has also ratified the Act of Chapultepec in which this nation, along with
Latin-American nations, undertook “ to prevent . . . all that may per
fect discrimination among individuals because of racial or religious
reasons.”
It is clear, therefore, that the public policy of the United States
is dedicated to the eradication of discrimination against persons or
classes of persons because of race, religion or color. From the facts
I n H irabayashi v . U nited S ta tes , 2 th e la t e C h i e f J u s t i c e Stone,
w r i t i n g th e m a j o r i t y o p i n i o n , s a id a t p a g e 1 0 0 :
2 320 U. S. 81.
3 Article 6, Clause 2, United States Constitution.
Also, K en n ett v. Cham bers, 14 How. 38.
Also, In the M a tter of D ru m m on d W r e n , (Ontario Reports, 1945, p. 778).
30
which have been set out in the first part of this brief, it has been clearly
shown that Senator-elect Birbo’s conduct during his recent Primary
campaign was directly opposed to that public policy, and that he advo
cated discriminatory acts against Negro citizens to prevent their par
ticipation in the electoral process in the State of Mississippi.
The Acts and Conduct “ Harmful to the Dignity
and Honor of the Senate”
Our nation, as a subscriber to the United Nations Charter and to
the Act of Chapultepec, is under an obligation to do all within its power
to fulfill its obligations thereunder. The responsibility for fulfilling
these obligations rests primarily upon the Senate of the United States,
and it is under a duty at all times to take uncompromising steps to
implement obligations to fellow-signatories of these treaties. If the
Senate should fail to live up to these obligations, its honor and dignity
will be forever besmirched. It is immediately obvious, therefore, that
if the United States is to fulfill its solemn obligations, it must have
sitting in its highest legislative body men who are free of narrow,
biased, racist theories condemned by these documents.
Senator-elect Bilbo exhibited, during his primary campaign of
1946, a blatant and crass disregard for basic rights and fundamental
freedoms of American citizens because of race and color. The honor
and dignity of the Senate requires, therefore, that this body, recog
nizing the harm which would come to it by having Senator-elect Bilbo
again seated in its ranks, must, to preserve this honor, exclude him
from a seat in the Senate of the 80th Congress.
The seating of a person such as Senator-elect Bilbo, who advocates
discrimination and classification because of race and color, will make
the other signatories of the Act of Chapultepec and the United Nations
Charter question the good faith of the Senate in carrying out the obli
gations which it has assumed by its ratification of these documents.
3 1
The Acts and Conduct “ Dangerous to the
Perpetuity of Free Government”
We have just recently concluded a life and death struggle with
nations dedicated to the principle of racial superiority. We found
this totalitarian concept so dangerous to our own democractic existence
as to warrant the sacrifice of the lives of thousands of American citi
zens to conclude and eradicate these evil forces.
The Senate, as the senior of our two national legislative bodies
whose members must swear to uphold the Constitution of the United
States and to support a government whose essential character is repub
lican, must not and cannot tolerate the presence in its body of an in
dividual who knowingly and wilfully advocates the evasion and thereby
ultimate destruction of the United States Constitution.
Senator Bilbo has shown by his campaign statements that he does
not believe “ that the right of citizens of the United States to vote . . . ”
should “ . . . not be denied or abridged by the United States or by any
state on account of race, color or previous condition of servitude.”
U. S. Constitution, Am. 15, Sec. 1.
The American republic form of government is based upon and
depends for its continued existence upon the free and untrammeled
exercise of the elective franchise by all of its citizens. I f men who sit
in the Senate of the United States do not subscribe to this basic prin
ciple the ultimate result will be the same as though this government
were overthrown by military force. Every republican form of democ
racy is founded upon the right of the free exercise of citizenship in
the casting of the ballot. If this is destroyed or taken away, whatever
be the means, the government fails; because the very fundamental prin
ciples of its establishment is violated and taken away.
“ In a republican government, like ours, where political
power is reposed in representatives of the entire body of the
people, chosen at short intervals by popular elections, the tempta
tions to control these elections by violence and by corruption is
a constant source of danger.
32
“ If the Government of the United States has within its con
stitutional domain no authority to provide against these evils,
if the very sources of power may be poisoned by corruption or
controlled by violence and outrage, without legal restraint, then,
indeed, is the country in danger and its best powers, its highest
purposes, the hopes which it inspires and the love which en
shrines it, are at the mercy of the combinations of those who
respect no right but brute force, on the one hand, and unprin
cipled corruptionists on the other.” 4
The acts and speeches of Senator Bilbo per se without reference to
their traceable effect on white Mississippi voters and on Negro voters,
were so contrary to sound public policy, harmful to the dignity and
honor of the Senate, and dangerous to the perpetuity of free govern
ment, as to taint his credentials with fraud and corruption and to dis
qualify him for a seat in the Senate.
Conclusion
The facts in the record constitute the strongest indictment of
Senator Bilbo. This record is made and will be read all over the world.
Senator Bilbo is on trial before this Committee; but the Senate itself
is on trial before the bar of public opinion. And failure to meet the
issues here presented head on and fairly may yet result in drastic and
most serious consequences to our entire nation in world affairs.
Bespectfully submitted,
Chakles H. H ouston
T hurgood Marshall
Counsel for the National Association for
the Advancement of Colored People.
Robert L. Carter
Marion W . Perry
F ranklin H. W illiams
of Counsel.
4 M a tter of Jasper Yarbrough, 110 U. S. 651 (1883).
33
APPENDIX A
Analysis of Transcript of Testimony
I. No. of W itnesses at H earings— 102.
Complainants—69.
Defense—33.
II. Geographical Distribution:
Jackson, Hinds County
# 1 T. B. Wilson
# 2 Percy Green
#10 Herman L. Caston
#15 Lee Ernest Butler
#18 Quintus Jones
#19 Frank J. Spates
#20 Potts Johnson
#21 Walter Johnson
#22 Edison D. Johnson
#23 Henry C. Wolfe
#24 Eddie P. Anderson
#25 Elesha Reed, Jr.
#26 Louis Miles
#30 Benjamin H. Taylor
#31 Willis L. Moore
Meridian, Lauderdale County
# 7 Samuel J. Loodody
# 8 Nathan Hodges, Jr.
# 9 James W. Hunter, Sr.
#27 James Hams
#28 Leon Wilson
#29 Edward Knott, Jr.
Tougaloo, Hinds County
#74 Arthur E. Franklin
McComb, Pike County
#32 Napoleon B. Lewis
#34 Joe Parham
#35 Nathaniel H. Lewis
#36 Samuel B. O’Neal
#42 Meredith Lewis
#43 Lawrence Wilson
#45 S. J. Dickey
Bay St. Louis, Hancock County
#41 John James
Plolly Springs, Marshall County
#80 Samuel K. Phillips
#84 Joe Bell
Crystal Springs, Copiah County
#53 L. J. Sibbie
Edwards, Hinds County
#55 Charles Clent Mosley, Jr.
Tylertown, Walthall County
#56 A. G. Price
#69 Benton Simmons
#70 Timothy Dillon
#71 J. B. Raiford
Grenada, Grenada County
#85 Walter Hightower
#86 R. S. Bostick
Puckett, Rankin County
# 3 Stoy Fletcher
Vicksburg, Warren County
# 5 Rev. Stanley R. Brav
Greenville, Washington County
#11 Willie Douglass Brown
#12 Leon Dowdy
#13 Joseph H. Bevins
#14 Henry A. Myles
Louisville, Winston County
# 6 John L. Hathorn
#52 Clevaris Gladway
#59 C. N. Eiland
Byhalia, Marshall County
#83 Willis D. Hamm
Poplarville, Pearl River County
#17 J. Monroe Spiers
Canton, Madison County
#16 William Albert Bender
Sibley, Adams County
#81 Joseph Rounds
Gulfport, Harrison County
#37 Richard E. Daniel
#50 Varnado R. Collier
#57 Dr. M. S. Love
34
Pass Christian, Harrison County
it38 Father George T. J. Strype
#39 Thomas Guyot, Jr.
#40 Eugene H. Roberts
Natchez, Adams County
#75 Mrs. Camille Z. Thomas
#82 Samuel Davis
Marks, Quitman County
#54 Eshmiel Charles Kelly
(drove Bender)
Greenwood, Leflore County
#60 J. I). Collins
#61 A. C. Montgomery
#62 Clark Wilson
#63 Louis Redd
#64 Liesta A. Prichard
Magnolia, Pike County
#67 Junius R. Moore
Port Gibson, Claiborne County
#87 Kattie Campbell
Number of Complaining W itnesses from Each T own
15 Jackson (Hinds) Central
1 Puckett (Rankin) Central
1 Vicksburg (Warren) S. W.
4 Greenville (Washington) West
Central
3 Louisville (Winston) E. Central
6 Meridian (Lauderdale) E. Central
1 Byhalia (Marshall) Extreme
North (Middle)
1 Poplarville (Pearl River) South
(Central)
1 Canton (Madison) Central
1 Tougaloo (Hinds) Central
1 Sibley (Adams) S. W.
7 McComb (Pike) S. W.
3 Gulfport (Harrison) S. E.
3 Pass Christian (Harrison) S. E.
1 Bay St. Louis (Hancock) S. W.
(Central)
2 Holly Springs (Marshall)
Extreme N.
2 Natchez (Adams) S. W.
1 Crystal Springs (Copiah) S. W.
Central
1 Marks (Quitman) N. W.
1 Edwards (Hinds) Central
5 Greenwood (LeFlore) N. W.
4 Tylertown (Walthall) Ex.
South-W est
1 Magnolia (Pike) Ex. South-
Central
2 Grenada (Grenada) North
Central
1 Port Gibson (Claiborne) West
(South West)
Defense W itnesses :
# 4 Dr. E. J. Matvanga, Jackson, Chiropodist.
# 33 Ezell Singleton, Brandon, Veterans Registerman.
# 44 Dave P. Gayden, Brandon, Circuit Clerk.
# 46 C. E. Cocke, Greenville, Circuit Clerk.
# 47 Emmett E. Reynolds, Louisville, Circuit Clerk.
# 48 Wendell R. Holmes, Magnolia, Circuit Clerk.
# 49 William Elton Moore, McComb, Sheriff.
# 51 Clifford R. Feld, Natchez, Circuit Clerk.
# 58 Robert L. Williams, Gulfport, City Policeman.
# 64 Shelby S. Steele, Greenwood, Insurance Broker.
# 65 A. D. Saffold, Greenwood, City Mayor.
# 68 E. K. Sauls, McComb (had altercation with Parham) Private Citizen.
# 72 E. R. Sanders, McComb, Chief of Police.
# 73 A. B. Williams, McComb, City Mayor.
Affidavit of John R. Jankin, Natchez, Election Manager.
35
# 7 6 Eaton Garriga, Pass Christian, Night Marshal.
# 77 Lester Garriga, Pass Christian, Harrison County, Patrolman, Com
missioner of Election.
# 7 8 A. T. McCollister, Pass Christian, Election Commissioner.
# 7 9 Charles C. Farragut, Past Christian, Election Commissioner.
# 88 J. V. Simmons, Gulfport, City Judge who convicted Daniel.
# 89 Theodore Bilbo, Poplarville.
# 90 Bedwell Adams, Pass Christian, Lieut. Gov. under Bilbo.
# 91 Ben Cameron, former U. S. Atty., Meridian.
# 9 2 J. F. Barbour, Yazoo City, former Judge.
# 93 H. H. Creekmore, Jackson
# 94 George Butler, Jackson, former Pres. Miss. State Bar Asso., member
State Demo. Exec. Comm.
# 95 J. Morgan Stevens, Jackson, campaigned with Bilbo in 1911.
# 9 6 Charles B. Cameron.
# 97 Jesse Shanks.
# 98 Hugh B. Gillespie.
# 9 9 Mrs. Mary Donaldson.
#100 George L. Sheldon.
#101 Jesse Byrd.
#102 A. B. Friend.
APPENDIX B
Caldwell of Kansas
In the case of Senator Caldwell of Kansas, 42nd Congress, 3rd
Session, in February and March, 1875, a Senatorial committee reported
that it found Caldwell guilty of personal bribery and could not, or at
least did not, find whether enough votes were bribed to change the
result. Two resolutions were introduced which clearly raised the
issue, but before it could be decided by the Senate, Senator Caldwell
resigned.
Clark of Montana
In the 56th Congress, 1st Session, Senator Clark of Montana was
admitted to his seat on March 4, 1899; after an investigation the com
mittee divided in its report, but agreed unanimously April 23, 1900 on
a resolution reading as follows:
“ Resolved, That William A. Clark was not duly and legally
elected to a seat in the Senate of the United States by the legis
lature of the State of Montana.”
36
The committee found that enough votes were corrupted to change
the result and that “ It is also a reasonable conclusion upon the whole
case that Senator Clark is fairly to be charged with knowledge of the
acts done in his behalf by his committee and his agents . . . .”
The resolution is in the form of an exclusion, but since the com
mittee found that enough votes were corrupted to change the result,
we cannot know that they considered personal responsibility for an act
or acts of corruption, not sufficient to change the result, the sole grounds
for their exclusion resolution. In any event, Senator Clark resigned
on May 11, 1900 while the resolution was being debated.
Case of Senator Lorimer, Illinois
In the case of William Lorimer of Illinois, 61st and 62nd Con
gresses, Lorimer took his oath without objection on June 18, 1909. On
May 28, 1910 on his own motion a resolution was introduced to investi
gate his right to his seat as against charges of corruption raised by
The Chicago Tribune. This case in the Senate was heatedly debated
after the majority of the committee reported on December 21, 1910 that
he was entitled to his seat.
Senator Beveridge filed minority views with the following recom
mended resolution:
“ Resolved, That William Lorimer was not duly and legally
elected to a seat in the Senate of the United States by the legis
lature of the State of Illinois.” (Cannon’s Precedents, Vol. 71,
p. 182.)
Lorimer was allowed to retain his seat, the minority resolution being
defeated.
Lorimer was later unseated in the 62nd Congress on July 13, 1912
by a vote of 55 yeas to 28 nays on a resolution reading as follows:
“ Resolved, That corrupt methods and practices were em
ployed in the election of William Lorimer to the Senate of the
United States from the State of Illinois, and that his election
was therefore invalid.” (Cannon’s Precedents, Vol. YI, p. 196.)
3 7
The broad form of this resolution indicates that it is a forerunner
of the resolution later used in the Smith and Vare cases. It will be
noted that it does not say that the “ corrupt methods” either affected
a decisive number of votes or that Lorimer personally practiced, en
couraged or condoned them, the technical requirements of the law.
Case of Senator Newberry
The first case, involving this issue, after the Seventeenth Amend
ment was the celebrated Newberry case. Newberry defeated Ford in
the Republican primary of 1918 and later defeated him, as the Demo
cratic candidate, in the general election of that year. He took the oath
and was seated May 19, 1919. He admittedly spent $195,000 in his
campaign. He and others were tried and convicted in 1920 in the United
States District Court of Michigan for violation of the Federal Corrupt
Practices Act. While the ease was pending in the Senate, the Supreme
Court, on May 2, 1921, reversed the conviction by a five to four decision
on the ground that the Congress could not legislate with reference to
primary elections.
Notwithstanding this, the Senate investigated the primary expendi
tures as well as recounted the general election ballots. The majority
and minority reports were filed November 16, 1921. The whole Senate
debate turned on the effect of the expenditures in the primary. The
opponents of Senator Newberry clearly evidenced their belief that as
far as their right to “ judge of the election and returns” of their own
members under Article I, Section 5, Clause 1 of the Constitution, they
were not bound by the decision of the Supreme Court denying the right
of the Congress to legislate on the subject of primary elections.
The resolution of the majority holding Ford not elected, joined in
by the minority, and Newberry duly elected, opposed by the minority,
was debated in the Senate November 17 to 23, 1921, December 7 to 21,
1921 and January 4 to 12, 1922. On January 12, 1922, Senator Spencer
38
of Missouri, who filed the majority report, accepted, the following
amendment to his pending resolution, S. Res. 172:
(3) That whether the amount expended in this primary was
$195,000, as was fully reported or openly acknowledged, or
whether there were some few thousand dollars in excess, the
amount expended was in either case too large, much larger than
ought to have been expended.
The expenditure of such excessive sums in behalf of a candi
date either with or without his knowledge and consent being
contrary to sound public policy, harmful to the honor and dignity
of the Senate and dangerous to the perpetuity of free govern
ment, such excessive expenditures are hereby severely condemned
and discouraged. (Senate Election Cases, 1913-1940 (Hays), p.
192.)
As amended, the resolution passed 46 to 41, January 12, 1922.
This amendment is revealing because it furnished the verbatim
example of the statement of the law on the subject contained in the
Smith and Vare cases, first set out in this brief.
The foregoing analysis of the bribery and corruption cases in the
Senate indicates a definite trend in the Senate to create a legal inter
pretation of its constitutional rights and duties, under Article I, Section
5, clauses 1 and 2, as cases in which practiced or known bribery or
corruption by a Senator shall be treated as a wrong in rem, involving
the validity of the election, which the Senate reaches by majority vote
under clause 1; rather than as expulsion for an act involving bad
character or moral turpitude, which the Senate would have to reach by
a two-thirds vote under clause 2.
L a w yer s P ress, I n c ., 165 William St., N. Y. C.; ’Phone: BEeknian 3-2300
f