Detroit Housing Commission v. Lewis Brief for Appellees

    No. 12,305

IN THE

Inited ^ ta te  ( to r t  rtf Appeals
For the Sixth Circuit

T he Detroit H ousing Commission, a duly authorized 
Department of the City of Detroit, F inlay C. A llen, 
President, Mary M. Stkeit, Vice-President, W alter J. 
Gessell, George A. I sabel and J ames H. Quello, Mem­
bers; and Harry J, Durbin, Director-Secretary of the 
Detroit Housing Commission,

Defendants and Appellants,

vs.
W alter A rthur L ewis, et al.,

Plaintiffs and Appellees.

A ppeal prom the D istrict Court of the U niter States 
for the E astern D istrict of Michigan, Southern D ivision

BRIEF FOR APPELLEES

W illis M. Graves,
62 Mack Avenue,

Detroit, Michigan;
F rancis M. Dent,

4256 Bussell,
Detroit 7, Michigan;

T hurgood Marshall,
Constance Baker Motley,

107 West 43rd Street,
New York 36, New York,

Counsel for Appellees.

Supreme Printing Co., Inc., 114 W orth Street, N. Y. 13, BEekman 3 - 2320 
< ^*> 49



Counter Statement of Questions Involved

I. I)o the policy and practices of the Detroit Housing 
Commission in leasing units in public housing violate 
rights secured to the plaintiffs and members of their class 
by the Fourteenth Amendment to the Constitution of the 
United States and Title 42, United States Code, Section 
1982 (formerly Title 8, United States Code, Section 42) ?

District court answered Yes.
Appellees contend answer should be Yes.

II. Does the final judgment and permanent injunction 
order of the district court require defendants to integrate 
forthwith every public housing unit?

District court did not answer this question directly 
because not raised by appellants below, but the 
record shows that district court’s answer would 
be No.

Appellees contend answer should be No.

III. Is the action of the United States Supreme Court 
in the School Segregation Cases applicable to the instant 
case?

District court answered No.
Appellees contend answer should be No.



ill

TABLE OF CONTENTS

PAGE

Statement of Questions Involved.................................  1
Statement of F a cts ........................................................... 1
Argument ........................................................    2

I. Do the policy and practices of the Detroit Hous­
ing Commission in leasing units in public hous­
ing violate rights secured to the plaintiffs and 
members of their class by the Fourteenth 
Amendment to the Constitution of the United 
States and Title 42, United States Code, Sec­
tion 1982, (formerly Title 8, United States
Code, Section 42) ..............................................  2

II. Does the final judgment and permanent injunc­
tion order of the district court require defend­
ants to integrate forthwith every public hous­
ing unit ................................................................  8

III. Is the action of the United States Supreme 
Court in the School Segregation Cases ap­
plicable to the instant ca se .................................. 11

Conclusion....................... .................................................  18

Table of Cases

Barrows v. Jackson, 346 U. S. 249 (1953) ..................... 3
Buchanan v. Warley, 245 U. S. 60 (1917) ..................... 3, 6
City of Birmingham v. Monk, 185 2d 859 (1951) cert.

den., 341 U. S. 940 (1951) ...........................................  3
City of Richmond v. Deans, 281 U. S. 704 (1930) . . . .  3
Harmon v. Tyler, 273 U. S. 668 (1927)................... . 3
Jones v. City of Hamtramck, 121 F. Supp. 123 (1954) . . 3



IV

PAGE

San Francisco Housing Authority v. Banks, San Fran­
cisco Superior Court No. 420534 (Oct. 1, 1942), 120
A. C. A. 1 (1953), 41 A. C. Minutes 2 (1953) cert, 
den.------U. S .-------98 L. ed.------ - (1954) .................  4

Seawell v. McWhithey, 2 N. J. Super. 255, 63 Atl. 2d 
542 (1949) rev. on other grds. 2 N. J. 563, 67 Atl. 2d 
309 (1949) ....................................................... ............ 4

Shelley v. Kraemer, 334 IT. S. 1 (1948)..........................  3, 7
Taylor v. Leonard, No. C1836-52 Superior Court of 

N. J., Union County, Chancery Division (1954) . . 4
Vann v. Toledo Metropolitan Housing Authority, 113 

F. Supp. 210 (1953) ..................................................... 3; 6
Woodbridge v. Housing Authority of Evansville No.

618 U. S. D. C., S. D. Ind. (Findings of Fact and Con­
clusions of Law filed July 6, 1953) ......................... 3

Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................  6

Statutes Involved

Title 42, United States Code, Section 1982 (formerly 
Title 8, United States Code, Section 42) ............. 2, 3, 4, 7

“ 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”  (R. S. § 1978).



IN  THE

Mnxttb States Cimrt of Appeals
For the Sixth Circuit

No. 12,305

T he Detroit H ousing Commission, a duly authorized 
Department of the City of Detroit, F inlay C. A llen, 
President, Mary M. Streit, Vice-President, W alter J. 
Gessell, George A. Isabel and J ames H. Quello, Mem­
bers; and Harry J. D urbin, Director-Secretary of the 
Detroit Housing Commission,

Defendants and Appellants,

vs.

W alter A rthur L ewis, et al.,
Plaintiffs and Appellees.

A ppeal from the D istrict Court of the United States 
for the E astern D istrict of Michigan, Southern D ivision

BRIEF FOR APPELLEES

Counter Statement of Facts

The facts on which the appellees rely are those stipu­
lated and agreed to by the parties in this cause and appear­
ing on pages 52a to 59a of Appendix to Appellants’ Brief.



2

ARGUMENT

I. Do the policy and practices o f the Detroit Hous­
ing Commission In leasing units in public housing 
violate rights secured to the plaintiffs and members 
of their class by the Fourteenth Amendment to the 
Constitution o f the United States and Title 42, United 
States Code, § 1982.1

District Court answered Yes.
Appellees contend answer should be Yes.

A. Facts stipulated and agreed to by the parties which 
support lower court’s conclusion that “ the regulation, 
policy, custom, usage, conduct and practice of the defend­
ants in refusing to lease to plaintiffs, and other eligible 
Negro applicants similarly situated, certain units of public 
housing under their administration, control and manage­
ment, in accordance with a strict policy of racial segrega­
tion, is a violation of the Constitution and laws of the 
United States particularly the Fourteenth Amendment to 
the Constitution of the United States and Title 8, Sections 
41 and 42 of the United States Code”  (A. 95a) are as fol­
lows :

“ 29. The defendants presently maintain and 
enforce a policy in public housing which operates 
as follows:

(1) Certain projects were designated prior to 
their erection for white occupancy or for Negro 
occupancy.

(2) No eligible Negro family is admitted to a 
vacancy in a project presently limited to white occu­
pancy and no white family is admitted to a vacancy 
in a project presently limited to Negro occupancy”  
(A. 57a).

1 Formerly Title 8, United States Code, Section 42.



3

List of authorities supporting lower court’s preceding 
conclusion:

Buchanan v. Worley, 245 U. S. 60 (1917);
Harmon v. Tyler, 273 U. S. 668 (1927);
City of Richmond v. Deans, 281 U. S. 704 (1930);
City of Birmingham v. Monk, 185 F. 2d 859 (1951) 

cert. den. 341 U. S. 940 (1951).

In the preceding cases the legislative arm of the state 
was prohibited from imposing racial restrictions on the 
right to occupy real property—the holding in these cases 
being that such restrictions violated rights secured by the 
due process and equal protection clauses of the 14th Amend­
ment to the Federal Constitution and Title 8, United States 
Code, Section 42 (Title 42, United States Code, Sectiorc 
1982).

Shelley v. Kraemer, 334 U. S. 1 (1948);
Barrows v. Jackson, 346 U. S. 249 (1953).

In the preceding cases the judicial arm of the state was 
prohibited from giving effect to privately imposed racial 
restrictions on the right to occupy real property—the hold­
ing being that judicial intervention in such cases was barred 
by the prohibitions of the 14th Amendment to the Federal 
Constitution and Title 8, United States Code, Section 42 
(Title 42, United States Code, Section 1982).

Vann v. Toledo Metropolitan Housing Authority, 
113 F. Supp. 310 (1953);

Woodbridge v. Housing Authority of Evansville, 
No. 618 U. S. D. C. S. D. Ind. (Findings of Fact 
and Conclusions of Law filed July 6, 1953);

Jones v. City of Hamtramck, 121 F. Supp. 123 
(1954).



4

San Francisco Housing Authority v. Banks, San 
Francisco Superior Court No. 420534 (Oct. 1, 
1952), 120 A. C. A. 1 (1953), 41 A. C. Minutes 2
(1953) cert. den. ------U. S .------- 98 L. ed. -------
(1954) ;

Seawell v. McWhitley, 2 N. J. Super. 255, 63 Atl. 
2d 542 (1949) rev. on other grds. 2 N. J. 563, 67 
Atl. 2d 309 (1949);

Taylor v. Leonard, No. cl836-52 Superior Court 
of N. J., Union County, Chancery Division 
(1954).

In the preceding cases the administrative arm of the 
state, i.e. local public housing authorities, was enjoined 
from imposing racial restrictions on the right to occupy 
certain public housing units—the holding being that such 
restrictions, resulting from the enforcement of a policy of 
racial segregation in public housing, violated rights secured 
plaintiffs by the due process and equal protection clauses 
of the 14th Amendment and Title 8, United States Code, 
Section 42 (Title 42, United States Code, Section 1982).

B. Facts stipulated and agreed to by the parties which 
support the lower court’s conclusion that “ the resolution 
of the Detroit Housing Commission adopted September 26, 
1952, has not in fact ended the discrimination against the 
plaintiffs and the members of their class, and that such dis­
crimination on the basis of race and color in housing facili­
ties under the auspices of public funds, local or federal, is 
in violation of the Fourteenth Amendment to the Constitu­
tion of the United States and Title 8, Sections 41 and 42 of 
the United States Code”  (A. 952) are as follows:

“ 24. As of May 31, 1950, just before the orig­
inal complaint in this action was filed, the eligible 
pool of certified applicants for public housing was:

White families 1,838
Negro families 4,942



5

“ As of April 1954 or as of the present, the eligible 
pool of certified applicants for public housing is :

White families 383
Negro families 7,709”  (A. 56a)

“ 25. Since the original complaint in this action 
was filed vacancies have occurred in public housing 
projects limited to white occupancy and vacancies 
have occurred in public housing projects limited to 
Negro occupancy as follows:

White projects 4,417 
Negro projects 865”  (A. 56a)

“ 26. Based on the last official report, April-May 
1954, of the Detroit Housing Commission, there are 
the following vacancies:

White propects 51
Negro projects 3”  (A. 56a)

“ 29. The defendants presently maintain and en­
force a policy in public housing projects which oper­
ates as follows:

# * #
(3) The application blanks which must be filled 

out by prospective tenants request information con­
cerning the applicant’s race and request the appli­
cant to indicate whether he or she desires to live 
either in the ‘ east’ o r ‘west’.

(4) Separate lists of eligible Negro and white 
families are maintained”  (A. 57a)

“ 34. White families with a lesser preferential 
status than some of the plaintiffs, and some of the 
members of the class on behalf of which plaintiffs 
sue, have been admitted to public housing units to 
which, but for race, some of the plaintiffs and some 
of the members of their class would have been ad­
mitted”  (A. 59a)



6

List of authorities supporting lower court’s preceding 
conclusion:

Vann v. Toledo Metropolitan Housing Authority, 
supra;

Yick Wo v. Hopkins, 118 U. S. 356 (1886).

In the latter case the city ordinance, as is the resolution 
of September 26, 1952, was fair on its face, but it was ad­
ministered in such a way as to discriminate against Chinese. 
In the instant case, the stipulated facts cited above show 
that the resolution is administered by the Detroit Housing 
Commission and the other defendants in such a way as to 
discriminate against qualified Negro applicants.

C. Facts stipulated and agreed to by the parties which 
support the conclusion of the lower court that “ in public 
housing the doctrine of ‘ separate but equal’ has no place, 
separate housing facilities are inherently unequal. There­
fore, this .court holds that the plaintiffs and others similarly 
situated for whom the actions have been brought are, by 
reason of the segregation complained of, deprived of the 
equal protection of the laws guaranteed by the Fourteenth 
Amendment”  are the same as those cited above in support 
of the lower court’s second conclusion set out under sub­
division B above.

List of authorities in support of lower court’s preced­
ing conclusion:

Buchanan v. Warley, supra.

In the Buchanan case the United States Supreme Court 
said at page 81:

“ As we have seen, this court has held laws valid 
which separated the races on the basis of equal 
accommodations in public conveyances, and courts of 
high authority have held enactments lawful which

i



7

provide for separation in the public schools of white 
. and colored pupils where equal privileges are given. 

But, in view of the rights secured by the Fourteenth 
Amendment to the Federal Constitution, such legis­
lation must have its limitations, and cannot be sus­
tained where the exercise of authority exceeds the 
restraints of the Constitution.”

Shelley v. Kraemer, supra.

In the Shelley case the United States Supreme Court 
said at page 22:

“ The rights created by the first section of the 
Fourteenth Amendment are, by its terms, guaran­
teed to the individual. The rights established are 
personal rights. It is, therefore, no answer to these 
petitioners to say that the courts may also be induced 
to deny white persons rights of ownership and occu­
pancy on grounds of race or color. Equal protection 
of the laws is not achieved through indiscriminate 
imposition of inequalities.”

The conclusions of the lower court, that the policy and 
practices of the Detroit Housing Commission and the other 
defendants violate rights secured to the plaintiffs and the 
members of their class by the Fourteenth Amendment to 
the Federal Constitution and Title 8 U. S. C. Section 42, 
being supported by the facts in this case and by the authori­
ties, such be affirmed by this court.



8

II. Does the final judgment and permanent injunc­
tion order of the district court require defendants to 
integrate forthwith every public housing unit.

District Court did not answer this question directly 
because not raised by appellants below, but 
record shows district court’s answer would be 
No.

Appellees contend answer should be No.

A . Terms of the Order

The injunction order provides as follows:
# *  *

“ Now, therefore, it is ordered that the defend­
ants and each of them, their agents, employees, rep­
resentatives and successors be, and they hereby are, 
forever enjoined from:

1. Denying the plaintiffs, and members of the 
class which the plaintiffs represent, the right to lease 
any unit in any public housing project solely because 
of the race and color of the plaintiffs and members 
of the class which plaintiffs represent.

2. Maintaining separate lists of eligible Negro 
and white applicants for public housing.

3. Maintaining racially segregated public hous­
ing projects.”

* # *

There is no provision of this final judgment and per­
manent injunction order which requires defendants to in­
tegrate every public housing unit forthwith. In other 
words, the order, by its own terms, does not provide for the 
integrating of every unit of public housing forthwith. The 
defendants have, therefore, appealed to this court urging 
as a ground for such appeal a provision of the final judg­
ment order which does not in fact exist.



9

Defendants in their brief do not urge a reversal of the 
decision of the court below on the ground that its ultimate 
conclusion of law that segregation in public housing is un­
constitutional is erroneous. The defendants in this appeal 
claim that since their present policy and practice with 
respect to assignment of eligible families to low rent pub­
lic housing units is in accordance with the constitutional 
mandate, the lower court should have allowed defendants 
time within which to integrate or should have awaited the 
decision of the United States Supreme Court in the School 
Segregation Cases presently pending before it.

If the order by its terms had provided that the defend­
ants integrate forthwith every unit of public housing, it 
may be that defendants would need time within which to 
devise orderly procedures to meet the terms of such an 
order. But since, by the terms of the order, there is no 
provision for the immediate integration of every public 
housing unit, then clearly the need for time within which 
to devise orderly procedures to effect immediate integra­
tion does not exist.

B. The Effect of the Order

The effect of the district court’s order is not to compel 
defendants to integrate forthwith every public housing 
unit.

The effect of the first provision of the order is to enjoin 
defendants from denying the plaintiffs and members of 
their class the right to lease any unit in any public housing 
project solely because of the race and color of the plaintiffs 
and their class. The effect of this is simply to make avail­
able to the next eligible applicant on the list the next avail­
able unit in any of the public housing projects in the City 
of Detroit. It does not require the defendants to move any 
white families from their present units. It does not require, 
defendants to move any Negro families from their present



10

units in order to effect integration. It simply requires that 
if the plaintiffs, and members of their class, are otherwise 
eligible that vacancies in white projects not be denied them 
solely because they are Negroes..

The second provision of the order enjoins the defend­
ants from maintaining separate lists of eligible Negro and 
white applicants for public housing. This provision of the 
order does not have the effect of requiring the defendants 
to move white families from units in which they presently 
reside, neither does it require defendants to move Negro 
families from units in which they presently reside. It 
simply requires defendants to maintain one list and that is 
a list of applicants eligible for public housing, rather than 
two lists—one of eligible white applicants and one of eli­
gible Negro applicants.

The maintenance of separate lists is obviously the 
method by which racial discrimination is effected with 
respect to the selection of applicants for the next available 
unit in a racially restricted public housing project.

The effect of the third provision of the order is to 
enjoin defendants from continuing to restrict certain 
projects as public housing projects available for occupancy 
by eligible white families only or available for occupancy 
by eligible Negro families only. The effect of this provi­
sion is not to require the defendants to move white families 
presently residing in public housing units or to move Negro 
families presently residing in public housing units. The 
effect of this provision is simply to make available to 
eligible Negro families vacancies which occur in projects 
presently limited to white occupancy and to make available 
to eligible white families vacancies which may occur in 
projects presently limited to Negro occupancy.

The Fourteenth Amendment does not permit the de­
fendants to operate some of their public housing projects



11

on a racially integrated basis and some of their public- 
housing projects on a racially segregated basis. The Four­
teenth Amendment does not permit the defendants to make 
available to the plaintiffs and members of their class units 
in public housing built in the future, but deny to plaintiffs 
and members of their class vacancies which occur in public 
housing projects built in the past.

There were, as of the time of entry of the final judg­
ment and permanent injunction order, 51 vacancies in 
white projects and 3 vacancies in Negro projects. The 51 
vacancies existing in projects limited to white occupancy 
were denied plaintiffs and members of their class solely 
because of race and color. The effect of the third provision 
of the injunction order is to make these 51 vacancies in 
white projects available to plaintiffs and members of their 
class.

III. Is the action of the United States Supreme 
Court in the School Segregation Cases applicable to the 
instant case.

District Court answered No.
Appellees contend answer should be No.

The defendants in their brief, page 11, urged that this 
court modify the final judgment and permanent injunction 
order of the district court so that it be determined that 
the policy and practices of the defendants are not in viola­
tion of the Fourteenth Amendment, and that defendants 
have such additional time within wdiich to complete integra­
tion as appears necessary, with due regard for the public 
safety and welfare. In support of this latter request on 
the part of defendants, defendants urge upon this court 
that the United States Supreme Court in the School Segre­
gation Cases presently pending before it has not yet issued 
final decrees determining how its ruling, that school segre­
gation is unconstitutional, shall be enforced.



12

A. Reasons for Postponement of Decrees in 
School Cases

The United States Supreme Court postponed final 
orders in the School Segregation Cases for the following 
reasons:

(1) Its decision in those cases is of wide applicability, 
i.e., its decision affects mandatory segregation statutes in 
17 southern states and the District of Columbia.

(2) There are a great variety of local conditions in 
those 17 southern states and the District of Columbia which 
must be taken into consideration in formulating decrees.

(3) Formulation of decrees in those cases presents 
“ problems of considerable complexity.”

(4) Upon the reargument of those cases in December 
1953 “  * * * the consideration of appropriate relief was 
necessarily subordinate to the primary question—the con­
stitutionality of segregation in public education.”  The 
court, therefore, did not get the assistance of counsel in 
those cases with respect to formulating its decrees.

For the foregoing reasons, the United States Supreme 
Court postponed the formulation of final decrees in the 
School Segregation Cases.

B. Reasons for Postponement Non-Existent Here

In the instant case, the district court was not faced with 
a decision of wide applicability. There is no state, includ­
ing Michigan, as far as counsel for the appellees have been 
able to determine, in which there are compulsory segrega­
tion laws with respect to public housing. The district court 
was not faced with the problem of declaring a statute of 
statewide applicability in Michigan, and in many other 
states, unconstitutional. It was dealing with the admin­
istrative policy and practices of a single administrative 
agency which affect a single community.



13

C. Simplicity of the Instant Case Drawn by Analogy

Because the decision was not of wide applicability and 
need not comprehend a great variety of local conditions, 
the formulation of a decree in the instant case by the dis­
trict court did not present problems of considerable com­
plexity. As the district court saw it—the problem of the 
instant case was analogous to the problem of colored people 
and white people going up to a ticket window to buy a 
ticket for a train—the train having only so many seats. 
The defendants say, in effect, to the colored people: You 
stand in the background until all the seats available on 
that particular train have been sold to white people (A. 
78a). Or, in other words, as the lower court said (A. 79a) 
with respect to a municipal activity which actually exists 
in the City of Detroit: If they, meaning the defendants or 
the City of Detroit, have two lines lining up for buses on 
the street corner, the effect of the segregation policy is to 
say—let the people standing in the white line get on the 
bus first. The bus becomes filled with white people and 
then drives away leaving the colored people standing there.

The stipulation of facts shows that since this suit was 
filed in June 1950, 4,417 vacancies occurred in white proj­
ects and only 865 occurred in Negro projects. This means 
that white low income families eligible for public housing 
had approximately 3,600 more opportunities to get housing 
than the Negro families. As a result of this the number of 
Negro families eligible for public housing increased from 
4,942 in May 1950 to 7,709 in April 1954. Whereas, the 
number of white families decreased from 1,838 in May 
1950 to 383 in April 1954. From these facts and by refer­
ence to the preceding analogies, the court concluded that 
the Negroes were simply treated unequally “ because they 
are not given their regular turn in getting into these proj­
ects”  (A. 79a).

Therefore, the problem before the district court was 
not a complex one at all. As the district court saw it the



14

problem before it could be resolved by simply giving tbe 
Negro applicants their regular turn in getting into these 
projects. The court’s conclusion was:

“ The Court: I think that they are entitled to 
have their applications processed and either ap­
proved or disapproved strictly in the order of their 
application”  (A. 81a).

It is, therefore, clear that the district court had no inten­
tion of requiring the defendants to integrate forthwith 
every public housing unit, which as defendants suggest 
would require moving white and Negro families around to 
create some sought of checkerboard pattern. The district 
court simply said: Treat Negroes the same as whites are 
treated and when the Negro’s turn comes give to the Negro 
applicant the next available unit, if he is the next in line 
(A. 81a).

The situation in the instant case is, therefore, unlike 
the complex problem of school desegregation in the cases 
presently pending before the United States Supreme Court.

D. Time A lready A llow ed

The district court took into consideration the fact that 
there might be some resistence in the City of Detroit on 
the part of some of the people to the admission of Negroes 
to previously all white projects. In view of this, the dis­
trict court permitted four years to elapse between the filing 
of the suit and the entry of its final order. The court said, 
at page 65 of the Appendix to Appellants’ Brief:

“ Now, with reference to the long period of time this 
case has been pending, I appreciate some of the things 
that Mr. Ingalls mentioned. I never anticipated it 
to be such a serious problem in Detroit. I am in­
clined to think that 'counsel for the defendants are 
under-estimating the progress that we have made in



15

Detroit in good race relationship in recent years. 
Now, going along a little bit further with the matter, 
shortly after one of the preliminary hearings in this 
matter, the defendants rescinded the resolution that 
I have referred to heretofore; shortly thereafter 
they opened a bi-racial occupancy in one of the newer 
developments. Just viewing it from the highway, 
as I do every day, it looks like a pretty good develop­
ment. No trouble (12) has come out of that.

In private housing, colored people have been per­
mitted to move into territories that, as our general 
residential standards go in this community, are rela­
tively high, and no difficulties have arisen there.

I appreciate that adopting the Declaration of In­
dependence did not immediately erase all of the preju­
dice and bigotry that seems to be one of the crosses 
that the American people have to bear.

I agree that we should proceed cautiously. I had 
hoped from the beginning that my home city would 
eliminate segregation, not because some court 
ordered the officials to do so, but because they wanted 
to do it because it was the right thing to do. And, of 
course, I know that all of us would have been happy 
if they had accomplished this result without com­
pulsion by the Federal Government.

I think, however, there comes a time when patience 
ceases to be a virtue. I think that we have reached 
that place right now, so we are going ahead with this 
case.”

The district court, therefore, considered the necessity 
for time in which to bring about a change in the racial poli­
cies of the defendants and in fact allowed them 4 years in 
which to do so. As the district court pointed out and as 
counsel for defendants agreed, the district court had made 
it clear from the very first day in which counsel for plain­



16

tiffs and defendants appeared in the district court, that 
the district court was of the opinion that the law was with 
the plaintiffs and against the defendants. The record shows 
(A. 82a) the following discussion between the lower court 
and counsel for defendants:

“ The Court: I can understand Mr. Ingall’s posi­
tion. I guess I told you where I stood in this case 
about four years ago.

‘ ‘ Mr. Ingalls: I beg your pardon ?
‘ ‘ The Court: I think you found out where I stood 

in this case about four years ago.
“ Mr. Ingalls: I found that out the first day we 

were in here, your honor.
“ The Court: So that did not come as a shock 

today.
Mr. Ingalls: No.”

In Buchanan v. Warley, supra, justification for the city 
ordinance requiring residential racial segregation was 
sought on several grounds. One ground was that the state 
had the power to pass such an ordinance in the exercise of 
the police power “ to promote the public peace by prevent­
ing racial conflict” .

In response to this argument the Court said, at pages 
74-75:

“ The authority of the state to pass laws in the 
exercise of the police power, having for their object 
the promotion of the public health, safety, and wel­
fare, is very broad, as has been affirmed in numerous 
and recent decisions of this 'court. * * * But it is 
equally well established that the police power, broad 
as it is, cannot justify the passage of a law or ordi­
nance which runs counter to the limitations of the 
Federal Constitution; # * #



17

“ True it is that dominion over property spring­
ing from ownership is not absolute and unqualified. 
The disposition and use of property may be con­
trolled, in the exercise of the public health, con­
venience, or welfare. * * * Many illustrations might 
be given from the decisions of this court and other 
courts, of this principle, but these cases do not touch 
the one at bar.

“ The concrete question here is: May the occu­
pancy, and, necessarily, the purchase and sale of 
property of which occupancy is an incident, be in­
hibited by the states, or by one of its municipalities, 
solely because of the color of the proposed occupant 
of the premises?”

* * #
“ That there exists a serious difficult problem 

arising from a feeling of race hostility which the law 
is powerless to control, and to which it must give a 
measure of 'consideration, may be freely admitted. 
But the solution cannot be promoted by depriving 
citizens of their constitutional rights”  (at pp. 80-81).

The district court continually urged counsel for the de­
fendants to voluntarily change the racial segregation policy 
and gave them 4 years in which to do so. When it became 
clear to the district court that the defendants were not pro­
ceeding in good faith, it was then, and only then, that the 
district court issued its injunction.



18

CONCLUSON

It is respectfully submitted by counsel for appellees 
that the district court’s final judgment and permanent 
injunction order be affirmed.

W il l is  M. G raves ,
62 Mack Avenue,

Detroit, Michigan;

F rancis M. Dent,
4256 Russell,

Detroit 7, Michigan;

T hurgood Marshall,
Constance Baker Motley,

107 West 43rd Street,
New York 36, New York,

Counsel for Appellees.