Dorsey v. Stuyvesant Town Corporation Brief of Plaintiffs in Support of Motion for Temporary Injunction

    t t p r a n p Gkmrt
OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK

J oseph 'Dotjsey, M em os D owl­
ing and Calvin Harper, suing 
on behalf o f themselves and all 
others similarly situated,

Plaintiffs,
against

Stuyvesant T own Corporation 
and Metropolitan L ife Insur­
ance Company,

Defendants.

Before:
H on. F elix C. Benvenga, 

Justice.

BRIEF OF PLAINTIFFS 
IN SUPPORT OF

MOTION FOR TEMPORARY INJUNCTION

W ill Maslow,
T hurgood Marshall, 
J oseph B. R obison, 
Stanley M. R iesner,

Of Counsel,

Charles A brams,
Attorney for Plaintiffs, 

225 Broadway,
New York City.



TABLE OF CONTENTS

Statement ..........................................................................  1
The character of Stnyvesant Town....................... .... .....  6
The constitutional provisions........................................  S
The statute and contract............................................   13

Point I—The extraordinary usages to which public 
powers were put affirms the public character of 
Stnyvesant Town....................    18

1. The tax power............................   18
2. Eminent domain.................................................... 20
3. The police power..................................................  21

Point II—The courts have restrained even private cor­
porations from discriminating where they have be­
come repositories of official power.............................  23

Point III—Even if Stnyvesant Town were completely 
private as it contends, its very physical pattern 
would bring it within the restraints of the Constitu­
tion .......................................................   30

Point IV—If the Redevelopment Companies Lav/ em­
powers the Stnyvesant Town Corporation to bar 
Negroes it would be unconstitutional. The Court 
should, therefore, construe the law to effect a con­
stitutional purpose............................... -..... -................ . 32

Point V—The Riverton project is irrelevant to the 
constitutional issue here involved................................  39

Point YrI—A. temporary injunction should be granted 
to prevent irreparable damages..... ..........    40

Conclusion  .......................................................................................  42

PAGE



11

TABLE OF AUTHORITIES
C A SE S PAGES

Adler v. Dcegan, 251 N. Y. 467........ ................................  38
Block v. Hirsh, 256 U. S. 135............................. .............  38
Buchanan v. Warley, 245 U. S. 60......................7, 33-35, 43
Clinard v. City of Winston-Salem, 217 N. C. 119—1.__  43
Conectieut College v. Calvert, 87 Conn. 421, 88 Atl. 633 21
In re Drummond Wren, 4 D. L. B. 674......................44, 45
In re Edward J. Jeffries Housing Project, 306 Mich.

Glover v. City of Atlanta, 96 S. E. 562.......................... 43
Hardin v. City of Atlanta, 147 Ga. 248, 93 S. E. 401...  43
Harmon v. Tyler, 273 U. S. 668...................................... 7
Harris v. City of Louisville, 165 Ky. 559, 177 S. W. 472 43
Hirabayashi v. U. S., 320 IT. S. 81.................................  44
Hopkins v. City of Richmond, 117 Va. 692, 86 S. E. 139— 43
Irvine v. City of Clifton Forge, 97 S. E. 310..............  43
Kennett v. Chambers, 55 IT. S. (14 How.) 38....................  45
Kerr v. Enoch Pratt Free Library, 149 F. 2d 212...7, 27, 28
Liberty Annex v. City of Dallas, 289 S. W. 1067...... ....  43
Madden v. Queens County Jockey Club, 296 N. Y. 249...  29
Marsh v. Alabama, 326 U. S. 501........................... 30-31, 37
Murray v. LaGuardia, 291 N. Y. 320.............. 8, 9,11,13, 32
New York City Housing Authority v. Muller, 270 N. Y.

333 .............:............ ................................................21,29,32
Nixon v. Condon, 286 IT. S. 73.......................... - .........7, 8, 24
People v. King, 110 N. Y. 418.................. -................. 7,9,11



I l l

People ex rel. Durham v. LaFetra, 230 N. Y. 429....... 38
Pratt v. LaGuardia, 182 Mise. 462, aff’d 268 A. D. 973, 

leave to appeal denied 294 N. Y. 842.............. 2,12,13, 36
Shelley v. Kramer, 15 IT. S. Law Week 3478................  42
Sipes v. McGhee, 15 17. S. Law Week 3478....................  42
Smith v. Allwright, 321 U. S. 649.................. 7,8,22,24,25
Steele v. Louisville R. Co., 323 IT. S. 192.......7, 25, 26, 27, 28
Strauder v. West Virginia, 100 IT. S. 303.................. 34-35
Stuyvesant Town Corporation, 183 Mise. 662, 51 N. Y.

S'. 2d 19.................................. .......................................  20
University of Southern California v. Robbins, 37 Pae.

PAGES

2d 163............. ......... ................... .............. ...... ...............  21.
Ex Parte Virginia, 100 IT. S. 339..................................... 35
Yick Wo v. Hopkins, 1.18 Ik S. 356.................................  38

STATUTES AND MISCELLANEOUS

Abrams, Charles, “ The Future of Housing”.................  42
Abrams, Charles, “Race Bias in Housing ’..................  42
51 Corpus Juris... .............................................................. 30
Kalian, Validity of Anti-Negro Restrictive Covenants,

12 U. of Chi. L. Rev. 198................. ,..........................  42
Local Law 45, 1947...........................................................  40
McGovney, Racial Residential Segregation by State 

Court Enforcement of Restrictive Agreements, 33 
Calif. L. Rev. 5... .............................. ....... :....................  42

McQuillan, Municipal Corporations..............................  29



IV

Myrdal, An American Dilemma....................................... 42
N. T. City Admin. Code, Section J 41-1.2.................. 4, 40
N. Y. City Charter.................................................... ........  32
N. Y. State Constitution............................. 3, 8,11,16,19, 39
N. Y. Public Housing Law.............................................  29
Redevelopment Companies Law, McKinney, Ilneon- 

solid. Laws, Sections 3401-3426.........6, 9,11,12,13-1.7, 32

PAGES

Report, 1944 Annual Conference of Race Relations 
Advisors ........................................................................  5

Senate Hearings, Senate Special Committee on Post­
war Economic Planning, 79th Cong., 1st Sess., part 
6 ......................................................... ..............................  4

Senate Hearings before Committee on Banking and
Currency, 79th. Cong., on S. 1592................................ . 4

Tanzer, New York City Charter..... ..............................  32
United Nations Charter.................................................... 45
United States Constitution........................... 3, 7, 9, 23, 28, 30



§>itpmttp (Eoart
OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK

J oseph D orsey, Monroe D owl­
ing and Calvin Harper, suing 
on behalf of themselves and all 
others similar!}7 situated,

Plaintiffs,
against

Stuyvesant T own Corporation 
and Metropolitan L ire I nsur­
ance Company,

Defendants.

BRIEF OF PLAINTIFFS IN SUPPORT OF 
MOTION FOR TEMPORARY INJUNCTION

Statement *

The three plaintiffs are Negro war veterans. They sue 
to enjoin the two defendants from withholding or denying 
to them and others similarly situated any of the dwelling 
units in the Stuyvesant Town project solely because of 
their race or color. They allege that they have applied 
for apartments in Stuyvesant Town but that the defend­
ants do not intend to rent to Negroes. Their applications, 
they say, therefore are doomed in advance. In view of 
the public features of the project, the public aid and powers

* This brief is also filed in behalf of the American Jewish Congress, the 
American Civil Liberties Union and the National Association for the Ad­
vancement of Colored People who indorse the views expressed herein.



2

that made it possible, and the fact that it is subject to 
public controls throughout the life of its tax exemption, 
they assert that an obligation rests upon the defendants 
to extend to them the equal protection of the laws.

The defendants do not dispute that their policy is to bar 
their accommodations to Negroes. They have, in fact, 
gone out of their way to admit it orally and in writing. 
Their current explanation is more in the nature of de­
murrer than denial. The record of their position on the 
question may be stated in three phases.

Phase I goes back to 1943 when the Chairman of the 
Board of Metropolitan Life Insurance Co. asserted that 
no Negroes would be allowed in the project. Replying to 
affidavits in a taxpayer’s action citing his statements, he 
admitted his position, but said that defendants’ directors 
had “ thus far not adopted any renting policy and that 
they will have no occasion to do so until the project ap­
proaches completion” (position summarized in Opinion of 
Judge Shientag in Pratt v. LaGuardia, 182 Misc. 462 
[1944], aff’d 268 A. D. 973, leave to appeal denied, 294 
N. Y. 842). Because there was no final renting policy and 
the project was not yet under way, a suit to enjoin the 
discrimination was then held to be premature.

Phase II  is concerned with the period of June, 1946, 
when in response to a letter from the American Civil Lib­
erties Committee asking the following question: “Are
there restrictions as to race, color, religion of prospective 
tenants?” , George Gove, Vice-President of Stuyvesant 
Town Corporation, stated “ * * * in conformity with public 
announcement made when the plans for Stuyvesant Town 
were first formulated in cooperation with the City, pro­
vision has not been made for occupancy by Negro fami­
lies” (Letters of Foster and Gove annexed to moving pa­
pers).



3

Phase III is concerned with the period immediately pre­
ceding this action. Shad Polier, vice-president of the 
American Jewish Congress, spoke with George Gove on 
June 20, 1947. He read Mr. Gove the letter of a year be­
fore to the Civil Liberties Committee. He said that he 
had heard that a change in that policy was being contem­
plated and that Negro applicants were being interviewed. 
Mr. Gove stated that despite the interviews “ there was no 
change in the Corporation’s policy as publicly announced 
and as summarized in the letter to Mr. Poster” (Affidavit 
of Polier). Mr. Polier asked Mr. Gove what the Corpora­
tion would do, should Negroes meet “ the requirements 
established by the Corporation with respect to character, 
stability, manner, appearance and similar criteria.” Mr. 
Gove “ stated that, nevertheless, unless there should be a 
change in policy—and none was being contemplated—there 
would simply be no renting to Negroes.”

Mr. Gove’s answering affidavit does not deny any of 
these assertions nor does it deny the policy as set forth in 
the letter of June 26, 1946 to the Civil Liberties Commit­
tee. The only reference to Mr. Polier’s conversation and 
to the letter to the Civil Liberties Committee is an at­
tempted justification of the discriminatory policy on the 
ground that the presence of objectionable persons might 
“ endanger the economic success of the enterprise. This 
right of selection by the management cannot be impaired 
if due regard is to be had for the rights of the policy­
holders of Metropolitan Life Insurance Company and 
without violating the rights of Metropolitan Life Insur­
ance Company and Stuyvesant Town Corporation under 
the Fifth and Fourteenth Amendments to the Constitution 
of the United States and under Article I, Section 6 of the 
Constitution of the State of New York.”

Mr. Gove insists that there is no limitation either by 
contract or statute upon the defendants’ absolute right to 
refuse accommodations to whomever they choose.

The issue of discrimination is thus clearly drawn and 
the question presented directly for the first time*.



4

Have the defendants the right to refuse the plaintiffs, 
and others similarly situated, the accommodations in Stuy- 
vesant Town solely because of the plaintiffs’ race or color! 
This is the question to be decided.

Resolution of the issue entails crucial consequences be­
yond the project’s boundaries. Urban redevelopment laws 
had been enacted in 20 states by the close of 1945 (see 
Senate Hearings on S. 1592, before the Committee on 
Banking and Currency, 79th Congress, pp. 485-524). With 
39 percent of the dwellings in the United States substand­
ard (see Statement of John B. Blandford, Jr., former 
National Housing Administrator, at Hearings before the 
Subcommittee on Housing and Urban Redevelopment of 
the Senate Special Committee on Postwar Economic Pol­
icy and Planning, 79th Congress, 1st session, part 6, Jan­
uary 9, 1945, pp. 1233-37) urban redevelopment has 
become a principal device for the replanning and rebuild­
ing of our extensive slum areas throughout the country 
and for replacing them with new neighborhoods. In the 
process, it is inevitable that millions of people will be 
moved from their old neighborhoods and the racial and 
social patterns of our cities will be recast. In the new 
areas we shall face the choice either of isolating minority 
groups into segregated areas or creating new neighbor­
hoods in which educational processes shall have a chance 
of functioning toward interracial harmony. The local or­
dinance barring discrimination in City projects applies 
neither to Stuyvesant Town nor to any other project out­
side of New York City (Admin. Code, Sec. J41-1.2).

If the new neighborhood patterns of New York State 
and the United States are to be based on the theory of 
segregation, segregation in neighborhood schools, in play­
grounds, in shopping centers, in other public facilities 
will result. If the nation’s neighborhoods are to be marked 
off into areas for the exclusive and the excluded, the in­
voluntary ghetto will have become an unalterable Ameri­
can institution. For, once the racial composition of the



5

new neighborhoods is fixed, they cannot be easily changed, 
particularly if they are as rigidly controlled as Stuyvesant 
Town would be with all the freedom from public inter­
ference it asserts it has.

Public housing projects have made great headway in re­
establishing the pattern of heterogeneous occupancy in 
newly-created neighborhoods and 325 of the 622 projects 
throughout the nation now have mixed occupancy (see 
1944 Annual Conference of Racial Relations Advisers, “Ex­
perience in Public Housing Projects Jointly Occupied by 
Negro, White, and Other Tenants”, p. 4). Every federal 
and state-aided project in New York City has mixed oc­
cupancy. The threats to the defendants’ claimed property 
rights rest upon the mistaken notion that Negroes per se 
cause a white exodus, for they have mistakenly applied the 
theory of small scattered private ownerships to a large 
self-contained area that creates its own environment. The 
pattern of infiltration followed by inundation that takes 
place in the former has no application to a controlled proj­
ect such as Stuyvesant Town. Every instance of mixed 
occupancy in the United States lias substantiated this prop­
osition, including defense projects built for higher rent 
tenancy (ibid, testimonials to successful mixed occupancy 
in projects in Chicago, Milwaukee, Philadelphia, Pitts­
burgh, Los Angeles, Seattle, etc., pp. 8-49). The fear of 
an invasion of defendants’ property rights rests therefore 
upon an illusion.

The defendants simply choose to reverse the policy of 
heterogeneous tenancy in publicly-aided undertakings and 
claim their right to do so as “private” owners of a “private” 
project. The plaintiffs, however, assert that the project 
is endowed with certain public attributes which impose 
upon its sponsors the obligation to extend the equal pro­
tection of the laws to the citizens whose powers and funds 
have made the project possible. The character of the 
“private” undertaking therefore must be carefully analyzed.



6

The character of Stuyvesant Town

Stuyvesant Town is not merely a composite of buildings. 
In many respects it is more like a principality. It consists 
of 18 city blocks consisting of more than 2y2 million square 
feet of land of which almost 750,000 square feet were 
originally public streets. These are now enclosed and in­
cluded in the site (see Chart II appended to the contract 
between the City, Stuyvesant Town and Metropolitan Life 
Insurance Co.). Within the enclosure will live a popula­
tion of 24,000, equal to the population of one-quarter of 
one of our smaller states. It will be larger in population 
than 61,000 communities in the whole country and smaller 
than only 400. It spans four avenues of narrow Manhattan 
Island, cutting off traffic on two avenues completely. It 
will have no public parks, no schools, libraries, fire, policing 
or sanitation facilities. Existing public schools, a limited 
dividend corporation and other public property were 
demolished and the land sold to the Stuyvesant Town Cor­
poration. All the streets in the area will be marked 
“private” . There will be signs on those streets at their 
intersections with public streets giving notice to the public 
that these streets are “private” (see Sec. 211 of contract 
between City, Stuyvesant Town and Metropolitan).

This strange, novel undertaking is presumably authorized 
under the Redevelopment Companies Law (McKinney, 
Unconsol. Laws, Secs. 3401-3426). The project, however, 
cannot exist without the provision of new schools for the 
children in the area, without policing and fire protection, 
without welfare facilities, without the aid of the vast net­
work of municipal facilities which surround the area around 
the project and convert it into a community.

The very privacy and exclusiveness which the project’s 
sponsors sought for it necessitated various controls. This 
was no secession from the community. These were no 
ordinary apartment houses differing from others only in 
mass and quantity. The new development was in effect a



7

satellite city over which the public exercised legislative 
and contractual controls. The wisdom of the undertaking 
and the adequacy of the controls are not in issue. What 
is in issue is that the whole legislative and contractual pat­
tern clearly evidences an intention to confer an agency 
upon the Stuyvesant Town Corporation to carry out city 
and state duties—in slum clearance, in urban redevelop­
ment, in replanning, in housing. To achieve these public 
purposes the City gave up much and the defendants sub­
mitted themselves, in return, to public regulation. The City 
condemned the property for the companies. It turned 
over streets equal to 19 per cent of the area. It supplied 
vast facilities. It gave tax exemption on the improve­
ments. The residents of the area gave up much, too. In a 
period of intense shortage they were moved out to other 
slums where many of them were forced to overcrowd. The 
purpose, however, was public and private convenience had 
to yield to the larger public interest. That public interest, 
however, still acts as the check-rein to which the project 
is bridled.

The law is clear that the state itself or its subdivisions 
may not deny the use of public facilities to any individual 
solely because of his race, color or creed {14th Amendment; 
People v. King, 110 N. Y. 418; Buchanan v. Worley, 245 
IL S. 60; Harmon v. Tyler, 273 IT. S. 668; In re Edward J. 
Jeffries Housing Project, 306 Mich. 638). Schools, parks, 
public auditoriums, public hospitals and public housing, if 
provided, must be provided for all on an equal basis without 
distinction as to race or color.

The restraints that bind the state and its subdivisions 
also bind those agencies to whom the state’s power has 
been delegated {Nixon v. Condon, 286 IT. S. 73; Smith v. 
Allwright, 321 U. S. 649; Kerr v. Enoch Pratt Free Library, 
149 F. 2d 212; Steele v. Louisville R. Co., 323 IT. S. 192). 
The question is not whether the corporation is public or 
private but whether it is operating as a representative 
of the City in discharge of the City’s authority,: whether 
the Board’s managers are “ representatives of the state



8

to such an extent and in such a sense that the great re­
straints of the constitution set limits to their action” (Nixon 
v .Condon and Smith v. Allwright, supra). The issue, there­
fore, as clearly framed by the Court, involves a considera­
tion of (1) the constitutional provisions under which the 
project is authorized, (2) the enabling statute, (3) the 
contract between the City and the defendants.

The constitutional provisions

The constitutional questions have been resolved in part 
by Murray v. LaGuardia (291 N. Y. 320). The constitu­
tional authorization derives from the clause providing:

“ Subject to the provisions of this article, the legis­
lature may provide in such manner, by such means and 
upon such terms and conditions as it may prescribe 
for low rent housing for persons of low income as de­
fined by law, or for the clearance, replanning, recon­
struction and rehabilitation of substandard and in­
sanitary areas, or for both such purposes, and for 
recreational and other facilities incidental or appurte­
nant thereto” * (Article XVIII, Sec. 1).

It should be noted that the purposes are in the alternative, 
but that the second alternative consists of five inseparable 
components, i.e. clearance, replanning, reconstruction, re­
habilitation, and recreational and other facilities incidental 
and appurtenant thereto. If the Constitutional Conven­
tion had intended clearance alone to be a public purpose, 
presumably it would not have coupled the other purposes 
with it. Manifestly, the legislature knew that clearance 
could be accommplished by an earthquake, a bombardment 
or a fire. It was the replanning of the area, its reconstruc­
tion and its rehabilitation into a completed work that was 
intended as the public use for which the vast benefits, to 
redevelopment companies was authorized. As Judge Lewis

* All emphasis throughout this brief is supplied except where it is indi­
cated that the emphasis appeared in the original quotation.



9

said, the other purpose was “ to bring about the clearance 
and rehabilitation of substandard areas as a means to 
protect public health and morals.” The rehabilitation, by 
the statute, has to be by supplying housing in place of the 
slums (Sec. 14). The incidents of the public purpose is 
the housing. The cost of that housing is contributed to by 
every taxpayer, white and black. The statute does not 
say that the housing shall be for whites only. As our 
Court of Appeals said in People v. King, supra,

“ It is not necessary, at this day, to enter into any 
argument to prove that the clause in the Bill of Bights 
that no person shall ‘be deprived of life, liberty or 
property without due process of law’ (Const, Art. 1, 
§ 6), is to have a large and liberal interpretation, and 
that the fundamental principle of free government, 
expressed in these words, protects not only life, lib­
erty and property, in a strict and technical sense, 
against unlawful invasion by the government, in the 
exertion of governmental power in any of its de­
partments, but also protects every essential incident 
to the enjoyment of those rights.”

The defendants seek to read into Murray v. LaGuardia, 
the holding that once the clearance of the slum has been 
accomplished they are as free from any restraints upon 
their conduct as any private landlord. That is sustained 
neither by Judge Lewis’ opinion nor by statute. The 
Murray case was brought by 18 owners within the Stuy- 
vesant Town area to enjoin the defendants from proceed­
ing with the project. The petition alleged, among other 
things, that the plaintiffs would be deprived of their prop­
erty without due process of law and “allows the condem­
nation of private property for the benefit of a private cor­
poration and not for public use” (Petition, Sec. 27). 
“ Condemnation” said the petition, “would cause the plain­
tiffs irreparable injury.” It was to this point that the 
Court of Appeals addressed itself saying that “If upon 
completion of the project the public good is enhanced, it 
does not matter that private interests may be benefited.”



10

The Court said, referring to the exercise of eminent do­
main and the tax exemption provisions “ it is thus made 
clear that such tax exemption, which as we have seen, is 
limited to the value of improvements made within the area, 
cannot occur until the project itself—the work of rede­
velopment and rehabilitation within the substandard area 
has been completed and the public purpose for which the 
project was designed has been accomplished.”

Judge Lewis used the term “public purpose” in the emi­
nent domain sense. It is clear that he did not mean that 
thereafter there were no other public purposes to be 
performed, for the statute and the certificate of incorpo­
ration and the contract and the whole formula from begin­
ning to end are replete with public purposes that weave 
in and through the whole transaction. These include not 
only sound neighborhood replanning and sound redevel­
opment of the area but provision and maintenance of 
adequate safe and sanitary housing accommodations. 
Completion of the project by the statute itself means com­
pletion of “a specific work or improvement to effectuate 
all or any part of a plan including lands, buildings and 
improvements acquired, owned, constructed, managed or 
operated in an area by a redevelopment company providing 
dwelling accommodations pursuant to this act and such 
business, commercial, cultural or recreational facilities ap­
purtenant thereto as may be approved pursuant to section 
fifteen of this act.” *

The public use as clearly held by Judge Lewis included 
not only reconstruction of the area but the continued oper­
ation of the project in the public welfare. When the re­
construction was accomplished, new rights and obligations 
were set up which in 1943 the Court of Appeals was not 
called upon to decide. What is involved today is whether 
the product of the “ cooperation between municipal govern­

* Completion o f the project is defined differently in the contract from the 
statute. Completion o f the project under the contract means the date of 
actual completion or three years and sixty days after certification by the 
Comptroller that materials and labor are available.



11

ment and private capital to the end that substandard, in­
sanitary areas in our urban communities may be rehabili­
tated” (Murray v. LaGuardia, p. 832) is now completely 
divested of public interest.* This would be a preposterous 
interpretation. As the court pointed out in the sentence 
following its allusion to public purpose, “ It should be added 
that during the period of tax exemption the statute (Sec. 
16) makes it unlawful for the redevelopment company ‘to 
change or modify any feature of a project’ without the 
approval of the municipal planning commission, except by 
a three-quarters vote of the local legislative body.”

During the period of such tax exemption the redevelop­
ment company “ shall not have power to sell any project 
without the consent of the local legislative body” (Sec. 
23). However, whether the housing be a distinct public 
function under the statute or be only an incident of the 
slum clearance that has already been “accomplished” the 
plaintiffs are entitled to benefit equally with other citizens 
{People v. King, supra).

That there was a continuity rather than a cessation of 
the public purpose, is further suggested by the Court’s 
statement that

“ The People by the adoption of article XVIII of 
the State Constitution, and the Legislature, by the 
enactment of the Redevelopment Companies Law, have 
recognized that the sinister effect of substandard, in­
sanitary areas, wherever slums exist, exerts a malign 
influence upon the community at large and tints justi­
fies public control and corrective measures. The cor­
rective statute with which this proceeding is concerned

The Courts are liberal in upholding the use o f eminent domain. It has 
been conferred even upon private companies such as irrigation and drainage 
companies, railroads, other public utilities and cemetery corporations The 
more rigid definition of public use, i.e., use by the public, has now been aban­
doned and even pub he benefit today authorizes the condemnation power But 
public use from the standpoint o f eminent domain is a far cry from dis­

crimination m the undertaking o f a “public use” . The situation might be 
compared to a utility company which exercises the eminent domain power 
or may have it exercised on its behalf. What determines its actions in regard 
to discrimination is not the considerations underlying the use o f the eminent

nature of its activities and * *



12

is an effort by the Legislature to promote co-operation 
between municipal government and private capital to 
the end that substandard, insanitary areas in our urban 
communities may be rehabilitated.”

The reference to control; cooperation between municipal 
government and private capital; and to the word rehabili­
tated (not cleared) indicate that there was a public pur­
pose in the continued operation of the project as well as in 
the clearance of the slum and the construction of the build­
ings.

Mr. Robert Moses confirms this for he states in an affi­
davit which Metropolitan relied upon and filed in the Pratt 
case, as follows:

“ I was a delegate to the Constitutional Convention 
of 1938 and took a lively interest in the housing article 
proposed by that Convention. After its adoption I was 
appointed a member of the Mayor’s Committee to 
work on legislation to make the article effective. It 
soon became apparent that all present and prospective 
federal, state and municipal loans and grants for pub­
lic housing, including funds in hand and those which 
might be expected over a period of several years after 
the war, could not possibly accomplish more than 10 
percent of the problem of rehabilitation in this City. 
It also became apparent that, apart from the difficulty 
of obtaining huge direct subsidies for public housing, 
it would be wholly undesirable to have a large pro­
portion of the entire city population living in superior 
subsidized quarters at rentals one-half to one-third of 
those charged by private enterprise, at the expense of 
hundreds of thousands of people enjoying slightly 
higher incomes but living in altogether inferior apart­
ments.

For these reasons the Redevelopment Companies 
Law was framed as an effort to enlist private capital 
for slum clearance and neighborhood rehabilitation.” 
(See Record on Appeal, Pratt v. LaGuardia, p. 87.)

It was thus conceded that the new housing was for the 
benefit of the thousands of people enjoying slightly higher 
incomes than those eligible for public housing. It was the



housing as well as the clearance that constituted the public 
purpose.

Finally, in passing upon whether the issue of discrimina­
tion (the third ground) was considered in the Murray case, 
Judge Shientag said:

“ The third ground of objection was not presented 
in any form to the Court of Appeals; it was not re­
ferred to in any of the briefs. * * * The opinion was 
concerned almost entirely with the question of the 
constitutionality of the Redevelopment Companies 
Law and the legality of the project sought to be under­
taken pursuant to that statute. * # # As the defendants 
forcefully point out in their briefs, Stuyvesant will 
have to perform its contract with the City in obedience 
to the fundamental law of the State and of the United 
States. If it adopts an illegal renting policy any per­
son thereby aggrieved will have his remedy in the 
courts.” (Pratt v. LaGuardia, supra.)

13

The statute and contract

If there is any doubt as to the public nature of the 
completed operation, that doubt should be resolved by a 
reading of the enabling statute. Section II of the statute 
declares:

“ that there is not in such areas a sufficient supply of 
adequate, safe and sanitary dwelling accommodations 
properly planned and relating to public facilities;

# % m # # m
that modern standards of urban life require that hous­
ing be related to adequate and convenient public facili­
ties ;  ̂ # #
that the public interest requires the clearance, re­
planning, reconstruction and neighborhood rehabilita­
tion of such substandard and insanitary areas together 
with adequate provision for recreational and other 
facilities;



14

that in order to protect the sources of public revenues, 
it is necessary to modernise the physical plan and con­
ditions of urban life;

# # # # # #
that these conditions cannot be remedied by the ordi­
nary operations of private enterprise;

*= # * * =* *
that provision must be made to encourage the invest­
ment of funds in corporations engaged in providing 
redevelopment facilities to be constructed according 
to the requirements of city planning and in effectuation 
of official city plans and regulated by law as to profits, 
dividends and disposition of their property or fran­
chises; * # & # * *
that provision must also be made for the acquisition 
for such corporations at fair prices of real property 
required for such purposes in substandard areas and 
for public assistance of such corporations by the grant­
ing of partial tax exemption;

# # # # # *
that the cooperation of the state and its subdivisions 
is necessary to accomplish such purposes;

# # # # # #
that the clearance, replanning and reconstruction re­
habilitation and modernization of substandard, and in­
sanitary areas and the provisions of adequate, safe, 
sanitary and properly planned housing accommoda­
tions in effectuation of official city plans by such cor­
porations in these areas are public uses and purposes 
for which private property may be acquired for such 
corporations and partial tax exemption granted;

*  #  # # #  #

that these conditions require the creation of the 
agencies, instrumentalities and corporations herein­
after prescribed for the purpose of attaining the ends 
herein recited; # # # % * #
the necessity in the public interest for the provisions 
hereinafter enacted is hereby declared as a matter of 
legislative determination. ”



15

The statute then defines the nature of a redevelopment 
company by requiring in the Certificate of Incorporation 

. “a declaration that the redevelopment company has been 
organized to serve a public purpose and that it shall be and, 
remain subject to the supervision and control of the super­
vising agency except as provided in this act, so long as this 
act remains applicable to any project of the redevelopment 
company; that all real and personal property acquired by 
it and all structures erected by it shall he deemed to be 
acquired or created for the promotion of the purposes of 
this act”  (Sec. 4). Would it not be preposterous to assume 
that a corporation that binds itself to remain subject to 
the supervision and control of the supervising agency and 
whose structures erected by it are created to promote the 
numerous public purposes above stated, can escape its 
public obligations to extend the equal protection of the 
laws—and do it with the acquiescence or consent of the 
municipal agency that controls it!

If the defendants’ contention is correct, i.e., that follow­
ing clearance there is no longer any public purpose and 
no longer any public obligation in connection with the 
ownership and operation of the project, the certificate 
of incorporation becomes meaningless. The continuing con­
trol also becomes meaningless.

The whole formula contained in the act is shaped to 
protect the public interest in the continued operation of the 
undertaking:

(1) the project cannot be sold except as permitted by 
law (Sec. 23).

(2) profits are limited to 6 percent for interest and 
amortization (Sec. 8).

(3) a supervising agency is set up which must con­
sent to the method of incorporation, to the method of 
financing, to the use of the project (Secs. 5 and 15).

(4) the City’s approval must be obtained to any 
modification of the project (Sec. 15).



16

(5) the project must be designed and used primarily 
for housing purposes (Sec. 14).

(6) upon dissolution, any cash surplus belongs to the 
City (Sec. 24).

(7) the rents must be regulated and any increases 
must have the approval of the City (Sec. 15 and See. 
307 of contract).

(8) rigid controls are imposed over the financing 
of the corporation (Secs. 9, 10, 11 and 12).

(9) preliminary approval of a plan or a project is 
provided for (Sec. 15).

(10) the state, municipalities and all public bodies 
and public officials are authorized to sell, lease or 
transfer property to a redevelopment company and 
hold its stock, income debentures or other securities, 
secured, or unsecured (Sec. 17).

(11) the planning commission and the supervising 
agency are empowered to make rules and regulations 
to carry out their powers and duties pursuant to the 
act and to effectuate the purposes thereof (Sec. 15).

If this urban redevelopment company, this chameleonl'ike 
creature that freely alters its shape from a public to private 
instrumentality is at this moment private, its continued 
tax exemption and other benefits would be in violation of 
Article 8, Section 1, of the Constitution. It is more logical 
to assume that its functions are still public, with all the 
restraints applicable to the exercise of such public func­
tions.

It would he idle to assume that these regulations had 
no purpose. If clearance were the only “public purpose” 
there would have been no reason for the statute requiring 
the construction of housing. If clearance and the construc­
tion of housing were the purpose with nothing more, there 
would have been no reason for the continued regulation



17

of profits, limitation upon rents, restrictions on sale, finan­
cial supervision, visitation by the Controller and the numer­
ous other regulations that weave through the statute. 
Finally, if the intention were not “ cooperation between 
municipal government and private capital” in the rehabili­
tation of the area and its continued operation in the gen­
eral interest, there would have been no purpose to the 
payment of the cash surplus to the City upon dissolution 
of the corporation.

That its obligations are public is clear from the condi­
tions under which tax exemption is given and the circum­
stances under which public regulation ends. Section 26 
of the statute provides that the redevelopment company 
receiving tax exemption may elect to pay the municipality 
the total of all accrued taxes with interest. Thereupon 
the tax exemption ceases and Section 24 dealing with dis­
solution applies. It is only after the payment of the arrears 
of taxes that the company is free of regulation. By the 
contract (Sec. 601),. however, the City and the defendants 
agreed that the taxes could not be paid up for a period of 
at least five years from the completion of the project. 
By Section 702 all supervision and restrictions cease after 
payment of the accrued taxes, except the covenants against 
change in the plan of the project. It was thus the inten­
tion of the law, as well as of the contract, that the grant 
of tax exemption be linked to the continued control by 
the City of the project and the continuity of the public 
obligations to the citizenry. If that obligation ceases at 
any time, one thing is clear: it does not cease during the 
period when the City is granting the corporation $2,000,000 
annually in the form of a tax subvention,



18

POINT I • ! .

The extraordinary usages to which public powers 
were put affirm the public character of Stuyvesant 
Town.

Not one, hut all three of the trinity of public powers were 
or are being utilized in this project in a unique and un­
precedented manner.

1. The Tax Power.
The cost of the project is conceded to be 90 million dol­

lars (Gove affidavit, paragraph 20). The cost of the land 
was about 17 million dollars (see application of Stuyvesant 
Town Corporation to New York Board of Estimate for 
an increase in rent, dated April 24, 1947). The total tax 
exemption over a 25-year period granted to Stuyvesant 
Town Corporation is thus about 3 percent on the improve­
ment cost (90-17 millions) or well over 50 million dollars, 
which is about three times the cost of the land. There is no 
limitation upon the income group that may occupy the 
project in the statute or in the contract though the inten­
tion as set forth by Mr. Moses is to house a low-income 
group. Two conclusions are suggested by the calculation: 
(1) Here was a benefit resulting from a vast tax exemption 
which the City desired its citizens to have. Largely as 
the result of the exemption, housing, precious housing, was 
being made available at considerably less than market 
value. All citizens, not a select few, were entitled to reap 
that benefit. The defendants, however, would say that 
they want only the Caucasians in our city to have it and 
they and they alone have the right to determine who shall 
be the beneficiaries. This, the plaintiffs argue, deprives 
the plaintiffs of the law’s equal protection. (2) If it was the 
intention of the statute or the contract to clear the slum, 
and nothing more, after which the project was to revert 
to its private status, the City could have been 33 million



19

dollars better off by taking the land and presenting it as 
a gift to the Metropolitan Life Insurance Company on 
the condition only that it build a project. It should be 
remembered that Metropolitan has built Parkchester on 
the extremities of the City on land for which it paid. In 
fact, simultaneously with the building of Stuyvesant Town, 
it is building Cooper Village, on land for which it paid, 
and which is not tax-exempt. In other words, it is reason­
able to assume that if the City wanted only the slum 
cleared and was not interested in housing for its citizens, 
it could have written down the land cost or even •written it 
off completely and turned it over to Metropolitan. That 
the City has contributed more than half of the cost in tax 
exemption is proof of the cooperative and public nature of 
the undertaking and of the additional public benefits it 
expected from the undertaking. The public dividend was 
in the form of lower rental apartments, not necessarily 
“ low-rent housing” as used in the Constitution. This must 
be made available not merely to Metropolitan’s selected 
clientele. If, for example, Metropolitan had announced 
that the project’s facilities would be for Metropolitan’s ex­
ecutives only, the people would never have granted the tax 
exemption, the streets and the condemnation benefits nor 
would the court have sanctioned the grant. The presump­
tion was that there was to be good housing for the people. 
Many citizens have eagerly looked forward to the oppor­
tunity of getting one of these low-priced apartments. 
Metropolitan may not therefore act arbitrarily in the se­
lection of tenants as it contends, for its conduct must be 
reasonably related to the duties which it has assumed when 
it accepted the benefits of the public powers and aid. That 
duty carries with it an undertaking not to discriminate 
arbitrarily because of race or color. If it wishes to win 
release from the contract’s and the law’s restraints, it 
might do so perhaps by paying off the equivalent of the 
tax exemption five years from the completion date. But 
until then, and so long as it receives benefits, it must as­
sume all the corresponding obligations attaching to those 
benefits.



20

2. Eminent Domain.
The grant of eminent domain is also unique. The City 

is permitted to acquire the property for Metropolitan Life 
Insurance Company, a privilege not shared by other cor­
porations engaged in performing public purposes. Real 
property in the area needed or even convenient may be 
acquired. Property devoted to a public use may be ac­
quired, too, notwithstanding that such property may pre­
viously have been acquired by condemnation or may be 
owned by a public utility corporation. Public property 
may be sold to Metropolitan without any requirement of 
public bidding. Increase in value due to assembly or re­
construction is not to be considered in making the award. 
Moreover, the use for which property is acquired for re­
development companies becomes a “ superior public use” . 
Presumably, therefore, should the City ever wish to con­
demn Stuyvesant Town for another public use, a serious 
question would arise as to whether the State might not 
have to declare the future use to be a “ superior, superior 
public use”. There is even a question as to whether it 
could reacquire the land at all for ordinary public uses. 
In any event, so public is the use, i.e., the clearance, re­
development and reconstruction of the project, that schools, 
parks, streets and other simple public uses may be taken 
for this extraordinary and superior public undertaking. 
In fact, a. limited dividend corporation in the area for 
families of low income was actually condemned (Stuyvesant 
Housing Corporation v. Stuyvesant Town Corporation, 183 
Misc. 662, 51 N. Y. S. 2d 19). Thus the Legislature and the 
City conferred the benefits of a condemnation power 
greater in some respects than those granted to its own 
housing authority, a city agency also engaged in slum clear­
ance. The use was considered more public than public 
hospitals, courts, water supply. Yet defendants now con­
tend that the use has reverted not only to a private use, 
but to a “ superior private” use, more immune from public 
obligations than even a wholly-owned company town.



21

3. The Police Power.

Streets equalling 19 percent of the area have been turned 
over to Stuyvesant Town Corporation and the police power 
normally possessed by the municipality over these streets 
is now under the corporation’s control. Responsibility for 
accidents is assumed by the redevelopment company. The 
disposition of public property is not what normally takes 
place in the ordinary private large scale development. 
There, streets are dedicated to the City; here, the streets 
are dedicated by the City to the corporation. If the defend­
ants are correct in their contention, no one has a right to 
enter those streets except the Comptroller (See. 506 of 
contract). If Negroes have no equal rights to receive ac­
commodations, they have no rights to walk upon the streets 
either. This could not have been the intent of the Legisla­
ture. The only inferences which can be drawn from this 
unusual arrangement is that the streets, though owned by 
the company, are operated under a public trust for a public 
use. It need not be for the use of the whole public any 
more than a public housing project (New York City Hous­
ing Authority v. Muller, 270 N. Y. 333), or a poorhouse, 
but it cannot be employed for a special class or for a 
corporation that discriminates as to race (Connecticut 
College v. Calvert, 87 Conn. 421, 88 Atl. 633 [1913]; Uni­
versity of Southern California v. Bottoms, 37 Pae. 2nd 163 
[Cal. App. 1934]).* By undertaking to carry out these 
extraordinary public purposes, the defendants have assumed 
the public obligations to abide by the same restraints that 
bound the public grantor of the powers and benefits.**

* In Connecticut College v. Calvert, supra, an effort was made to condemn 
land for the benefit o f a privately-owned college. There was no evidence, 
however, that the college was prohibited from rejecting applicants for racial 
or religious reasons. The Court consequently felt compelled to deny the 
benefits o f the eminent domain power. University o f Southern California v. 
Robbins, supra, was a similar proceeding. There, the Court upheld exercise 
o f the power o f eminent domain, but only after satisfying itself that the 
charter of the college prohibited discrimination on racial or religious grounds.

* * I f  the City were to have no interest in the completed project it would 
have not been careful to forbid a mortgage on the property. Presumably, 
the City did not want this public development to fall into the hands o f  a 
mortgagee vrho would not be bound by the public purposes to which Stuyvesant 
Town is obligated by the contract terms.



22

The danger of lending public controls without holding 
the beneficiaries accountable for compliance with the Con­
stitution was recognized by the Supreme Court at the 1943 
term in Smith v. AUwright, supra, as follows:

“ The United States is a constitutional democracy. 
Its organic law grants to all citizens a right to par­
ticipate in the choice of elected officials without re­
striction by any state because of race. This grant to 
the people of the opportunity for choice is not to be 
nullified by a state through casting its electoral process 
in a form which permits a private organization to prac­
tice racial discrimination in the election. Constitu­
tional rights would he of little value if they could he 
thus indirectly denied. (Lane v. Wilson, 307 U. S. 268, 
275, 59 S. Ct. 872, 876, 83 L. Ed. 1281.)”

What applies to the electoral process applies as cogently 
to the use of the eminent domain, police and tax powers.

If the defendants are correct in their contention that 
theirs is a strictly private operation, free of any require­
ments to observe equality under the law, then we have 
surely set a dangerous precedent. We will have declared 
that government itself, enjoined against discrimination and 
abuse of the essential freedoms, may divest itself of its 
powers and prerogatives to aid private corporations which 
may then openly refuse to abide by the restrictions to 
which government itself is subject when it exercises those 
powers and prerogatives. The electoral process at least 
restrains the public agency against abuse of the individual’s 
rights and the people can exercise these restraints at the 
polls, but it cannot curb a corporation that is controlled 
by a private board. Here in the name of slum clearance 
would be a device for the evasion of the troublesome Bill 
of Rights with all its cumbrous insistence oil equality and 
due process. If the precedent is carried over from urban 
redevelopment to other enterprises as well, we will have 
opened the door toward a perilous innovation in our gov­
ernmental institutions. It would mean that private com­
panies operating under the color of public purpose or gen­



23

era! welfare may draw upon the arsenal of governmental 
powers and employ them as arbitrarily as they choose. 
If this is permitted it would soon make a skeleton of the 
body politic and reduce democratic safeguards to a shell. 
These are no sweeping generalizations; they are the in­
evitable sequence of the formula as the defendants seek 
to interpret it. Fortunately, the Courts still have the 
opportunity to guide and shape that formula into the 
framework of the Constitution. They can superimpose 
public obligation and constitutional limitations upon every 
grant of governmental power to private enterprise.

POINT II

The Courts have restrained even private corporations 
from discriminating where they have become reposi­
tories of official power.

In the last few years the Supreme Court, noting the in­
creased use of private instrumentalities for the perform­
ance of governmental functions has subjected them to 
corresponding duties, particularly by requiring them to 
abide by the requirement for the equal protection of the 
laws. Thus, a private labor union and a political party 
were enjoined against discriminating because of race. In 
another case, a privately-owned “ company town” was held 
subject to restraints embodied in the First and Fourteenth 
Amendments to the United States Constitution. In a Cir­
cuit Court case, a library with a private board of trustees, 
but publicly as well as privately subsidized, was restrained 
from discriminating. These corporations are far more 
“private” than the Stuyvesant Town Corporation through 
which public obligations, public subsidies and public powers 
■weave from the inception of the enterprise to the day of 
its final termination. If the Supreme Court’s test is applied, 
the determining factor wrould be only wfhether the defend­
ants are acting by virtue of the statute and as delegates of



24

the state power under it. If under color of that power 
they discriminate against any particular race, the dis­
crimination would be held to derive its force and virtue 
from state action, i.e., from the statute and would therefore 
be voided (Smith v. Allwright, supra).

The test is not whether the private corporation is the 
representative of the state “ in the strict sense in which 
an agent is the representative of his principal. The test 
is whether they are to be classified as representatives of 
the state to such an extent and in such a sense that the 
great restraints of the Constitution set limits to their 
action” (Mr. Justice Cardozo, Nixon v. Condon, supra, p. 
487). In the case above cited the Legislature authorized a 
political party to prescribe the qualifications of its own 
members. The executive committee of the party adopted a 
resolution qualifying only white Democrats. The argu­
ment was made that the political party was merely a volun­
tary association aloof from the impact of constitutional 
restraint, as is a Masonic lodge. Mr. Justice Cardozo held 
as follows:

“ The pith of the matter is simply this, that, when 
those agencies are invested with an authority independ­
ent of the will of the association in whose name they 
undertake to speak, they become to that extent the 
organs of the state itself, the repositories of official 
power. They are then the governmental instruments 
whereby parties are organized and regulated to the 
end that government itself may be established or con­
tinued. What they do in that relation, they must do in 
submission to the mandates of equality and liberty that 
bind officials everywhere. They are not acting in mat­
ters of merely private concern like the directors or 
agents of business corporations. They are acting in 
malters of high public interest, matters intimately con­
nected with the capacity of government to exercise its 
functions unbrokenly and smoothly. * * * Delegates of 
the state’s power have discharged their official functions 
in such a way as to discriminate invidiously between 
white citizens and black. Ex parte Virginia, supra ; 
Buchanan v. Warley, 245 U. S. 60, 77, 38 S. Ct. 16, 62 
L. Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201.



25

The Fourteenth Amendment adopted as it was with 
special solicitude for the equal protection of members 
of the Negro race lays a duty upon the court to level 
by its judgment these barriers of color.”

Smith v. All/w right, supra, applied the same rule though 
recognizing that membership in a political party was no 
concern of the state.

“ The privilege of membership in a party may be, as 
this Court said in Grovey v. Townsend, 295 U. S. 45, 
55, 55 S. Ct. 622, 626, 79 L. Ed. 1292, 97 A. L. R. 680, 
no concern of a state. But when, as here, that privi­
lege is also the essential qualification for voting in a 
primary to select nominees for a general election, the 
state makes the action. # * We think that this statu­
tory system for the selection of party nominees for 
inclusion on the general election ballot makes the party 
which is required to follow these legislative directions 
an agency of the state in so far as it determines the 
participants in a primary election. The party takes 
its character as a state agency from the duties imposed 
upon it by state statutes; the duties do not become mat­
ters of private law because they are not performed by 
a political party.”

The reasoning is analogous. Whom Stuyvesant Town 
chooses as tenants may be no concern of the state just as 
who are the members of the political party is no concern 
of the state. When effective exercise of the franchise is 
denied because of race or color by act of a political party 
acting pursuant to state law or where participation in a 
public benefit is denied because of race or color by a pri­
vate organization having governmental functions, the de­
nial of the franchise or the benefit is an act of the state 
and comes within the restraints of the Fourteenth Amend­
ment.

A far smaller degree of state regulation was involved 
in Steele v. Louisville, supra, than in the case at bar. There, 
a labor organization enjoyed under the Railway Labor Act 
the exclusive power to negotiate contracts with a railroad 
covering employees in a specified craft, including non-mem­



26

bers. Its power to execute contracts binding on the non- 
members was purely statutory. It executed a contract 
which discriminated against Negro members of the craft. 
It was argued that if the Railway Labor Act empowered 
unions to execute such contracts, it was unconstitutional.

The Supreme Court, at the outset of its discussion of 
the legal questions involved, ruled that “ If, as the state 
court has held, the Act confers this power on the bargain­
ing representative of a craft or class of employees without 
any commensurate statutory duty towards its members, 
constitutional questions arise” (323 IT. S., at p. 198).

After reviewing the provisions of the statute, the Court 
held that it imposed on the union “ at least as exacting a 
duty to protect equally the interest of the members of the 
craft as the Constitution imposes upon a legislature to give 
equal protection to the interests of those for whom it legis­
lates” (ibid., at p. 202). This included “ the duty to exer­
cise fairly the power conferred upon it in behalf of all 
those for whom it acts, without hostile discrimination 
against them” (ibid., at p. 203).

The Court went on to point out that the union could 
make contractual distinctions among the employees affected 
based on legitimate economic considerations (just as Stuy- 
vesant Town may here choose its tenants on proper 
grounds). It concluded, however, that “ discriminations 
based on race alone are obviously irrelevant and invidious. 
Congress plainly did not undertake to authorize the bar­
gaining representative to make such, discriminations” 
(ibid., at p. 203).

The Court in the Steele case recognized that the labor 
organization had “ the right to determine eligibility to its 
membership” (ibid., at p. 204), but again held that that did 
not permit it to discriminate on account of race. If Metro­
politan chooses to discriminate on the basis of character, 
responsibility or other qualifications comparable to the 
criteria for membership in a labor union or other private 
organization, it may do so but it may not do so on the



27

basis of race alone. As was said in Mr. Justice Murphy’s 
concurring opinion in the Steele case:

“ Nothing can destroy the fact that the accident of 
birth has been used as the basis to abuse individual 
rights by an organization purporting to act in con­
formity with its Congressional mandate. Any attempt 
to interpret the Act must take that fact into account 
and must realize that the constitutionality of the stat­
ute in this respect depends upon the answer given.

The constitution voices its disapproval whenever 
economic discrimination is applied under authority of 
law against any race, creed or color. A sound democ­
racy cannot allow such discrimination to go unchal­
lenged. Racism is far too virulent today to permit 
the slightest refusal, in the light of a Constitution that 
abhors it, to expose and condemn it wherever it ap­
pears in the course of a statutorv interpretation” (ibid., 
at p. 209).

Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 (C. C. 
A. 4, 1945), involved a situation even closer to that of the 
case at bar. The defendant library barred the plaintiff 
from its school for librarians because she was a Negro. It 
appeared that the library was founded by Pratt with a 
grant of more than a million dollars, on condition that the 
City contribute $50,000 a year and that the library would 
be run by a board of trustees appointed by Pratt with the 
power to fill vacancies in its own ranks. The gift was 
accepted by state statute and municipal ordinance. Later, 
the library fund was greatly expanded by the state and 
City until at the time of the case most of the funds came 
from the state. But the independent and self-perpetuating 
board of trustees retained control with City supervision 
as to fiscal and other details. Summarizing these facts, 
the Court said (149 F. 2d, at pp. 216-217):

“ The donor could have formed a private corporation 
under the general permissive statutes of Maryland 
witlr power both to own the property and to manage 
the business of the Library independent of the state. 
He chose instead to seeh the aid of the state to found



28

a public institution to be owned and supported by the 
city but to be operated by a self-perpetuating board 
of trustees to safeguard it from political manipulation; 
and this was accomplished by special act of the legis­
lature with the result that the powers ‘and obligations 
of the city and the trustees were not conferred bv Mr, 
Pratt but by the state at the very inception of the en­
terprise.”

The Court found in these facts “ so great a degree of 
control over the activities and existence of the Library on 
the part of the state that it would be unrealistic to speak 
of it as a corporation entirely devoid of governmental char­
acter” (ibid., at p. 219). Accordingly the Court concluded 
that since “ the authority of the state was invoked to create 
the institution and to vest the power of ownership in one 
instrumentality and the power of management in another” , 
it was necessary to hold that “ the special charter of the 
Library should not be interpreted as endowing it with the 
power to discriminate between the people of the state on 
account of race and that if the charter is susceptible of 
this construction, it violates the Fourteenth Amendment 
since the Board of Trustees must be deemed the repre­
sentatives of the state” (ibid., at p. 218).

Stuyvesant Town is not “ a corporation entirely devoid, 
of governmental character” (Enoch Pratt case, supra). 
“ The powers and obligations” of Stuyvesant Town Corpo­
ration were “conferred 41 * * by the State at the very in­
ception of the enterprise” (Enoch Pratt case, supra). Its 
discriminatory policies “based on race alone are obviously 
irrelevant and invidious”  (Steele case, supra). Although 
the defendants could have built a housing project inde­
pendently, as indeed they did in Cooper Village adjoining 
Stuyvesant Town, they “ choose instead to seek the aid of 
the state to found a public institution to be # * sup­
ported by the City but to be operated by a self-perpetuat­
ing.board of trustees” (Enoch Pratt case, supra).



It is not easy to christen the Stuyvesant Town Corpora­
tion. It is definitely not private.*' In many respects it 
is more like a public corporation for it resembles in most 
respects the limited dividend corporation or housing com­
pany (Public Housing Law, section 170, et seq.). The 
main differences are that the housing company may oper­
ate on vacant as well as slum land, and is regulated as to 
rents, occupancy and operations by a housing commissioner 
instead of by the Comptroller. Both have their dividends 
limited and the general structural pattern of the corpora­
tion is in most respects the same. The limited dividend 
corporation has been likened to the New York City Hous­
ing Authority as a public corporation (New York City 
Housing Authority v. Muller, supra, p. 342). Assuming, 
however, that the clearest classification for the Stuyvesant 
Town Corporation is that of a quasi-public corporation 
such as a railroad or public service corporation, no dis­
crimination could be practiced (Madden v. Queens Coun­
ty Jockey Club, 296 N. Y. 249). But whether this creature 
be public, quasi-public or even private, by drawing its 
power from a statute, the inhibition against its right to 
bar Negroes stands firm.

*  McQuillan, on Municipal Corporations, Vol. 1, Sec. 125, defines the three 
classes o f  corporations as either “public, quasi-public or private * * 
First, public corporations, variously styled public, political, civil and municipal 
created by the sovereign power for public or political purposes, having for 
their object the administration o f a portion o f the power o f the state, as 
counties, townships, parishes, schools, reclamation, irrigation, road, levee, 
drainage, sanitary, fire and taxing districts, cities, towns, villages and bor­
oughs, or municipal corporations, full or quasi-corporations, invested with 
certain subordinate powers to be exercised for local purposes connected with 
and designed to promote the public good. Public corporations are not only 
creations, but instrumentalities o f the state and are subject to visitation and 
control.

Second, corporations technically private, but yet o f quasi-public character 
having in view some public enterprise in which the public interests are in­
volved to such an extent as to justify conferring on them important govern­
mental powers, for example, the right of eminent domain. Such corporations 
include railroad, turnpike, canal, telegraph, telephone, gas, water, and other 
public service companies.

Third, corporations strictly private, the direct object o f v/hich is to pro­
mote private interests as banking, insurance, trading and manufacturing.

.' ^  public utility is obligated by the nature of its business to furnish its 
service or commodity to the general public, or that part o f the public which



30

POINT III

Even if Stuyvesant Town were completely private as 
it contends, its very physical pattern would bring it 
within the restraints of the Constitution.

Stuyvesant Town resembles in many respects the town 
of Chickasaw, a suburb of Mobile, Alabama, owned by tlxe 
Gulf Shipbuilding Corporation (see Marsh; v. Alabama, 
326 U. S. 501 (1946)). Like Stuyvesant Town “ the prop­
erty consists of residential buildings, streets, a system of 
sewers, a sewage disposal plant and a ‘business block on 
which business places are situated’ # # in short the town
and its public district are accessible to and freely used 
by-the public in general and there is nothing to distinguish 
them from any other town and shopping center except the 
fact that the title to the property belongs to a private cor­
poration.” A Jehovah’s Witness who was arrested for 
distributing religious literature contended that her right 
to freedom of press and religion guaranteed by the First 
and Fourteenth Amendments had been abridged. The 
Court stated the question as follows:

“ Can those people who live in or come to Chickasaw 
be denied freedom of press and religion simply be­
cause a single company has legal title to all the town? 
For it is the state’s contention that the mere fact that 
the property interests to the town are held by a single 
company is enough to give that company power, en­
forceable by a state statute, to abridge these freedoms. 
We do not agree that the corporation’s property in­
terests settle the question. The State urges in effect

it has undertaken to serve, without arbitrary discrimination, and it must, to 
the extent of its capacity, serve all who apply, on equal terms and without 
distinction, so far as they are in the same class and similarly situated. A c­
cordingly, a utility must act toward all members o f the public impartially, 
and treat all alike; and it cannot arbitrarily select the persons for whcta it 
will perform its service or furnish its commodity, nor refuse to one a favor 
or privilege it has extended to another, since the term ‘public utility’ pre­
cludes the idea o f service which is private in its nature and is not to be 
obtained by the public. Such duties arise from the public nature of a utility, 
and statutes providing affirmatively therefor are merely declaratory of the 
common law” (51 Corpus Juris, p. 7 ).



31

that the corporation’s right to control the inhabitants 
of Chickasaw is coextensive with the right of a home- 
owner to regulate the conduct of his guests. We can 
not accept that contention. Ownership does not al­
ways mean absolute dominion. * # * Whether a cor­
poration or a municipality owns or possesses the town 
the public in either case has an identical interest in 
the functioning of the community in such manner that 
the channels of communication remain free. As we 
have heretofore stated, the town of Chickasaw does not 
function differently from any other town. The ‘busi­
ness block’ serves as the community shopping center 
and is freely accessible and open to the people in the 
area and those passing through. The managers ap­
pointed by the corporation cannot curtail the liberty 
of press and religion of these people consistently with 
the purposes of the Constitutional guarantees * # #. 
Since these facilities are built and operated primar­
ily to benefit the public and since their operation is 
essentially a public function, it is subject to state reg­
ulation.”

Whether the restriction be a denial of free press or re­
ligion or whether it be a denial of the equal protection of 
the law, the principle is the same. If Stuyvesant Town 
cannot deny access to a Jehovah’s Witness who will insist 
upon distributing her literature within its walled city, 
then by similar token Stuyvesant Town may not bar Negro 
citizens from the benefits of its facilities solely because of 
their race. Of course, the public visitation is of a wider 
order in Stuyvesant Town than in Chickasaw. Not only 
will the public enter as servants, visitors, friends of ten­
ants, delivery men, etc., as they entered the company town, 
but all sewers, water mains, electrical conduits and all 
other city facilities are to be relocated, the City consenting 
to the reconstruction by the corporation of the City’s pub­
lic facilities under the streets (Sec. 403-404 of the Con­
tract), Moreover, as previously stated, the eminent do­
main power was utilized for what are public uses, not 
private uses, and tax exemption is extended to the project 
for twenty-five years.



32

POINT IV

If the Redevelopment Companies Law empowers the 
Stuyvesant Town Corporation to bar Negroes, it would 
be unconstitutional. The Court should, therefore, con­
strue the law to effect a constitutional purpose.

One of the main purposes of the Urban Redevelopment 
Law is the replanning of slum areas and as such represents 
an exercise of the police power (New York City Housing 
Authority v. Muller, supra, Murray v. LaGuardia, supra). 
The replanning was to be accomplished “ in effectuation of 
official city plans including the master plan” (Redevelop­
ment Companies Law, Secs. 2 and 15). The City Planning 
Commission is to approve the project prior to its accept­
ance and actually did (City Planning Commission Report 
No. 2765, adopted May 20, 1943). The City Charter Re­
vision Commission outlined the primary duty of the City 
Planning Commission to be the making of the master plan. 
“ The Commission in preparing the plan should consider 
not only the distribution of the population but its com­
fort and health and the beauty of the surroundings in 
which they live. The development of residential areas and 
the location of such housing projects as are to be under­
taken are important parts of intelligent planning * * *. 
Zoning is an important element in planning and must al­
ways be related to the growth and development of the 
City and to the master plan” (Report of the City Charter 
Revision Commission in Tanzer, New York City Charter, 
pp. 496-497). The charter itself incorporates the recom­
mendation and directs the commission to prepare a master 
plan “ as will provide for the improvement of the City and 
its future growth and development and afford adequate- 
facilities for the housing, transportation, distribution, 
comfort and convenience, health and welfare of its popu­
lation” (New York City Charter, Sec. 197).



33

The location of the housing will determine the nature 
of the population distribution. Not only buildings but 
people determine the character of the City’s plan. The 
Negro population of New York City is only 7 percent of 
the total. Whether they are isolated into ghettoes or live 
in heterogeneous communities is the most important phase 
of our master planning to be determined. If the Negroes 
of New York are evenly distributed in the new public and 
private large-scale projects, their presence would hardly 
be noticed. They were widely distributed in many areas, 
fashionable and otherwise, up to World War I. There­
after they were herded together, by force of social pres­
sure and inability to move about freely as is the privilege 
of white citizens. Restrictions against Negroes have 
created a new pattern, harmful to them, and harmful to 
the City as a whole. Forced into isolated sections and 
desperately in need of living space, they reach out wherever 
new dwellings become available, creating new ghettoes 
in the newly-found neighborhoods, while the net around 
the other sections tightens to exclude any further infiltra­
tion. The opportunity to replan the City now presents 
the City with an opportunity to set up communities where 
tensions can subside and mutual interracial understanding 
be attained. But the first great redevelopment project 
under the City plan becomes an instrument for perma­
nently isolating them from their fellow-citizens. Stuy- 
vesant Town lays down its policy to the effect that there 
will be no Negroes among the 25,000 people who will in­
habit its project.

These facts bring this case within the prohibition laid 
down by the United States Supreme Court in Buchanan v. 
Warley, 245 IT. S. 60. There a local ordinance was passed, 
ostensibly to promote the general welfare by requiring, 
as far as practicable, the use of separate blocks for resi­
dences by white and colored people respectively. It was 
made unlawful for any colored person to occupy as a 
residence any house upon any block in which a greater 
number of houses were occupied by white people than were



34

occupied by colored people. It likewise made unlawful 
occupancy by white people of areas predominantly occu­
pied by colored people. No existing rights were to be 
affected. The Supreme Court held the ordinance unconsti­
tutional stating:

“As we have seen, this Court has held laws valid 
which separated the races on the basis of equal ac­
commodations in public conveyances, and courts of 
high authority have held enactments lawful which pro­
vided 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 legisla­
tion must have its limitations, and cannot be sustained 
where the exercise of authority exceeds the restraints 
of the Constitution. We think these limitations are 
exceeded in laws and ordinances of the character now 
before ns.”

The Court cited the following language from Straveler v. 
West Virginia, 100 U. S. 303:

“ It (the Fourteenth Amendment) was designed to 
assure to the colored race the enjoyment of all the 
civil rights that under the law are enjoyed by white 
persons and to give to that race the protection of gen­
eral government in that enjoyment whenever it should 
be denied by the State. It not only gave citizenship 
and the privileges of citizenship to persons of color 
but it denied to any State the power to withhold from 
them the equal protection of law, and authorized Con­
gress to enforce its provisions by appropriate legis­
lation. # * * It ordains that no State shall deprive 
any person of life, liberty or property without due 
process of law or deny to any person within its juris­
diction equal protection of the laws. What is this but 
declaring that the law in the States shall be the same 
for blacks as for whites; that all persons, whether 
colored or white, shall stand equal before the laws of 
the State, and, in regard to the colored race for whose 
protection it was primarily designed, that no discrimi­
nation shall be made against them by law because of 
their color. * * # The Fourteenth Amendment makes no 
attempt to enumerate the rights it decided to protect.



35

It speaks in general terms, and those are as comprehen­
sive as possible. Its language is prohibitory; but every 
prohibition implies the existence of rights and immuni­
ties, prominent among which is an immunity from 
inequality of legal protection either for life, liberty 
or property. Any State action that denies this im­
munity to a colored man is in conflict with the Consti­
tution.”

It then cited the following language from Ex Parte Vir­
ginia, 100 U. S. 339, 347:

“ Whoever by virtue of public position under a State 
government, deprives another of property, life or 
liberty, or denies or takes away the equal protection 
of the laws, violates the Constitutional inhibition, and 
if he acts in the name of and for the State and is 
clothed with the State’s power, his act is that, of the 
State.”

The Court dismissed the argument that the proposed 
segregation was intended to promote the public peace by 
preventing race conflicts. It said, “ Important as is the 
preservation of the public peace, this aim cannot be ac­
complished by laws or ordinances which deny rights created 
or protected by the federal constitution.”

It will be said that Buchanan v. Warley is distinguish­
able because the discrimination was by a public ordinance 
whereas the discrimination in Stuyvesant Town is by an 
internal policy. There are these answers. First, the City 
is a party to the contract which made the discrimination 
possible. It voted approval of the contract knowing that 
it was conferring upon the Stuyvesant Town Corporation 
the right to exclude Negroes.*

This Commissioner Moses called an effort to vindicate 
“ social objectives” (Affidavit of George Gove). In Moses’

* The following statement o f  Newbold Morris, then President of the New 
York City Council, at the Board of Estimate meeting on June 3, 1943 con­
firms that the declaration was part o f the plan:

“ This is one of the most difficult votes I have had to cast in my five and 
one-half years on this governing board o f the City o f New York.

“The division between my colleagues and me revolves solely around the 
question o f whether this is a private or public project. I am unable to agree 
that it is private. If it were, why are we debating it here in this chamber?



affidavit attached to Ecker’s affidavit in the Pratt: case, 
Moses said, “ The selection of tenants, like other manage­
ment problems, is a matter for the Corporation to decide” 
(see papers on Appeal, Pratt v. LaGuardia). The exclu­
sion of Negroes was thus made a public act to which the 
defendants as well as the City were parties. Whether the 
exclusion was accomplished by contract or by ordinance 
made no difference in substance. For the contract was 
approved by the Board of Estimate after which streets 
were conveyed and the eminent domain power exercised. 
It was just as effective as an ordinance. It was acted 
upon with all of the powers at the City’s disposal. It was 
known at the time that Metropolitan intended to discrimi­
nate although no policy had then been set.

Three years later, Mr. Ecker’s “ intention” becomes in 
fact a “policy” . The clear effect of this policy is that 
Negroes will not live in Stuyvesant Town. Both ordinance
Although fifty million dollars are involved, the people o f this City are grant­
ing to the Metropolitan Life Insurance Company the power of eminent 
domain and substantial subsidies, in the form of tax exemption on the 
improvement for a quarter o f a century.

“ Commissioner Moses says these grants are ‘aids atid inducements’ . 
Whether you call them that or ‘powers and subsidies’, it matters not. They 
are being granted by all the people, not just by white people or gentiles, and 
as a member of this Board of Estimate I represent all the people.

“ It was not I who raised the question of race discrimination. The President 
of the Metropolitan Life Insurance Company raised it himself. I always 
presume that individuals or corporations in America are committed to our 
principles. Until I am shown that they do not believe in them, I would have 
assumed then that the Metropolitan Life Insurance Company people believed 
in democratic principles. But, the fact is they are on record. Representatives 
of the Company have been sitting here all afternoon and have heard the 
record presented and have made no attempt to clear up the apprehension, 
which every member o f this Board must feel. They could remove the issue 
from this discussion right now, yet not one of them stirs.

“ Now, in casting my vote in the negative, I know full well the responsi­
bility I am taking. I know full well that if my po-int o f  view prevails, it 
may mean the end o f Stuyvesant Houses. As Commissioner Moses says, it 
may mean the end o f all such privately-initiated projects. Huge as this 
project is, it dwindles down into insignificance as compared to the principle.

“ The principle o f equality is as old as our nation. Men o f all races have 
thought it good enough to make supreme sacrifices for in every generation. 
It was enunciated in the Declaration o f Independence, it was written into the 
Constitution.  ̂ It is the law of the land. It is the keystone o f the arch of 
our free society. '

“Once we are committed to that principle, we cannot be content to invoke 
it on some occasions and discard it for compelling reasons on others.

“As we■ sit here men are dying for that principle; the least we can do is 
to live it.

t “ Commissioner Moses has a wonderful record o f accomplishment. Every­
thing he touches is consummated in beauty. Surely, if  Stuyvesant Houses

36



37

and redevelopment law are accomplished under the aegis 
of “planning” , both involve a redistribution of the popula­
tion in pursuance of City plans—and both should be un­
constitutional.

The argument that Stuyvesant Town owns the property 
in which the discrimination is practiced falls under the 
logic of Marsh v. Alabama as well. It does not matter 
whether the act of discrimination was the act of the Stuy­
vesant Town Corporation or of the City itself. As the 
Court said: “ * * * had the people of Chickasaw owned all 
the homes, and all the stores, and all the streets, and all 
the sidewalks, all those owners together could not have set 
up a municipal government with sufficient power to pass 
an ordinance completely barring the distribution of re­
ligious literature. * * * In our view the circumstance that 
the property rights to the premises where the deprivation 
of liberty, here involved, took place were held by others 
than the public, is not sufficient to justify the State’s per­
are erected, the result will be a more beautiful section of our City, but that 
beauty is stained with a philosophy utterly opposed to everything we stand for.

“Commissioner Moses refers to the ‘risk’ involved, as if the Metropolitan 
were contemplating a social contribution. Now, let us have no illusions about 
that. The President of the Metropolitan Life Insurance Company has a 
primary duty to this Company. He would not be president if he were 
engaged in a ‘risky’ venture. My duty, however, is primarily to the people 
of our City. It is my view that in this case these two duties are in conflict.

“Because private capital is involved, I believe the landlord should have 
the right to select desirable tenants. No one wants to live in a building 
where the occupants are dirty or drunken or excessively noisy. Being ‘desir­
able’ doesn’t hinge on racial origin. Desirability or undesirability cuts right 
across various races. There are desirable and responsible people o f every 
race in our City so also are there undesirable and irresponsible people in 
every race.

''The President of the Metropolitan says that ‘whites and blacks don’t mix, 
perhaps in a hundred years they will’. A  hundred years from now will be 
too late. Democratic way of life is on trial today. The time is now , the 
place is New York City, which we claim with pride is the leading demo- 
cratic. city of the entire world. Private discrimination is a matter between 
i.be discriminator and his Maker. It is regrettable. But government by the 
people and for the people is an entirely different matter. That is more than 
regrettable. It is contrary to the fundamental principles on which our 
country was founded.

“ Therefore, because I care more about the principle than I do about the 
project, because I cannot vote for public aid and public sponsorship of a 
private project, whose officers state with candor that racial consideration 
will ; enter into the selection o f tenants, I cast the three votes o f my office 
in the negative.”

The President o f the Borough o f Manhattan joined with the minority to 
oppose the project on account of its proposed discrimination.



38

mitting a corporation to govern a community of citizens 
so as to restrict their fundamental liberties and the en­
forcement of such restraint by the application of a State 
statute.”

Nor is it relevant that the statute itself shows no inten­
tion to discriminate. In Tick Wo v. Hopkins (118 U. S. 
356) the ordinance seemed valid on its face, but was never­
theless struck down because of its administration. The 
Court said:

“ * * * the cases present the ordinances in actual 
operation and the facts shown establish an adminis­
tration directed so exclusively against a particular 
class of persons as to warrant and require the con­
clusion, that, whatever may have been the intent of the 
ordinances as adopted, they are applied by the public 
authorities charged with their administration, and thus 
representing the state itself, with a mind so unequal 
and oppressive as to amount to a practical denial by 
the state of that equal protection of the laws which 
is secured to the petitioners, as to all other persons, 
by the broad and benign provisions of the Fourteenth 
Amendment to the Constitution of the United States. 
Though the law itself be fair on its face and impartial 
in appearance, yet, if it is applied and administered 
bjr public authority with an evil eye and an unequal 
hand, so as practically to make unjust and illegal dis­
criminations between persons in similar circumstances, 
material to their rights, the denial of equal justice is 
still within the prohibition of the Constitution.”

That housing is a “necessity of life” (Block v. Hirsh, 
256 U. S. 135) makes discrimination in housing so much 
more odious. Rents have been controlled in peace as well 
as war and drastic public intervention has been authorized 
where oppression is threatened, People ex rel. Durham, v. 
LaFetra, 230 N. Y. 429, or the public health involved, Adler 
v. Deegan, 251 N. Y. 467. If the defendant’s actions are 
sustained, the door wuuld be opened for one of the most 
insidious forms of discrimination, the extension of which 
might well result in barring minorities from the right to 
one of life’s great essentials.



39

POINT V

The Riverton Project is irrelevant to the constitu­
tional issue here involved.

The affidavit of Gove states that the Riverton project “ by 
virtue of the location of the project will be tenanted 
primarily, if not entirely, by Negroes.” This is irrelevant 
for the “ separate but equal” doctrine is repugnant to the 
public policy of New York. Article 1, Section 11, of the 
New York State Constitution, does not authorize separate 
but equal accommodations and every Civil Rights statute 
and every official act of this state has followed the policy 
of equality without separation. Such a policy given en­
couragement today would authorize separate restaurants, 
playgrounds, theatres, public facilities. It would set a 
dangerous precedent indeed if it were revived in this state.

Moreover, the question is academic. There is no assur­
ance nor any proof that Negroes will be given equal ac­
commodations in Riverton. Riverton is being constructed 
by another corporation than the Stuyvesant Town Cor­
poration, though the stock in both redevelopment companies 
happens to be held by Metropolitan. Even assuming identity 
of fee ownership and assuming also that Negroes will be 
favored in Riverton, the provision of the dwelling facilities 
cannot possibly be equalized. Each property has distinct 
differences and peculiarities—each will have different rents, 
different facilities, different layouts and locations, differ­
ent characteristics. One project is uptown, the other down­
town. One is a large community, the other a small one 
about a seventh the other’s size. One corporation might 
choose to pay up taxes as is its right under the contract, 
in Which case rents would be considerably higher than in 
the other. The neighborhood schools, libraries, parks, 
churches and other facilities are different. There is no evi­
dence as to how many whites are eligible for Riverton 
and how many have applied. Moreover, Metropolitan has



40

not, and may not, earmark any housing for one race or the 
other. Even if the noxious “ separate hut equal” doctrine 
were adopted here, to give equal accommodations to 
Negroes, Metropolitan would have had to give equal ac­
commodations in both Riverton and Stuyvesant.

Moreover, Metropolitan is barred by ordinance from giv­
ing “ separate” accommodations to Negroes in Riverton. 
Riverton is tax exempt and as such subject to the provision 
that there shall be no discrimination as to race or color 
(Adm. Code, Sec. J 41-1.2). The only way Metropolitan 
could give separate accommodations to Negroes would be 
to violate that ordinance. The ordinance was enacted after 
Mr. Ecker’s statement. It was enacted unanimously by the 
City Council. A few weeks ago another ordinance was 
enacted by the City Council covering insurance companies 
that might discriminate in tax exempt projects (Local Law 
45, 1947). The purpose of these ordinances was not only 
to assure more accommodations to Negroes and other 
minorities but to preclude the very segregation which the 
defendants rely on for the “ equal facilities.” They were 
enacted because the local Legislature recognized that the 
public policy of this state is that equality under the law 
does not mean equivalence and that such a concept is 
opposed to the public policy.

POINT VI

A temporary injunction should be granted to prevent 
irreparable damage.

The affidavit of Gove admits that 100,000 applications 
have been taken and 70,000 applicants interviewed, that a 
temporary certificate of occupancy has been received, that 
one of the buildings will be ready a month from today, 
another two months from today and that all the buildings 
will be completed throughout 1947 and in 1948. The Gove 
affidavit does not deny the allegations of the plaintiffs or



41

of Shad Polier; in fact it reaffirms the defendants’ right 
to discriminate and to segregate. The defendants assert 
that “ the right of selection of the management cannot be 
impaired * * * and any qualified applicant * * * will be 
accepted unless Ms presence would, in the opinion of 
Stuyvesant Town Corporation, make it impossible or sub­
stantially more difficult to attract and retain other tenants 
through the life of the project and thereby endanger the 
economic success of the enterprise.” The admission is 
as clear as diplomatic language permits. The defendants 
do not deny that they have in effect today an actual policy 
of discrimination (see Polier affidavit). Judge Shientag 
had said in 1943 that there was then no “policy” and 
therefore the action was premature. The Polier affidavit 
and the letter from Gove to the Civil Liberties Union 
clearly indicate that there is now a policy. That that 
policy might ultimately be changed is no answer, for it 
might also not be changed. It is the threatened fulfillment 
of the policy as it exists today that makes the injunction 
essential. If Metropolitan is permitted to fill its housing 
project with white tenants only and if subsequently the 
plaintiffs win their action, it would entail the ousting of 
white tenants and the substitution of Negro tenants with 
all it means in the heightening of interracial tensions. Ex­
perience of the Federal Public Housing Authority in de­
fense areas has shown such action to be unwise. Inter­
racial occupancy policies that have succeeded throughout 
the country have succeeded partly because they were laid 
down in advance and the tenants were told of the intention 
to mix the occupancy before they moved in.

Judge Shientag placed the time for an injunction as the 
present and held that the plaintiffs, as applicants in the 
project, would be the proper parties to seek the relief. For 
Metropolitan has now adopted an “illegal renting policy,” 
the plaintiffs are “ thereby aggrieved” and they are en­
titled to their “ remedy in the courts.”



42

CONCLUSION
An injunction restraining the defendants from barring 

Negroes would be of more than local significance. Often, 
in the course of history, the fragmentation of liberties 
takes place under the cloak of political or social reform. 
Measures ostensibly designed to promote national welfare 
are hammered into instruments of oppression. The crea­
tion of new government functions holds its dangers as 
well as its dividends. It is significant that it is in the new 
fields of housing and city planning that the most malignant 
perversions of well-intentioned reform measures have oc­
curred. In our own generation, three distinct efforts to 
achieve housing reform have been subverted into noxious 
attempts to violate either our fundamental law or our liber­
tarian traditions. Thus the restrictive covenant that seeks 
to exclude glue and gun-powder factories, charnel houses, 
brothels and other intrusions upon neighborhood dignity 
soon became perverted into a racial restrictive covenant to 
bar whole races from shelter. Eighty percent of the Chi­
cago area is now said to be subject to such covenants.* 
See Gfunnar Myrdal, An American Dilemma, Harper & 
Bro., 1942; Validity of Anti-Negro Restrictive Covenants: 
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 
Agreements, Covenants or Conditions in Deeds is Uncon­
stitutional by Prof. I). 0. McGovney, 33 California Law 
Review 5, 1945. For a discussion of race-bias in housing- 
see Charles Abrams, Race Bias in Housing, published by 
the American Civil Liberties Union, American Council on 
Race Relations and National Association for the Advance­
ment of Colored People, 1947. See also The Future of 
Housing, Abrams, Harper & Bro., 1946.

So, too, zoning has taken the same course. Designed 
to promote sound planning principles and decent neigh­
borhoods, zoning soon becomes employed as a means for

* Certiorari on issues involving the legality of these restrictive covenants 
which are completely private agreements between owners has now been 
granted by the Supreme Court ( Shelley v. Kraemer and Sipes v. McGhee, 
15 U. S. Law Week 3478).



43

excluding minorities from shelter and the same device 
spreads quickly from community to community and state 
to state until it too becomes the instrument for establish­
ing racial segregation. See Clinard v. City of Winston- 
Salem, 217 N. C. 119; Liberty Annex v. City of Dallas, 289 
S. W. 1067; Hopkins v. City of Richmond, 117 Va. 692, .86 
S'. E. 139 (1915), overruled in Irvine v. City of Clifton 
Forge, 97 S. E. 310 (1918); Hardin v. City of Atlanta, 147 
Ga. 248, 93 S. E. 401 (1917), overruled in Glover v. City 
of Atlanta, 96 S. E. 562 (1918); Harris v. City of Louis­
ville, 165 Ky. 559, 177 S. W. 472, overruled in Buchanan 
v. Warley, 245 IT. S. 60, 38 S. Ct. 16 (1916).*

The Supreme Court, however, intervened and put a stop 
to racial zoning as a violation of the Fourteenth Amend­
ment.

Urban redevelopment laws now appear under the banner 
of “ replanning devices”. The pattern of its spread is the 
same as in racial restrictive covenants and race zoning. 
In the name of planning it would authorize the establish­
ment for all time of white neighborhoods and black neigh­
borhoods; soon it may be Jewish neighborhoods and gentile 
neighborhoods; Catholic neighborhoods and Protestant 
neighborhoods. Just as restrictive covenants, aimed mainly 
at Negroes, spread to embrace Jews, Mexicans, American 
Indians, Chinese and Japanese, so, too, may the redevelop­
ment device, unless its limitations are defined. Fortu­
nately, the defendants here have made their intention to 
segregate and discriminate clear. If their right to dis­
criminate is sustained, the news will be heard in 20 states 
and forces hostile to minorities will soon be impressing 
urban redevelopment companies into service to achieve 
segregation and establish it for all time. For discrimina­
tion is epidemic. Tolerated in one case, it spreads to 
include other cases.

Precedents are created for further incursions. Gaining 
legal approval, they soon receive social endorsement and

,* The ordinance involved in each case was similar. It was made unlawful 
for Negroes and Caucasians to occupy any house on a street in which the 
greater number of houses were occupied by the members of the opposite race.



ultimately win political approbation. In the belief that we 
preserve the sanctity of contract we may be moving back 
into the medieval regime of status.

In invalidating a restrictive covenant against Jews, a 
recent decision in Ontario, Canada, pointed np the danger 
which might well face us in urban redevelopment, In re 
Drummond Wren (4 D. L. R. 674, 1945). The Court held:

a * * * How far this is obnoxious to public policy 
can only be ascertained by projecting the coverage of 
the covenant with respect both to the class of persons 
whom it may adversely affect, and to the lots or sub­
divisions of land to which it may be attached. So con­
sidered, the consequences of judicial approbation of 
such a covenant are portentous. If sale of a piece of 
land can be prohibited to Jews, it can equally be pro­
hibited to Protestants, Catholics or other groups or 
denominations. If the sale of one piece of. land can 
be so prohibited, the sale of other pieces of land can 
likewise be prohibited. * * * nothing could be more 
calculated to create or deepen divisions between exist­
ing religious and ethnic groups * * * than the sanction 
of a method of land transfer which would permit the 
segregation and confinement of particular groups to 
particular business or residential areas, or conversely, 
would exclude particular groups from particular busi­
ness or residential areas.”

The late Mr. Chief Justice Stone wrote in Hirabayaski 
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 doc­
trine of equality. For that reason, legislative classi­
fication 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 

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 our law than the compact of the Plymouth 
voyagers to have just and equal laws.”

If the defendants’ contention is sustained, there will be, 
within a stone’s throw of the United Nations buildings a 
gigantic undertaking in which racial segregation is not 
only being openly avowed but is being publicly subsidized 
and approved. It is undesirable. It is dangerous. It is 
unnecessary. We have bound ourselves by the United 
Nations Charter to take joint and separate action in co­
operation with the organization to achieve the purposes 
set forth in Article 55. Whether the United Nations Char­
ter has the force of a treaty binding upon private contract­
ing parties as upon government is not clear, though some 
authorities claim that it has that force [In re Drummond 
Wren, supra; see also Kennett v. Chambers, 55 U. S. [14 
How.] 38). But whether it is legally binding or not, there 
is a public policy in the making to which the Courts may not 
close their eyes. It is particularly applicable to new neigh­
borhoods. It is that we “have faith in fundamental human 
rights, in the dignity and worth of the human person * * * 
promoting and encouraging respect * * * for the funda­
mental freedoms for all, without distinction as to race * * # 
living together in peace with one another as good neigh­
bors” (United Nations Charter).

Respectfully submitted,

Charles A brams,
W ill Maslow Attorney for Plaintiffs.
T htjrgood Marshall,
J oseph B. R obison,
Stanley M. R iesner,

Of Counsel.

New York, July 9, 1947.



The Hecla Press : : New York City
39