Heyward v. Public Housing Administration Brief for Appellants
Public Court Documents
January 1, 1953
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Brief Collection, LDF Court Filings. Heyward v. Public Housing Administration Brief for Appellants, 1953. 815c1f24-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cb83f99d-a5c5-4166-b334-6f3cffdeb5a8/heyward-v-public-housing-administration-brief-for-appellants. Accessed August 19, 2025.
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BRIEF FOR APPELLANTS
Imtefc States (Enurt ai Appeals
For the District of Columbia Circuit
No. 11,865
PRINCE F. HEYWARD, e t a l .
Appellants,
v.
PUBLIC HOUSING ADMINISTRATION, e t a l .,
Appellees.
A p p e a l f r o m t h e U n it e d S t a t e s D i s t r i c t C o u r t e o r t h e
D is t r i c t o e C o l u m b ia
F r a n k A. D i l w o r t h , III,
458% W est Broad Street,
Savannah, Georgia;
T h u r g o o d M a r s h a l l ,
C o n s t a n c e B a k e r M o t l e y ,
107 West 43rd Street,
New York 36, N. Y.;
F r a n k D. R e e v e s ,
2000 Ninth Street, N. W.,
Washington 1, D. C.,
Attorneys for Appellants.
S upreme P rinting Co., I nc ., 41 M urray S treet, N . Y., B A rclay 7-0349
Question Presented
Whether it constitutes a violation of rights secured by
the Constitution, Laws and Public Policy of the United
States for the Federal Government to require or sanction
racial segregation in low rent public housing projects,
provided separate but equal facilities for eligible white
and non-white families are furnished.
I N D E X
Jurisdictional Statem ent............................... 1
Statement of C ase ........................................................................ 1
Statutes Involved......................................................................... 3
Statement of Points ................................................................... 4
Summary of Argum ent................................................................ 6
Argument ..................................................................................... 7
I. The Federal Program Involved in this A ction .......... 7
A. The Basic Statute ................................................ • 7
B. The Role of Appellee PH A as Determined by
the Basic S ta tu te ......................................................... 8
C. The Role of Appellee PHA as Evidenced by
Basic Rules and Regulations and Administra
tive Provisions Adopted by the Appellee Com
missioner of P H A ...................................................... 11
1. The Role of PHA as Defined by Part Two
of the Annual Contributions C ontract........ 11
2. Special Role of PHA with Respect to Local
Racial Policies Described in Agency Manual
of Policy and Procedure, Low Rent Housing
Manual and Special Policy Directives.......... 13
II. The Establishment of Fred Wessels Homes as a Project
Limited to Occupancy by White Low Income Families
Violates Rights Secured to Appellants by the Laws,
Constitution and Public Policy of the United States .. 18
A. The Right Conferred on Appellants by the Basic
State ............................................................................ 18
B. Protection Afforded by the Federal Civil Rights
Statutes........................................................................ 19
PAGE
11
C. Protection Afforded by the Constitution of the
United S ta te s ......................... 21
1. The Fourteenth Am endment...................... 22
a. The Separate but Equal D octrine........ 25
b. Police Power and Property Values . . . . 31
2. The Fifth Amendment.................................. 32
D. Protection Afforded by Consideration of Public
Policy ...................................................................... 35
III. Congress Intended that there be no Segregation.......... 36
A. Legislative History—Senate ................................ 36
B. Legislative History—H o u se .................................. 39
IV. Appellants have Standing to S u e .................................... 40
A. Relief Sought..................... 40
B. This is not a Taxpayer’s A ction............................ 41
C. The Justiciable Is su e .............................................. 43
Conclusion..................................................................................... 46
TA B L E O F CASES
Allen v. Oklahoma City, 175 Okla. 421, 52 Pac. 1054 (1935) .................. 25
Banks, et al. v. San Francisco Housing Authority, No. 420534, Oct. 1,
1952, Superior Court in and for San Francisco County .................... 26, 30
Barrows v. Jackson, United States Supreme Court, Oct. Term, 1952,
No. 517 decided June 15, 1953, — U. S. —, 97 L. ed. (advance
p. 961) ........................................................................................22, 25, 35, 45, 46
Buchanan v. Warley, 245 U. S. 60, 62 L. ed. 149 (1917) .......20, 22, 23, 24, 27,
28, 31, 35, 46
City o f Birmingham v. Monk, 185 F. 2d 859 (1951), cert. den. 341 U. S.
940, 95 L. ed. 1367 (1951) .......................................................................... 24
City o f Richmond v. Deans, 281 U. S. 704, 74 L. ed. 1128 (1930) .......... 24
Crabb v. Welden Bros., 65 F. Supp. 369 (S. D. Iowa, C. D.) (1946) . . . 19
Crumpton v. Zabriskie, 101 U. S. 601, 25 L. ed. 1070 (1880) ................ 44
E x parte Virginia, 100 U. S. 339, 25 L. ed. 676 (1880) ......................... 23
Favors v. Randall, 40 F. Supp. 743 (E. D. Penn.) (1941) ..................... 27, 28
Frothingham v. Mellon, 262 U. S. 477, 67 L. ed. 1078 (1923) .................. 41, 42
Harmon v. Tyler, 273 U. S. 668, 71 L. ed. 830 (1927) ........................... 24
Hirabayashi v. United States, 320 U. S. 81, 87 L. ed. 1774 (1943) .......... .32, 33
H urd v. Hodge, 334 U. S. 24, 92 L. ed. 1187 (1948) . . . .20, 32, 33, 34, 35, 36, 46
Illinois ex rel. McCollum v. Bd. o f Education, 333 U. S. 203, 92 L. ed.
649 (1948) ......................................................................................................... 44
Joint AntFFascist Refugee Committee v. McGrath, 341 U. S. 123, 95
L. ed. 817 (1951) .......................................................................................
PAGE
45
Ill
Korematsu v. United States, 323 U. S. 214, 89 L. ed. 194 (1944) .......... 32, 33
Massachusetts v. Mellon, 262 U. S. 447, 67 L. ed. 1078 (1923) .............. 41, 42
Plessy v. Ferguson, 163 U. S. S37 (1896) ............................................... 26, 27, 28
Seawell et al. v. MacW ithey, 2 N. J. Super. 2S5, 63 Atl. 2d 542 (1949)
rev’d on other grds. 2 N. J. 563, 67 Atl. 2d 309 (1949) ................ 26
Shelley v. Kraemer, 334 U. S. 1, 92 L. ed. 1161 (1948)..........20, 22, 24, 28, 32,
33, 34, 35, 45, 46
Strauder v. W est Virginia, 100 U. S. 303, 25 L. ed. 664 (1880) .......... 22
Vann, et al. v. Toledo Metropolitan Housing Authority, (U. S. D. C.
N. D. Ohio) Civil Action No. 6989, July 24, 1953 ..........................21, 25, 29
Wong Yim v. United States, 118 F. 2d 667 (1949), cert. den. 313 U. S.
589, 85 L. ed. 1544 (1941) ....................................................................... 32
Woodbridge, et al. v. The Housing Authority o f Evansville, Indiana,
et al. (U . S. B. C. Ind.) Civil Action No. 618, July 6, 1953. .19,20,25, 29,36
Young v. Kellex Corf., 82 F. Supp. 953 (E . D. Tenn. N. D.) (1948) .. 19
PAGE
ST A T U TE S
Act of Sept. 1, 1937, c. 896, 50 S#at. 888, as amended by Aqt of
July 15, 1949, c. 338, Title III, 63 Stat. 422, Title 42, U. S. C.,
Sections 1401 ............................................................................................... 1,2,7, 8
1402(11) ....................................................................................... 7,19
1404(a) 11
1409 ............................................................................................... 19
1410 ................................................. 19
1410(a) ......................................................................................... 8,10
1410(c) ......................................................................................... 9
1410(f) ......................................................................................... 10
1410(g) ........................................................................................2 ,3 ,5 ,6 ,18
1410(h) ....................................................................................... 8,10
1411 ............................................................................................... 19
1413(a) ......................................................................................... 10
1415(5) ......................................................................................... 9
1415(7) (a ) ....................................................................................8,9,22,23
1415(7) (b) 8,9
1415(8)(a ) 9
1415(8)(b) 9
1415(8) (c) 19
1421(a)(1) 10
1433 ............................................................................................... 10
Act of April 9, 1866, c. 31, Sec. 1, 14 Stat. 27, Title 8, U. S. C„
Sec. 42 ..................................................................... 1, 4, 5, 6,19,20, 27, 33, 34, 35,46
Act of June 25, 1948, c. 646, Sec. 1, 62 Stat. 930, Title 28, U. S. C.,
Section 1331 ................................................................................................. 1
Act of June 25, 1948, c. 646, Sec. 1, 62 Stat. 929, Title 28, U. S. C„
Section 1291 ............................................................................................... 1
C O N ST IT U T IO N
United States Constitution:
F ifth Amendment ................................................................................. 1, 5, 6, 32
Fourteenth Amendment ......................................................................... 22
OTHER AUTHORITIES
PAGE
Congressional Record, Vol. 95, P art 4, 81st Cong., 1st Sess.
pages 4791 ..................................................
4851 ..............................................
4852 ............................................................
4853 ............................................................
4855 ...................................................................
4856 ......................................................
4857 ................................................. ............................
4858 ........ .....................................................................
Congressional Record, Vol. 95, P a rt 7, 81st Cong., 1st Sess.
pages 8554 ..................................................................
8555 .............................................................
8656 ..............................................................
8657 ..............................................................
Terms and Conditions, Constituting P art Two of an Annual Con
tributions Contract between Local Authority and Public Plousing
Administration, Form PHA-1996, June 1950, Secs. 102(B) ..........
102(C) ..........
102(D) ..........
102(E) ..........
102(F) ..........
103 ..................
104 ..................
113 ..................
115 ..................
118 ..................
122 ..................
126
127 ..................
128 ..................
130 ..................
131 ..................
132 ..................
pp. 13-21 ........
304 ..................
305 ..................
306 ..................
308(D) ..........
308^ ..............
36
37
37
37, 38
37,38
37
37
37
39
39
40
40
12
12
12
12
12
12
12
17
12
12
12
12
12
12
13
13
13
13
13
13
13
13
13
309(C) (D ) .. 13
325 .................. 13
H H F A P H A Manual of Policy and Procedure, Secs. 3911:10 .......... 16
3112:18 .......... 16
3812:1 .......... 16
3810:1 17
3110:1 17
6110:1 17
Low Rent Bulletin 12 (June 1950) ..............*.......................................... 16
Form P H A -1922 (2 /1 5 /5 0 ) .............. ..................................................... 17
Form PHA-1954 (Rev. July 1950) 101 .................................................. 17
103 .................................................. 17
201 .................................................. 17
203 .................................................. 17
207 .................................................. 17
224 .......................................... 17
H H FA -O A No. 470, January 17, 1953 .................................................... 14-15
H H F A P H A Low Rent Housing Manual, Secs. 102.1 ...................... 14
207.1 ...................... 16
Intteit BUtm ( ta r t nt Appeals
For the District of Columbia Circuit
No. 11,865
-------------------o-------------------
P r i n c e F . H e y w a r d , E r s a l in e S m a l l , W i l l i a m M i t c h e l l ,
W i l l i a m G o l d e n , M i k e M a u s t i p h e r , AYi l l i s H o l m e s ,
A l o n z o S t e r l i n g , M a r t h a S i n g l e t o n , I r e n e C h i s h o l m ,
J o h n F u l l e r , B e n j a m i n E . S i m m o n s , J a m e s Y o u n g ,
O l a B l a k e ,
Appellants,
v.
P u b l i c H o u s in g A d m i n i s t r a t i o n , body corporate; J o h n
T . E g a n , Commissioner, Public Housing Administra
tion,
Appellees.
-------------------o-------------------
A p p e a l p r o m t h e U n it e d S t a t e s D is t r ic t C o u r t f o r t h e
D i s t r ic t o f C o l u m b ia
BRIEF FOR APPELLANTS
1
Jurisd ictional S tatem ent
Appellants filed their Complaint in the United States
District Court for the District of Columbia, the court below,
on September 8, 1952, pursuant to Act of June 25, 1948, c.
646, Sec. 1, 62 Stat. 930, Title 28, United States Code,
Sec. 1331, this being a suit which arises under the Con
stitution and Laws of the United States, that is, the
Fifth Amendment to the Constitution of the United States
and Act of September 1, 1937, c. 896, 50' Stat. 888, as
amended by Act of July 15, 1949, c. 338, Title III, 63
Stat. 422, Title 42, United States Code, Secs. 1401-1433,
and Act of April 9, 1866, c. 31, Sec. 1, 14 Stat. 27
(B. S. Sec. 1978), Title 8, United States Code, Sec. 42,
wherein the matter in controversy as to each of the Appel
lants exceeds three thousand dollars exclusive of interest
and costs (Joint Appendix 6).
The court below, on April 28, 1953, after hearing
Appellees’ Motion for Summary Judgment, filed December
22, 1952, entered an Order granting Appellees ’ Motion for
Summary Judgment and dismissing the Complaint herein
on the ground that Plaintiffs, Appellants here, failed to
state a claim upon which relief can be granted (Joint
Appendix 15, 1).
From this Order, Appellants duly filed a Notice of
Appeal on May 25, 1953 and prosecuted the appeal herein
pursuant to Act of June 25, 1948, c. 646, Sec. 1, 62 Stat.
929, Title 28, United States Code, Sec. 1291.
Statem ent of the Case
In their Complaint, Appellants allege that:
They are adult Negro citizens of the United States and
of the State of Georgia, residing in the City of Savannah
on a site commonly known as the “ Old Fort” area (Joint
Appendix 8).
2
Each of them will be displaced from such site by reason
of the fact that the site has been condemned by or on
behalf of the Housing Authority of Savannah, Georgia, a
public agency, for the purpose of constructing thereon a
low rent housing project pursuant to the provisions of Act
of Sept. 1, 1937, c. 896, 50 Stat. 888, as amended by Act of
July 15, 1949, 63 Stat. 422, Title 42, U. S. C., Secs. 1401-
1433 (Joint Appendix 8).
Each of them meets the requirements established by
law for consideration and admission to the said low rent
public housing project (Joint Appendix 8).
Each of them is entitled by law, Act of Sept. 1, 1937,
c. 896, 50 Stat. 888, as amended by Act of July 15, 1949,
c. 338, Title III, Sec. 302(a) (g), 63 Stat. 423, Title 42,
IT. S. C. Sec. 1410(g), to a preference for consideration and:
admission to any public low rent housing project built in
the City of Savannah, Georgia, and initiated after January
1, 1947, by reason of the fact that his or her family will be
displaced from a site on which a low rent public housing
project will be built (Joint Appendix 8).
Appellees, the Public Housing Administration and
John T. Egan, Commissioner of the Public Housing
Administration, administer the Act of Congress pursuant
to which the low-rent housing project in controversy will
be constructed and operated, Act of Sept, 1, 1937, c. 896, 50
Stat. 888, as amended by Act of July 15, 1949, c. 338, Title
III, 63 Stat. 422, Title 42, United States Code, Secs. 1401-
1433 (Joint Appendix 9).
In accordance with the provisions of said Act, the Appel
lee, Public Housing Administration, has entered into a
contract with the Housing Authority of Savannah, Georgia,
pursuant to which contract said Appellee has agreed to
give federal financial assistance and other federal assistance
to the Housing Authority of Savannah, Georgia, for the
construction, operation and maintenance of said housing
project (Joint Appendix 9-10).
3
The housing project in controversy will be known as the
Fred Wessels Homes, is also designated as G-A-2-4, and
will be limited to occupancy by eligible low income white
families (Joint Appendix 10).
The Appellants, although meeting all the qualifications
established by law for admission to the project and although
having a preference for admission conferred by law, will
be denied consideration for admission and admission to the
said project solely because they are not white families
(Joint Appendix 8, 11).
In response to Appellants’ Complaint, the Appellees,
Defendants below, filed a Motion for Summary Judgment
which was heard on April 21, 1953 (Joint Appendix 15).
On May 8, 1953 the court below rendered its opinion
( Joint Appendix 2).
On April 28, 1953, the court below, entered an Order
granting the Motion for Summary Judgment and dismiss
ing the Complaint herein on the ground that the Complaint
fails to state a claim upon which relief can be granted
(Joint Appendix 1).
From this Order Appellants appeal.
Statutes Involved
Act of Sept. 1, 1937, c. 896, 50 Stat. 888, as amended
by Act of July 15, 1949, c. 338, Title III, Sec. 302(a) (g), 63
Stat. 423; Title 42, U. S. C. Sec. 1410(g):
“ Veterans’ preference: Every contract made pur
suant to this Act (§1401 et seq. of this title) for
annual contributions for any low-rent housing proj
ect shall require that the public housing agency, as
among low-income families which are eligible appli
cants for occupancy in dwellings of given sizes and
at specified rents, shall extend the following prefer
ences in the selection of tenants:
4
“ First, to families which are to be displaced by
any low-rent housing project or by any public slum-
clearance or redevelopment project initiated after
January 1, 1947, or which were so displaced within
three years prior to making application to such
public housing agency for admission to any low-rent
housing; and as among such families, first preference
shall be given to families of disabled veterans whose
disability has been determined by the Veterans’
Administration to be service-connected, and the
second preference shall be given to families of de
ceased veterans and servicemen whose death has
been determined by the Veterans’ Administration to
be service-connected, and third preference shall be
given to families of other veterans and servicemen;
“ Second, to families of other veterans and ser
vicemen and as among such families first preference
shall be given to families of disabled veterans whose
disability has been determined by the Veterans’ Ad
ministration to be service-connected, and second
preference shall be given to families of deceased
veterans and servicemen whose death has been de
termined by the Veterans’ Administration to be
service-connected. ’ ’
Act of April 9, 1866, c. 31, Sec. 1, 14 Stat. 27, Title 8,
U. S. C., Sec. 42:
“ Property rights of citizens. All citizens of the
United States shall have the same right, in every
State and Territory, as is enjoyed by white citizens
and thereof to inherit, purchase, lease, sell, hold,
and convey real personal property. (R. S. § 1978.) ”
Statement of Points
1. The court below erred in dismissing the Complaint
on the ground that it fails to state a claim upon which
relief can be granted.
2. The court below erred in ruling that “ it is entirely
proper and does not constitute a violation of Constitutional
rights for the Federal government to require people of
white and colored races to use separate facilities, provided
equal facilities are furnished to each.”
3. The court below erred in ruling that ‘ ‘ The Congress
has conferred discretionary authority on the administra
tive agency to determine for what projects Federal funds
shall be used. There are very few limitations in the statute
on the power of the administrator, and there is no limitation
as to racial segregation.”
4. The court below erred in granting Appellees ’ Motion
for Summary Judgment on the ground that the Complaint
fails to state a claim upon which relief can be granted.
5. The court below erred in refusing to rule that Appel
lees in giving Federal financial assistance and other Fed
eral assistance, provided for by Act of Congress, for the
construction, maintenance, and operation of a public low-
rent housing project from which the Appellants will be
excluded and denied admission, solely because of their race
and color, are violating rights secured to Appellants by
the due process clause of the Fifth Amendment to the Fed
eral Constitution, and by Act of April 9, 1866, c. 31, Sec. 42,
14 Stat. 27, Title 8 U. S. C. Sec. 42 and Act of September
1, 1937, c. 896, 50 Stat. 888, as amended by Act of July
15, 1949, c. 338, Title III, Sec. 302(a) (g), 63 Stat. 423,
Title 42, U. S. C. Sec. 1410(g), and are violating the public
policy of the United States.
6. The court below erred in refusing to rule that Ap
pellants, and all other Negroes similarly situated, cannot be
denied consideration for admission and/or admission to
the Fred Wessels Homes or any other federally-aided hous
ing project solely because of their race and color.
6
7. The court below erred in refusing to rule that the
preference for admission to the Fred Wessels Homes or
any other federally-aided low rent housing project initiated
after January 1,1947 in the City of Savannah, Georgia, con
ferred on Appellants, and all other Negroes similarly situ
ated, by Act of Sept. 1, 1937, c, 896, 50 Stat. 888, as amended
by Act of July 15, 1949, c. 338 Title III, 63 Stat. 423 Title
42, U. S. C. Sec. 1410(g) may not be qualified or limited
by race or color.
Sum m ary o£ A rgum ent
The Federal Government may not require or sanction,
racial segregation in low-rent public housing, provided
separate but equal facilities for white and non-white fami
lies are furnished, since such a requirement or sanction
violates property rights secured to Appellants by the due
process clause of the Fifth Amendment to the Federal
Constitution and by Act of April 9, 1866, c. 31, Sec. 1, 14
Stat. 27, Title 8 U. S. C. Sec. 42 and denies to Appellants
rights conferred by Act of Sept. 1, 1937, c. 896, 50 Stat. 888,
as amended by Act of July 15, 1949, c. 338, Title III, Sec.
302(a) (g), 63 Stat. 423, Title 42 IT. S. C. Sec. 1410(g) and
violates the public policy of the United States.
Appellants have standing to sue and may maintain this
action which they bring against Appellees as persons ag-
rieved by Appellees’ unlawful administration of a federal
statute enacted for the specific benefit of a class, low income
families, of which Appellants are members, and as persons
whose constitutionally and legislatively protected property
rights have been violated by the racial segregation policy
of which Appellants’ complain, and as persons and mem
bers of a class, displaced families, whose right to a prefer
ence for admission conferred by statute has been denied
by Appellees.
7
A RGUM ENT
I. The Federal Program Involved In This Action.
The federal program involved in this action is low-rent
public housing.
A. The Basic Statute
The basic statute providing for this program is com
monly referred to as The Housing Act of 1937, as amended
by Title III of the Housing Act of 1949.1
The Appellee Public Housing Administration is au
thorized by the basic statute to enter into contracts for
federal financial assistance only “ with a state or a state
agency where such state or state agency makes application
for such assistance for an eligible project which, under the
applicable laws of the state, is to he developed and admin
istered by such state or state agency. ’ ’2 The basic statute
declares that it is “ the policy of the United States to
promote the general welfare of the Nation by employing
its funds and credit * * * to assist the several states and
their political subdivisions * # * to remedy the unsafe and
unsanitary housing conditions and the acute shortage of
decent, safe, and sanitary dwellings for families of low
income, in urban and rural non-farm areas, that are
injurious to the health, safety and morals of the citizens
1 Act of Sept. 1, 1937, c. 896, 50 Stat. 888, as amended by Act
of July 15, 1949, c. 338, Title III, 63 Stat. 422, Title 42, U. S. C„
§ 1401-1433. The Housing Act of 1937 provided for the first exten
sive program of federal financial assistance for low-rent public hous
ing. Prior to 1937, federal financial assistance for low-rent public
housing had been made available under the provisions of the National
Industrial Recovery Act. Title 40, United States Code, §401, 48
Stat. 200.
2 Ibid, Title 42, U. S. C. § 1402 (11), 63 Stat. 429.
8
of the Nation.” 8 The basic act also provides that the
determination that there is a need for snch housing for low
income families in a particular locality must be made by
the political subdivision of the state which seeks the federal
assistance, by providing that the local governing body must,
by resolution, approve the application of the public housing-
agency for the financial assistance sought from the federal
government and must enter into an agreement with the
public housing agency providing for cooperation on its
part with such agency.3 4 In addition, the local governing
body must provide for the exemption from local taxation
of all projects assisted under the basic act,5 and must agree
with the public housing agency that within five years after
the completion of a project it’ shall have eliminated an
equivalent number of slum dwelling units.6
The basic act thus effects federal-state character, making
the housing made available to low income families as a
result of this program distinctly public—the product of
joint federal-state action.
B. The Role Of A ppellee Public Housing
A dm inistration As D eterm ined By The
Basic Statute
Several provisions of the basic statute determine that
the dominant role in this federal-state program shall be
assumed by the federal agency by effecting complete federal
involvement in, with veto power over, every major deter
mination made with respect to the planning, construction,
3 Act of Sept. 1, 1937, c. 896, 50 Stat. 888, as amended by Act
of July 15, 1949, c. 338, Title III, 63 Stat. 429, Title 42, U. S. C
§ 1401.
4 Ibid, 63 Stat. 422, Title 42, U. S. C., § 1415(7) (a) (i) (b) (i).
5 Ibid, 63 Stat. 428, Title 42, U. S. C., § 1410(h).
6 Ibid, 50 Stat. 891, as amended by Act of Tuly 15, 1949, c. 338,
63 Stat. 430, Title 42, U. S. C., § 1410(a).
9
operation and maintenance of a project assisted under the
act.
Although the basic statute provides, for example, that
the need for public housing shall be determined by the local
housing authority and approved by the local governing
body, it requires that the locally determined need be ap
proved by PHA.7 PHA is authorized by the basic statute
to require a cooperation agreement between the local public
agency and the local governing body before any contract
for loan or annual contribution is entered into.8 The basic
statute requires that PHA be satisfied “ that a gap of at
least 20 per centum has been left between the upper rental
limits for admission to the proposed low rent housing and
the lowest rents at which private enterprise unaided by
public subsidy is providing * * * housing * * *.” 9 The
basic law further provides that the income limits of tenants
and all revisions thereof be approved by PHA;10 that
periodic written statements be sent PHA concerning
investigations made by a duly authorized official of the
local agency of each family admitted to the project;11 that
PHA approve the cost amounts of the main construction
contracts; 12 that PHA determine the purposes for which
excess receipts of the local agency shall be used;13 that
PHA may defer the requirement of elimination of the
7 Ibid, 63 Stat. 422, Title 42, United States Code, Sec. 1415(7) (a).
8 Ibid, 63 Stat. 422, Title 42, United States Code, Sec. 1415(7) (b).
9 Ibid, 63 Stat. 422, Title 42, United States Code, Sec. 1415(7) (b).
10 Ibid, 63 Stat. 422, Title 42, United States Code, Sec.
1415(8)(a).
11 Ibid, 63 Stat. 422, Title 42, U. S. C., Sec. 1415(8) (b).
12 Ibid, 50 Stat. 896, as amended by Act of July 15, 1949, c. 338,
63 Stat. 424, Title 42, U. S. C., Section 1415(5).
13 Ibid, 50 Stat. 892, as amended by Act of July 15, 1949, c. 338,
63 Stat. 426, Title 42, U. S. C., Sec. 1410(c).
10
equivalent number of unsafe or insanitary dwellings situ
ated in the locality, where there is an acute shortage of
decent, safe, or sanitary housing available to families of
low income ;14 that PHA may require that payments under
annual contributions contracts be pledged as security for
any loan obtained by the local agency to assist the develop
ment or acquisition of any project to which the annual
contribution relates;15 that PHA’s contract with the local
agency provide for tax exemption of the project or pay
ments by the local agency in lieu thereof ;16 that PHA may
foreclose on any property or commence any action to
protect or enforce any of its rights and may bid for and
purchase at any other foreclosure or acquire or take posses
sion of any project which it previously owned or in connec
tion with which it made any loan, annual contribution, or
capital grant; and in such case may complete, administer,
pay the principal of and interest on any obligations issued
in connection with such project, dispose of, or otherwise
deal with such projects;17 and that PHA may approve
certain state low rent or veterans projects as low rent
housing projects to be aided under the basic act.18 Finally,
the basic statute provides that PHA, upon the occurrence
of any substantial default by the local agency with respect
to any of the covenants or conditions to which the local
agency is subject, at its option, may take title or possession
of any project as then constituted.181
14 Ibid, 50 Stat. 891, 893, as amended by Act of Tuly 15 1949
c. 338, 63 Stat. 428, 430, Title 42, U. S. C., Sec. 1410(a).
15 Ibid, 50 Stat. 892, as amended by Act of June 21, 1938, c. 554,
52 Stat. 820, as amended by Act of July 15, 1949, c. 338, 63 Stat. 424,
Title 42, U. S. C„ Sec. 1410(f).
16 Ibid, Note 5.
17 Ibid, 50 Stat. 894, Title 42, United States Code, Sec. 1413(a).
18 Ibid, as amended by Act of July 15, 1949, c. 338, Title VI,
63 Stat. 440, Title 42, U. S. C. Sec. 1433.
1Sa Ibid, as amended by Act of July 15, 1949, c. 338, Title III,
Sec. 307(h j, 63 Stat. 431, Title 42, U. S. C., Sec. 1421(a) (1).
11
PHA lias no rule or regulation or policy directive which
requires open occupancy in any project taken over and
operated by it.
C. The Role Of A ppellee Public Housing
Administration As Evidenced By Basic Rules
And Regulations A nd A dm inistrative P ro
visions Adopted By The A ppellee Commis
sioner of PHA
In order to implement the dictates of the basic statute
with respect to its role, Appellee Commissioner of PHA
has, pursuant to his statutory rule making power, adopted
agency rules and regulations, and administrative pro
visions which bind and determine PHA’s relationship with
the local agency.10 These administrative edicts are con
tained in several basic documents: The Manual of Policy
and Procedure (9/5/51), The Low Rent Housing Manual
(2/2/52), and Part Two of every Annual Contributions Con
tract, copy of the latter being attached to appellees’ Motion
for Summary Judgment in the court below. (Joint Ap
pendix 60).
1. The Role Of PHA As Defined By P a r t Two
Of The Annual Contributions C ontract
Part II of the Annual Contributions Contract is that
part of the basic agreement between the federal agency
and the local authority which contains the terms and con
ditions upon which the two agencies will operate and co
operate in the joint program. The role of PHA as dictated
by various provisions of the basic statute is described
supra. Study of Part II demonstrates even more conclu
sively PHA’s role in planning, development and manage
ment of local program. Under this part of the contract,
PHA approves contracts for services of experts for land 19
19 Ibid, as amended by Act of Aug. 10, 1948, c. 832, 62 Stat. 1284,
Title 42, U. S. C„ Sec. 1404(a).
12
surveys, title information, legal services, land acquisition,
appraisals;20 options accepted by the local authority, the
institution of condemnation proceedings, acquisition of
project site;21 use restrictions on site;22 title vesting of
site in local authority;23 giving of financial assistance to
persons displaced from, site;24 the plans and specification
of the local authority for construction of the project;25 all
construction contracts including bids for same;26 PHA
determines prevailing wages to be paid by local authority
to all architects, technical engineers, draftsmen, and techni
cians employed in the development of the projects ;27 PHA
may waive requirement that only domestic materials be
used in construction;28 PHA prescribes the forms to be
used by contractors and sub-contractors in preparing their
payrolls and issues instructions with respect to same;29
PHA has the right to inspect the construction work 30 and
the completed project when ready for occupancy;31 PHA
approves any further development work;32 PHA approves
20 Form PHA-1996, Part Two, June 1950, pg. 1, Sec. 102(B).
21 Ibid, Sec. 102(C)
22 Ibid, Sec. 102(D)
23 Ibid, Sec. 102(E)
24 Ibid, pg. 2, Sec. 102(F).
25 Ibid, Sec. 103
26 Ibid, Sec. 104
27 Form PHA-1996, Part Two, June, 1950, pg. 7, Sec. 115.
28 Ibid, pg. 8, Sec. 118.
28 Ibid, pg. 8, Sec. 122.
30 Ibid, pg. 9, Sec. 126.
31 Ibid, pg. 10, Sec. 127.
32 Ibid, pg. 10, Sec. 128.
13
development cost;83 PHA approves all financial arrange
ments ;33 34 PHA approves management program,3® budgets,36
income limits and rent schedules;37 standards of dwelling
size;38 insurance coverage;39 supervises and approves or
itself repairs, reconstructs or restores any damaged or de
stroyed project;40 PHA periodically reviews all manage
ment operations and practices.41
These references demonstrate that the role of PHA is
not a passive one—PHA has veto power with respect to
practically every determination made by the local agency,
whose role would appear to be that of agent for the fed
eral agency. These terms and conditions make self-evident
that the predominant role in the planning, construction and
operation of projects is assumed by the federal agency.
2. Special Role Of PH A W ith Respect To Local
Racial Policies Described In A gency M anual
Of Policy And Procedure, Low R ent Housing
Manual And Special Policy Directives
In the agency’s Manual of Policy and Procedure and
Low Rent Housing Manual most of the provisions of Part
Two of the Annual Contributions Contract are reiterated
and embellished with agency directives, but, in addition,
these documents, including Part Two, contain special con
33 Ibid, pg. 11, Secs. 130, 131, 132.
34 Ibid, pg. 13-21.
38 Ibid, pg. 22, Sec. 304.
38 Ibid, pg. 22, Sec. 305.
87 Ibid, pg. 22, Sec. 306.
38 Ibid, pg. 25, Sec. 308(D).
39 Ibid, pg. 25, Sec. 308^.
40 Ibid, pg. 27, Sec. 309(C) (D).
41 Ibid, pg. 33, Sec. 325.
14
siderations and requirements with respect to local racial
policies and determinations, none of which adhere to the
constitutional, legislative or public policy mandate dis
cussed infra that there be no discrimination, including no
racial segregation, with respect to selection of tenants for
the housing accommodations made available as a result of
this federal-state program.
The basic racial policy consideration, commonly referred
to as PHA Racial Equity Formula, provides as follows:
Racial Policy
The following general statement of racial
policy shall be applicable to all low-rent housing
projects developed and operated under the United
States Housing Act of 1937, as amended:
1. Programs for the development of low-rent
housing in order to be eligible for PHA assistance,
must reflect equitable provision for eligible families
of all races determined on the approximate volume
and urgency of their respective needs for such hous
ing.
2. While the selection of tenants and assigning
of dwelling units are primarily matters for local
determination, urgency of need and the preferences
prescribed in the Housing Act of 1949 are the basic
statutory -standards for the selection of tenants.42
In addition to this basic policy statement there is a
recent policy directive which more clearly reveals PHA’s
racial policy. This latest statement of racial policy pro
mulgated by PHA is contained in a release issued January
17, 1953 (HHFA-OA No. 470) and provides, insofar as
material to the low-rent housing* program, as follows:
42 HHFA PHA Low-Rent Housing Manual, Sec. 102.1, Febru
ary 21, 1951.
15
Low-Rent Public Housing
The United States Housing Act of 1937, as
amended, and as perfected by Title III of the Hous
ing Act of 1949, authorizes the Public Housing Ad
ministration to make loans and annual contributions
to local communities to assist them in remedying
unsafe and insanitary housing conditions and in
providing safe, decent and sanitary dwellings for
families of low income. Its primary and principal
objective is the improvement of the housing condi
tions of American families of low income. Many of
the low-rent public housing projects assisted under
the Act, however, are constructed on slum sites. In
such cases * * * such clearance of slum areas occupied
by Negro or other racial minority families could
result in worsening, instead of the desired improve
ment, of the housing conditions of such families,
because of the limited living space generally available
to such families as well as their inability to pay the
rents required for decent, safe, and sanitary housing.
Accordingly, in the course of actual operating ex
perience, general procedures * * * have developed
from the joint efforts of the local and Federal agen
cies to assure that, in the selection of sites for low-
rent public housing projects assisted under the United
States Housing Act of 1937, as amended, the living-
space presently available to Negro and other racial
minority families is not reduced. These general pro
cedures are based upon the following:
A slum or blighted area presently occupied in
whole or in part by a substantial number of Negro or
other racial minority families may be cleared and
redeveloped with low-rent public housing i f :
1. The low-rent public housing is to be available for
occupancy by all racial groups, or
2. The low-rent public housing available for occu
pancy by Negro or other racial minority families
is to be constructed in the area in an amount
substantially equal to the number of dwelling-
units in such area which were occupied by Negro
or other racial minority families prior to its re
development, or
16
3. The low-rent public housing is not to be available
for occupancy by all racial groups or for occu
pancy by Negro or other racial minority families,
and
A. Low-rent public housing available for occu
pancy by Negro or other racial minority families
(in an amount substantially equal to the number
of dwelling units in such area which were occupied
by Negro or other racial minority families prior
to its redevelopment is made available through
the construction of low-rent public housing in
areas elsewhere in the community, which areas
are not generally less desirable than the area to
be redeveloped, and
B. Representative local leadership among
Negro or other racial minority groups in the
community has indicated that there is no sub
stantial objection thereto.
In addition to these major policy statements and direc
tives there are numerous requirements imposed by PH A
on the local agency with regard to race. For example:
the rules and regulations define the organization and func
tion of the Racial Relations Branch of PH A ; 48 set forth
the requirement that local public agencies compile m in ority
employment data; 43 44 define racial relations activities in
in management45 and in construction; 46 require that the
housing provided for all racial groups be of substantially
the same quality, service, facilities and conveniences with
respect to all standards and criteria for planning and
design; 47 48 require a no discrimination provision with respect
to employment in all construction contracts; 48 the same
43HHFA PHA Manual of Policy & Procedure (9/5/51), Sec.
3911:10.
44 Ibid, Sec. 3112:18.
45 Ibid, Sec. 3812:1.
48 Ibid, Sec. 3812:1.
47 Low Rental Housing Manual (12/13/49), Sec. 207.1.
48 Low Rent Bulletin 12 (June 1950) Construction Contract.
17
for architects; 49 the same for all contracts for services
and supplies; 50 the same with respect to all leases of fed
erally-owned housing projects; 51 52 53 54 55 the same with respect to
the hiring policies and procedures of the local authority; 62
the same with regard to the personnel actions of P.HA
itself; 68 require that racial factors be takgn into considera
tion in connection with selection of sites; 64 require that the
land area available to minority groups not to be reduced; 55
require no discrimination with respect to persons to be
employed by the local authority for the purpose of con
ducting surveys.56
The Development Program, which is a form prepared
by PHA for use by the local authority for presentation
of all relevant data in connection with application for fed
eral assistance and which must be approved by PHA before
such assistance is given, requests, for example, relevant
data concerning the local agency’s present program,57 site
occupants,58 59 neighborhood characteristics,69 proposed proj
ect occupants,60 and displaced families,61 separately for
white and non-white families.
49 Ibid, these requirements made pursuant to Executive Orders.
50 Manual of Policy & Procedure (5/25/49), Sec. 3810:1, Pur
suant to Executive Order.
51 Manual of Policy & Procedure (5/25/49), Sec. 3810.1.
52 PHA Form-1996 (June 1950) Annual Contribution Contract,
Sec. 113.
53 Manual of Policy & Procedure (9/25/50), Sec. 3110:1,
6110:1.
54 Low Rental Housing Manual (7/28/50), Sec. 208.1 3 B.
55 Low Rent Housing Manual (7/14/50), Sec. 208:16.
58 Form PHA-1922 (2/15/50) Proposal for Survey.
57 Form PHA-1954, Rev. July 1950. 101.
58 Ibid, 201, 203.
59 Ibid, 207.
60 Ibid, 103.
61 Ibid,224.
18
These considerations and requirements imposed by PH A
on the local agency, with respect to its determinations and
policies involving race, bespeak PHA’s authority and the
extent of its involvement in such local considerations and
determinations.
II. The Establishm ent O f F red W essels Hom es As
A P ro jec t L im ited To O ccupancy By W hite Low In
come Fam ilies V iolates R ights Secured To A ppellants
By The Laws, C onstitution A nd Public Policy O f The
U nited States.
A. The R ight C onferred On A ppellan ts By
The Basic S ta tu te
Appellants are low income families meeting all require
ments established by law for admission to the low rent
project here in controversy, which is being built on the
site of their present or former residence and from which
they will be excluded and denied admission solely because
they are not white families. The limitation to occupancy
by white families is a determination which Appellees con
tend the local agency, the Housing Authority of Savannah,
Georgia, is permitted to make. But this determination has
been specifically approved by Appellees (Appellants’1 Ap
pendix 10-11).
Under the basic statute, Appellants have a preference
for admission to low rent bousing by virtue of the fact that
they are families which are to be displaced and which have
been displaced to make way for the construction of a proj
ect initiated after January 1, 1947.82 The act requires
that every contract for annual contributions between PH A
and the local agency ‘ ‘ shall require that the public housing
agency, as among low-income families which are eligible
82 Act of Sept. 1, 1937, c. 896, 50 Stat. 888, as amended by Act
of July 15, 1949, c. 338, Title III, 63 Stat. 423, Title 42, United States
Code, Sec. 1410(g).
19
applicants for occupancy in dwellings of given sizes and at
specified rents, shall extend” this preference in the selec
tion of tenants.6211
The contract between Appellees and the local housing
authority in this instance contains this provision, which
Congress obviously intended be included for the specific
benefit of displaced families, and which displaced families
may sue to enforce. Compare Young v. Kellex Corp., 82 F.
Supp. 953 (U. S. D. C. E. D. Tenn.); Crabb v. Welden Bros.,
65 F. Supp. 369 (IJ. S. D. C. S. D. Iowa), reversed on
other grounds, 164 F. 2d 797.
A federal district court has ruled enforcement of
racial segregation in housing developments aided under this
act, violates urgency of need preference rights, 63 Stat.
422, Title 42, U. S. C. §8(c), secured to qualified low
income families by this provision. Woodbridge, et al. v.
Housing Authority of Evansville, et at., Civil No. 619.
U. S. D. C. S. D. Ind. (Findings of Fact and Conclusions
of Law, filed July 6, 1953.)
The right of Appellants to a preference for considera
tion for admission and admission to Fred Wessels Homes
is thus violated by Appellees through their sanction of the
limitation to white occupancy.
B. Protection Afforded By The Federal Civil
Rights Statutes
The basic Federal legislative safeguard against segre
gation in Federally-aided low rent public housing projects
is one of the Federal Civil Rights Statutes passed by the
Congress to implement and give effect to the Fourteenth
Amendment to the Federal Constitution. This provision,
as presently contained in the United States Code, Title 8',
Section 42 (14 Stat. 27) provides as follows:
“ All citizens of the United States shall have the
same right in every state and territory, as is en-
62a Ibid.
20
joyed by white persons thereof, to inherit, purchase,
lease, sell, hold, and convey real and personal prop
erty.” [Act of April 9, 1866, c. 31, Sec. 1 (R. S.
1978).]
The United States Supreme Court in its decisions has
noted that Congress considered the right to acquire an
interest in real property so vital to the enjoyment of all
other liberties that it first enacted this provision in 1866
before the adoption of the Fourteenth Amendment.68 In
invoking the protection afforded by this provision, the
Supreme Court has held, Buchanan v. Warley, 245 U. S. 60,
79 (1917), that it operates “ to qualify and entitle a colored
man to acquire property without state legislation discrim
inating against him solely because of color.” Accord:
Shelley v. Kraemer, 334 U. S. 1, 11-12 (1948). The high
Court has also held that this provision protects the right
of Negroes to acquire an interest in real property free
from discriminatory action on the part of the Federal gov
ernment. Hurd v. Hodge, 334 U. S. 24 (1948).
In Woodbridge, et al. v. The Housing Authority of
Evansville, et al.,&i a Federal district court ruled that the
right to “ lease” property is a civil right protected by
this enactment from discrimination on the basis of race
or color. In that case, qualified low income Negro families
had been denied consideration for admission and admis
sion to a new low rent project built pursuant to the pro
visions of the basic statute involved in this case. The de
fendant local housing officials had defended on the ground
that separate facilities ( a PWA project built 16 years prior
thereto) had been provided, and would be provided by
the proposed program, for low income Negro families. The 63 64 *
63 Shelley v. Kraemer, 334 U. S. 1, 10-11 (1948). This statute
was reenacted by the Congress after the Fourteenth Amendment was
adopted. Act of May 31, 1870, Sec. 18 (16 Stat. 140, 144, c. 114).
64 U. S. D. C. S. D. Ind. Civil Action No. 618, Findings of Fact
and Conclusions of Law, filed July 6, 1953.
21
district court ruled that the denial of consideration for
admission and the denial of admission, solely because of
race and color, violated this provision. Likewise with re
gard to the policy of enforced racial segregation “ in public
housing financed by public funds and supervised and con
trolled by public agencies.”
In Va/m, et al. v. Toledo Metropolitan Mousing Author
ity, a case similar to the Woo(lbridge case, another federal
district court made similar rulings with regard to this
Civil Bights Statute.05
Thus the right of Negroes to “ lease” or to acquire any
interest in real property, including Federally-aided low
rent public housing, free from restrictions imposed by the
State or Federal governments which are based upon race
and color is specifically protected by Federal legislation.
C. Protection Afforded By The Constitution Of
The United States
PHA is authorized by the basic statute to make loans,60
annual contributions,67 and capital grants68 to public
housing agencies which have been established pursuant to
state enabling legislation.69 One of the basic amendments
to the 1937 Act by the 1949 Act is an amendment which
requires that there be local determination of the need for 65 66 67 68 69
65 U. S. D. C. N. D. Ohio, Civil Action No. 6989 Journal Entry
and Memorandum Opinion filed June 24, 1953.
66 Act of Sept. 1, 1937, c. 896, 50 Stat. 891, as amended July 15,
1949, c. 338, Title III, 63 Stat. 425, 426, Title 42, U. S. C., Sec. 1409.
67 Ibid, 50 Stat. 892, as amended by Act of July 15, 1949, c. 338,
Title III, 63 Stat. 427, Title 42 U. S. C., Sec. 1410.
68 Ibid, 50 Stat. 891, 893, as amended by Act of July 15, 1949,
c. 338, Title III, 63 Stat. 430, Title 42, U. S. C., Sec. 1411.
69 Ibid, 50 Stat. 889, as amended by Act of July 15, 1949, c. 338,
Title III (11), 63 Stat. 429, Title 42, U. S. C„ Sec. 1402(11).
22
low-rent housing in the community involved.70 It provides
that the local governing body must, by resolution, approve
the application of the local public agency for a preliminary
loan and must enter into a cooperation agreement with the
local public agency. In other words, the project must be
the result of state as well as federal action. No provision
of the basic statute requires or permits local public agencies
or PH A to determine by which race or color of low income
families a particular project assisted under the Act shall
be occupied. PHA permits local authorities to decide the
racial occupancy patterns which shall obtain in the various
projects of the local program. This determination is set
forth in the Development Program, the basic document sub
mitted to the PHA by the local agency for PHA’s approval
of the local program. Once PHA approves the Develop
ment Program, the local program then becomes a joint
venture or partnership arrangement whereby the state
g'overnment, through one of its subdivisions or agencies,
and the federal government, through PHA, jointly carry
out the planning, construction, operation, and maintenance
of the projects. The housing unit made available to a
qualified low income family is therefore distinctly public—
the product of combined federal-state action, to which
federal constitutional proscriptions are applicable.
1. The F ourteen th A m endm ent
The Fourteenth Amendment to the Federal Constitution
has consistently been construed by the United States
Supreme Court as prohibiting discriminatory state action
based solely on race and color, and has been held to enjoin
such action on the part of the state, whether the result
of action on the part of its legislative arm, Strauder v.
West Virginia, 100 U. S. 303 (1880) ; Buchanan v. Warley,
245 U. S. 60 (1917); its judicial arm, Shelley v. Kraemer,
334 U. S. 1 (1948); Barrows v. Jackson, United States
70 Ibid, 63 Stat. 422, Title 42, U. S. C., Sec. 1415(7).
23
Supreme Court, Oct. Term, 1952, No. 512 decided June
15, 1953; or its administrative arm, Ex parte Virginia,
100 U. S. 339 (1880).
In cases involving suits against local housing authorities
to enjoin racial discrimination in low rent public housing
where the local authority has determined upon a policy
of racial discrimination, including racial segregation
policies, the constitutional question which arises is whether
the defendant members of the local authority, who are the
administrative or executive arm of the state, may enforce
a policy which results in denying the Negro plaintiffs, who
are qualified low income families, the right to occupy real
property, a unit in a public housing project, solely because
of race and color.
In Buchanan v. Warley, supra, the United States
Supreme Court declared unconstitutional action on the part
of the legislative arm of the state, a city ordinance, designed
to bar Negroes from occupying as homes houses in blocks
where the majority of residences were occupied by white
families. The ordinance similarly denied white persons
the right to occupy houses in blocks where the majority
of houses were occupied by Negro families. In striking
down this legislative fiat the court said, at page 79:
“ The Fourteenth Amendment and these statutes
enacted in furtherance of its purpose operate to
qualify and entitle a colored man to acquire property
without State legislation discriminating against him
solely because of color.”
The court said that the “ concrete question” before it
was, at page 75:
“ May the occupancy, and necessarily, the pur
chase and sale of property of which occupancy is an
incident, be inhibited by the State or by one of its
municipalities, solely because of the color of the
proposed occupant of the premises?”
24
The precise question decided by the court in this case,
however, was whether the white seller, who brought the
action for specific performance of the contract for the sale
of his property to the Negro contract vendee, had the right
to dispose of his property free from racial restrictions
imposed by the state. The court held that the ordinance in
question deprived the white seller of his right to dispose
of his property in violation of due process clause of the
Fourteenth Amendment.
But in Shelley v. Kraemer, supra, at page 12, the court
again pointed out that such legislative restrictions are also
constitutionally invalid when applied to bar a Negro who
seeks to occupy real property in certain residential areas.
The court said that this was made clear by its disposition
of the cases of City of Richmond v. Deans, 281 U. S. 704
(1930) and Harmon v. Tyler, 273 U. S. 668 (1927). In
both cases the high Court reversed lower court decisions
upholding legislative restrictions on Negro occupancy by
merely citing Buchanan v. Warley, supra. Since Shelley
v. Kraemer, supra, the Supreme Court has denied certiorari
in City of Birmingham v. Monk, 185 F. 2d 859 (1951), cert,
den. 341 U. S. 940 (1951) where a similar legislative restric
tion against Negro occupants was struck down by the United
States Court of Appeals for the Fifth Circuit.
In Shelleys. Kraemer, supra, the United States Supreme
Court held violative of the equal protection clause of the
Fourteenth Amendment action on the part of the judicial
arm of the state which resulted in prohibiting Negroes from
occupying homes in certain residential areas from which
private individuals sought to exclude them' by private race
restrictive covenants. In order to be effective against
breach, these agreements required action on the part of
the state’s judiciary. The court held that where the
judiciary took action to enforce the discriminatory covenant,
the discrimination ceased to be private action and became
the action of the state. The court said, at page 10:
25
“ It cannot be doubted that among the civil rights
intended to be protected from discriminatory State
action by the Fourteenth Amendment are the rights
to acquire, enjoy, own and dispose of property.”
In Barrows v. Jack-son, supra, the United States
Supreme Court ruled that a state court could not, consistent
with the same constitutional prohibition on state action,
award damages for breach of a private racial restrictive
covenant designed to bar Negroes from occupying certain
residential property, since such action on the part of a
state court deprives Negroes of the right secured to them
by the equal protection clause of the Fourteenth Amend
ment to occupy real property free from state-imposed
restrictions based solely upon race and color. The Court
had previously ruled in Shelley' v. Kraemer, supra, that a
state court could not, consistent with the same constitutional
proscription, give effect to or enforce such covenants by
the issuance of any injunction.
Thus, the United States Supreme Court has specifically
struck down action on the part of both the legislative and
judicial arm of the state which results in denying Negroes
the right to occupy certain real property, holding such
action violative of rights secured to Negroes by the Four
teenth Amendment to the Federal Constitution. The ques
tion in each of these cases was state action. The result
did not turn on the fact that a particular arm of the state,
legislative or judicial, was involved.
In Allen v. Oklahoma City, 175 Okla. 421, 424, 52 Pac.
1054, 1058 (1935), the Supreme Court of Oklahoma struck
down as invalid and void an executive order issued by the
Governor of the State of Oklahoma requiring racial segre
gation in residential areas.
In Vann, et al. v. Toledo Metropolitan Housing Au
thority, supra, and Woodbridge, et al. v. The Housing
Authority of Evansville, et al., supra, two federal district
courts have squarely held that local public housing au-
26
tliorities may not, consistent with the Fourteenth Amend
ment, enforce a policy of racial segregation in federally-
aided low rent public housing projects.
A similar ruling involving federally-aided projects was
made by the Superior Court of San Francisco in Banks,
et al. v. San Francisco Housing Authority?11 and by the
Superior Court of Essex County, New Jersey in Seawell,
et al. v. MacWithey, et al.,12 involving a state-aided veterans
public housing project.
The effect of these rulings is to bring the State’s execu
tive or administrative arm under constraint of Fourteenth
Amendment prohibitions, where property rights are in
volved.
a. The Separa te But Equal D octrine
In Favors v. Randall, 40 F. Supp. 743 (1941), a federal
district court applied the separate but equal doctrine in a
case involving racial segregation in Federally-aided low
rent public housing projects. In that case, the complaint
alleged that Negroes were being discriminated against by
the certification of tenants for occupancy on the basis of
race and color. The court in denying a temporary injunc
tion found that Negroes were to receive a larger propor
tionate share of the available units than their propor
tionate need determined. The court concluded from this
fact that there was no discrimination, as alleged, and ruled
that since the Fourteenth Amendment required a “ legal”
equality as distinguished from “ social” equality, no Con
stitutional rights of the plaintiffs had been violated. The
court, relying on Plessy v. Ferguson,13 expressly rejected 71 72 73
71 Superior Court in and for San Francisco County, No. 420534,
October 1st, 1952.
72 2 N. J. Super. 255, 63 Atl. 2d 542 (1949); reversed on other
grounds, 2 N. J. 563, 67 Atl. 2d 309 (1949).
73163 U. S. 537 (1896).
27
the argument of the attorneys for the plaintiffs that “ equal
rights” could be secured only by “ enforced commingling
of the two races” .
In Plessy v. Ferguson, supra, the United States Supreme
Court for the first time specifically upheld the doctrine of
separate but equal. The Court ruled in that case that the
state’s requirement of separate but equal railroad facilities
for Negro and white passengers did not violate any rights
secured to the individual by the equal protection clause of
the Fourteenth Amednment to the Federal Constitution.
Twenty-one years later the high Court was asked to hold the
same with respect to the state’s requirement of racial
segregation in housing in Buchanan v. Warley, supra, but
the Court expressly refused to do so. The Court said, at
page 79 :
“ The defendant in error insists that Plessy v.'--.
Ferguson, * * * is controlling in principle in favor
of the judgment of the court below * * * it is to be
observed that in that case there was no attempt to
deprive persons of color of transportation in coaches
of the public carrier, and express requirements were .
for equal though separate accommodations for white
and colored races * *
“ As we have seen, this court has held laws valid
which separated the races on the basis of equal
accommodations in public conveyances, and courts of
high authority have held enactments lawful which
provide for separation in the public schools of white
and colored pupils where equal privileges are given.
But, in view of the rights secured by the Fourteenth
Amendment to the Federal Constitution, such legis
lation must have its limitations, and cannot be sus
tained where the exercise of authority exceeds the
restraints of the Constitution. We think these limi
tations are exceeded in laws and ordinances of the
character now before us” (p. 81).
In Favors v. Randall, supra, the court made no refer
ence to Buchanan v. Warley, supra, or to Title 8, Section
42, United States Code. Instead of following the Buchamm
case, the court in the Favors case reverted to Plessy v.
Fergmon and held separate but equal applicable. This
may have been due to the fact that plaintiff did not argue
that property rights protected by the Fourteenth Amend
ment and Title 8, U. S. C., Sec. 42, were involved, but
argued that “ social rights” or the right of persons to
“ commingle” wTas at stake.
Since the decision of the federal district court in the
Favors case, the United States Supreme Court has decided
the Restrictive Covenant Cases where it expressly affirmed
Buchanan v. Warley, supra, and again rejected a separate
but equal argument. In Shelley v. Kraemer, supra, the
Court was asked by the covenantors to consider that Ne
groes might enter into restrictive agreements barring
whites from their neighborhoods. In rejecting this argu
ment, the Court said, at pages 21-22 :
“ Respondents urge, however, that since the
state courts stand ready to enforce restrictive cove
nants excluding white persons from the ownership
or occupancy of property covered by such agree
ments, enforcement of covenants excluding colored
persons may not be deemed a denial of equal pro
tection of the laws to the colored persons who are
thereby affected. This contention does not bear
scrutiny. The parties have directed our attention
to no case in which a court, state or federal, has been
called upon to enforce a covenant excluding members
of the white majority from, ownership or occupancy
of real property on grounds of race or color. But
there are more fundamental considerations. The
rights created by the first section of the Fourteenth
Amednment are, by its terms, guaranteed to the
individual. The rights established are personal
rights. It is, therefore, no answer to these peti
tioners to say that the courts may also be induced
to deny white persons rights of ownership and oc
cupancy on grounds of race or color. Equal pro
tection of the laws is not achieved through indis
criminate imposition of inequalities.”'
29
*
In Woodbridge et al. v. The Housing Authority of
Evansville, Indiana, et al., supra, the federal district court
ruled the separate but equal doctrine inapplicable to prop
erty rights.
The court, in its Conclusions of Law, said:
“ That the defendants’ theory of defense, namely
that plaintiffs and members of their class are not
being discriminated against due to the defendants’
furnishing ‘ separate but equal ’ low rent public hous
ing facilities to plaintiffs and members of their class,
is not tenable in view of the weight of authority as
expressed in a large majority of recent decisions.
As stated in a decision rendered June 24, 1953 by
Judge Prank L. Kloeb of The United States District
Court for the Northern District of Ohio, in an action
involving a similar situation, ‘ You must bear in mind
here that we have projects erected with public funds,
erected by the Government of the United States, and
the Government does not segregate its tax receipts.
* * * We are here dealing Avith property rights as
distinguished from the mere right to a public service. ’
“ It is the conclusion of this court, that the case
of Plessy v. Ferguson, 163 U. S. 537, decided in 1895,
on which defendants heavily rely to sustain their
‘separate but equal’ theory of defense, has, by many
decisions of the Supreme Court of the United States
in recent years, lost most, if not all, its weight as a
guide in cases concerning ownership or occupancy of
real property as distinguished from those cases in
volving a public service.
‘ ‘ In the case at hand, we have more than a public
service. Here we have a contractual relation in
volving a lease of real property for which the tenant
must pay a valuable consideration in the form of
monthly rent.”
In Vann, et al. v. Toledo Metropolitan Housing Author
ity, supra, the federal district court said in its Memo
randum Opinion:
30
“ The trend of all of the later cases involving
property rights is to conform strictly with the re
quirements of the Fourteenth Amendment and of the
Civil Rights Statutes.”
In Banks, et al. v. San Francisco Housing Authority,
supra, the Superior Court of San Francisco said:
‘ ‘ The main question posed, then, at this stage by
demurrer, is whether or not this public agency can
exclude Negro persons solely because they are
Negroes, from five of these projects and segregate
them into the sixth. Is such segregation unlawful
discrimination?
“ The Fourteenth Amendment to the Constitu
tion of the United States has uniformly been held to
protect all persons, white or colored, against dis
criminatory legislation or action by the states or its
agencies. It is the contention of the Housing Au
thority that they comply with this basic law in offer
ing Negroes equal accommodations and facilities
separately at Westside, even though they deprive
them of the right to admission at the five other
developments.
“ However, it is clear to the Court that although
at one time the ‘separate but equal’ doctrine was
upheld as not being discriminatory treatment and
followed in certain types of activities, nevertheless,
since it was first enunciated in the Plessy v. Fergu
son case (163 U. S. 537) (1895), it has in later years
lost its force by reason of the holdings in many other
cases showing that it has no application to owner
ship or occupancy of real property. Discrimination
by segregation of housing facilities and attempts to
control the same by restrictive covenants have been
outlawed by our Supreme Court. * * *
“ By extension of the logic and reason of those
cases, it is apparent that that doctrine should not
apply to a public housing project, financed by public
funds and supervised and controlled by a public
agency. ’ ’
b. Police Power And Property Values
In Buchanan v. Worley, supra, justification for the city
ordinance requiring residential racial segregation was
sought on several grounds. One ground was that the state
had the power to pass such an ordinance in the exercise of
the police power “ to promote the public peace by prevent
ing racial conflict”.
In response to this argument the Court said,, at pages
74-75:
“ The authority of the state t<| pass laws in the
exercise of the police power, having for their object
the promotion of the public health, safety, and wel
fare, is very broad, as has been affirmed in numerous
and recent decisions of this court. % * * But it is
equally well established that the police power, broad
as it is, cannot justify the passage of a law or ordi
nance which runs counter to the limitations of the
Federal Constitution; * * *
“ True it is that dominion over property spring
ing from ownership is not absolute and unqualified.
The disposition and use of property may, be con
trolled, in the exercise of the public health, con
venience, or welfare. * # * Many illustrations might
be given from the decisions of this court and other
courts, of this principle, but these cases do not touch
the one at bar.
“ The concrete question here is: May the occu
pancy, and, necessarily, the purchase and sale of
property of which occupancy is an incident, be in
hibited by the states, or by one of its municipalities,
solely because of the color of the proposed occupant
of the premises?”
1/ * * *
“ That there exists a serious difficult problem
arising from a feeling of race hostility which the law
is powerless to control, and to which it must give a
measure of consideration, may be freely admitted.
But the solution cannot be promoted by depriving
citizens of their constitutional rights” (at pp. 80-81).
32
Another ground was that in the exercise of the state’s *
police power, the state had the power to pass the ordinance
since “ it tends to maintain racial purity.”
In response to this argument the court Said, at page 81:
“ Such action is said to be essential to the main
tenance of the purity of the races, although it is to
he noted in the ordinance under consideration that
the employment of colored servants in white families
is permitted, and nearby residences of colored per
sons not coming within the blocks, as defined in the
ordinance, are not prohibited.
“ The case presented does not deal with an
attempt to prohibit the amalgamation of the races.
The right which the ordinance annulled was the civil
right of a white man to dispose of his property if
he saw fit to do so to a person of color, * * * ”
Another ground on which justification for the ordinance
was sought was that colored purchases depreciated prop
erty in white neighborhoods.
In response to this argument the court said, at page 82:
“ But property may be acquired by undesirable
white neighbors, or put to disagreeable though law
ful uses with like results.”
2. The Fifth Amendment
The due process clause of the Fifth Amendment to the
Federal Constitution has been construed as affording pro
tection against discriminatory action on the part of the
national government if based solely upon race, color or
ancestry. See, Hirabayashi v. United States, 320 U. S. 81,
100 (1943); Korematsu v. United States, 323 U. S. 214, 216
(1944); Wong Yim v. United States, 118 F. 2d 667, 669
(1941) cert. den. 61 S. Ct. 1112 (1941). It is clear from
these decisions that the Court’s statements regarding
racially discriminatory governmental action portends its
decision in this case. In two cases, the Court said:
-------^
33
“ Distinctions between citizens, solely because of
their ancestry, are by their very nature odious to a
free people whose institutions are founded upon the
doctrine of equality.” Hirabayashi v. United States,
supra.
“ * * * all legal restrictions which curtail the
civil rights of a single racial group are immediately
suspect. That is not to say that all such restrictions
are unconstitutional. It is to say that courts must
subject them to the most rigid scrutiny. Pressing
public necessity may sometimes justify the existence
of such restrictions; racial antagonisms never can.”
Korematsu v. United States, supra.
In Hurd v. Hodge, and Urciolo v. Hodge, 334 U. 8. 24
(1948), two District of Columbia cases involving federal
judicial enforcement of private race restrictive covenants,
heard and determined at the same time that the United
States Supreme Court heard and determined Shelley v.
Kraemer and Sipes v. McGhee, 334 U. S. 1 (1948), involv
ing state judicial enforcement of such agreements, the
United States Supreme Court simply found it unnecessary
to invoke the due process clause of the Fifth Amendment
to protect the right of Negroes to occupy real property
without discriminatory interdiction on the part of the fed
eral judiciary. The Court had, in the Shelley case, supra,
ruled that the right of Negroes to occupy real property
was protected against discriminatory action by the state’s
judiciary by the equal protection clause of the Fourteenth
Amendment to the Federal Constitution. In the Buchanan
case, supra, the Court held that the enforcement of the
ordinance interfered with the white seller’s right to dispose
of his property in violation of the due process clause of the
Fourteenth Amendment.
If the right to acquire, occupy and dispose of real prop
erty is protected by the equal protection and due process
clauses of the Fourteenth Amendment to the Federal Con
stitution, is not this basic civil right, which is also given
supplementary protection by Title 8, U. S. C., Sec. 42, like-
34
wise protected against discriminatory federal action by the
due process clause of the Fifth Amendment? Certainly it
cannot be presumed that such a basic right is protected
against discriminatory governmental action by the due
process clause of the Fourteenth Amendment but not by
the identical clause of the Fifth Amendment against federal
action. Such a presumption would indeed be a legal
anomaly.
In Hurd v. Hodge, supra, the Supreme Court said, with
respect to discriminatory federal action and the due process
clause of the Fifth Amendment, at page 30:
“ * * * we have found it unnecessary to resolve
the constitutional issue which petitioners advance;
for we have concluded that judicial enforcement of
restrictive covenants by the courts of the District of
Columbia is improper for other reasons * * * ”
—for the reason that Title 8, U. S. C., Sec. 42 is directed
against governmental action.
In deciding whether judicial enforcement of such cove
nants by the District Court for the District of Columbia was
governmental action prohibited by Title 8, U. S. C., Sec. 42,
the Court said that it must refer to :
“ * # # the scope and purpose of the Fourteenth
Amendment; for that statute and the Amendment
were closely related both in inception and in the
objectives which Congress sought to achieve” (at
p, 32).
The Court concluded that its holding in Shelley v. Krae-
mer, supra, is :
“ * * * clearly indicative of the construction to
be given to the relevant provisions of the Civil
Eights Acts in their application to the courts of the
District of Columbia” (at p. 33).
The Court concluded:
“ * * * the explicit language employed by Con
gress to effectuate its purposes, leaves no doubt that
judicial enforcement of tlie restrictive covenants by
the courts of the District of Columbia is prohibited
by the Civil Rights Act, That statute, by its terms,
requires that all citizens of the United States shall
have the same right ‘as is enjoyed by white per
sons * * # to inherit, purchase, lease, sell, hold and
convey real and personal property’
By the same method of reasoning, this court should have
no difficulty in finding a violation of the due process clause
of the Fifth Amendment in federal administrative require
ment or sanction of racial segregation in public housing.
D. Protection Afforded By Considerations Of
Public Policy
In addition to finding in Hurd v. Hodge, supra, that
Title 8, U. S. C., Sec. 42 had been violated by federal court
enforcement of private racial covenants, the United States
Supreme Court said, at page 34:
“ But even in the absence of the statute, there
are other circumstances which would indicate that
enforcement of restrictive covenants in these cases
is judicial action contrary to the public policy of the
United States.’'’
“ The power of the federal courts to enforce the
terms of private agreements is at all times exercised
subject to the restrictions and limitations of the
public policy of the Unted States as manifested in
the Constitution, treaties, federal statutes and appli
cable legal precedents.”
The United States Supreme Court has held, as pointed
out above, that the Fourteenth Amendment to the Federal
Constitution protects the right of Negroes to occupy real
property free from discriminatory state action. Buchanan
v. Worley, supra, Shelley v. Kraemer, supra, Barrows v.
Jackson, supra. In Hurd v. Hodge, supra, and Shelley case,
the court held that Title 8, U. S. C., Sec. 42, clearly entitles
Negroes to protection against governmental action which
36
would deprive them, solely because of race or color, of
the right to occupy real property. Therefore, the Consti
tution, laws and applicable legal precedents make manifest
that the public policy of the United States is one which
prohibits federally imposed or sanctioned racial restric
tions upon the occupancy of real property.
In Woodbridge, et al. v. Housing Authority of Evans
ville, et al., supra, the court ruled that the action of the
Public Housing Administration, similar to its action in the
instant case, in approving the limitation in that case of a
new federally-aided project to white occupancy violated
the public policy of the United States.
Certainly it could not be seriously contended that the
public policy of the United States “ manifests a lesser con
cern for the protection of such basic rights against dis
criminatory action of federal” administrative officials
“ than against such action taken by the courts of the
States” or by State-administrative officials, cf. Hurd v.
Hodge, supra, at 35-36.
III. Congress In tended T h a t T here Be No Segre
gation.
A. Legislative History— Senate
Congress did not expressly provide, in the Housing
Act of 1949, that there shall be no discrimination or segrega
tion. Did Congress intend to permit such segregation and
discrimination? It is true that at the time that the Housing
Act of 1949 was before Congress for consideration, an
attempt was made to include an amendment prohibiting
‘ ‘ discrimination ” and “ segregation. ’ ’ 74 This attempt was
defeated. But the truly decisive question in this connection
is “ Why the noes?” The answer to this question was
74 Congressional Record, Vol. 95, P art 4 (P age 4791), 81st Con
gress, 1st Sess.
37
articulated in the Senate by Senator Douglas (D-Ill.) who,
in his remarks opposing the Amendment introduced by
Senators Brieker (R-O) and Cain (R-Wash.), challenged
the sincerity of the Senate proponents of the Amendment.7®
Debate over the Cain-Bricker Amendment reveals that
it was introduced by Senator Brieker who was on record
as opposed to public housing and who would not have
voted for public housing even if his Amendment to the
Act had been adopted.75 76 It, therefore, became apparent to
the so-called liberal northern and western Senators, the
civil rights proponents, that the Cain-Bricker anti-discrimi
nation amendment was in reality a sinister political strata
gem for ultimately defeating the public housing program.
The Congressional Record discloses that the plan to kill
public housing was as follows: Senator Brieker and other
northern Republicans who were opposed to public housing
would vote with civil rights northern and western senators
to carry the Amendment. Once the Amednment had been
incorporated into the Bill by this coalition, Senator Brieker
and his Republican foes of public housing would then form
a coalition with southern Democratic senators who would
then vote against the public housing provisions of the Act;
the southern Democrats voting against the Bill because it
required “ no discrimination or segregation”, and Senator
Brieker, plus other Republican public housing adversaries,
voting against public housing.
If Senator Douglas had not brought out into the open the
fact that Senator Brieker was using the anti-discrimination
amendment as a calculated device for defeating the public
75 Congressional Record, Volume 95, Part 4 (pages 4851-4858)
81st Congress 1st Sess.
76 Congressional Record, Volume 95, Part 4 (pages 4851-4852)
Cong. 1st Sess. April 11th, 1949 to May 4th, 1949:
“Mr. Brieker: My position was made clear yesterday.
I am in favor of the slum elimination section. I am opposed
to the public housing section, and I am opposed to the farm
housing section.”
38
housing program and if he, and other civil rights senators
had not been willing to jeopardize their own political
futures, they would have been forced, by self-serving poli
tical considerations, to vote for the Amendment, and then
see that Amendment become the major cause for defeat
ing the entire public housing section of the Housing Act
of 1949. Senator Douglas and other northern and western
Senators, expressly for the record, made it clear that they
were in favor of prohibiting segregation and discrimination
in federally-aided public housing projects, and that it was
not their intention by voting ‘ ‘ no ’ ’ on the anti-discrimina
tion amendment to indicate that they were in favor of dis
crimination or segregation. These senators, who were for
both public housing and safeguarding the rights of minority
groups, realized that in putting themselves squarely on
record they would preclude possible future judicial or
administrative determination that their failure to adopt the
anti-discrimination amendment meant they favored segre
gation or discrimination.77
Finally, it was the understanding of the Senate that not
only was the Cain-Bricker Amendment a cunning device
for defeating public housing, but it was further the under
standing of the Senate, as pointed out by Senator Hum
phrey (D-Minn.), that such an amendment would have been
superfluous in view of the protective civil rights measure
in the United States Code which expressly applied (Title
8, United States Code, Sec. 42).78 Thus, neither distortion
77 Congressional Record, Volume 95, Part 4 (page 4855) 81st
Cong., 1st Sess.
78 Congressional Record, Volume 95, Part 4 (page 4853) 81st
Cong. 1st Sess.:
“Mr. Humphrey: Is it not true that under the statutes
of our Nation, under the United States Code, we have basic
civil-rights protections which can be applied, by the Courts
of the United States, and by the executive departments ?”
“Mr. Douglas : I think there was a civil-rights law in
1886 on this issue.”
39
nor exaggeration is the basis for Appellants ’ assertion that
it was not the intention of the Congress of the United States
in failing to adopt the anti-discrimination amendment to
permit adoption of segregation policies by the PIIA or by
local public agencies.
B. Legislative History— House
An attempt to include an anti-discrimination amendment
in the Housing Act of 1949 was also made in the House
by Representative Fulton (R-Pa.).79
An amendment was also introduced by Representative
Marcantonio (A. L. P.-N. Y.). Although there was no
direct attack upon the motives of Representative Fulton
(R-Pa.), or Representative Marcantonio (A. L. P.-N. Y.),
Representative Buchanan (D-Pa.) who spoke in opposition
to the Marcantonio amendment pointed out that the issue
before the House was identical with the one before the
Senate which, on the previous day, had defeated the Cain-
Bricker amendment. Mr. Buchanan said, “ The issue is
whether we shall have an effective national-housing pro
gram offering decent shelter for underprivileged low-income
families of every race, creed, or color, or whether wTe shall
sacrifice the opportunity for such a program for an empty
prohibition against racial segregation in low-rent public
housing.” * * *
“ I want to make my own position very clear. I am
personally opposed to racial segregation in housing. I
know that many of my colleagues from the North and West
share my views on the matter * * * ”
“ * * * Without impugning anyone’s motives or sin
cerity, I must point out that this amendment is the favorite
secret weapon of the real estate lobby to kill this bill. That
issue was well-aired in the other body when a similar
amendment was voted down after extensive debate, * * * ”
79 Congressional Record, Vol. 95, P art 7 (pages 8554-8555),
81st Cong. 1st Sess.
40
“ * * * I challenge the members on the other side of
the aisle who will support this amendment to make clear
whether they do so in support of an effective housing pro
gram, or in an effort to kill the housing- bill and at the same
time gain a supposed political advantage by giving lip
service to non-segregation.” 80
IV. A ppellan ts H ave S tanding To Sue.
A. The Relief Sought
In their prayer for relief Appellants seek first a declara
tory judgment declaring (a) that the Defendants, Appel
lees here, cannot give federal financial assistance or other
federal assistance to the Housing Authority of Savannah,
Georgia, for the construction and/or operation of a project
built pursuant to the provisions of the basic statute in
volved in this case, from which Appellants will be excluded
and denied consideration for, and admission to, solely
because of race and color, in violation of the Constitution,
laws and public policy of the United States; (b) that Appel
lants, and all other Negroes similarly situated, cannot be
denied consideration for admission and/or admission to
the Fred Wessels Homes or any other federally-aided hous
ing project solely because of their race and color; (c) that
the preference for admission to the Fred Wessels Homes
or any other federally-aided low- rent housing project in
the City of Savannah, Georgia, conferred on Appellants,
and all other Negroes similarly situated, by Section 1410(g)
of Title 42, U. S. C. may not be qualified or limited by race
or color (Joint Appendix 12-13).
In addition to a declaratory judgment declaring the
foregoing, Appellants pray an injunction enjoining Appel
lees from giving federal financial and/or other assistance
80 Congressional Record, Volume 95, P a rt 7 (pp. 8656-8657),
81st Cong. 1st Sess.
41
to the local authority for the construction and operation
of the project, and for such other and further relief as to the
Court shall seem just and proper (Joint Appendix 13-14).
B. This Is Not A T axpayer’s Action
The court below expressed doubt whether Appellants
have standing* to maintain this action in view of the doctrine
enunciated in Mass. v. Mellon, supra-.
Mass. v. Mellon, supra, was an original suit in the United
States Supreme Court brought by the State of Massachu
setts against Andrew W. Mellon, then Secretary of the
Treasury, and other government officials to enjoin them
from enforcing the provisions of an act of Congress known
as the Maternity Act. This act provided for financial
assistance to the states to assist in a program to reduce
maternal and infant mortality. Although Massachusetts
had not accepted any of the benefits offered by the federal
government and had therefore not accepted the operations
of the act within its borders, it nevertheless complained that
its constitutional rights were infringed by the mere passage
of the act.
The case of Mass. v. Mellon, supra, was decided and
considered with the ease of Frothingham v. Mellon, 262
U. S. 447 (1923). The Frothingham case was brought in
the Supreme Court of the District of Columbia by Harriet
A. Frothingham against the same defendants similarly
seeking to enjoin the enforcement of the Maternity Act.
Frothingham. alleged that she was a taxpayer of the United
States and that the effect of the statute would be to take her
property, under guise of taxation, without due process of
law.
The United States Supreme Court ruled that both cases
must be dismissed for want of jurisdiction, without con
sidering the merits of the constitutional questions, since no
justiciable case or controversy was presented.
42
With respect to Massachusetts the court ruled that it
presented no justiciable controversy either in its own behalf
or as the representative of its citizens. The Court ruled
that since the statute imposed no obligation, but simply
extended an option which the State was free to accept or
reject, the powers of the States were not invaded. The
burden, if any, the Court declared, was one of taxation
and that would fall on the citizens of the State and not
on the State—the citizens being within the taxing power of
Congress. Since the real contention of the State was that
Congress by the mere enactment of the statute, had usurped
the power of the State, the Court ruled that it was clear
that the question as presented was “ political” rather than
“ judicial” . The Court held, finally, with respect to Massa
chusetts that it was without power to represent its citizens
in a suit involving the relations of its citizens with their
federal government.
With respect to the Frotkingham case, the Court ruled
that the Appellant had “ no such interest in the subject-
matter, nor is any such injury inflicted or threatened, as
will enable her to sue.” The Court said that the interest
of a taxpayer of the United States “ in the moneys of the
Treasury—partly realized from taxation and partly from
other sources—is shared with millions of others; is com
paratively minute and indefinite; and the effect upon future
taxation of any payment out of the funds so remote, fluctuat
ing, and uncertain that no basis is afforded for an appeal
to the preventive powers of a court of equity.”81 The
Court said further that it has “ no power per se to review
and annul acts of Congress on the ground that they are
unconstitutional. That question may be considered only
when the justification for some direct injury suffered or
threatened, presenting a justiciable issue, is made to rest
upon such an act. Then the power exercised is that of
ascertaining and declaring the law applicable to the con
81 Massachusetts v. Mellon, 262 U. S. 447, 487.
43
troversy. * * * The party who invokes the power must be able
to show not only that the statute is invalid, but that he has
sustained or is immediately in danger of sustaining, some
direct injury as the result of its enforcement, and not merely
that he suffers in some indefinite way in common with people
generally” .82
In the instant case, Appellants obviously do not bring
this action as or on behalf of the State of Georgia. Neither
do they bring this action to enjoin the expenditure of fed
eral funds, per se, for low rent housing as taxpayers of
the United States. They do not even allege in their com
plaint that they are taxpayers of the United States. They
do not allege, as Frothingham did, that the effect of the
basic statute involved in this case will be to take their
property without due process of law. It is therefore clear
that they do not bring this action in their capacity as tax-
paying citizens seeking to enjoin the expenditure of federal
funds for low rent public housing, per se, in which case
they would not present a justiciable controversy. Froth
ingham, v. Mellon, supra.
C. The Justiciable Issue
Appellants bring this action, first, as persons speci
fically aggrieved by the administration of the Federal Gov
ernment’s low rent housing program by the Appellees,
that is, as persons whose constitutionally and legislatively
protected property rights are being violated by Appellees.
Secondly, they bring this action as members of a class,
low income families, for whose specific benefit the federal
government’s low rent housing program has been provided
and which they will be illegally denied the benefits of by
Appellees.
Thirdly, they bring this action as persons and as mem
bers of a class, displaced families, whose right to a prefer
82 Ibid, 488.
44
ence for admission to any federally-aided low rent housing
project in Savannah initiated after January 1, 1947 is being
denied by Appellees.
Fourthly, they bring this action to redress the violation
of their constitutionally and legislatively protected prop
erty right, which is the right not to be denied occupancy of
real property solely because of race and color, by having
the court declare as prayed in their prayer for relief and
by having the court enjoin Appellees from giving the
necessary federal financial assistance and other assistance
for the construction, operation, and maintenance of the
project from which they will be excluded and denied admis
sion solely because of race and color in violation of their
constitutionally and legislatively protected property right.
Appellants do not seek to enjoin the expenditure of
federal funds for low rent housing, per se. In fact, they
greatly desire, need, and seek admission to decent, safe,
and sanitary housing which would be within their reach
financially. They seek to enjoin expenditures for an illegal
project, i. e., one from which they shall be excluded and
denied admission, solely because of race and color, on the
ground that such an expenditure by Appellees is illegal and
may be enjoined. Compare Crampton v. Zabriskie, 101
U. S. 601 (1880) where the United States Supreme Court
affirmed the exercise of equity powers by a federal court
to enjoin the illegal expenditure of municipal funds in an
action by resident taxpayers. Compare also Illinois ex rel.
McCollum v. BA. of Education, 333 U. S. 203 (1948) where
appellant taxpayer and parent of child attending the public
schools was able to enjoin the use of public school property
for religion instruction in violation of the First Amend
ment to the Federal Constitution.
The expenditure of funds for the illegal project makes
the illegal project possible, thus making possible the denial
of Appellants’ right by Appellees and the Housing Au
thority of Savannah, Georgia. The fact that the expendi
45
ture, per se, may be an indirect injury or “ does not fall
into any familiar category”, or has never before been
asserted, is not determinative of the issue of justiciability,
cf Joint Anti-Fascist Refugee Committee v. McGrath, 341
U. S. 123, 157 (1951). Shelley v. Kraemer, supra -, Barrows
v. Jackson, supra. “ Only on the ground that * * * no
interest protected in analogous situations at common law,
by statute or by the Constitution * * * can plausible chal
lenge to” Appellants standing to sue be made. Joint Anti-
Fascist Refugee Committee v. McGrath, supra, at 159. “ The
touchstone to justiciability is injury to a legally protected
rights * # * ” Joint Anti-Fascist Refugee Committee v.
McGrath, supra, at 140-141. Here Appellants assert that
their right not to have their Federal Government or one of
its agencies participate in, by giving financial and other
assistance to the project in controversy, thus giving effect
to the discrimination against them, is a right protected
by the Constitution, laws and public policy of the United
States. Shelley v. Kraemer, supra-, Barrows v. Jackson,
supra. The United States Supreme Court said in Joint
Anti-Fascist Refugee Committee v. McGrath, supra, at 140-
141, in an analogous situation involving indirect injury:
“ It is unrealistic to contend that because the
respondents gave no orders directly to the petition
ers to change their course of conduct, relief cannot
be granted against what the respondents actually did.
We long have granted relief to parties whose legal
rights have been violated by unlawful public action,
although such action made no direct demands upon
them. Columbia Broadcasting System v. United
States, 316 U. S. 407 * # *; Pierce v. Society of Sis
ters, 268 U. S. 510 # * #; Buchanan v. Warley, 245
U. S. 60; * * * Truax v. Raich, 239 U. S. 239.”
46
Conclusion
Restrictions on the right of Negroes to occupy certain
real property were first imposed by racial zoning ordi
nances of the type held constitutionally invalid in Buchanan
v. Warley, supra. After the decision in the Buchanan
case, these restrictions were effected through judicial en
forcement of private racial restrictive covenants. This
form of state action was held violative of constitutional
rights of Negroes in the Restrictive Covenants Cases,
Shelley v. Kraemer, supra; Hurd v. Hodge, supra; Barrows
v. Jackson, supra. With this high Court intervention re
straining state and federal action restricting occupancy of
real property because of race, it would appear that the
housing supply had been freed of governmentally imposed
racial restrictions.
But since the early 1930’s, the United States Govern
ment with its extensive funds, credits and powers has
become increasingly involved in the planning, development,
marketing and management of dwellings. Through direct
loans, grants and subsidies, as in this case, Federal assist
ance has become involved in the development of a significant
part of the housing supply, i.e., housing available to fami
lies of low income. The Federal assistance is granted, not
directly to individual residents or private developers but
to local public agencies. In no instance is this aid made
contingent upon meeting the requirements of the 14th
Amendment or Section 42 of Title 8 of the United States
Code; rather, the decision as to whether or not Negroes
shall be completely excluded from federally-aided projects
or segregated within them or otherwise discriminated
against is left almost entirely to the discretion of the local
public agency. The result is that racial discrimination in
housing is now effectuated by administrative action under
47
sanction of the Federal Government itself. The involve
ment of the Federal housing agency in this case is so
extensive as to negate the assertion that it is a local deter
mination devoid of Federal involvement. Federal involve
ment in the determination has the effect of voiding court
decisions prohibiting legislative or judicial enforcement of
racial restrictions upon occupancy of residential property.
Thus, the administrators of this governmental agency have
become primary agents in the establishment and extension
of segregated living. The objective, then, of this action is
to deprive the executive and administrative arm of the Fed
eral Government of its sanction for exclusion of Negroes
from or their segregation in this segment of the housing
supply.
When the Restrictive Covenant Cases were before the
United States Supreme Court for decision, the United
State Government, by the Attorney General and the Solici
tor General, filed a brief in support of Petitioners, asking
the Court to hold judicial enforcement of private racial
restrictive covenants constitutionally prohibited. In its
brief the United States said, at pages 1-2, with regard to
the interest of the Federal Government:
“ The Federal Government has a special respon
sibility for the protection of the fundamental civil
rights guaranteed to the people by the Constitution
and laws of the United States.—
“ * # * It is fundamental that no agency of gov
ernment shall participate in any action which will
result in depriving any person of essential rights
because of race or color or creed.”
48
For these and the foregoing reasons, Appellants respect
fully urge the reversal of the judgment and order of the
court below.
Respectfully submitted,
Frank A. D il .w o r .t h , III,
458 West Broad Street,
Savannah, Georgia;
T h t jr g o o d M a r s h a l l ,
C o n s t a n c e B a k e r M o t l e y ,
107 West 43rd Street,
New York 36, New York;
F r a n k R e e v e s ,
1901 Eleventh Street, N. W.,
Washington 1, D. C.,
Attorneys for Appellants.